Recent Developments

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CnitedStatesv.. Lenor, 21 U.S.C.Rl.A. 314,46 C.1I.R. 88

(1972)-The End of the .h'oyd Era in Military Law'

I.

In Cnited States v. Wayd,% the United States Court of Military Appeals (hereinafter, CORIA) held that a military court-martial could consider an erroneous administrative denial of an accused's application for discharge as a conscientious objector as a defense to certain military offenses. The decision followed initial disagreement hetween federal district courts as to whether remedies existed within the military justice system for servicemen administratively denied discharge as conscientious objectors.l The Xoyd decision has been cited as requiring exhaustion of military caurt-martial "remedies" prior to federal court habeas corpus review of an administrative denial of B serviceman's request for statu8 as a conscientious The disagreement between the circuits on this exhaustion issue, was apparently resolved by the Supreme Court in Parisi F. Davidson: In Parisz, it was held that the pen-dency of court-martial proceedings should not delay federal court review of a aerviceman's conscientious objector claim once military administrative remedies had been exhaustd5 The Court rejected the government's argument that the Noyd defense, plus CO5lAs extraordinary relief power under the Ail-Writs Act, 28

U.S.C. section 1681(n) constituted military judicial remedies that muet be The Court cautioned, however, that their decision should not be construed as broadening the permissible limits of federal court intervention in military judicial processes, and suggested that federal courts should take care in effectuating their habeas corpus decrees, so as to maintain the proper balance between the two judicial systems:

In Vnited States v. Leiior.' COMA admitted that the military judicial System did not provide a proper forum for reviewing the merits of a conscientious objector's claim or a secretary's denial of a conscientious objector's application far discharge.' COMA disputed the Swyd rationale and adopted Judge Darden's opinion in Vnited States v. Steu,'art.'" Analysis of Cnited States r. Soyd indicates that the immediate impact of Lenor upon the posture of militarr iaw mag be minimal. However, Lrnox is evidence of the inherent limitations of COXA and the military judicial structure, and the decision 1s expected to immediately impact on the present interrelationship between the military and the federal court PYS- tems.

11.

The appellant, Don A. Lenox. !+'as inducted into the Army on 11 October 1968. After receiving orders assigning him to duty in the Republic of Vietnam, on Ma) 1, 1969, he reported to the Orer-seas Replacement Station, Oakland, California, at that time an embarkation point for Vietnam Upon his arrival in Oakland, he

'Pans,

i. Dotidam 406 C E. 32, 119721id. at ~~ ~ Traditmally. federal iavrt~haie been loath to inierfere uith

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submitted an application for discharge as a conscientious objector, and was subsequently reassigned to a Receiving Company at Fort Ord, California.L' On June 13, 1969, Lenox received Department of the Army notification that his application had beendenied On June 16, 1969, Lenox requested review of the Secretar?'s decision by the Board for Correction of Military Recards,l. and 011 June 20. 1969, he was returned to the Overseas Reglacement Station in Oakland." On June 23, 1969, Lenox petitioned the Federal District Court for the Northern District of California for a writ of habeas corpus ordering his discharge from the United States Army Lenox alleged that the Secretary of the Army's de-

See Final Brief for Appellant under Rule 43, p. 14. Cnited Stotra Y. I.inoz. 21 U.S.C.MA. 314, 46 C.M.R. 88 (19721.

"See a copy of letter dared 12 June 1969 from an A(. officer mdiesiine that "verbal communication with Department of Army indicates that the following 1s the reason for dirapprovsi based on a pee~ionai morai code, nor on sincere relieious beliefs;" and "ordering that EM will be directed to comply with his original annignment orders." Petition far Writ of Habeas Corpus, supra note 11. Exhibit 6. The three members of the DA board differed in their reasons for reieeting Lenox' elaim. One member reeom-mended disapproval becavJe the "request 1s based on a personal moral code: Another stated that "requeat 1s not based on diglaus training (and) beliefs" and that Lenox' "sincerity is m doubt:' The other members concluded that Lenox' "objectlone are religiously based, hut lack sincerity '' Final Brief for Apwilant, sqra note 12 at p. 3, n.2

"Lenox requested that "piendmg the Board's decision on my application herein, I remm at my present duty station and the assigned duties eonsiatent with r n ~ professed behefa." It hss been recognized that the ease ai a serviceman denied discharge 8s a conscientious objector 1% not a proper matter for the Board's cansideration. Crarmojt V. Fewail, 408 F.2d 587(9th Cir. 1869). vacoted 397 U.S. 336 (1969). For a a)nopsx of the iegialative history of the Boards for Correction of Miiitsry Recorda, See 10 L.S.C. $5 1652-1563 (1970). See Ashe Y. MciVama7a 365 F.2d 277 (1st Cir. 19661.

"Petinon for Wnt of Habeas COTPUS, supra note 11, at p. 8.

cision was without basis in denying him the due process of law as required by the Fifth Amendment to the United States Constitution. On July 9, 1969, this petition was denied.'. Lenox was subsequently scheduled to depart for Vietnam on a flight departing Travis Air Farce Base an July 23, 1969. Lenox faled to report for this flight and mas charged with missing movement and diaobeving an order of a superior commissioned officer."

Lenax, contrary to his pleas, vas found guilty as charged, sentenced to a bad conduct discharge, forfeiture of eighty dollars per month far six months, and confinement at hard labor far six months." Tried before a military judge alone, Lenox had moved the court to dismiss both charges on grounds that the order given him by his superior officer wa8 unlawful, and that any require-ment to board the plane was deri\,ed from that unlawful order. The legality of the order was argued to be dependent on the validity af the Secretary of the Army's decision denying Lenoa' application for discharge as a conscientious objector. Lenox charged that the Secretary's decision was without basis in fact and a de-nial of due process.20 Additionally, he contested the Secretary's

The basis-in-faet standard was firat enunciated for Seleerive Serviee eases ~n Eetep V. Cnited Slates, 327 L-.S.

114 (1046). The atandard has been almost unanimau~ly applied by the federal courts in in-seriiee con-itienriow objeetar casea, e . ~ .

Bates Y. Commander. 415 F.2d 476 (1st Cir. 1869). It "88 also adopted by the military courts. See L'dted Siates Y.

Gaguan, 42 C?&R. 807 (ACMR 1970). See elm Hsnsen, Judtnol Rrviizi or rn.serizcr counontiote 0b)ecior claims, 17 C.C.L.A. L m. 978, in03

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decision due to several procedural irregularities alleged to have occurred during the processing of his claim.?' Lenox also attempted to raise his stated conscientious beliefs as an affirmative defense, seeking de novo review of his conscientious objector claim without regard to the legality of the administrative deci-slon denying his It was also suggested that the merits of Lenox' claim should be relitigated as they were relevant to Lenox'intent at the time of the offenses." The military judge denied the motion," and ruled that Lenox' beliefs would be considered in ex-tenuation and mitigation, but not as an affirmative defense to the charges."

On appeal to the Army Court af Military Review, appellate defense counsel subatantively attacked the Secretary's decision as without basis in fact, and charged that the conduct of the administrative conscientious objector hearing officer violated AR 15-6.?" The Court of Military Review considered only whether the mili-'Id. st 14-16, App. Ex 4. Counsei far Lenax argued that AR 15-6, IAug. 12. 1966). "Procedures iar Investigating Ofheerr and Boards Conducting InvePtlgafiona", is applicable to the procewng of conscientious objector elaims under AR 631-20 (3 Dee 1968), "Personnel SepaiBtioni-ConBcLentious Ob-jectm,.l and that Lenax wal depri\,ed oi procedural rights provided him by AR 15-6. See Hannen. supra note 16 at 1001, 1002.

"ate 20 If 43 srr *o, UmUd SUkl I 21 us CM A 914. 4% 0 M R. 8. card of Trial supra note 20 at 62 hlAKLAi FOR COIRTS-MARTIAL, UIITED STATES, (RE,. Ea 1969) para. 75(e). Additional evidence other than that eonrained in the adminiit,rative mord mag be admitted for purposes of extenuaaan and mitigation. Anomaioudy, the court sfrer extenuation and mitigation may be persuaded of the defendem's sincerity. but be without power IO remedy the situation. The court mag reflect such opinion an them sentence, but rhe defendant remains conneted See. United States LWeber, 37 C.M.R 616(ABR 18661. The Sincere COniCienrioua objector mas then again be forced to disobey orders contrary TO hin con~eience, and the pmesn theoretically begins once again Conviction of sincere eonieientioua objectors far dinobeying orders contrary to their eonaeienee ~erves no useful military purpope. Yet. l'nitid States v Lenar will faster such anomalies as it repudiares perhaps the miy defense available ta the obieetor.

."Brief far Appellant, Cmtrd Sfafre V. Lenor, Xo. 422358 (ACMR Mar 11, 1071) Srs atso note 21 mwa.

tarp Judge erred by failing to dlmlrs charges on grounds that the Secretary's denial of Lenox' clam was without substantial basis In fact.'. The Court i;peclfically rejected an? inference that the

fact 8upporting the Secretary's denlal of Lenox' claim. IntereatIngls, the court suggested that a defendant's conxientious objection ma) constitute an affirmative defense, but deferred awaiting

ODIA ~" However, the COMA holding I"

was unexpected. COMA granted reriea only io consider vhether the military judge and the Secretary of the Arm)- utilized an improper standard in...