United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2006 Decided February 16, 2007
No. 06-5241
AGUSTÍN AGUAYO,
APPELLANT
v.
FRANCIS J. HARVEY, SECRETARY OF THE ARMY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01580)
Peter Goldberger argued the cause for appellant. With
him on the briefs was James R. Klimaski.
Kevin K. Robitaille, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: GINSBURG, Chief Judge, and SENTELLE and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
2
SENTELLE, Circuit Judge: Agustín Aguayo, a soldier in
the United States Army, applied for a discharge as a
conscientious objector. The Army denied his application, and
Aguayo filed a petition for a writ of habeas corpus in the district
court. The court denied the petition, and Aguayo now appeals.
Because there is evidence in the record that supports the Army’s
decision to deny Aguayo’s application for conscientious
objector status, we affirm.
I
Aguayo volunteered to serve in the United States Army
in November 2002, when he was 30 years old. In his enlistment
agreement, Aguayo answered “no” to the following question:
Are you now or have you ever been a conscientious
objector? (That is, do you have, or have you ever had,
a firm, fixed, and sincere objection to participation in
war in any form or to the bearing of arms because of
religious belief or training?)
Aguayo committed to eight years in the Army, with four years
of active duty, and entered service as a healthcare specialist in
January 2003.
In February 2004, shortly before he was deployed to
Iraq, Aguayo applied for a discharge from the Army on the basis
of conscientious objection. It is the policy of the U.S. military
to grant conscientious objector (“CO”) status to any service
member:
(1) Who is conscientiously opposed to
participation in war in any form;
(2) Whose opposition is founded on religious
training and beliefs; and
3
(3) Whose position is sincere and deeply held.
32 C.F.R. § 75.5(a). An applicant who would have qualified for
CO status before entering the military, however, generally is not
eligible for CO classification once in the service. Id. § 75.4(a).
The Army has implemented this military-wide policy in Army
Regulation (“AR”) 600–43.1 A “Class 1-O” conscientious
objector is entitled to separation from the Army, while a “Class
1-A-O” objector will continue in military service in a
noncombatant status. See 32 C.F.R. § 75.3(a). Aguayo applied
only for Class 1-O status.
Aguayo explained in his application that “[m]y moral
view does not allow me to take the life of another human being,”
and that his “progressive training in arms and other military
operations have progressively, and from the very beginning,
caused me great anguish and guilt.” Pursuant to Army
regulations, Aguayo was evaluated by a psychologist and
interviewed by a chaplain. The chaplain reported that “PFC
[Private First Class] Aguayo seems to be sincere in his beliefs
although the timing of his request makes it questionable. It is
difficult to assess the depths of his beliefs because they rest
solely with in his own thinking and personal values with out the
support of background, family or faith group.”
Captain Sean Foster was assigned to investigate the
application, and in March 2004 he held a hearing in Tikrit, Iraq.
Aguayo and four witnesses testified. Captain Foster wrote that
after reviewing the evidence and hearing testimony, “it seemed
clear to me that PFC Aguayo is absolutely sincere in his stated
1
In this opinion we cite to the May 15, 1998 version of AR
600–43 in effect at the time of Aguayo’s application. Some provisions
were renumbered in the August 21, 2006 revision but the regulation
is substantively unchanged.
4
beliefs that he is opposed to ‘war in any form,’” and that
Aguayo’s opposition to war grew during basic training and
solidified during live fire exercises. Captain Foster concluded
that “PFC Aguayo’s stated beliefs that he is internally incapable
of participating in any form of war without being in a constant
state of personal moral dilemma is absolutely sincere,” and
recommended that the application be granted.
The application was then forwarded through Aguayo’s
chain of command. Aguayo’s Company Commander
recommended approval, and noted that “Soldier appears to have
a legitimate concern with being a soldier and this conflicts
negatively with his ability to perform his duties.” The next four
officers to review the application, however, recommended
disapproval. Aguayo’s Battalion Commander interviewed
Aguayo and wrote that Aguayo’s “pursuit of conscientious
objector status is an attempt to remedy his anxiety all soldiers
face during an extended deployment in a combat theater of
operations.” Aguayo’s Brigade Commander concurred in the
Battalion Commander’s assessment and wrote that he “d[id] not
believe that soldier’s belief is consistent w/ conscientious
objection.” The Staff Judge Advocate responsible for reviewing
Aguayo’s application also recommended disapproval. He wrote:
PFC Aguayo’s convictions do not appear to be sincerely
held. . . . He has not persuasively shown how his duties
as a medic are incompatible with his newly discovered
beliefs, other than stating he feels he was misled by his
recruiter, and he expected to work in a hospital. The
timing of his application raises doubts as well. . . . PFC
Aguayo did not identify any specific ways he has altered
his behavior to accommodate his beliefs. Although
practicing a religion is not a requirement for CO
approval, PFC Aguayo has not discussed any equally
significant source of his beliefs other than he was raised
5
in a kind and respectful family. . . . As stated by his
battalion commander, . . . he desires to get out of the
deployment and the Army, and he is using this process
in an attempt to end his service early.
Finally, Aguayo’s Division Commander recommended
disapproval. Aguayo’s application then went to the Department
of the Army Conscientious Objector Review Board
(“DACORB” or “Board”) at the Department of the Army
headquarters (“HQDA”); the DACORB makes the final decision
on all CO applications requesting discharge. The Board denied
Aguayo’s application in July 2004.
In August 2005 Aguayo petitioned the United States
District Court for the District of Columbia, pursuant to 28
U.S.C. § 2241, for a writ of habeas corpus ordering the Army to
discharge him as a conscientious objector. The parties agreed to
stay the proceedings in light of Aguayo’s assertion that the
Army had violated its own regulations by failing to provide him
with the opportunity to rebut the negative recommendations
from the officers in his chain of command. Aguayo then
submitted an amended application, and the Army agreed to have
the DACORB review the entire application de novo.
The amended application included a rebuttal to the
officers’ recommendations and more detailed responses to
several questions from Aguayo’s initial application. For
example, Aguayo explained that his beliefs had changed during
his Army training:
As the trainings progressed I knew I could not stab
anyone with a bayonet for instance. And when I felt the
earth tremble beneath me after firing an M-16 I felt and
I now know there’s no way I could point it at someone
and shoot. . . . My convictions are strong and are deeply
6
rooted based on my upbringing, morals, and the
experiences I have had in the army.
As to the nature of his beliefs, Aguayo explained that he was
agnostic and that he had “a deep admiration for people such as
Jesus Christ, Gandhi, and Martin Luther King. I treasure their
values and desire to follow their lead. . . . I believe that if there
is a creator he would not want his creations to hurt or damage
each other.” To the question of what aspects of his life “most
conspicuously demonstrate[] the consistency and depth” of his
beliefs, Aguayo wrote that “I avoid violent movies and violent
entertainment. I try to avoid the more warlike aspects of
training. I will always try to act in accordance with my beliefs.”
In January 2006 the DACORB again denied Aguayo’s
application. The denial stated that “[a]fter thorough
examination of the Case Record, the DACORB determined that
the applicant did not present clear and convincing evidence,
IAW [in accordance with] AR 600–43, that the applicant’s
stated beliefs warrant award of 1-O status.”
On March 14, 2006, Aguayo filed an amended habeas
corpus petition in the district court. In April, the Army opposed
the amended petition and filed the administrative record as well
as a memorandum from the DACORB dated March 24, 2006
(the “supplemental memorandum”). This memorandum lists
several reasons why the DACORB denied Aguayo’s application:
• Applicant lacks the religious foundation; the
underpinning that supports Conscientious Objector
beliefs.
• Applicant has not provided any significant source of
his beliefs; conscience or moral views that would
warrant Conscientious Objector status.
7
• Appears that applicant held beliefs prior to entry to the
Army. Although these could have crystallized after
entry, it still appears that these beliefs were considerable
prior to entry with no significant identification of these
beliefs at entry to the Army.
• Questionable timing of the application just prior to
unit deployment.
The supplemental memorandum also states that “[t]his is not an
exhaustive or all-inclusive list of reasons for the denial of this
application.”
In August 2006 Aguayo sought an injunction to prevent
his deployment to a war zone pending the resolution of his
habeas claim. By order and opinion of August 24, 2006, the
district court denied Aguayo’s habeas petition and denied the
injunction as moot. Aguayo v. Harvey, 445 F. Supp. 2d 29
(D.D.C. 2006). Aguayo immediately appealed and sought an
injunction from this court. We denied the injunction pending
the appeal but agreed to expedite the case. Aguayo argues that
we should reverse because the district court should not have
considered the DACORB’s supplemental memorandum and
because there is no basis in fact for the denial of his CO
application. We disagree with these arguments and affirm.2
2
We have been advised that, after this court denied the
injunction, Aguayo failed to report for his unit’s movement to Iraq and
departed without the authority of his unit. At the time of oral
argument, Aguayo was in Army custody and faced court-martial
charges. As discussed below, we base our decision on the record
before the district court. Because we affirm the judgment of the
district court, Aguayo’s current status does not affect our disposition
of this case. See Parisi v. Davidson, 405 U.S. 34, 46 n.15 (1972).
8
II
For purposes of the federal habeas corpus statutes,
members of the Armed Forces are in the custody of the United
States government. Parisi, 405 U.S. at 39. After exhausting all
procedures for administrative relief, service members may
challenge their custody by petitioning for a writ of habeas
corpus in federal court under 28 U.S.C. § 2241. Parisi, 405 U.S.
at 39; Alhassan v. Hagee, 424 F.3d 518, 521-22 (7th Cir. 2005).
A
Aguayo’s first argument concerns the DACORB’s
March 2006 supplemental memorandum, which lists several
reasons for the Board’s denial of Aguayo’s application. Aguayo
contends that the district court should not have consulted this
memorandum – and accordingly that the memorandum should
be disregarded on appellate review – because it was created after
Aguayo filed his amended habeas petition and because the
memorandum does not comply with military regulations. We
hold that the supplemental memorandum may properly be
reviewed in assessing the merits of Aguayo’s habeas petition.
Aguayo is correct that judicial review of an
administrative decision is generally limited to the existing
administrative record. “[T]he focal point for judicial review
should be the administrative record already in existence, not
some new record made initially in the reviewing court.” Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (quoting
Camp v. Pitts, 411 U.S. 138, 142 (1973)). But this principle of
administrative law does not preclude consideration of the
supplemental memorandum in this habeas corpus proceeding.
Under the Administrative Procedure Act (“APA”), agencies
generally must state the grounds for their decision to deny a
written application. See 5 U.S.C. § 555(e); Tourus Records, Inc.
9
v. Drug Enforcement Admin., 259 F.3d 731, 737 (D.C. Cir.
2001); Roelofs v. Sec’y of the Air Force, 628 F.2d 594, 599
(D.C. Cir. 1980). This requirement facilitates judicial review,
because one of the tasks of the reviewing court is to determine
whether an agency decision finds adequate support in the
administrative record. Accordingly, when the statement of
reasons is inadequate, in an APA case “the usual remedy is a
‘remand to the agency for additional investigation or
explanation.’” Tourus Records, 259 F.3d at 737 (quoting
Florida Power & Light, 470 U.S. at 744). In this case, the
supplemental memorandum provides additional explanation, and
we are not inclined to disregard it simply because it was not
produced in response to a remand.
Moreover, in refusing to ignore the supplemental
memorandum we note that we are not reviewing a claim brought
under the APA but rather a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Habeas proceedings are governed
by their own rules, and Habeas Corpus Rule 7 expressly
provides that “the judge may direct the parties to expand the
record by submitting additional materials relating to the
petition.” Rules Governing § 2254 Proceedings, Rule 7(a), 28
U.S.C. foll. § 2254. See also id. Rule 7(b) (“The materials that
may be required include letters predating the filing of the
petition, documents, exhibits, and answers under oath to written
interrogatories propounded by the judge. Affidavits may also be
submitted and considered as part of the record.”); id. Rule 1(b)
(“district court may apply any or all of these rules to a habeas
corpus petition not covered” by scope of Rules Governing
§ 2254 Proceedings). In this case, the judge did not direct the
Army to expand the record but instead accepted the
memorandum as an attachment to the Army’s opposition papers;
this is a distinction without a difference and we will not exclude
the memorandum on this basis. Aguayo also argues that,
Habeas Rule 7 notwithstanding, courts may not consider new
10
evidence in reviewing a conscientious objector habeas petition.
See, e.g., Armstrong v. Laird, 456 F.2d 521, 522 (1st Cir. 1972).
But this argument has no bearing on this case. We agree that the
Army’s decision to reject Aguayo’s CO application must be
supported by evidence in the administrative record as that record
existed when it was reviewed by the DACORB, but the
supplemental memorandum does not purport to contain such
evidence. Rather, it lists reasons for the Board’s decision, and
under the standard of review we apply to a denial of a service
member’s CO application, it is the Board’s decision that must
have a factual basis. (The standard of review we apply to the
Army’s denial of Aguayo’s CO application is discussed below
in section II.B.) The supplemental memorandum might tell us
where to look for evidence that Aguayo is or is not entitled to be
classified as a conscientious objector, but we emphasize that in
reviewing the Board’s decision we look to the same evidence
reviewed by the Board.
Aguayo also contends that the supplemental
memorandum cannot be considered because it did not comply
with the military’s conscientious objector regulations. “The
reasons for an adverse decision will be made a part of the record
and will be provided to the individual.” 32 C.F.R. § 75.6(f).
The corresponding Army regulation provides that “[i]f a
determination by HQDA that the person’s request is disapproved
[sic], the reasons for this decision will be made a part of the
record. It will be provided to the person through command
channels.” AR 600–43 ¶ 2-8.d.(3). Aguayo argues that the
supplemental memorandum was not “made a part of the record,”
because it was created after Aguayo filed his amended petition;
Aguayo also states that he did not receive the memorandum
“through command channels.” The Army responds that the
memorandum was indeed provided to Aguayo’s commanding
officer, and in any event Aguayo learned about the supplemental
memorandum when the Army filed it with the district court. We
11
agree with the Army that any errors in the Army’s handling of
the memorandum do not merit excluding it from consideration.
Because we will not exclude the supplemental
memorandum from consideration, we do not reach Aguayo’s
argument that the remainder of the record does not present a
valid reason for denying his application. As Aguayo rightly
points out, the DACORB’s January 2006 decision does not give
us much to work with. It states simply that “[a]fter thorough
examination of the Case Record, the DACORB determined that
the applicant did not present clear and convincing evidence,
IAW [in accordance with] AR 600–43, that the applicant’s
stated beliefs warrant award of 1-O status.” But because we
hold that the supplemental memorandum is properly before this
court, we need not decide whether this boilerplate denial would
be sufficient to guide judicial review of the DACORB’s decision
in light of the regulations’ clear requirement that the Board
provide its reasons for denying an application. Cf. Gruca v.
Sec’y of the Army, 436 F.2d 239, 245 (D.C. Cir. 1970) (holding,
in a case involving a challenge to a Selective Service
classification, “[i]t is enough if there is evidence in the record
from which we can garner the basis of the Board’s action”). Nor
do we decide what the appropriate remedy would be if it were
not sufficient. See, e.g., United States ex rel. Coates v. Laird,
494 F.2d 709, 712 (4th Cir. 1974) (holding that, where the
Marine Corps failed to give a reason for its denial of a CO
application, the proper procedure “is to remand the proceedings
to the service for reprocessing and for compliance with the
requirement of a statement of reasons”).
B
The Army’s decision to deny an application for
conscientious objector status will not be disturbed unless there
is no factual basis for the decision. United States v. Seeger, 380
12
U.S. 163, 185 (1965); United States ex rel. Barr v. Resor, 443
F.2d 707, 708 n.2 (D.C. Cir. 1971). The scope of our review
under the “basis in fact” standard is extremely narrow. We
neither substitute our judgment for that of the military nor look
for substantial evidence to support its decision. Witmer v.
United States, 348 U.S. 375, 380-81 (1955). Under this standard
the Army’s decision “can be overturned only if it has ‘no basis
in fact.’” Id. at 381; see also Dickinson v. United States, 346
U.S. 389, 396 (1953).
“Basis in fact” review in conscientious objector cases
traces to the Supreme Court’s 1946 decision in Estep v. United
States, 327 U.S. 114. Under the conscription laws then in effect,
decisions of civilian draft boards regarding the classification of
selective service registrants were “final” and the law did not
provide for judicial review. Estep was prosecuted for failing to
submit to induction, and the Court held that he could challenge
his military service classification in that prosecution.
The provision making the decisions of the local boards
‘final’ means to us that Congress chose not to give
administrative action under this Act the customary scope
of judicial review which obtains under other statutes. It
means that the courts are not to weigh the evidence to
determine whether the classification made by the local
boards was justified. The decisions of the local boards
made in conformity with the regulations are final even
though they may be erroneous. The question of
jurisdiction of the local board is reached only if there is
no basis in fact for the classification which it gave the
registrant.
Estep, 327 U.S. at 122-23; see also Dickinson, 346 U.S. at 394;
Witmer, 348 U.S. at 380-81. In 1967 Congress amended the
draft laws to reflect the limited judicial review recognized in
13
Estep, and the Selective Service Act now authorizes review of
draft classifications in certain criminal prosecutions “only when
there is no basis in fact for the classification assigned to such
registrant.” 50 U.S.C. App. § 460(b)(3); see United States ex
rel. Sheldon v. O’Malley, 420 F.2d 1344, 1348 (D.C. Cir. 1969).
This same standard governs judicial review of a petition
for a writ of habeas corpus following the military’s denial of a
service member’s application for discharge as a conscientious
objector. In contrast to selective service registrants who request
CO classification under the draft laws, however, those who have
volunteered to serve in the military do not have a statutory right
to apply for CO status. Rather, the Department of Defense has,
by regulation, authorized members of the Armed Forces to apply
for such status. Dep’t of Defense Directive 1300.6 (Aug. 20,
1971 rev.), as codified in 32 C.F.R. pt. 75 (2004 ed.); see Parisi,
405 U.S. at 45. This regulation “reflects a policy determination
to extend to persons already within the armed services the rights
of conscientious objection conferred by Congress upon those
subject to the Selective Service Act.” Sheldon, 420 F.2d at
1348. Accordingly, “judicial precedents involving claims to
exemption from entry into military service because of
conscientious objection are applicable to requests for discharge
on the same ground by those who voluntarily entered the
service.” Id. Although the standard of review we apply in this
case is dictated by precedent, we note that the limited scope of
review in military habeas cases is consistent with the general
principle that courts will afford military personnel decisions
considerable deference. See Piersall v. Winter, 435 F.3d 319,
321-22 (D.C. Cir. 2006).
C
On review of the administrative record, we agree with
the Army that there is a factual basis for the decision to deny
14
Aguayo’s CO application. Our review is guided by the Army’s
CO regulations and by the explanation for the Army’s decision
in the supplemental memorandum. By regulation, it is the
applicant’s burden to establish, by clear and convincing
evidence, that he or she meets the requirements for
conscientious objector status. AR 600–43 ¶ 1-7.c. The Army
defines conscientious objection as “[a] firm, fixed and sincere
objection to participation in war in any form or the bearing of
arms, because of religious training and belief.” Id. Glossary.
“Religious training and belief” is broadly defined to include
“deeply held moral or ethical belief, to which all else is
subordinate or upon which all else is ultimately dependent, and
which has the power or force to affect moral well-being.” Id.
The Supreme Court has stated that “the ultimate question in
conscientious objector cases is the sincerity of the registrant.”
Witmer, 348 U.S. at 381. This concern for the applicant’s
sincerity is reflected in the Army’s regulations:
Sincerity is determined by an impartial evaluation of
each person’s thinking and living in totality, past and
present. The conduct of persons, in particular their
outward manifestation of the beliefs asserted, will be
carefully examined and given substantial weight in
evaluating their application.
AR 600–43 ¶ 1-7.a.(5)(a).3 The regulations further provide a list
3
The Department of Defense regulation includes a similar
instruction:
A primary factor to be considered is the sincerity with which the
belief is held. Great care must be exercised in seeking to
determine whether asserted beliefs are honestly and genuinely
held. Sincerity is determined by an impartial evaluation of the
applicant’s thinking and living in its totality, past and present.
15
of factors to be considered in such an “impartial evaluation.”
These factors
include training in the home and church; general
demeanor and pattern of conduct; participation in
religious activities; whether ethical or moral convictions
were gained through training, study, contemplation, or
other activity comparable in rigor and dedication to the
processes by which traditional religious convictions are
formulated; credibility of persons supporting the claim.
Id. ¶ 1-7.a.(5)(b). In addition to the applicant’s own testimony
and written application, the regulations call for a number of
assessments and recommendations by Army personnel. A
military chaplain interviews each applicant and provides
comments on the applicant’s demeanor, depth of conviction, and
source of beliefs. Id. ¶ 2-3.a. An investigating officer, chosen
from outside the applicant’s chain of command, conducts a
hearing and submits a report. Id. ¶¶ 2-4, 2-5. Officers in the
applicant’s chain of command and a Staff Judge Advocate
review the record and offer their recommendations. Id. ¶ 2-6.
The review process thus relies heavily on the considered
opinions of a number of officers in addition to those who serve
on the DACORB.
Care must be exercised in determining the integrity of belief and
the consistency of application. Information presented by the
claimant should be sufficient to convince that the claimant’s
personal history reveals views and actions strong enough to
demonstrate that expediency or avoidance of military service is
not the basis of his claim.
32 C.F.R. § 75.5(c)(2).
16
In this case, the DACORB ruled that Aguayo “did not
present clear and convincing evidence . . . that the applicant’s
stated beliefs warrant award of 1-O status.” The March 2006
supplemental memorandum explained the Board’s view that
Aguayo lacked the “religious foundation” or “underpinning”
required of conscientious objectors and had not adequately
explained the source of his claimed beliefs; that Aguayo
appeared to hold his beliefs prior to enlistment; and that the
timing of Aguayo’s application was suspect.
In short, the DACORB questioned the nature and source
of Aguayo’s beliefs. Accordingly, we review the record for
evidence that would support the Board’s misgivings, and we
conclude that the Board’s decision has factual support in the
record. To be sure, Aguayo explained that “[m]y moral view
does not allow me to take the life of another human being” as
well as his belief that “higher forces will be in charge of any
retribution against any evils.” But the Army is entitled to
require more than mere assertions of belief, and its regulations
accordingly emphasize the applicant’s “outward manifestation
of the beliefs asserted” as well as the judgments of those who
review each application. AR 600–43 ¶ 1-7.a.(5)(a). The nature
of the applicant’s case determines the type of evidence needed
to rebut the claim. Witmer, 348 U.S. at 382. For example,
Dickinson involved a Selective Service registrant who produced
“uncontroverted evidence” that he met the objective statutory
criteria for a ministerial exemption from military service. 346
U.S. at 396-97. The Supreme Court held that the local draft
board’s denial of the exemption must be supported by “some
proof that is incompatible with the registrant’s proof of
exemption.” Id. at 396. In Witmer, a conscientious objector
case, the Supreme Court distinguished Dickinson and stated that
“[i]f . . . the issue is the registrant’s sincerity and good faith
belief, then there must be some inference of insincerity or bad
faith.” 348 U.S. at 382. In the instant case, the issue is
17
Aguayo’s demonstration of his beliefs as required by the Army’s
regulations and as assessed by the officers who reviewed his
application. “Aside from an outright admission of deception –
to expect which is pure naivety – there could be no more
competent evidence against [a registrant’s] claimed
classification than the inference drawn from his own testimony
and conduct.” Gruca, 436 F.2d at 246 (quoting Witmer, 348
U.S. at 383). Here, the record supports the inference that
Aguayo’s convictions do not require his classification as a
conscientious objector.
The Battalion Commander, Brigade Commander,
Division Commander, and Staff Judge Advocate each
recommended that Aguayo’s application be denied. The
Battalion Commander, who interviewed Aguayo, concluded that
“[i]n [Aguayo’s] mind, the psychological impact of being
deployed in a combat theater and separated from his family,
outweigh the benefits associated with military service.” The
Staff Judge Advocate concluded that “Aguayo did not identify
any specific ways he has altered his behavior to accommodate
his beliefs.” The chaplain – whose duty is to offer comments
but not a formal recommendation, see AR 600–43 ¶ 2-3.a.(2) –
expressed doubts as to the depth and source of Aguayo’s
convictions. To find for Aguayo in this case would be to
disregard this evidence. We would be reluctant to do so under
all but the most extraordinary circumstances, and the record in
this case provides no ground to second guess the opinions and
conclusions of the Army officers who opposed Aguayo’s
application.
We review the entire record to determine whether there
is a basis in fact for the Army’s decision. No single fact or
statement is dispositive. Our conclusion is based on the entire
record and in particular Aguayo’s own application and rebuttal
statements. For example, Aguayo’s own application materials
18
provide reason to doubt whether his beliefs developed through
“activity comparable in rigor and dedication to the processes by
which traditional religious convictions are formulated” or “are
the product of a conscious thought process resulting in such a
conviction as to allow the person no choice but to act in
accordance with them.” AR 600–43 ¶ 1-7.a.(5)(b); id. Glossary.
Aguayo explained that he was raised by religious parents and
that his father is a pacifist. Certainly this upbringing may be a
source of his beliefs, but Aguayo also maintains that he was not
a conscientious objector when he volunteered for the Army.
The Army will consider claims “growing out of” pre-enlistment
experiences, so long as the applicant’s beliefs become fixed after
entering the service. Id. ¶ 1-7.a.(1). Though Aguayo stated that
his Army training caused him anguish and guilt, we find little
indication that his beliefs were accompanied by study or
contemplation, whether before or after he joined the Army.
More to the point, we certainly cannot say that the reviewing
officers’ doubts as to Aguayo’s convictions are so inconsistent
with the record that their recommendations must be disregarded.
In this appeal, Aguayo insists that the “crystallization” of
conscientious objector beliefs, like the process of religious
conversion, is not always the result of prolonged study and can
instead be dramatic and quick, as when it is precipitated by a life
crisis – in Aguayo’s case, his experience in weapons training.
Clearly, this was not an open-and-shut case: both Aguayo’s
Company Commander and the investigating officer
recommended the application be approved. But the decision in
close cases rests with the DACORB, not the courts, and the
officers’ recommendations are consistent with both the Army’s
regulations and the record.
In addition, Aguayo applied for discharge as a
conscientious objector shortly after arriving at his unit and just
days before his deployment to Iraq, a fact noted by the chaplain
and which “raise[d] doubts” in the mind of the Staff Judge
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Advocate. This court has held that the suspect timing of a CO
application is not, in itself, sufficient grounds for its denial.
Bortree v. Resor, 445 F.2d 776, 784 (D.C. Cir. 1971). The
current regulations list timing as a factor that may be considered
but expressly provide that timing alone “is never enough to
furnish a basis in fact to support a disapproval.” AR 600–43
¶ 1-7.a.(5)(c). The DACORB in this case could properly find
that the circumstances surrounding Aguayo’s application
constituted a factor that weighed against its approval.
III
For the foregoing reasons, the order of the district court
denying Agustín Aguayo’s petition for a writ of habeas corpus
is affirmed.
So ordered.