United States v. Walker

COX, Judge,

with whom

CRAWFORD and GIERKE, Judges,

join (concurring in part and in the result):

19. I agree with much of the lead opinion, but perhaps from a different perspective.

Army Regulation 614-30 (1 Apr 88)

20. Insofar as I can determine, Army Regulation (AR) 614-30 (“Oversea Service”) has nothing whatever to do with this accused. That regulation deals primarily with the question whether an individual soldier meets the criteria for selection for overseas service in the first place. Para. 1-1. The regulation addresses the basic question of whether a given soldier has the qualifications, training, and personal circumstances such that the United States of America is prepared to loose him or her on foreign soil. The accused, of course, was already overseas. Obviously, he had met those criteria sometime earlier. The regulation does not pertain to the matter of overseas redeployment of individuals or units already abroad.

21. Had AR 614-30 anything to do with the accused’s situation, one would have expected it to appear in Chapter 8, which deals with “Curtailment of Overseas Tours.” Reasons listed for curtailment run the gamut from security and safety risks, to unusual pregnancy circumstances, to emergency and compassionate reassignments. See Table 1-1. There is no mention, however, of a conscientious-objection curtailment or of any rights triggered by the filing of such an application by an overseas soldier.

■22. Even the chapter in the regulation dealing with unit deployments clearly reiterates the following:

Unit deployments, for purpose of this regulation, are movements of units from CO-NUS [continental United States] to an overseas location as directed in an Office of Deputy Chief of Staff for Operations (ODCSOPS) unit movement directive.

Para. 4-1.

23. The Court of Military Review erred, therefore, in holding that the various tables attached to AR 614-30 — tables that might preclude sending CONUS soldiers overseas — provided this accused a right to refuse to obey the order to deploy with his unit.

Army Regulation 600-43 (1 Aug 83)

24. AR 600-43 (“Conscientious Objection”) is the regulation pertaining to this accused’s circumstances. One sentence only of the regulation (here quoted in pertinent part) in effect at the time of his refusal to deploy applies particularly to this situation:

[P]ersons who have submitted applications ... will be retained in their unit and assigned duties providing minimum practicable conflict with their asserted beliefs, pending a final decision on their applications ____

Para. 2-10a (“Use, assignment, and training”), AR 600-43.

25. The Court of Military Review’s conclusion, following United States v. Wiley, 37 MJ 885 (ACMR 1993), and United States v. Johnson, 37 MJ 982 (ACMR 1993), that this sentence conferred a right on this accused to remain in Germany with the unit’s rear detachment and a right to refuse to obey the order to deploy is irrational. This accused’s rights were to remain with his unit — wherever it was — and, to the extent “practicable,” to be assigned duties involving minimal conflict with his asserted beliefs. Whether the accused was assigned such duties in Germany, Saudi Arabia, Kuwait, Iraq, or elsewhere was a unit call, not his. Since he refused to deploy as ordered, he cannot possibly argue that his command violated his right to mini*471mum practicable conflict with his asserted beliefs. Needless to say, in a theater of operation such as southwest Asia, the opportunities for service not involving compromise of the accused’s' asserted religious beliefs may have been substantial.

26. Other portions of AR 600-43 (pertaining to persons who have “receive[d] orders for reassignment”) plainly do not, on their face, apply to him. This accused was not being reassigned; he had merely been ordered to deploy with his unit.

Desert Shield Personnel Message (DSPM Number 31)

27. The Court of Military Review concluded that DSPM 31, dated 19 October 1990, was invalid, as it involved a sub-Secretarial modification of AR 600 — 43. The accused agrees. Clearly, DSPM 31 provided him no relief, however, as it sought to preclude soldiers (such as the accused) who had received notice that their unit was to deploy from filing conscientious objector applications until after arriving at their new duty stations. As no relief from the message is conceivable, it is unnecessary for us, for the purpose of resolving these certified issues, to revisit the Court of Military Review’s determination that the message was invalid.

January Change to AR 600-43

28. The change to paragraph 2-10c, AR 600-43, dated 2 January 1991 (a few days before the accused refused to deploy), also provides him no possible relief. This Secretarial (ie., lawful) change specifies that applications for conscientious objector status under AR 600-43 could be filed prior to deployment, but that the command might determine that an applicant would not deploy. Clearly, no right to refuse to deploy was granted. As no relief from this revised message is conceivable, it is unnecessary even to determine whether the revision was received in time by the command to become effective and binding on the parties. See United States v. Tolkach, 14 MJ 239 (CMA 1982).

Conclusions

29. No other regulations or provisions having apparent bearing on the accused’s circumstances have been identified. I conclude, therefore, that he was within his right to submit his conscientious objector application to his commander in Germany — albeit it was invalid on its face.* Arguably, his commander erred, however unwittingly, in informing the accused that the application would have to be resubmitted after deployment. Nevertheless, the command was clearly within its rights in ordering him to deploy. At the point when he refused to deploy, the command had certainly done nothing to compromise his espoused religious principles.

30. Admittedly, AR 600-43 provides certain timeliness standards for review of conscientious objector applications. The regulation also provides, however, that “[extraordinary circumstances ... may lengthen this period.” Para. 2-1&. Given the circumstances then in place in his unit, we assume the conditions for processing personnel applications (such as for conscientious objection) were far from maximal. In any event, his proper recourse for protesting delay in processing was administrative, not self-help. The Court of Military Review was mistaken in concluding that AR 600-43 and AR 614-30 conferred a right on this accused to refuse an order to deploy with his unit. Therefore, that court’s action in setting aside the findings of guilty of missing movement and disobeying an order was error.

To the extent my reasoning conforms with the lead opinion, I concur outright. In any event, I concur in the result.

Para. l-7a, AR 600-43, states:

[Rjequests by personnel for qualification as a conscientious objector after entering military service will not be favorably considered when these requests are—
(4) Based on objection to a certain war:

The accused’s asserted religious beliefs, on the other hand, only forbad him from killing other Muslims, not from war in general. Also not lost is the irony that the United States' basis for military intervention in southwest Asia at the time was the invasion of one Muslim nation by another.