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Apple v. General Thomas Greer

argued: February 24, 1977; March 18, 1977, Reassigned.

THOMAS TURLEY APPLE
v.
GENERAL THOMAS GREER, COMMANDING OFFICER, UNITED STATES ARMY TRAINING CENTER, INFANTRY, FORT DIX, NEW JERSEY; HONORABLE HOWARD CALLAWAY, SECRETARY OF THE ARMY, AND HONORABLE JAMES R. SCHLESINGER, SECRETARY OF DEFENSE, APPELLANTS



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. Civil No. 75-385.

Adams, Kalodner*fn* and Hunter, Circuit Judges.

Author: Adams

Opinion OF THE COURT

ADAMS, Circuit Judge.

In this appeal we must determine whether the district court erred when it granted habeas corpus relief to the appellee, Thomas Turley Apple, while court-martial proceedings were pending against him. Since we conclude that the district court's decision was not congenial with the concept of comity that exists between civilian and military tribunals, we reverse.

I.

This case had its origins in Apple's unsuccessful efforts to be classified by the Selective Service System as a conscientious objector.

On December 11, 1967, upon the termination of his student deferment from the draft, Apple was classified 1-A (available for service) by his local Selective Service Board. At some point before April 8, 1968, Apple submitted an application for a conscientious objector exemption from military service. The application was denied without explanation, and Apple was continued by the local board in a 1-A status. He then requested a personal appearance before the local board, and made such an appearance on June 10, 1968. The local board again denied the application for conscientious objector status, without stating reasons for its decision. Apple then took an appeal from the decision of the local board to the State Appeal Board. On October 4, 1968, the State Appeal Board continued Apple in his 1-A classification.

Apple reported for induction into the Army, as ordered, on November 19, 1968, and served in the Army for more than eight months. On July 5, 1969, he left the military without authorization and settled in Canada.

In late 1974, Apple learned for the first time about court decisions which held that a selective service registrant submitting a prima facie claim for conscientious objector status is entitled to reasons for the denial of the application.*fn1 He decided to return to the United States to present his case, and surrendered at Fort Dix on March 5, 1975. On that same day, Apple commenced his habeas corpus action. He alleged that he is unlawfully detained by the military inasmuch as his induction into the Army was invalid because of the failure of the local board to state reasons for the denial of his conscientious objector application. Military authorities, also on March 5, filed charges against Apple for going AWOL in violation of Article 86 of the Uniform Code of Military Justice.*fn2

The district court, on March 10, 1975, issued a temporary restraining order enjoining the court-martial proceedings until the merits of the habeas petition could be determined. An opinion on the merits of Apple's habeas petition was filed by the district court on February 17, 1976. It concluded that Apple had been illegally inducted into the Army, and was being illegally detained. On March 5, 1976, the district court granted the writ. This appeal followed.

Appellants argue that it was improper for the district court, in the context of the present case, to intervene in the pending court-martial proceeding.*fn3 Apple, they maintain, could have secured the relief he seeks - discharge from the Army - within the confines of the military proceedings. In light of such consideration, they conclude, the intervention in this case violated concepts of comity between the civilian and military courts.

Two arguments are made by Apple in support of the action by the district court in enjoining the court-martial proceeding. First, he contends that the federal courts, which are "far more familiar with selective service issues than military courts," should act on the merits of a habeas petition despite a pending court-martial proceeding when the issue presented is the unlawful induction of the petitioner into the Army because the right of the military to try the petitioner is in dispute. Second, Apple insists that it was appropriate ...


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