case_cite">449 F.2d 162

Walter Jon PINKUS, Petitioner-Appellant,
v.
Willard C. PEARSON, Commanding General of Fort Lewis; and
Stanley Resor, Secretary of the Army, Respondents-Appellees.

No. 71-1105.

United States Court of Appeals,
Ninth Circuit.

Sept. 23, 1971.

Dennis G. Seinfeld, of Seinfeld, Seinfeld & Duggan, Tacoma, Wash., for petitioner-appellant.

Stan Pitkin, U. S. Atty., Seattle, Wash., for respondents-appellees.

Before DUNIWAY and CHOY, Circuit Judges, and SOLOMON, District Judge*.

PER CURIAM:

Pinkus appeals from denial of his petition for a writ of habeas corpus, in which he sought discharge from the Armed Forces as a conscientious objector. He has exhausted his administrative remedies.

1. Pinkus' beliefs, as stated by him, clearly bring his case within the rationale of Welsh v. United States, 1970, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308. While erroneous views as to the nature of Pinkus' beliefs were relied on at some stages of the Army's review of Pinkus' application for discharge, the Conscientious Objector Review Board relied solely on its conclusion that Pinkus was not sincere.

2. There must be a basis in fact for a finding of insincerity when the applicant's stated views bring him within the statutory exemption. Here, we can find none. The Board based its decision on a single incident described by Pinkus which, according to the Board, showed that "he is willing to use violence against his fellow man." It shows no such thing; what it does show is that, in spite of strong anger at some fellow soldiers, he restrained the impulse toward violence that he felt. We note that those persons who personally interviewed Pinkus found him to be sincere in his beliefs.

The order is reversed and the case is remanded to the District Court with instructions to issue the writ, unless within 30 days the Army grants Pinkus a discharge as a conscientious objector. The mandate shall issue forthwith.

Honorable Gus J. Solomon, United States District Judge, District of Oregon, sitting by designation

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