Hanna v. Secretary of the Army

United States Court of Appeals
For the First Circuit

No. 07-1090

MARY HANNA, M.D.,

Petitioner, Appellee,

v.

SECRETARY OF THE ARMY and COMMANDER, 94th REGIONAL READINESS
COMMAND, FORT DEVENS, MASSACHUSETTS,

Respondents, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Schwarzer,* District Judge.

Mark T. Quinlivan, Assistant United States Attorney, with
whom Anita Johnson, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney were on brief, for appellant.
Louis P. Font, with whom Gale L. Glazer and Font & Glazer
were on brief, for appellees.

January 9, 2008

*
Of the Northern District of California, sitting by
designation.
 Schwarzer, District Judge. Captain Mary Hanna sought

discharge from the Army as a conscientious objector. The

Department of the Army Conscientious Objector Review Board

(“DACORB”) denied Hanna’s application. Hanna then petitioned the

district court for a writ of habeas corpus which the court granted,

holding that there was no basis in fact for the DACORB’s decision.

Hanna v. Sec’y of the U.S. Army, 2006 WL 2925268 (D. Mass. Oct. 6,

2006). The Army appealed. We hold that the DACORB’s decision was

without a basis in fact, and we therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

Mary Hanna joined the Army in 1997 as a member of the

Army Health Professions Scholarship Program (“HPSP”) and thereafter

attended medical school. In exchange for financial assistance with

medical school, Hanna promised to serve on active duty in the Army

for four years and to remain in the Army Reserve for an additional

four years. After Hanna finished medical school, the Army deferred

her active duty obligation for four years while she completed a

residency in anesthesiology. On October 20, 2005, the Army sent

Hanna a letter directing her to report for active duty in August

2006. Hanna was later scheduled to report to William Beaumont Army

Medical Center in El Paso, Texas.

On December 23, 2005, Hanna filed an application for

discharge as a conscientious objector (“CO”). In her application,

Hanna declared that she sought discharge because, as a Christian,

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she believed in the inherent sanctity of human life and that it

“would be committing a crime against God” to take another human’s

life. She further explained:

I . . . believe that violence and killing are
in direct contradiction to all of Jesus’
teachings. I am unable to put Christ’s words
into practice while simultaneously
participating, whether directly or indirectly,
in war, violence, and killing. All of Jesus’
preaching reiterates love, peace, forgiveness
and cautions against anger, hatred, and their
end product, murder. Based on Christ’s
example, I believe that I must take things one
step further and constantly strive to
eliminate conflict with others by seeking
prompt reconciliation with adversaries. Love
of God and love of fellow humans drives
Christian life, and I have incorporated this
principle into my own life.

Hanna declared that she would be “incapable of attaining

these qualities” by participating in “war and killing” and would

“betray these moral and religious principles by participating in

war in any way.” She explained that her parents were “deeply

involved” in the Coptic Orthodox Church (“COC”) and that her father

had planned to become a monk and her mother a nun until they met

each other and chose to marry. As a child, Hanna attended church

weekly in Los Angeles, where she grew up. Her parents taught her

to believe in “love for God first, love for all other humans as a

direct reflection of our love for God, respect for elders, respect

for the traditions of our Church, honesty, sincerity of heart, and

constant striving for goodness.” Hanna became a Coptic hymn

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teacher in high school and later served as a Sunday school teacher

while she attended UCLA. She also participated in the Coptic Club

at UCLA.

In 1997, in her senior year of college, Hanna applied and

was accepted for medical school at Tufts University. In her CO

application, Hanna described her last year of college as a time

that “greatly tested” her faith and her “proximity to the Church.”

At the time she applied for the HPSP, Hanna was experiencing a

period of “change and uncertainty” during which she “questioned

everything.” She “turned to atheism for several months, followed

by agnosticism for several more months.” During this time, she had

“no particular convictions one way or the other regarding war.”

Hanna’s father died in 2003, and during the mourning

period that followed his death, Hanna’s faith was “rekindled” and

she found herself “again drawn to God.” She explained that “I had

lived both without God and with him, and I liked myself immensely

more when striving to emulate his nature, his mercy, his love, his

generosity, his forgiveness.” Hanna further explained that it

“took some time” for her to “make the connection between this newly

rekindled faith and its incompatibility with certain aspects” of

her life. For example, she became increasingly concerned about her

participation in elective abortions as an anesthesiology resident

because she felt she was “participating in an act in direct

contradiction to the Bible’s teachings.” She asked her floor

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manager if she could abstain from abortion procedures and her

request was granted.

During the summer of 2005, Hanna watched several war

documentaries and “growingly began to view all war from a Christian

perspective: complete separation from God.” She explained that she

“started to gradually understand the spectrum Christ described

which connects anger to hatred to violence to murder (war on a

larger scale).” After watching the documentaries, she “finally

understood how Christ equated them all as the same sin, with anger

being the stem.” Her new understanding motivated her to

participate in a war protest in September 2005, where she realized

that she “was no longer able to play a role in propagating

violence.” In early October 2005, Hanna watched a television

program during which a man discussed the “destructive role” of war

and violence, citing the Beatitudes. She then realized that “to

live the rest of my life with integrity, in harmony with God’s

nature of love and compassion, I could not participate in military

service.” Reflecting on her choice to join the Army, Hanna

commented, “I realized then the full implications of the path I had

chosen years earlier and the incompatibility of war and violence

with Christ’s teachings.”

Hanna submitted six letters in support of her CO

application, four from Coptic Orthodox priests who knew her

personally, and two from supervisors in her residency program. One

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of the priests, who had known Hanna since infancy, stated that he

had spoken with Hanna recently about her belief that war is “the

direct opposite of Christ’s call to peace and love.” The priest

wrote:

I have read her application for conscientious
objector status, and it is consistent with her
character, ethics, and approach to
Christianity. I know Mary well, and she is
both honest and sincere in her application. I
strongly urge you to approve her application
in order to allow her to live a life that does
not contradict her beliefs.

A second priest, who had known Hanna for more than 15

years, wrote that Hanna was “both honest and sincere in her

application,” that he knew Hanna well, and that she was “trying to

live a life consistent with her beliefs.” He urged the Army to

approve her application. A third priest, who had known Hanna for

12 years, described her as “one of the most dedicated conscientious

and compassionate young ladies in our church.” He described her as

“trustworthy, honest and sincere.” A fourth priest wrote that

Hanna had been a member of St. Mark Coptic Orthodox Church in

Natick, Massachusetts since 1997. Hanna attended church there

regularly during medical school and as often as her call schedule

allowed during her residency. Hanna’s supervisors wrote that her

CO application was “a sincere representation of who she is, and

what she believes,” described Hanna as “a gentle soul” and “‘the

mother to all our sickest patients’” and urged the Army to approve

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her application.

After Hanna submitted her application for discharge,

Colonel John Powers in the Office of the Surgeon General issued a

memorandum regarding her application. Powers commented that “[t]he

Army is under-strength in anesthesiologists.”1 Turning to Hanna’s

application, he noted that he “did not question [Hanna’s] religious

belief” but that he found “some aspects” of her application

“troubling.” Powers stated that although Hanna stated in her CO

application that she was experiencing doubts about her religious

faith at the time she applied to the Army, her 1997 HPSP

application indicated that she had been teaching Sunday school

during the same time period. Powers also noted the late timing of

Hanna’s CO application, commenting that she never raised concerns

about conscientious objection during medical school or her

residency. Powers observed that Hanna’s application was received

around the same time as a CO application submitted by another

anesthesiologist and shortly after the Army approved the CO

application of a third anesthesiologist. He pointed out that all

three applicants were represented by the same attorney. Powers

1
In a declaration in support of the Army’s opposition to
Hanna’s petition for preliminary injunction in the district court,
the Program Manager for Graduate Medical Education in the Office of
the Surgeon General stated that “[t]he United States Army is
critically short of Anesthesiologists. The Army currently only has
75 of the 95 required fully qualified anesthesiologists. That
means that only 79 percent of the necessary Anesthesiologists are
on staff at Army medical treatment facilities.”

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also commented that the Army had paid more than $180,000 for

Hanna’s medical school expenses. He recommended that the Army

either deny Hanna’s application and order her to active duty, or

grant the application with recoupment of her medical school costs

plus interest.

Pursuant to Army regulations, Hanna was interviewed by a

military chaplain and a psychiatrist. The chaplain’s report stated

that the Coptic Orthodox Church does not teach pacifism. He

reported that, based on his research, he believed the COC “endorses

military service through the example of [its] Saints and religious

leaders.” The chaplain also questioned Hanna’s sincerity because

she worked in a hospital that provided abortions. He added that

Hanna had not made significant lifestyle changes since becoming a

conscientious objector.

The psychiatrist found that Hanna did not suffer from any

psychiatric disorders. He also found that Hanna’s application was

“a convenient, if not opportunistic choice in refuting her basic

military contract based on her newly found faith.” During her

interview with the psychiatrist, Hanna related that her father had

served in the Egyptian military for six years and was very proud of

her decision to join the Army. She told him that her father would

have been “devastated” to know of her decision to file for

discharge as a conscientious objector. Hanna also told him that

she was prepared to repay the Army for her medical school costs

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plus interest.

Hanna’s application was assigned to an Investigating

Officer (“IO”). The IO conducted a hearing lasting more than six

hours at which he heard testimony from Hanna, two Coptic Orthodox

priests who knew Hanna personally, and the Army psychiatrist who

had interviewed Hanna. One of the priests, who had known Hanna for

six years, testified that she was “an honest and sincere person”

and that her application accurately described the source of her

beliefs. The priest also testified that there is no uniform

position on military service in the Coptic Orthodox Church.

Rather, the Church supports both conscientious objectors and those

who choose military service. The priest disagreed with the

chaplain’s conclusion that the COC endorses military service and

also with the chaplain’s statement that some COC saints were

“warriors.” He testified that military service by these saints

occurred before their religious phase. The second priest, who had

known Hanna since she was seven or eight years old, testified that

she is a “truthful person” and that he supported her CO

application. He also testified that the COC supports both

conscientious objectors and those who serve in the military. The

IO credited the testimony of both priests.

In his summary of Hanna’s testimony, the IO stated that

when Hanna applied to the HPSP in 1997, “she was naive and her

personal belief system was not fully developed. She did not give

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much thought to the morality of war.” During college, “her

religious faith waxed and waned” and she “began to question her

religious beliefs” and this “caused discord with her father.” When

she watched the war documentaries in 2005, she was “‘shocked’” by

the civilian deaths. After watching the movies, she “adopted a

pacifist approach. She began praying more. She read scripture and

the writings of religious philosophers. She noted that Jesus

Christ was a pacifist.” Hanna testified that by treating soldiers,

“she would be repleting the force and assisting it [in] waging

war.” She stated that her objection to war was based on her

“religious upbringing, her personal belief system and Christian

theology.”

Hanna further testified that there was a distinction

between serving in the Army and working at a civilian hospital that

provides abortions. Hanna reasoned that a civilian hospital is

“not an organization that is dedicated to war.” By treating

soldiers, she would be assisting the Army to wage war, whereas at

a civilian hospital, she had the option to refrain from

participating in abortions. She stated that she had “no offer or

prospects for private practice” if her CO application was granted.

In addition to hearing the testimony of witnesses, the IO

reviewed Hanna’s CO application, her 1997 HPSP application, the

reports of the chaplain and psychiatrist, the Powers memorandum and

attached documents, the letters of support from Coptic clergy

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members and Hanna’s professional supervisors, and various research

materials related to Eastern Orthodox churches.

The IO concluded that Hanna sincerely opposed

participation in war in any form because of her religious, moral

and ethical beliefs. In his report, the IO observed that Hanna was

“open, cooperative, courteous and sincere during the hearing.” He

concluded that she was

sincere and very credible . . . I was
impressed by CPT Hanna’s sincere expressions
of her beliefs and her interaction with Father
Bishara (in person) and Father Henein (by
telephone) at the hearing. I was left with
the impression that she was a devout member of
the COC and sincerely held the beliefs she
professed in her CO application.

The IO found that Hanna’s objection to war became fixed

in 2005. He credited Hanna’s testimony that “when she applied to

join the military in 1997 her belief system was still developing

and, in fact, she was experiencing doubts as to the existence of

God.” He also credited her explanation of how her beliefs

developed from the death of her father in 2003 through the summer

and fall of 2005, when she began to view war from “a Christian

perspective.” The IO concluded his report by stating:

I assessed [Hanna’s] credibility at the
hearing and considered the opinions as to her
sincerity and/or honesty proffered by Fathers
Bishara and Henein, Philip Hess, M.D., Father
Megally, and Stephanie Jones, M.D. I
concluded that CPT Hanna is an honest and
truthful person and credited her statements
that her beliefs became incompatible with
military service in October 2005.

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 The IO also discussed the reports of the chaplain and the

psychiatrist, as well as the Powers memorandum. The IO concluded

that the chaplain was incorrect in his opinion that the COC is not

supportive of conscientious objectors. He noted that two Coptic

priests had testified that the COC supports conscientious

objectors, and that this testimony was consistent with materials he

reviewed regarding the treatment of war by Eastern Orthodox

religions. The IO also noted that, under Army regulations, an

applicant’s personal convictions dominate over the teachings of her

church, “so long as they derive from the person’s moral, ethical,

or religious beliefs.” The IO found that

[i]n addition to her involvement with the COC,
CPT Hanna made reference to her personal
research into Christian philosophy and the
development of her own, individual beliefs as
to God and morality and her personal moral
belief system. I find that in the case of CPT
Hanna, her opposition to war in all forms is
derived from moral, ethical and religious
beliefs and that her beliefs are sincerely
held.

Regarding the chaplain’s views on Hanna’s work at a

hospital that provides abortions, the IO credited Hanna’s

explanation that serving in the military is not analogous to

working in a civilian hospital. The IO concluded that Hanna’s work

at a hospital that provides abortions and her willingness to treat

police officers and gang members had no bearing on the sincerity of

her objection to war.

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 Turning to the Powers memorandum, the IO credited Hanna’s

testimony that she did not know the other anesthesiologists who had

submitted CO applications. The IO also commented that no adverse

inference could be drawn from the fact that Hanna had hired an

attorney experienced in CO applications because a prudent person

would not pay attorney’s fees to someone who did not have the

requisite experience to provide effective representation. The IO

further noted that Hanna’s attorney was a West Point graduate, that

he had served on active duty, and that he had previously

represented numerous soldiers who were seeking to be retained by

the Army.

Regarding the psychiatrist’s report, the IO stated that

the psychiatrist admitted during testimony that his report

contained several errors, including an incorrect characterization

of Hanna’s beliefs as “not based on any religious conviction.” In

his testimony, the psychiatrist clarified his opinion that “while

CPT Hanna’s beliefs were not anchored in the tenets of a particular

religion they were a product of her personal faith system.” The IO

commented that he interpreted the psychiatrist’s testimony to mean

that Hanna’s beliefs were a product of “her personal relationship

with God.” The IO also noted that the Powers memorandum, which the

psychiatrist reviewed before Hanna’s interview, may have prompted

the psychiatrist to “engage in an unnecessarily involved

discussion” of the issues in the memo, particularly her choice of

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attorney, putting Hanna “on the defensive” and possibly influencing

Hanna’s demeanor during the interview, which the psychiatrist

reported as tense and guarded. The IO found that, in contrast,

Hanna’s demeanor during the hearing was “open, cooperative,

courteous and sincere.”

The IO’s report was forwarded to officers up the chain of

command, each of whom recommended approval of Hanna’s application

based on their findings that Hanna sincerely opposed participation

in war because of her religious beliefs. Colonel Robert Marsh

found that Hanna’s “life-long church involvement does not appear to

be a recent effort to avoid military service.” Colonel Marsh

further stated that “[t]he strength and intensity of her evolving

convictions against war and violence, beginning with the death of

her father in May 2003 and becoming firm by October 2005, are

reflective of sincere belief and are supported by clear and

convincing evidence.” A Staff Judge Advocate (“SJA”)recommended

approval after concluding that “[t]he investigating officer

conducted a thorough inquiry into [Hanna’s] convictions. Numerous

witnesses were called on her behalf.” The SJA noted that after the

death of her father, Hanna “felt free to consider the contradiction

in her religious beliefs and the Army mission.” The SJA further

commented that Hanna’s application “is not a means to avoid her

military commitment.” Brigadier General Todd Semonite found, after

“thoroughly” reviewing the file, that Hanna’s objection was

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“sincerely held” and that “[t]he solemnity of her convictions is

clear throughout the investigation and they do not appear to have

been born of a desire to avoid service.” General Semonite

emphasized that his conclusion was based on “the investigating

officer’s credibility determination, CPT Hanna’s testimony, and the

opinions of the leaders of her church.”

Hanna’s application was ultimately reviewed by the

DACORB, which voted 2-1 to reject it. The President of the Board

voted to disapprove the application, stating:

Applicant has shown that she is a devout
Coptic Christian but has failed to show
that she sincerely meets the CO criteria.
Her statements are logical but lack
passion and sincerity; they appear as
repetition rather than personally held
beliefs.

The Chaplain voted to disapprove the application, stating:

The statement by the priest that the COC
does not teach pacifism leads one to
believe that there is more to Cpt. Hanna’s
position then merely religious conviction.
Also, her timing is too convenient w/the
completion of her schooling and her entry
on [active duty].

The Staff Judge Advocate voted to approve the application,

finding that the applicant “has a firm, fixed and sincere objection

to participation in war in any form.”

Hanna petitioned for a writ of habeas corpus. The

district court, after a lengthy and detailed review of the record,

held that there was no “basis in fact” for the DACORB’s decision and

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granted Hanna’s petition permanently enjoining the Army from

ordering Hanna to active duty.2

The Army timely appealed.

DISCUSSION

I. STANDARD OF REVIEW

We review a district court’s grant or denial of habeas de

novo. Healy v. Spencer, 453 F.3d 21, 25 (1st Cir. 2006). Our

review of conscientious objector claims turns on whether a “basis

in fact” exists for the military’s decision. Bates v. Commander,

First Coast Guard District, 413 F.2d 475, 477 (1st Cir. 1969)

(citing Estep v. United States, 327 U.S. 114 (1946)); Lobis v. Sec’y

of the United States Air Force, 519 F.2d 304, 306 (1st Cir. 1975).

Denial of an application “will be upheld on review if there is a

‘basis in fact’ for the decision.” Hager v. Sec’y of the Air Force,

938 F.2d 1449, 1454 (1st Cir. 1991). “Although this standard of

review is a narrow one, it is not toothless. A basis in fact will

not find support in mere disbelief or surmise as to the applicant’s

motivation. Rather, the government must show some hard, reliable,

2
No First Circuit cases reviewing denial of conscientious
objector status have ever reversed the district court’s grant of a
writ of habeas corpus. See Hager v. Sec’y of the Air Force, 938
F.2d 1449 (1st Cir. 1991); Walshe v. Toole, 663 F.2d 320 (1st Cir.
1981); Goldstein v. Middendorf, 535 F.2d 1339 (1st Cir. 1976);
Lobis v. Sec’y of the United States Air Force, 519 F.2d 304 (1st
Cir. 1975); Armstrong v. Laird, 456 F.2d 521 (1st Cir. 1972);
Crotty v. Kelly, 443 F.2d 214 (1st Cir. 1972); Silberberg v.
Willis, 420 F.2d 662 (1st Cir. 1970); Bates v. Commander, First
Coast Guard District, 413 F.2d 475 (1st Cir. 1969).

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provable facts which would provide a basis for disbelieving the

applicant’s sincerity, or it must show something concrete in the

record which substantially blurs the picture painted by the

applicant.” Id. The DACORB’s reasons for its decision “must be

grounded in logic” and “‘a mere suspicion is an inadequate basis in

fact.’” Id.3

II. WHETHER THERE WAS A BASIS IN FACT FOR THE DACORB’S DECISION

The Army’s attack on the district court’s decision is

narrowly focused. It argues first that the timing of her

application casts doubt on her sincerity and that her explanations

for the change in her beliefs were inconsistent. Second, it argues

that her beliefs were not gained through rigorous training, study

or contemplation. We address each of those contentions in turn.4

3
An applicant for discharge based on conscientious objection
must show that: (1) she is conscientiously opposed to participation
in war in any form; (2) her opposition is founded on religious
training and beliefs; and (3) her position is sincere and deeply
held. Hager, 954 F.2d at 1454; 32 C.F.R. § 75.5(a). The relevant
regulation was removed from the Code of Federal Regulations and
added to the Department of Defense Instructions effective June 19,
2007. See 722 Fed. Reg. 33677-01 (June 19, 2007). The substance
of the regulation remains unchanged. This opinion will use the
former Code of Federal Regulations citation.
4
The dissent cites the adverse recommendations of the Army
psychiatrist and the chaplain. However, the Army in its reply
brief specifically stated that it did not rely on the views
expressed by the chaplain, conceding that the chaplain’s evaluation
of Hanna’s sincerity was improperly influenced by his “personal
moral views.” See AR 600-43 ¶ 1-5.b; 32 C.F.R. § 75.5(c)(iii)
(interviewer may not “deny the existence of [the applicant’s]
beliefs simply because those beliefs are incompatible with [his]
own.”); Goldstein v. Middendorf, 535 F.2d 1339, 1344 (1st Cir.
1976) (military may not reject application because investigating

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 A. The Army’s first argument is that the late

crystallization of Hanna’s opposition to war coupled with

inconsistencies in her explanations for the change in her beliefs

provide a “basis in fact” for the decision.

The Army concedes, as it must, that “[t]he timing of [an]

application alone . . . is never enough to furnish a basis in fact

to support a disapproval.” AR 600-43 ¶ 1-5.b. See also Hager, 938

F.2d at 1455 (“It is universally the law . . . that late

crystallization of conscientious objector convictions is not a

sufficient basis in fact to reject the claim.”). A sincere

conscientious objector is entitled to release from his service

obligations whether his view crystallizes late or early. Lobis, 519

F.3d at 307 (citing Ehlert v. United States, 402 U.S. 99, 103-04

(1971)). “If decisive weight could be given to timing, there would

be nothing to prevent the services from indulging an absolute

presumption against late crystallization . . .” Id.5

In an effort to fortify its timing argument, the Army points

to what it regards as inconsistencies in Hanna’s explanation as

officer believes applicant’s views on abortion are incompatible
with conscientious objection). The Army further stated that it did
not rely on the psychiatrist’s report in this appeal. See AR 600-
43 ¶ 2-3.b (“The psychiatrist or medical officer will make no
recommendation for approval or disapproval of the application.”)
5
The dissent argues that “[t]here is nothing wrong with the
board’s concern with the timing of Hanna’s application,” failing
to acknowledge that late timing is never a sufficient basis by
itself for rejecting a claim of conscientious objection.

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evidence of insincerity. In her CO application, Hanna stated that

in 1997, when she applied for the HPSP scholarship, she was

experiencing a period of “change and uncertainty” that “greatly

tested [her] faith and [her] proximity to the Church.” She further

stated that during this time, she “questioned everything,” turning

to atheism for several months, followed by agnosticism. The Army

contrasts this description with her 1997 application, in which Hanna

described her activities and achievements as an undergraduate and

expressed a desire to “take on the myriad challenges” of serving in

the Army and practicing medicine. The Army argues that Hanna’s 1997

motivation statement, which reflects Hanna’s high-achieving, driven

nature and her ability to “overcome obstacles in her life” based on

her “strength and determination” is inconsistent with the statement

in her CO application that she applied for the HPSP scholarship

during a time of “change and uncertainty.” The Army argues that the

DACORB could have found Hanna’s explanations to be inconsistent and

hence evidence of insincerity.

The first response to this argument is that it rests on pure

speculation. Nothing in the DACORB decision suggests that any

DACORB member had found Hanna’s explanations to be inconsistent.

The statements of the President and the Chaplain are sufficiently

specific that had they found Hanna to be insincere on the basis of

inconsistencies in her explanations, one would have expected one or

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the other to have said so.6 Moreover, the Army’s after-the-fact

interpretive gloss on Hanna’s statements cannot pass muster as

“hard, reliable provable facts which would provide a basis for

disbelieving the applicant’s sincerity . . . something concrete in

the record.” Hager, 932 F.2d at 1454; cf. Koh v. Secretary of the

Air Force, 719 F.2d 1384 (9th Cir. 1983)(finding of insincerity was

supported by basis in fact where applicant, who had submitted her

application one month after receiving active duty orders, had made

two previous applications for discharge based on grounds other than

opposition to war and had enrolled in a medical training program

conflicting with her military commitment).

In any event, we do not find Hanna’s explanations to be

inconsistent. That Hanna might have questioned her religious

beliefs at the time when she applied for the HPSP is not

inconsistent with her being highly motivated to attend medical

school and join the military during that same period. The IO

credited Hanna’s testimony that her “personal belief system was not

6
Army Regulation 600-43 part 2-8.d(3) provides: “If a
determination [sic, is made] by HQDA that the person’s request is
disapproved, the reasons for this decision will be made a part of
the record.” The denial of an application must be supported by a
statement of reasons. Hager, 938 F.2d at 1454. “[A] court, if it
sustains a decision by recourse to reasons outside those specified,
opens the door to an improper substituting of the court’s judgment
and evaluation of evidence in place of that of the agency (here the
CORB) or official with responsibility. The court’s judgment, its
reasons and approaches, may not be acceptable to and may even have
been discredited by the administrative officials responsible.”
Checkman v. Laird, 469 F.2d 773, 781 (2d Cir. 1972).

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fully developed” and that she had “not give[n] much thought to the

morality of war” at the time she applied to the HPSP. As the IO

noted, eight years had passed between Hanna’s application to join

the Army and her application for discharge. We think that was more

than sufficient time for crystallization. See Lobis, 519 F.2d at

306 n.1.

Here, as in Lobis, “the [Army] has blotted out entirely the

finding of sincerity made by its own Investigating Officer.” 519

F.2d at 307. After conducting a hearing at which he heard testimony

from Hanna and other witnesses and examined documentary evidence,

the IO “concluded that CPT. Hanna is an honest and truthful person

and credited her statements that her beliefs became incompatible

with military service in October 2005.” He found Hanna “to be

sincere and her beliefs to be sincerely held.” When the IO’s

recommendation was forwarded to the officers in the chain of

command, it was endorsed at each level. At the first level, the

commanding officer of the human resources command found that Hanna

“has provided clear and convincing evidence supporting her request

for conscientious objector (CO) status and discharge.” The staff

judge advocate found that “the evidence supports the findings of the

investigating officer.” Finally, the commanding general, in his

recommendation to the DACORB, stated that Hanna “has put forth clear

and convincing evidence that she is opposed to participation in war

in any form based on her religious, moral and ethical beliefs.”

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Where, as here, the applicant has established her sincerity to the

satisfaction of the officer charged with investigating her

application and has provided a plausible explanation for the late

crystallization of her beliefs, “inferences of insincerity drawn

from the timing of the application are insufficient ‘objective

facts’ to provide a basis-in-fact for rejecting the claim.” Lobis,

519 F.2d at 309.

B. The Army’s second argument in support of the DACORB’s

decision is that Hanna’s application does not comply with Army

regulations. Citing the regulations, it argues that Hanna’s beliefs

were not gained through rigorous training, study or contemplation.

Instead, it points out, according to her application, her beliefs

crystallized in October 2005 when she watched war documentaries and

a television program discussing war and violence and their

destructive roles. Thus, she has failed to show that her beliefs

were developed through “activity comparable in rigor and dedication

to the processes by which traditional religious convictions are

formulated.” 32 C.F.R. § 75.5(c)(2)(ii).

This argument too is an after-the-fact rationalization which

finds no support in the DACORB decision or in the record. In any

event, it lacks merit.

The regulation on which the Army relies states:

(ii) Relevant factors to be considered in
determining an applicant’s claim of conscientious
objection include: Training in the home and
church; general demeanor and pattern of conduct;

-22-
 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 the
applicant; and credibility of persons supporting
the claim.

32 C.F.R. § 75.5(c)(2)(ii)(emphasis added).

The Army’s argument misreads its regulation. The reference

to “rigor and dedication” appears in the context of comparing

“traditional religious convictions” with “ethical or moral

convictions.” The “rigor and dedication” consideration applies only

to applicants whose objections stem purely from secular beliefs,

i.e. ethical and moral convictions, as opposed to those whose

objections are based on “traditional religious conviction.” See

Welsh v. United States, 398 U.S. 333, 340 (1970) (holding that an

applicant whose beliefs “are purely ethical or moral in source and

content” is “as much entitled to a ‘religious’ conscientious

objector exemption . . . as is someone who derives his conscientious

opposition to war from traditional religious convictions”);

Rogowskyj v. Conway, No. 06-1930, 2007 WL 779390, at *4 (D.D.C. Mar.

13, 2007) (holding regulation applicable “[w]hen, as here, an

applicant does not claim adherence to a traditional religion”). The

Army’s reading would obliterate the distinction between objectors

asserting purely moral or ethical grounds and those whose objection

is based on traditional religious convictions and would render the

-23-
regulation nonsensical.7

The dissent acknowledges Hanna’s religious convictions but

argues that her objection to war cannot be religious because

“pacifist views are not part of her church’s doctrine.” It is well

settled that membership in a church that does not teach

conscientious objection does not render an applicant’s beliefs non-

religious. United States v. Seeger, 380 U.S. 163, 171-72 (1965).

An applicant’s objection may be religious though she belongs to no

church at all, or an applicant may “through religious reading reach

a conviction against participation in war” though she belongs to a

church that is not opposed to war. Id. See also Clay v. United

States, 403 U.S. 698, 702-03 (1971) (holding applicant’s objection

sincere where based on “tenets of the Muslim religion as he

understands them”) (emphasis added). In Bates v. Commander, First

Coast Guard Dist., 413 F.2d 475, 479-80 (1st Cir. 1969), we rejected

the military’s argument that the applicant’s opposition to war was

derived from a secular “personal code” simply because conscientious

objection was not an essential tenet of his religious faith. Noting

that the applicant’s religious belief was “amply documented” and

that the applicant identified as his religious faith a “social

7
The distinction between religious beliefs and purely moral
or ethical beliefs appears elsewhere in the regulations. See,
e.g., AR 600-43, Glossary (“The term ‘religious training and
belief’ may include solely moral or ethical beliefs”); 32 C.F.R. §
75.5(c)(2) (applicant whose objection is based on “moral and
ethical beliefs” must show that beliefs are held “with the strength
of traditional religious convictions”).

-24-
kinship with Jesus,” the Court held that “great weight must be

attributed to a registrant’s claim that his belief is rooted in

religious faith. This is particularly compelling where there has

been a finding of sincerity . . . .” Id. at 480 (citing Seeger, 380

U.S. at 184). The Army must evaluate “whether the beliefs professed

by a registrant are sincerely held and whether they are, in his own

scheme of things, religious.” Seeger, 380 U.S. at 185. Indeed,

the Army’s own regulations recognize that an applicant’s opposition

to war may be religious in nature even though her church does not

teach conscientious objection. See AR 600-43 1-5.b.; 32 C.F.R. §

75.5 (c)(iii)(d) (disagreement with tenets of church does not

necessarily discredit claim, so long as objection derives “from the

person’s moral, ethical, or religious beliefs”).

In her CO application, Hanna identified herself as Christian

and Christianity as the source of her objection to war. She

explained in detail her belief that Christianity required her to

refrain from participation in war. The IO found, based on Hanna’s

testimony and the testimony and letters of several Coptic priests

that knew her personally, that Hanna was a “devout member” of the

Coptic Orthodox Church. He found her to be sincerely opposed to war

in any form because of religious as well as moral and ethical

beliefs. The fact that non-religious documentaries contributed to

Hanna’s view that there is a conflict between her religious faith

and her military service does not mean that her beliefs are purely

-25-
ethical or moral or that they lack religious grounding. As Hanna

explained in her CO application, the documentaries caused her to

“view all war from a Christian perspective: complete separation from

God.” Indeed, the DACORB did not question Hanna’s religious belief.

The President acknowledged that Hanna is a “devout Coptic

Christian,” and the Chaplain thought that “there is more to Cpt.

Hanna’s position than merely religious conviction.”

Thus the Army’s citation of Aguayo v. Harvey, 476 F.3d 971,

980-81 (D.C. Cir. 2007), is inapposite. There the court upheld a

denial of CO status where the applicant’s beliefs did not have a

religious foundation and the applicant had failed to identify the

source of his non-religious objection to war. Id. at 980-81. The

court reasoned that the applicant had failed to show that his

ethical objection to war had developed through activity comparable

in rigor to the processes by which religious convictions are formed.

Id. Here, because Hanna’s objection to war stems from religious

convictions, the regulation provides no basis in fact for the Army’s

decision to deny Hanna’s application.8

8
The dissent characterizes Hanna’s “religious training and
belief” as comprising merely “a few films, a rally, a television
program.” This description simply ignores the uncontested evidence
of Hanna’s lifelong membership in the Coptic Orthodox Church. The
Army may not rely upon what it views as the least compelling events
contributing to the development of an applicant’s beliefs while
ignoring a lifetime of religious observance. “Sincerity is
determined by an impartial evaluation of the applicant’s thinking
and living in its totality, past and present.” AR 600-43 1-
5.a(5)(a); 32 C.F.R. § 75.5(c)(2).

-26-
 III. REMAND

Finally, the Army argues that even if we find that there is

no factual basis for the DACORB’s decision, we must remand to the

DACORB for additional proceedings. Because the Army raised this

argument for the first time in its reply brief, the issue is waived.

Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st

Cir. 2000)(stating that “[w]e have held, with a regularity bordering

on the monotonous, that issues advanced for the first time in an

appellant’s reply brief are deemed waived”).

Even if there were some reason why this appeal should escape

this settled principle (and we discern none), remand would not be

appropriate. The DACORB’s denial of Hanna’s application is not

“flawed by mistaken legal premises, unsustainable subsidiary

findings, or doubtful reasoning.” See Castanedo-Castillo v.

Gonzales, 488 F.3d 17, 25 (1st Cir. 2007). Nor is this a case of

procedural defect as reflected in the cases cited in the Army’s

reply brief. See Friedberg v. Resor, 453 F.2d 935, 938 (2d Cir.

1971) (remanding without reaching merits where Board failed to

observe military regulations in reviewing application); Coates v.

Laird, 494 F.2d 709, 712 (4th Cir. 1974) (remanding where military

failed to state reasons for its decision, as required by

regulations); Sanger v. Seamans, 507 F.2d 814, 819 (9th Cir. 1974)

(remanding where document on which Secretary relied in reaching

decision was missing from record). Remand is improper where, as

-27-
here, there are no procedural defects, “[a hearing] has already

taken place with a finding favorable to [the applicant] and the

record reveals no other possible basis for a finding of

insincerity.” Goldstein v. Middendorf, 535 F.2d 1339, 1345 (1st

Cir. 1976). See also Coates, 494 F.2d at 712 (stating that remand

is not appropriate where “the record shows that there is ‘no basis

in fact’ for denial on any valid ground”).

CONCLUSION

For the reasons stated we affirm the judgment of the

district court.

Affirmed.

-Dissenting Opinion Follows-

-28-
 BOUDIN, Chief Judge, dissenting. On its facts, this is

a close case. In the first instance the army could probably have

turned down Hanna's application without much risk of reversal; but

the administrative proceedings, including the investigating

officer's initial decision, has weakened the army's position. So

the main concern is not with the outcome but with the possible

effect of the panel majority's legal rulings and analysis on future

cases.

Hanna joined the army in 1997 under the Health

Professional Scholarship Program, which funds an applicant's

medical education in exchange for a commitment to serve in the

armed forces. In this process, she expressly averred that she was

not a conscientious objector. Hanna completed medical school in

2002 and received a deferral from the army to complete her training

in anesthesiology. In October 2005 she received a notice from the

army stating that she would be required to report for active duty

in August 2006.

In response, Hanna submitted her CO application,

describing the development of her pacifist beliefs. They included

her religious upbringing in the Coptic Orthodox Church, the

rekindling of her beliefs after the death of her father, her

viewing war documentaries in the summer of 2005, her attendance at

an anti-war rally in September 2005 and her viewing (in early

-29-
October 2005) a PBS program in which a man cited the Beatitudes in

the context of discussing the destructiveness of war.

The army was entitled to be suspicious. The critical

question in conscientious objector cases is not whether one

dislikes war or prefers not to serve. To qualify for a CO

discharge, Hanna had to show, by clear and convincing evidence,

that she is conscientiously opposed to participation in war in any

form, that her opposition is founded on religious training and

beliefs,9 and that her position is firm, fixed, sincere and deeply

held. DOD Instruction 1300.06 ¶ 5.1 (formerly codified at 32

C.F.R. § 75.5(a)); A.R. 600-43 ¶ 1-7(c).

Pacifism is not a precept of the Coptic Church; based on

Hanna's own evidence, the development of her position could not

easily be described as reflecting rigorous study; and, although the

convenient timing is not under army regulations enough to doom her

application, the timing could certainly be considered together with

other evidence. An army chaplain and an army psychiatrist who

initially interviewed Hanna recommended against the granting of her

application (although arguably they went beyond their brief).

9
The army regulations define "religious training and beliefs"
broadly to encompass "a sincere and meaningful belief which
occupies in the life of its possessor a place parallel to that
filled by the God of another, or, in the case of deeply held moral
or ethical beliefs, a belief held with the strength and devotion of
traditional religious convictions." A.R. 600-43, Glossary.

-30-
 At the hearing conducted by the appointed investigating

officer, several priests and Hanna's medical colleagues attested to

her honesty and sincerity. The investigating officer found that

she met the requirements for conscientious objector status. And,

officers up the chain of command approved his recommendation (on

the papers) until the case reached the final administrative stage:

the Department of Army Conscientious Objector Review Board ("the

board"), the three-person review panel ultimately responsible for

reviewing CO requests.

The board (by a 2-to-1 vote) disapproved Hanna's

application. The board president (Colonel Catherine Schoonover)

said that Hanna appeared devout but her objections to war lacked

passion and sincerity; the chaplain member joined in the denial,

relying on the timing of the application and the lack of

endorsement of pacifism in Coptic Church doctrine. The board's

staff judge advocate member dissented, saying that Hanna had proved

her belief by a preponderance of the evidence (a misstatement of

Hanna's burden of proof).

A habeas proceeding followed (Hanna was already in the

army as a captain), and the district court overturned the board,

ordering that Hanna be discharged as a conscientious objector but

staying the decision pending review here. The panel majority now

affirms the district court, pointing to the evidence in support of

-31-
Hanna's application and criticizing the decision of the two board

members who voted against Hanna.

Judicial review of the board's decision is intended to be

highly deferential. Witmer v. United States, 348 U.S. 375, 380-81

(1955). A court asks whether there is a "basis in fact" supporting

the board's decision that Hanna did not meet the heavy burden of

proof she bore, id. at 381; Hager v. Sec'y of the Air Force, 938

F.2d 1449, 1454 (1st Cir. 1991). The "basis in fact" standard has

been described by Judge Friendly as the most deferential review

known to the law in relation to an administrator's evaluation of

evidence. United States v. Corliss, 280 F.2d 808, 810 (2d Cir.),

cert. denied, 364 U.S. 884 (1960); see also Witmer, 438 U.S. at

380-81.

There was nothing wrong with the board's concern with the

timing of Hanna's application. The convenience of an applicant's

eve-of-service conversion to pacifism, after an earlier explicit

assertion to the contrary, may reinforce doubts.10 As we said in

Lobis v. Sec'y of the Air Force, 519 F.2d 304, 307 (1st Cir. 1975),

"[t]his court might nonetheless give substantial weight to the

10
See Lobis v. Sec'y of the Air Force, 519 F.2d 304, 307 (1st
Cir. 1975) ("[T]he sudden crystallizing of CO convictions upon
receipt of an induction order or call to active duty may
legitimately engender suspicion."); see also Alhassan v. Hagee, 424
F.3d 518, 523 (7th Cir. 2005) ("[W]e have found that 'a belated
conscientious objector application following assignment is a proper
element for consideration.'" (quoting United States ex rel.
Okerlund v. Laird, 473 F.2d 1286, 1289 (7th Cir. 1973))).

-32-
element of timing were it reinforced by other evidence." Any

parent whose child claims to be sick on the morning of the final

exam knows better than to take such a claim at face value.

Nor has the army misread its own regulations--a matter

within its ken, see Beaver Plant Operations, Inc. v. Herman, 223

F.3d 25, 29 (1st Cir. 2000)--by stressing the lack of "rigor and

dedication" in relation to Hanna's formation of pacifist views.

The panel majority says that this language only applies if the

pacifist views are "secular"; but while Hanna is religious, her

pacifist views are not part of her church's doctrine; they are,

assuming her sincerity, part of her own personally conceived moral

framework rather than the received tenets of her religion.

In any event, the same requirement of commitment is

explicit in the CO regulations that require "a firm, fixed and

sincere objection to participation in war in any form" by reason

either of "religious training and belief" or from equivalent non-

religious "moral or ethical beliefs . . . held with the strength

and devotion of traditional religious convictions." Hanna's

account of her conversion (a few films, a rally, the television

program) is not helpful to her claim.

There is one more troubling circumstance. Hanna's

application to the program expressly acknowledged that "I am not a

conscientious objector." Hanna's 2005 CO application states that

at the time she applied to the HPSP program in 1997 she was

-33-
experiencing religious doubt, but the HPSP application itself

evinces no such doubt and instead details her intense involvement

with the Coptic Church without any reference to pacifist concerns.

Perhaps the strongest evidence in Hanna's favor is the

fact that the investigating officer heard her testify and credited

her sincerity; but aside from the fact that the chaplain and the

psychiatrist who interviewed her did not, the responsibility is

ultimately that of the board. In administrative review, the

administrative law judge's views may get weight but they are not

mechanically controlling even though the ALJ heard the witnesses

and the reviewing body did not.11

If there is a weakness in the board's position, it is in

the lack of a substantial explanation in a close case. There was

evidence on both sides and the consequences for Hanna were very

significant; and the board was overturning its own investigating

officer with one board member dissenting. So there was perhaps

good reason for a fuller explanation. See Rizek v. SEC, 215 F.3d

157, 161 (1st Cir. 2000); Sanger v. Seamans, 507 F.2d 814, 818 (9th

Cir. 1974). Here, however, the panel majority has not sought a

11
See, e.g., Haas Elec., Inc. v. NLRB, 299 F.3d 23, 28-29 (1st
Cir. 2002) (noting that where review board disagrees with factual
findings of the ALJ, deference is owed to the board, but appellate
review is "slightly less deferential than it would be otherwise");
Martinez v. INS, 970 F.2d 973, 974 (1st Cir. 1992) (rejecting
argument that board must defer to the immigration judge's findings
of fact, and granting appropriate deference to the board's contrary
findings); see also Universal Camera Corp. v. NLRB, 340 U.S. 474,
496 (1951).

-34-
better explanation but impermissibly made its own definitive

determination.

Waiver rules, adverted to in the panel decision, have no

bearing on the matter: if an explanation is insufficient to permit

review, it is the court's job to remand, whether asked to do so or

not. See United States ex rel. Coates v. Laird, 494 F.2d 709, 712

(4th Cir. 1974). And the idea that remands for further explanation

are limited to cases of procedural error has no support in reason

or precedent. As we said in an earlier case:

If the agency decision is flawed by mistaken
legal premises, unsustainable subsidiary
findings, or doubtful reasoning, remanding to
the give the agency an opportunity to cure the
error is the ordinary course.12

Holmes' famous aphorism notwithstanding, it is far from

clear that hard cases make bad law. Often, the problem in a hard

case is a tension between existing law and what the judge feels is

the "right" result. Here, doctrine gives the close calls to the

army. If a judge disregards that doctrine, it is the judge and not

the case that has made bad law. This decision, alas, is such an

instance.

12
Castaneda-Castillo v. Gonzales, 488 F.3d 17, 25 (1st Cir.
2007) (en banc); see also Sulaiman v. Gonzales, 429 F.3d 347, 350
(1st Cir. 2005) ("On a challenge to the sufficiency of an opinion,
the usual remedy is remand . . . ."); Seavey v. Barnhart, 276 F.3d
1, 12 (1st Cir. 2001) ("When an agency has not considered all
relevant factors in taking action, or has provided insufficient
explanation for its action, the reviewing court ordinarily should
remand the case to the agency.").

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