264 F2d 63 Green v. Secretary of the Navy

264 F.2d 63

Peter H. GREEN, Appellant,
SECRETARY OF THE NAVY and The Commanding General, Marine
Corps Base, Camp Pendleton, Camp Pendleton,
California, Appellees.

No. 15946.

United States Court of Appeals Ninth Circuit.

Feb. 17, 1959.

J. B. Tietz, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U.S. Atty., Jordan A. Dreifus, Richard A. Lavine, Asst. U.S. Attys., Los Angeles, Cal., for appellees.

Before STEPHENS, HEALY and CHAMBERS, Circuit Judges.


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Disposition of this case has been deferred awaiting final disposition of a court-martial conviction.


Green, who was not at the time a conscientious objector, enlisted in the United States Marine Corps for active duty. After about five months of service, he claims that he had become a conscientious objector and could not accept combat training, although he was willing to do non-combatant activities. Marine Corps Order No. 1306.16 provides for the assigning of conscientious objectors to non-combatant activities after interview by their commanding officer.1 Green requested such an interview which was granted. The interviewing officer reported unfavorably to Green; and upon a review within the military regulations, Green's claim was denied. He then filed a petition in the United States District Court for a writ of habeas corpus, or in the alternative for relief which would require his assignment to non-combatant activities. An Order to Show Cause was issued, and service was made on the commanding general of Camp Pendleton. After a hearing the Order to Show Cause was vacated, and the writ was denied. The present appeal is from this denial


While this appeal was pending, Green was tried by a general court-martial and found guilty of various charges.2 He was sentenced to a Bad Conduct Discharge after serving two years at hard non-combatant labor. Green appealed his courtmartial conviction through the regular military channels of review. Because of Green's status as a non-combatant prisoner, the appellee has moved for dismissal of the appeal on the gounds that the questions therein presented are moot.


On January 22, 1959, it was shown to this Court that the sentence was modified and affirmed on December 9, 1958, and further that Green has been discharged from the service and has accepted civilian status. It being clear that the appeal is moot, it is hereby dismissed.


As a voluntary enlistee, Green does not come within the scope of Title 50 U.S.C.A.Appendix, 456(j), which gives the local Selective Service Boards power to decide an inductee's claim of conscientious objector status


The charges were as follows: unauthorized absence for three days; unauthorized possession of a liberty card; wrongfully publishing defamatory statements of a nature to bring discredit upon the armed forces; and publishing a statement disrespectful to a superior officer