(dissenting) :
I dissent.
In United States v Phifer, 18 USCMA 508, 510, 40 CMR 220 (1969), this Court unanimously declared:
“. . (W)e are bound by purely factual determinations of the board of review (United States v Judd, 10 USCMA 113, 27 CMR 187 [1959]; United States v Remele, 13 USCMA 617, 33 CMR 149 [1963]), unless such conclusions are arbitrary and capricious, so as to amount to an abuse of discretion (United States v Wheatley, 10 USCMA 537, 28 CMR 103 [1959]). . . .’(United States v Baldwin, 17 USCMA 72, 77, 37 CMR 336 [1967].) (Emphasis supplied.)”
See also United States v Smith, 17 USCMA 427, 38 CMR 225 (1968). and cases cited at page 430.
In the case at bar, the Court of Military Review, sitting en banc with twelve judges in agreement,1 clearly found as a fact that the law officer, by restricting the scope of defense counsel’s inquiry, “precluded judicial determination” of the defense contention that the accused was denied “administrative due process in processing appellant’s application for conscientious objector status under Army Regulation 635-20, dated 22 January 1969.” Even the two other judges who wrote separately agreed on this question. Their departure from their brothers’ opinion was over the nature of the rehearing which was ordered by the majority to correct the law officer’s error.
The majority of the Court of Military Review noted, in their opinion, that:
“. . . The military judge refused to hear the motion or receive evidence in support thereof stating that he would submit the matter to the court-martial as a factual issue.
“Thereafter, the defense to establish its allegation of procedural irregularities called as witnesses two of the officers within the command charged with making administrative determinations under the regulation. Counsel attempted to determine the extent of the officers’ understanding and expertise concerning the regulation. The military judge restricted the scope of counsel’s inquiry, ruling that the witnesses’ assertion that they had complied with the regulation closed the matter. The military judge did not permit the defense to introduce appellant’s application into evidence. At the out-of-court hearing on instructions individual counsel contended the evidence established a failure to comply with the regulation and a denial of administrative due process which infested the entire conscientious objector processing and subsequently the or*571■der charged. The military judge ruled the matter was not in issue.”
Since the finding of the Court of Military Review is amply supported by the record of trial and is not “arbitrary and capricious,” we are bound by that determination. United States v Phifer, supra.
In United States v Noyd, 18 USCMA 483, 40 CMR 195 (1969), this Court held that military judges are empowered to rule on the legality of a Secretarial decision on an application for discharge as a conscientious objector, when the validity of a subsequent order depends upon that decision. As we said in Noyd, at page 492:
“. . . If the Secretary’s decision was illegal, the order it generated was also illegal. See United States v Gentle, 16 USCMA 437, 37 CMR 57 [1966].”
Cf. United States v Goguen, 20 USCMA 527, 43 CMR 367 (1971). Such a determination cannot be properly made unless there is before the judge a complete record of the proceedings. This record should reflect that at each level of activity, in the processing of the application, the terms of the regulation have been assiduously adhered to, and that findings of fact and conclusions based thereon, have been made by those charged with the particular responsibility. Since it is upon these findings and conclusions that the particular service Secretary makes his determination, this same information will serve as the basis for the judge’s ruling as to the correctness of the proceedings and the sufficiency of the evidence to sustain the Secretary’s action.
Despite the law officer’s curtailment of the defense examination of the chaplain, the following colloquy demonstrates that the chaplain utilized an improper standard in determining, as required by Army Regulation 635-20, that the accused was insincere in his claim of conscientious objection:
“LAW OFFICER: Well, Chaplain, I don’t know what this all about, but do you remember this man’s case?
“A: I only remember it, sir, on the basis of what I have here in writing.
“LAW OFFICER: Well, did you comply with the regulations?
“A: Yes, sir.
“LAW OFFICER: Very well, I have no further questions. That’s AR 635-20 as you’re required to do by regulation?
“A: All I have to do, sir, is interview the man, determine whether he is basing it on God, and this man does not. He bases it upon moral principles, not upon God, but on his own—
“LAW OFFICER: I don’t want to hear all that. I just wanted to know if you complied with your requirements of AR 635-20 as concerns you as a chaplain.
“A: Yes, sir, in detail.”
In United States v Seeger, 380 US 163, 184, 13 L Ed 2d 733, 85 S Ct 850 (1965), the Supreme Court, in speaking of the religious belief required for classification as a conscientious objector under the Universal Military Training and Service Act, 50 USC App, § 456(j) (1958 ed) ;2 stated that the standard to be utilized by the examiner,
“. . . is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?”
*572In the recent case of Welsh v United States, 398 US 333, 26 L Ed 2d 308, 90 S Ct 1792, 1796 (1970), the Court iterated its holding in Seeger. The Welsh decision clearly demonstrates that the correct standard does not require the applicant’s belief to be based upon a Supreme Being, as contended by the chaplain in this ease.
. . What is necessary under Seeger for a registrant’s conscientious objection to all war to be ‘religious’ within the meaning of § 6 (j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions. . . . Because his beliefs function as a religion in his life, such an individual is as much entitled to a ‘religious’ conscientious objector exemption under § 6 (j) as is someone who derives his conscientious opposition to war from traditional religious convictions.”
The holding of the Supreme Court in Seeger, as amplified in Welsh, demonstrates the failure of the chaplain to accord proper consideration to the accused’s claim as a conscientious objector.
I would answer the first certified question in the affirmative. Inasmuch as the accused’s contention that he was improperly denied status as a conscientious objector goes to the heart of his defense to the charge of disobedience of a lawful order (United States v Noyd, supra), a rehearing on the merits is required. In such an event, the remaining certified questions need not be answered.
Fourteen judges of the Court of Military Review participated in the hearing.
The purpose of Army Regulation 635-20 is stated as follows:
“1. Purpose. This regulation sets forth the policy criteria, and procedures for disposition of military personnel who, by reason of religious training and belief, claim conscientious objection to participation in war in any form.” [Emphasis supplied.]
Cf. United States v Noyd, 18 USCMA 483, 491, 40 CMR 195 (1969).