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Larsen v. Commandant

filed: February 4, 1993.

ERIK GLEN LARSEN, PETITIONER-APPELLANT,
v.
COMMANDANT, UNITED STATES MARINE CORPS, ET AL., RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-91-00812-VRW. Vaughn R. Walker, District Judge, Presiding

Before: Alarcon, Rymer and T.g. Nelson, Circuit Judges

MEMORANDUM

Eric Larsen appeals the district court's denial of his petition for a writ of habeas corpus. The United States Marine Corps denied Larsen's application for conscientious objector status. Larsen argues that the investigating officer who considered his application violated due process in preparing the investigation report and that the Marine Corps lacked a basis in fact for its denial of his application. We have jurisdiction pursuant to 28 U.S.C. § 1291 and § 2253, and we affirm.

I

Larsen first argues that the investigating officer, Lieutenant Colonel Thomas Bowman, violated due process by contacting additional witnesses by telephone after the hearing on Larsen's application and by failing to take into account the psychiatrist's and chaplain's reports of their interviews with Larsen. Bowman contacted the additional witnesses in an attempt to locate an "unknown Marine" who had influenced Larsen's decision to seek conscientious objector status. Bowman prepared a summary of his interview with Staff Sergeant William Kirby, who Bowman believed to be the only Marine matching the profile of the "unknown Marine" as described by Larsen. Kirby denied any contact with Larsen, leading Bowman to conclude that "the 'Unknown Marine' is unknown because he does not exist."

There is no constitutional or statutory right of a member of the armed services to be classified as a conscientious objector -- the right derives solely from military regulations. Parisi v. Davidson, 405 U.S. 34, 38 n.2 (1972). Therefore, the only due process right that Larsen may assert is the right to have the Marine Corps comply with its own regulations and the regulations of the Department of Defense. Cf. Garrett v. Lehman, 751 F.2d 997, 1007 (9th Cir. 1985) (no due process violation where investigation complies with Marine Corps Separation and Retirement Manual).

Larsen argues that Bowman violated a provision of Marine Corps Order (MCO) 1306.16E:

As part of the investigation, the investigating officer will seek information from commanders, supervisors, co-workers, clergy, friends, records, and any other sources which may contribute to the final recommendation. Information so obtained will be presented to the applicant at the hearing.

MCO 1306.16E, enclosure (7), P 3. This language is not part of the body of MCO 1306.16E, but is contained in an enclosure entitled "Guide to Investigating Officer." See also MCO 1306.16E, P 6(e) ("Enclosure (7) is a guide to the investigating officer . . . ."). Standing alone, this apparently non-binding provision might be persuasive regarding Larsen's due process rights.

However, the binding obligations of the investigating officer, which are set forth elsewhere in MCO 1306.16E and in other Department of Defense regulations, make it clear that the investigating officer may consider evidence not presented at the hearing:

The investigating officer will conduct the investigation, hold a hearing on the application, and prepare the investigative report. This report, along with the individual's application, administrative documents, the chaplain's and doctor's reports, and any other items submitted by the applicant will constitute the record of the case. The investigating officer's recommendation will be based on the entire record and not merely on the evidence produced at the hearing. A copy of the investigating officer's report will be provided to the applicant . . . . The applicant will be informed of the right to submit a rebuttal to the report within 7 days.

MCO 1306.16E, P 6(e) (emphasis supplied). The Department of Defense regulations on conscientious objectors also allow evidence outside the hearing to be considered:

The hearing will be informal in character and will not be governed by the rules of evidence employed by courts-martial . . . . Any relevant evidence may be received. Statements obtained from persons not present at the hearing need not be made under oath or affirmation.

32 C.F.R. § 75.6(d)(2)(ii). The regulations further provide that "the investigating officer will prepare a written report which will contain . . . any documents, statements and other material received during the investigation." 32 C.F.R. § 75.6(d)(3). Moreover, the "Guide to the Investigating Officer" on which Larsen relies contains language identical to ...


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