Military law.

• Author: Beckley, Jonah
• Position: Conscientious-objector status

Army Denies Conscientious-Objector Status Without Basis in Fact--Hanna v. Secretary of the Army, 513 F.3d 4 (1st Cir. 2008)

A 1962 Department of Defense (DOD) directive authorizes the discharge from service of military members with religiously based conscientious objections to war. (1) A conscientious objection is "a firm, fixed and sincere objection to participation in war in any form ... because of religious training and belief." (2) In Hanna v. Secretary of the Army, (3) the First Circuit considered whether the Army had a "basis in fact" for denying the applicant conscientious- objector status. (4) The court held that the decision of the Department of the Army Conscientious Objector Review Board (Board) was without a basis in fact because the Board lacked hard, reliable, articulable facts for denying the claim. (5)

In 1997, Mary Hanna voluntarily joined the Army's Health Professional Scholarship Program (HPSP). (6) The Army agreed to pay for Hanna's medical school tuition, provided that she enroll in active duty for four years and serve four additional years in the Army Reserve. (7) In October 2005, near the completion of her residency in anesthesiology at Beth Israel Deaconess Medical Center, the Army notified her that she would be deployed to El Paso, Texas. (8) In response, Hanna requested discharge from the Army as a class 1-0 conscientious objector in December 2005. (9)

Hanna grew up as an active member of the Coptic Orthodox Church (COC), serving as a hymn teacher in high school and a Sunday-school teacher while an undergraduate at the University of California, Los Angeles. (10) Despite this upbringing, Hanna began to question her faith in her senior year at UCLA in 1997. (11) In April 1997, Hanna submitted her application for the HPSP scholarship, stating affirmatively that she was not a conscientious objector. (12) Six years later, when her father died in 2003, however, Hanna renewed her faith in religion. (13) Fueled by her rekindled belief in the sanctity of human life, Hanna no longer participated in abortion procedures at the hospital and began observing and attending anti-war events. (14) Hanna's opposition to war in any form crystallized in October 2005. (15)

Colonel John Powers, the Director of Medical Education in the Office of the Surgeon General, along with a military chaplain and a psychiatrist initially reviewed Hanna's application for conscientious-objector status. (16) All three noted potential defects in the application: Powers citing inconsistencies in her mental state when enlisting, the chaplain mentioning discrepancies between Hanna's view on pacifism and that of the COC, and the psychiatrist finding the application "a convenient, if not opportunistic choice." (17) An Investigating Officer (IO) reviewed the reports and--despite the concerns raised--recommended Hanna be classified as a conscientious objector, concluding that her religious, moral, and ethical beliefs made her "opposed to war in any form." (18) Ultimately, after three higher-ranking officers affirmed the IO's decision, the Board denied her conscientious-objector application by a vote of 2-1. (19) In response to this decision, Hanna filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts and sought an injunction to enjoin the Army from ordering her to active duty. (20) The court granted both requests, and on appeal, the First Circuit affirmed the district court's decision that there was no "basis in fact" for the Board's denial and that the Army wrongly denied Hanna conscientious-objector status. (21)

In-service members' right to declare a conscientious objection to participation in war is not derived from an act of Congress or the Constitution, but rather a DOD executive order. (22) Nonetheless, the Supreme Court of the United States has decided that the same rights Congress conferred through the Selective Service Act's conscientious-objection exemption apply to in-service members. (23) Thus, in order to qualify as a conscientious objector, the applicant must prove by clear and convincing evidence that he or she is "conscientiously opposed to war in any form," that his or her "opposition is grounded in religious training and beliefs," and that his or her "position is firm, fixed, sincere, and deeply held." (24) Courts must give great deference to military decisions and will only overturn the Army's decision that the applicant does not meet the standard for a conscientious objector if the decision has no basis in fact. (25)

Accordingly, courts must not weigh the evidence examined by the military board, but merely ensure that the decision reached had a basis in fact. (26) Basis-infact review, although narrow and deferential, is not a toothless rubberstamp. (27) Rather, the Board must show hard, reliable facts, and its reasoning must be grounded in logic, not just sheer suspicion. (28)

The courts have consistently held that the timing of the conscientious-objector application itself can never be enough to give the Army a basis in fact for denying an applicant's claim. (29) It can, however, legitimately raise suspicions regarding the sincerity of the applicant's beliefs. (30) Additionally, the applicant's religious beliefs need not coincide with that of her religion; in fact, the applicant could belong to no religion at all. (31) Ultimately, the Board may...