GPSolo Magazine - January February 2005
While many Americans may view military service as an obligation of citizenship, the U.S. Congress recognized early that certain individuals should be exempted from service if they hold convictions against war in any form. The Universal Military Training and Service Act, as amended (50 U.S.C. App. § 456(j)), provides in part that no person will be subjected to combatant training and service in the U.S. armed forces if that person, owing to religious training and belief, is opposed to participating in war in any form.
Conscientious objection, which the U.S. Department of Defense (DoD) defines as a “firm, fixed and sincere objection to participation in war in any form or the bearing of arms, by reason of religious training and belief,” is not a new phenomenon in American culture. Quaker, Amish, and other religious groups first voiced their objection to war in any form, and throughout this country’s history, the U.S. military has continued to recognize the right of servicemembers to apply for conscientious objector status.
As this article discusses, conscientious objection imposes numerous procedural requirements on servicemember-applicants, as well as the branches of the military, during the application, review, and decision stages. DoD Directive 1300.6, Conscientious Objectors, details the procedures to which all branches of the armed forces must adhere in processing a servicemember’s application for conscientious objector status. Each branch of the armed forces—the Army, Air Force, Navy, and Marine Corps—as well as the Coast Guard, a Department of Homeland Security entity, processes conscientious objection applications pursuant to that branch’s regulation implementing DoD Directive 1300.6.
Conscientious Objector Classes
The DoD categorizes conscientious objectors as either Class 1-O or Class 1-A-O objectors. The first category includes those servicemembers who sincerely object to any kind of participation in any form of war. The military services will separate those servicemembers whose Class 1-O applications the services approve. The second category, Class 1-A-O objectors, includes those who sincerely object to participating as combatants in any form of war, but whose convictions permit them to serve in the military in a non-combatant status.
Servicemembers applying for Class 1-O status will find that theirs is an “all or nothing” application. The military will either grant Class 1-O status and separate servicemembers accordingly, or it will deny that status; the military will not grant Class 1-A-O status to such applicants, as a compromise. Those servicemembers to whom the military grants Class 1-A-O status may be assigned to duty in a unit that is unarmed at all times or to duty in the medical department of the applicant’s service. Alternatively, the servicemember may receive another assignment—if acceptable to the servicemember—the primary function of which does not require the use of arms in combat, and in which he or she does not need to bear arms or be trained in their use.
Servicemembers applying for conscientious objector status must establish by clear and convincing evidence that the nature of their claim meets the DoD criteria for conscientious objection, and that their beliefs are honest, sincere, and deeply held. Servicemember-applicants may seek either separation from the armed forces (as Class 1-O objectors) or assignment to non-combatant duties (as Class 1-A-O objectors). They must submit, as part of their written application, a description of the nature of their belief that requires them to seek separation or assignment to non-combatant duties.
In light of the volunteer nature of contemporary military service in the United States, servicemembers must explain when and why their beliefs became incompatible with military service. They must describe in as much detail as possible how their beliefs changed or developed, including the factors that caused the change in or development of their beliefs. Moreover, applicants must explain how their daily lifestyle changed as a result of their beliefs. Furthermore, they must explain any circumstances in which they would believe in the use of force. As the final requirement in describing their training and beliefs, applicants must explain what facts or circumstances most conspicuously demonstrate the consistency and depth of the beliefs that prompted their application.
Applicants must demonstrate that their beliefs upon which their conscientious objection is based are the primary controlling force in their lives. They must produce evidence in their written application (and during their subsequent hearing before an officer) demonstrating that neither the avoidance of military service nor expediency is the motivating factor in their claim. To this end, DoD Directive 1300.6 lists numerous factors to consider in examining the merits of a servicemember’s application, such as his or her training in the home and church, participation in religious activities, and general demeanor and pattern of conduct.
Having described the reason for their application, servicemembers next must identify any military organizations to which they previously belonged and any religious sects or organizations of which they are members. Applicants identifying themselves as members of a religious sect or organization must provide the name and location of its governing body, as well as the circumstances by which the applicant became a member. They also must provide the name and location of any church or congregation that they customarily attend, the name of the organization’s leader or pastor, and a description of their participation in such an organization. Finally, each branch of the armed forces permits applicants to submit additional information that they wish to be considered by the military authority reviewing the application, including letters of reference or official statements of organizations to which they belong.
Before each branch of the military will consider a servicemember’s application, the member must acknowledge in writing that he or she understands the potential forfeiture of rights under law administered by the Veterans’ Administration if that member is discharged as a conscientious objector. Service- members also must sign a statement of understanding regarding information that may be disclosed under the Privacy Act in the course of processing the application.
Interviews by Chaplain and Psychiatrist
Each branch of the armed services requires a military chaplain to interview the servicemember-applicant after he or she has completed the written applications. The chaplain, after completing the interview, must submit a written opinion regarding both the nature and basis of the applicant’s claim and also the applicant’s sincerity and depth of conviction. Following this initial interview, each branch of the armed services next requires that a psychiatrist, a clinical psychologist, or another medical officer interview the applicant. This interviewing officer must prepare a written report of psychiatric evaluation, discussing the presence or absence of any psychiatric disorders that may warrant treatment or alternative disposition through military medical or other administrative channels. These written opinions and reports comprise part of the applicant’s case file that each branch of the services’ reviewing authority will review.
Conduct of Informal Investigation
Following the completion of these opinions and reports, each branch of the armed services requires the appointment of an investigating officer in the military grade of O-3 or above to conduct an informal hearing regarding the application. Air Force policy specifically requires the appointment of a judge advocate legal officer to conduct the investigation, and the Navy permits—but does not require—a judge advocate to serve as the investigating officer. The purposes of the hearing are to provide the servicemember an opportunity to present evidence in support of the application, to enable the investigating officer to supply an informed recommendation regarding the application, and to create a comprehensive record upon which to base a decision to grant or deny the application.
The hearing follows “informal procedures” under each branch’s regulations. To that end, military rules of evidence (employed in courts-martial) do not apply, except that witnesses must provide verbal testimony under oath or affirmation. Applicants desiring legal representation may employ an attorney at their own expense. Any attorney assisting the applicant may be present at the hearing, examine all items in the application, and assist the servicemember in presenting the case before the investigating officer. During the hearing, applicants (or their attorneys) may submit statements from third parties, present witnesses, question other witnesses who appear, and examine all items in the case file.
Because the hearing is informal in nature, there is no requirement for a verbatim record of the hearing; a summarized transcript of testimony suffices, in accordance with service regulations. If the applicant desires a verbatim record, however, he or she may provide one at personal expense. Absent a verbatim record, the investigating officer will summarize witness testimony and permit the applicant to examine the summaries and note any objections to the summaries.
Compilation of the Investigating Officer’s Report
Following the informal investigation, the investigating officer must prepare a written report consisting of the following:
• A statement regarding whether the applicant personally appeared and, if represented by counsel, the identity of the attorney.
• Statements and other documents received during the hearing.
• Summaries of witness testimony.
• A statement of conclusions as to the basis of the servicemember’s conscientious objection and sincerity of the member’s beliefs, including reasons for those conclusions.
• Recommendations for disposition of the case, limited to recommending denial of any classification as a conscientious objector; recommending classification as a Class 1-A-O conscientious objector; or recommending classification as a Class 1-O conscientious objector.
All documents compiled thus far in the application and hearing process constitute the applicant’s record. The different branches of the armed services all require the investigating officer to base his or her conclusions and recommendation on the entire record, rather than merely on evidence elicited during the hearing.
The investigating officer, when forwarding the record to the commander who appointed the investigation, must provide a copy of the record to the servicemember-applicant at the same time. The applicant has a right to submit a rebuttal to the investigating officer’s report. The Army requires the submission of such rebuttal within ten calendar days of receipt; the Air Force affords 15 calendar days; the Navy, five working days; the Marine Corps, seven calendar days; and the Coast Guard, two weeks.
The investigating officer submits his or her report through command channels to the officer who appointed the investigation. At that time, a judge advocate legal officer will review the report for legal sufficiency. Following that review, and provided the report is not returned to the investigating officer for correction owing to a lack of legal sufficiency, the commander will forward the report, with his or her personal recommendation for disposition, through military command channels to the military headquarters authorized to make a final decision on the application.
Decisions by the Services’ Approval Authorities
The DoD permits each Military Service Secretary to delegate authority to approve conscientious objector applications to the commander exercising General Court-Martial (GCM) jurisdiction over the servicemember. Only the Army, however, has provided the GCM Convening Authority (GCMCA) such authority. Moreover, the Army permits only GCMCAs to approve applications for Class 1-A-O, or noncombatant, status. The Department of the Army Conscientious Objector Review Board makes final determinations regarding applications for discharge under Class 1-O status and those requesting Class 1-A-O status that the GCMCA disapproves.
The Air Force Secretary or a designated representative decides all officer cases within that branch, and the Air Force Military Personnel Center is the final approval authority for its active duty enlisted personnel. Navy Personnel Command determines all its members’ applications for conscientious objector status, whereas in the Marine Corps the Commandant of the Marine Corps Manpower Management division makes final decisions on all applications. For Coast Guard applications the decision authority is the Coast Guard Chief, Office of Personnel and Training.
In the interim until the various branches’ approval authorities decide the disposition of individual applications, servicemember-applicants will, whenever practicable, receive assignment to duties that conflict as little as possible with their asserted beliefs. During that time, the services expect applicants to conform to the normal requirements of military service and to perform their assigned duties. Of course, applicants awaiting a decision on their individual cases remain subject to discipline under the Uniform Code of Military Justice (UCMJ) if they commit violations of the UCMJ.
Following a decision on servicemembers’ applications, the armed services will separate for the convenience of the government those applicants who request discharge and are deemed to be Class 1-O conscientious objectors. Such applicants’ personnel records and discharge papers will reflect that the reason for separation is conscientious objection. Air Force policy provides that bona fide conscientious objectors receive honorable discharges, pursuant to the applicable Air Force discharge procedures. Army policy provides that discharged conscientious objectors may receive honorable or general (under honorable conditions) discharge certificates, pursuant to Army separation procedures. The Marine Corps and Coast Guard policies provide that the type of discharge the member receives will depend on his or her service record. In the Navy, discharged officers will receive an honorable discharge. Navy enlisted members who are discharged will receive an honorable discharge, unless Navy separation procedures warrant that the member receive a general (under honorable conditions) discharge or entry-level separation.
Those applicants requesting assignment to non-combatant duties, and who the services deem Class 1-A-O conscientious objectors, may receive either assignment to non-combatant duties or discharge from military service, at the services’ discretion. Army policy is to reassign such soldiers, except for personnel with fewer than 180 days on active duty, who may be discharged at the command’s discretion. Air Force, Navy, Marine Corps, and Coast Guard policies provide for either reassignment of this class of conscientious objectors or discharge, at the discretion of the authorities approving the applications.
The military’s processing of conscientious objector applications, governed by DoD policy and the individual military service’s implementing regulations, provides numerous procedural protections to individual servicemembers. The military’s policies also provide efficient and effective processing guidelines to which the services must adhere.
Individuals wishing to learn more about each of the service’s individual conscientious objector procedures may reference the respective service’s regulations, which may be found at the following websites:
Air Force: Air Force Instruction 36-3204, Procedures for Applying as a Conscientious Objector, July 15, 1994, at www.e-publishing.af.mil.
Army: Army Regulation 600-43, Conscientious Objection, June 15, 1998, at www.usapa.army.mil.
Coast Guard: Commandant Instruction 1900.8, Conscientious Objectors and the Requirement to Bear Arms, November 30, 1990, at www.uscg.mil/ccs/cit/cim/directives/welcome.htm.
Marine Corps: Marine Corps Order 1306.16E, subject: Conscientious Objectors, November 21, 1986, at www.usmc.mil/directiv.nsf/web+orders.
Navy: MILPERSMAN 1900-10, August 22, 2002, at buperscd.technology.navy.mil/bup_updt/upd_CD/BUPERS/MILPERS/MilpersmanPDF_TOC.htm.
Major John P. Jurden is currently assigned to the United States Army Judge Advocate General’s Legal Center and School in Charlottesville, Virginia, as a professor in the Administrative and Civil Law Department. He can be reached at email@example.com.