467 F2d 218 Tellez v. Chaffee

467 F.2d 218

Seaman David Alfred TELLEZ, Petitioner-Appellant,
v.
John CHAFFEE, Secretary of the Navy, et al., Respondents-Appellees.

No. 72-1118.

United States Court of Appeals,
Ninth Circuit.

Sept. 12, 1972.

Joseph Shemaria, Los Angeles, Cal., for petitioner-appellant.

William D. Keller, U. S. Atty., John L. Guth, Frederick M. Brosio, Jr., Asst. U. S. Attys., Los Angeles, Cal., for respondent-appellee.

Before BROWNING and GOODWIN, Circuit Judges, and EAST,* District Judge.

PER CURIAM:

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1

The Appellant applied for Discharge from the Navy claiming conscientious objector status resulting from a post enlistment fixing or crystallization of views and beliefs. His application was fortified with favorable findings of sincerity of belief and recommendations from the Navy Chaplain and Psychiatric Clinic.

2

The application with its supporting data was in turn reviewed by Appellant's immediate Commanding Officer and the Commanding Officer, Navy & Marine Corps Reserve Training Center, each recommending that he "be classified as a Conscientious Objector."

3

A reviewing Board in the Bureau of Naval Personnel rationalized the prior finding and recommendations and "determined (Appellant's) views not to be sincere and recommended that (the) request for discharge be disapproved". The Chief of Naval Personnel concurred in the Board's recommendation and disapproved the application for discharge.

4

Appellant sought a Writ of Habeas Corpus in the District Court which was denied. We reverse.

5

We find and conclude that the record herein does not show a basis in fact for the Board's finding that Appellant's views were not sincere or its recommendation of non-discharge. The Chief's concurrence and disapproval of a discharge thereby falls.

6

The cause is remanded to the District Court with direction to issue the Writ with appropriate order directing Respondents to honorably discharge Appellant from the United States Navy.

*

The Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation