The first footnote mentioned above :
Joseph Parisi was drafted on August 22, 1968. According to the inservice conscientious objector application he filed with the Army on May 22, 1969 (pursuant to Army Regulation (AR) 635-20), Parisi had doubts at the time of his induction about his feelings toward military service. However, his beliefs did not coalesce into conscientious objection until he was well down the road of basic training and initial duty assignment (psychological social work and counseling). His application, which was made prior to issuance of any order for redeployment to a combat station, also stated that his Army experiences to that point led him to the firm conviction that participation in any form of military activity conflicted irreconcilably with his Christian beliefs
The initial interviews mandated by AR 635-20 uniformly terminated in Parisi's favor; the base Chaplain, the base psychiatrist, and the special hearing officer (as well as Parisi's immediate supervisor) all attested to the sincerity and religious nature of Parisi's conscientious objection to military service. According to the record, the Commander of the Army hospital at Parisi's base as well as the Commanding General of his training center also recommended approval of the application, although they did not interview Parisi personally. However, Parisi's immediate commanding officer, Captain Hubman, recommended disapproval, with the notation, "Consider application contrary to paragraph 3b(3) AR 635-20." This paragraph provides that conscientious objector applications will not be favorably considered when:
"(3) Based on essentially political, sociological, or philosophical views, or on a merely personal moral code."
Captain Hubman had not interviewed Parisi nor had he engaged in any conversations with Parisi about the latter's religious beliefs and convictions.
In November, 1969, the Department of the Army denied Parisi's application. That office noted two reasons for its decision: (1) that Parisi's professed beliefs became fixed prior to entering the service, and (2) that Parisi was not truly opposed to all war due to his religious beliefs, as demonstrated by his attempts thus far to support it.
Parisi then applied to the Army Board for Correction of Military Records (ABCMR) for review of the denial of his discharge. Shortly thereafter, on November 28, 1969, he applied to the United States District Court for the Northern District of California for a writ of habeas corpus. He therein sought discharge from the Army as a conscientious objector.
In his habeas petition Parisi claimed that there was no basis in fact for the grounds cited by the Department of the Army in denying his application for a discharge. In addition, Parisi sought a preliminary injunction pending disposition of the proceeding to prevent respondents from: (1) requiring him to obey an order of August 8, 1969, to undergo training preparatory to being transferred to Viet Nam for duty; and (2) transferring him outside the jurisdiction of the District Court where the proceeding was commenced.
On the day the petition was filed, the District Court, after a hearing, entered an Order enjoining respondents from assigning Parisi to any duties which required materially greater participation in combat activity or training than was being required of him in this then present duties. This Order was to remain in effect pending decision by the ABCMR on Parisi's application to it for discharge as a conscientious objector.
The district court order recites that the court would retain jurisdiction of the case until the ABCMR made its decision. The Order also denied Parisi's application for a preliminary injunction against his transfer out of the Northern District of California. On December 4, 1969, Parisi took an interlocutory appeal (No. 25,133 in this court) from the Order denying his requested preliminary injunction.
About this time, Parisi received orders to process out of his then duty station at Ford Ord. California, and, following training, to report to the Overseas Replacement Station at Oakland, California, on December 31, 1969. This was later changed to the United States Army Personnel Center, Fort Lewis, Washington. Parisi then moved in this court for an order staying his deployment outside the Northern District of California pending disposition of his appeal.
Three other judges of our court denied the motion on December 10, 1969, "on condition that Respondents produce Appellant in this district if the appeal results in his favor." On December 29, 1969, the Circuit Justice denied a similar application for a stay.
Parisi reported, on December 31, 1969, as directed, to the United States Army Personnel Center, Fort Lewis, Washington. At that time he requested an opportunity to file a second application for discharge as a conscientious objector. As required by AR 635-20, he was given seven days to complete his application. However, on January 6, 1970, Parisi advised the authorities at the Personnel Center that he no longer wished to make out an application. Accordingly, he was booked for transportation overseas.
Parisi then refused to obey a military order to board a plane for Viet Nam. He was immediately charged with violating Article 90 of the Uniform Code of Military Justice, 10 U.S.C. § 890, and was confined to the Post Stockade, pending disposition of the charge against him.
On March 2, 1970, while Parisi's court-martial was pending, the ABCMR notified Parisi of its rejection of his application for relief from the Army's denial of his discharge request. Four days later the District Court, pursuant to Parisi's habeas petition, entered an Order requiring respondents (appellees in this appeal) to show cause why a writ should not be issued. The United States responded by moving in the District Court for a stay of the habeas proceedings pending exhaustion of Parisi's military judicial remedies.
At this point Parisi suggested to a panel of judges of our court that the first interlocutory appeal he had taken from his habeas proceeding (No. 25,133 in this court, above) should be dismissed as moot. As noted, the ABCMR had by this time denied him relief, and, since he was incarcerated at Fort Lewis, there was no remaining need for an injunction to keep him in this country. We entered the requested Order, dismissing the first appeal, on March 17, 1970.
On March 31, 1970, responding to the Government's motion that it abstain pending completion of Parisi's court-martial proceedings, the District Court entered an Order staying its consideration of Parisi's habeas petition until there was a trial and a final judgment in the military courts on the court-martial charges.
The District Court did not stay the court-martial proceedings pending our consideration of the interlocutory appeal, nor have we done so; consequently, in the interim between the date of the district court order, March 31, 1970, and the date of our acceptance of the appeal, April 24, 1970, Parisi was, on April 8, 1970, court-martialed and convicted of the charge against him. He is presently confined in the United States Army Disciplinary Barracks, Fort Leavenworth, Kansas, serving a sentence of two years at hard labor, with dishonorable discharge. We have been advised that his appeal before the Court of Military Review is now pending.
...OUTLAW