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Short Answer:
A Conscientious Objector is someone who objects to participating in war and/or military service.
Legal Answer:
A “Conscientious Objector” is someone with a “firm, fixed, and sincere objection to participation in war in any form or the bearing of arms, by reason of religious training and/or belief.” A Conscientious Objector must be someone (1) who is conscientiously opposed to participating in war in any form; (2) whose opposition is based on religious training and/or belief; and (3) whose position is firm, fixed, sincere, and deeply held.1
Case Precedent and Regulations:
1 Department of Defense Instruction 1300.06, ¶ 3.1 & 5.1, May 31, 2007.
Short Answer:
A Conscientious Objector will either be discharged from the Armed Forces or assigned noncombat duties.
Legal Answer:
There are two classifications of Conscientious Objectors: (1) Class 1-O Conscientious Objectors and (2) Class 1-A-O Conscientious Objectors. A Class 1-O Conscientious Objector “objects to participation in military service of any kind in war in any form,” while a Class 1-A-O Conscientious Objector only “objects to participation as a combatant in war in any form.”2 A Service Member who is classified as a Class 1-O Conscientious Objector will be discharged from the Armed Forces. A Class 1-A-O Conscientious Objector may be discharged or may be assigned noncombat duties. It is within the discretion of each branch of the Armed Forces on whether to discharge Class 1-A-O Conscientious Objectors or assign them to noncombat duties. However, the Army has a policy that it will not discharge Class 1-A-O Conscientious Objectors, so they will be assigned to noncombat duties.3 If a Class 1-A-O Conscientious Objector is retained and assigned to noncombat duties, then once his term of service expires, he may not extend his term or reenlist in the Armed Forces.4 When a Conscientious Objector who refuses to perform military duties is discharged from the Armed Forces, they will likely receive an Other-Than-Honorable (OTH) discharge. OTH discharges typically bar most veteran benefits. It is important to note, however, that the Department of Veterans Affairs (VA) is an independent agency with the discretion to make its own determination regarding benefit eligibility.5
Case Precedent and Regulations:
2 Department of Defense Instruction 1300.06, ¶ 3.1, May 31, 2007.
3 Army Regulation 600-43, ¶ 3-1b, Aug. 21, 2006.
4 Department of Defense Instruction 1300.06, Enclosure E4, May 31, 2007.
5 38 U.S.C. § 5303.
Short Answer:
If you have a sincere belief opposing participation in any war and this belief has become set since enlisting in the Armed Forces, you should qualify as a Conscientious Objector.
Legal Answer:
A Conscientious Objector must have religious training and/or beliefs that cause him to oppose participating in war “in any form.” A Conscientious Objector cannot pick and choose which wars he is willing to participate in by only opposing participation in certain wars, but instead, a Conscientious Objector must be opposed to participating in any war.6
The required religious training and/or beliefs required can be based on a belief in an external power—such as a belief in God—or it can be based on a deeply held moral or ethical belief. The belief does not necessarily have to be religious,7 and if it is religious, it does not have to conform to any specific religion.8 However, the belief must be held with the same strength and conviction as traditional religious beliefs, and it must be sincere and so strongly held that everything else in your life either gives way to it or is dependent on it. As the Department of Defense puts it, “the belief upon which conscientious objection is based must be the primary controlling force in the applicant’s life.”9
Case Precedent and Regulations:
6 United States v. Webster, 65 M.J. 936 (2008) (refusing to grant Conscientious Objector status when service member refused to fight in war against Muslim opposition).
7 Welsh v. United States, 398 U.S. 333 (1970).
8 United States v. Seeger, 380 U.S. 163 (1965).
9 Department of Defense Instruction 1300.06, ¶ 5.2.1, May 31, 2007.
Short Answer:
A Conscientious Objector’s belief against participating in war must have become fixed since joining the Armed Forces.
Legal Answer:
When enlisting, a Service Member must sign a statement swearing he is not a Conscientious Objector. So, for a person to be a Conscientious Objector, his opposition to war cannot be based on a belief that was set and held before enlisting since he swore he did not hold a belief that would cause him to be a Conscientious Objector when he enlisted. However, a Conscientious Objector’s belief may be based on experiences that occurred, or beliefs that were held, prior to joining the Armed Forces, as long as the opposition to participating in war had not become set until after enlisting.10
Case Precedent and Regulations:
10 Helwick v. Laird, 438 F.2d 959, 966 (5th Cir. 1971) (“Indeed, the claimant may properly hold the same or similar religious beliefs both before and after his entry into the service[,] [r]ather . . . the objection itself—- the objection to participation in war in any form—- must become fixed only after entry into the Army.”).
Short Answer:
No! A Conscientious Objector must be opposed to participating in war and not necessarily opposed to the use of force or violence.
Legal Answer:
The Conscientious Objector statute does not require a Conscientious Objector to be opposed to force or violence, but instead it states he must be opposed to participating in war.11 So, a person who agrees that violence should be used to prevent wrongdoing may be a Conscientious Objector,12 and in fact a person who regularly participates in violence may even obtain Conscientious Objector status.13
Case Precedent and Regulations
11 See 50 U.S.C. § 457(j).
12 United States v. Purvis, 403 F.2d 555, 563 (1968) (“The statute providing exemption for conscientious objectors does not speak of objection to force, but rather of conscientious objection to ‘participation in war in any form.’ Agreement that force can be used to restrain wrongdoing, especially as the last alternative, has little bearing on an attitude toward war.”).
13 See Clay v. United States, 403 U.S. 698 (1972) (granting Conscientious Objector status to heavyweight boxing champion, Muhammad Ali).
Short Answer:
No! It is the sincerity of a belief—not membership with a particular religious institution—that determines whether a service member is a Conscientious Objector.
Legal Answer:
The Department of Defense looks at a number of factors to determine if a Service Member qualifies for Conscientious Objector status. The primary factor is the sincerity of Service Member’s belief, yet additional factors are considered as well, including the teachings of the Service Member’s religious organization or church. While the teaching of a Service Member’s church will not preclude him from obtaining Conscientious Objector status, the fact that the church does not oppose participation in war could negatively affect a Service Member’s Application.14
Case Precedent and Regulations:
14 Department of Defense Instruction 1300.06, ¶ 5.2.3.3, May 31, 2007.
Short Answer:
Yes! A Conscientious Objector only has to be opposed to participating in physical wars, not spiritual wars.
Legal Answer:
The term war, as used in the Conscientious Objector statute,15 only refers to actual physical warfare. So a Conscientious Objector only has to be opposed to participating in wars that involve physical, concrete weapons—such as guns, bullets, bombs, missiles, tanks, and planes.16
Case Precedent and Regulations:
15 See 50 U.S.C. § 457(j).
16 Sicurella v. United States, 348 U.S. 386 (1955) (“We believe that Congress had in mind real shooting wars when it referred to participation in war in any form—-actual military conflicts between nations of the earth in our time—-wars with bombs and bullets, tanks, planes and rockets”).
Short Answer:
The Conscientious Application process involves filling out several questionnaires and forms, being subject to several interviews, and participating in an informal hearing.
Legal Answer:
Each branch of the Armed Forces has its own procedures governing the Conscientious Objector Application process.17 These procedures will usually require the Applicant to provide in-depth details about his beliefs and participation in religious organizations. The Applicant will also be interviewed by a Chaplain, a psychiatrist (or medical officer if no psychiatrist is available), and an Investigating Officer who is assigned to investigate the Applicant’s Conscientious Objector claim. None of these interviews will be privileged, so if an Applicant has formed a relationship of confidentiality with a particular Chaplain, he should request to be interviewed by a different Chaplain.18 Finally, the Investigating Officer will conduct an informal hearing where the Applicant may present evidence and provide witnesses to support his Application.
Case Precedent and Regulations:
17 See Air Force Instruction 36-3204, July 15, 1994; Army Regulation 600-43, Aug. 21, 2006; COMDTINST 1900.8, Nov. 30, 1990; Marine Corps Order 1306.16E, Nov. 21, 1986; MILPERSMAN 1900-020, Aug. 22, 2002.
18 Department of Defense Instruction 1300.06, ¶ 7.2, May 31, 2007.
Short Answer:
The Department of Defense mainly considers Applicant’s conduct to test the sincerity of his claims.
Legal Answer:
To ensure there is no misuse or abuse of Conscientious Objector status, the Department of Defense conducts rigorous investigations into Conscientious Objector claims. The primary consideration that is looked at is the sincerity of the Applicant’s belief. The Applicant’s conduct will be given much weight as well. Additional considerations will include training in the home and religious organization; general demeanor and pattern of conduct; 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.19
Case Precedent and Regulations:
19 Department of Defense Instruction 1300.06, ¶ 5.2.2, May 31, 2007.
Short Answer:
A Service Member may apply for Conscientious Objector status at any time.
Legal Answer:
A Conscientious Objector Application may be filed at any time, and the time of filing will not automatically lead to a denial of the Application.20 However, the time at which an Application is filed may affect the perception of the Applicant’s sincerity. For instance, filing an Application shortly after receiving orders to deploy, or delaying filing the Application for a period of time after the belief against participating in war crystallized, will both cast doubts on the sincerity of the objection.21
Case Precedent and Regulations:
20 Lafranchi v. Seamans, 536 F.2d 1259, 1260 (9th Cir. 1976) (per curiam) (“The timing of [the] application, while relevant, will not alone sustain [denial]”).
21 See e.g. id., Christensen v. Franklin, 456 F.2d 1277, 1278 (9th Cir. 1972) (per curiam).
Short Answer:
Yes! Lawyers can assist Service Members in applying for Conscientious Objector status; however, Conscientious Objector Applicants are responsible for their own attorney’s fees.
Legal Answer:
A Conscientious Objector Applicant may obtain a lawyer at his own expense. This lawyer can assist the Applicant in creating his Conscientious Objector Application and may be present during the Investigative Officer’s hearing. The lawyer may also examine all of the items contained in the Conscientious Objector Application file to better counsel the Applicant through the Application process.22
Case Precedent and Regulations
22 Department of Defense Instruction 1300.06, ¶ 7.4.2.1, May 31, 2007.
Short Answer:
No! A Service Member must fully perform all duties assigned to him. If a Service Member believes he is a Conscientious Objector, he should apply through the formal application process.
Legal Answer:
The only way a Service Member will be recognized as a Conscientious Objector is by successfully completing the formal application process. A Service Member will not be relieved from performing combat or any other military duties until he is formally classified as a Conscientious Objector. If a Service Member disobeys orders or refuses to perform military duties, then criminal court-martial charges may be brought against him, regardless of whether he could have qualified for Conscientious Objector status and have been exempt from the duties. “[C]onscientious objector regulation creates no right to refuse military duties, [and] [] creates no defense to missing movement or disobedience of orders.”23
Case Precedent and Regulations:
23 United States v. Johnson, 45 M.J. 88, 90 (1996) (quoting United States v. Walker, 41 M.J. 462, 468 (1995); see United States v. Webster, 65 M.J. 936 (2008).
Short Answer:
No! A Service Member will be required to satisfactorily perform all duties assigned to him.
Legal Answer:
A Service Member who has applied for Conscientious Objector status will continue to be assigned military duties and must satisfactorily perform all assigned duties.24 However, while an Application is pending, an Applicant should only be assigned duties that conflict as little as possible with the Applicant’s asserted beliefs.25
In the same way, once a Service Member is classified a Conscientious Objector, he will be required to satisfactorily perform all assigned duties. This applies regardless of whether the Conscientious Objector is to be assigned noncombat duties or is to be discharged. If a Conscientious Objector is to be discharged, he may still be assigned military duties, which should provide minimal conflict with his professed beliefs during the time between designation as a Conscientious Objector and separation from the Armed Forces, and he will be expected to satisfactorily perform these duties.26
Case Precedent and Regulations:
24 United States v. Webster, 65 M.J. 936, 943 (2008); United States v. Johnson, 45 M.J. 88, 92 (1996) (“[Defendant] has cited us to no constitutional or statutory provision that makes conscientious objection, a pending application for that status, or indeed an alleged violation of the procedures for considering that status, a defense to a court-martial for missing movement or disobeying otherwise lawful orders.”).
25 Department of Defense Instruction 1300.06, ¶ 7.9, May 31, 2007.
26 Id. at ¶ 8.1 (“Applicants may be disciplined for violations under the Uniform Code of Military Justice, Chapter 47 of title 10, U.S.C. [] while awaiting discharge.”).
Short Answer:
Noncombat duties usually include duties in which the Conscientious Objector will not be required to carry or operate a weapon.
Legal Answer:
There are three types of noncombat duties a Class 1-A-O Conscientious Objector may be assigned. They include (1) serving in a unit that is unarmed at all times, (2) an assignment in which the primary function does not require the use of arms and in which the Conscientious Objector is not required to bear or be trained in arms, and (3) serving on a ship, aircraft, or in a combat zone, as long as the Conscientious Objector is not directly involved in operating weapons.27
Case Precedent and Regulations:
27 Department of Defense Instruction 1300.06, ¶ 3.3, May 31, 2007.
Short Answer:
Yes! But you will have to submit a new Application.
Legal Answer:
A Class 1-A-O Conscientious Objector does not have an automatic right to be discharged as a Class 1-O Conscientious Objector. Instead, the Service Member will have to submit a new Application, this time indicating he is seeking Class 1-O Conscientious Objector status.28
Case Precedent and Regulations:
28 Department of Defense Instruction 1300.06, ¶ 7.1, May 31, 2007.
Short Answer:
You will be required to return to normal military service.
Legal Answer:
If a Service Member’s Conscientious Objector Application is denied, he will be assigned to normal military duties. The Service Member will be required to satisfactorily perform all assigned duties and will be subject to disciplinary action if he refuses to perform.29
Case Precedent and Regulations:
29 Department of Defense Instruction 1300.06, ¶ 8.3, May 31, 2007.
Short Answer:
No! If a Service Member wants to be assigned to noncombat duties as a Conscientious Objector, he must file a Conscientious Objector Application that specifies his desire to be assigned to noncombat duties.
Legal Answer:
A Service Member who is denied discharge as a Class 1-O Conscientious Objector cannot be granted Class 1-A-O Conscientious Objector status and assigned to noncombat duties as a compromise.30 Instead, the Service Member must submit a new Application requesting Class 1-A-O Conscientious Objector status.
Case Precedent and Regulations:
30 Department of Defense Instruction 1300.06, ¶ 5.5, May 31, 2007.
Short Answer:
Yes! As long as the new Application is not based on the same claim or supported by the same evidence.
Legal Answer:
A Conscientious Objector Application cannot be based on the same religious belief or supported by essentially the same evidence as a previous Application. If an Application is either based on the same belief or supported by the same evidence, then it will be denied without even considering the merits of the claim.31
Case Precedent and Regulations:
31 Department of Defense Instruction 1300.06, ¶ 5.7, May 31, 2007.
Short Answer:
There is no official way to appeal the denial of a Conscientious Objector Application. If a Service Member believes his Application was wrongly denied, he may be able to challenge the denial in court.
Legal Answer:
If a Conscientious Objector Application is denied, it cannot be appealed within the Armed Forces. It is a final decision. However, the denial may be challenged in court through a petition for writ of Habeas Corpus.32 Writs of Habeas Corpus can only be sought if the Applicant has no other remedy available.33 This requirement is satisfied if a Conscientious Objector Application is denied, since the Applicant cannot formally appeal the denial. A court will not set aside the denial of a Conscientious Objector Application unless there is no “basis in fact” for denying the Application.34 This means that a court will only set aside a denial if there was no evidence supporting the denial.35 If there is “some proof that is incompatible with the applicant’s claim,” then a court will uphold the denial.36 This is a very hard standard to satisfy and has been described as the “narrowest review known to law.”37
Case Precedent and Regulations:
32 Parisi v. Davidson, 405 U.S. 34 (1972).
33 Id. at 44.
34 Id. at 35.
35 United States ex rel Checkman v. Laird, 469 F.2d 773, 778 (2d Cir. 1972) (“[The test] requires upholding… a… denial of an in-service [Conscientious Objector] application as long as there is a mere scintilla of evidence in support.”).
36 Roby v. Dept. of Navy, 76 F.3d 1052, 1058 (9th Cir. 1996).
37 Taylor v. Claytor, 601 F.2d 1102, 1103 (9th Cir. 1979).
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