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By Bill Galvin
On July 12 the Department of Defense issued a new regulation for the adjudication of conscientious objector applications (DODI 1300.06). The new regulation is essentially the same, mostly word for word identical, but the Instruction itself has been rearranged. When wording has been changed, the new wording is clearer. An official in the office of the Under Secretary of Defense for Personnel and Readiness who worked on revising the Instruction said that the revision came because they felt the previous version was “stale” and they wanted to revise it for clarity and simplicity and to reflect the “current reality,” (though he did not specify what reality he was referring to). He said that they worked on this revision for about a year, and it was thoroughly vetted.
The same official indicated that their intent with this revision was not to alter the policy concerning conscientious objectors, however, there are a couple of significant changes.
The biggest change in the new DODI is the elimination of three of the essay questions from the list of questions that conscientious objectors must answer in their written application. The questions that are eliminated in this new DoD Instruction are
An explanation as to the circumstances, if any, under which the applicant believes in the use of force, and to what extent, under any foreseeable circumstances.
An explanation as to how the applicant’s daily life style has changed as a result of the beliefs and what future actions the applicant plans to continue to support his or her stated beliefs.
An explanation as to what in the applicant’s opinion most conspicuously demonstrates the consistency and depth of the stated beliefs that gave rise to the applicant’s claim.
The first of these questions, about the use of force, can be a tricky question. We always advise clients that it is inviting them to either contradict something they said in answering the previous question about what they believe (i.e., I would fight to defend my mother if she were attacked, after stating in the previous question they are opposed to using violence), or inviting them to say something outrageous that is obviously untrue (i.e., I would do nothing to protect my mother if she were attacked because I don’t believe in using violence). So for these reasons, I am happy to see this question go.
But that question was asking CO applicants to seriously engage difficult questions: If you don’t believe in war, what do you do about legitimate threats to personal and national safety and security like the ‘Islamic state,’ for example, or genocide? There certainly is value in encouraging CO applicants to wrestle with these questions in order to clarify their own thinking about this, and also because it is likely these types of questions will come up during the Investigating Officer hearing or the chaplain’s interview.
The other two questions that have been removed ask the applicant to provide evidence of their beliefs.
The legal standard for being a conscientious objector is having a sincere belief against your participation in war. But how can anyone prove what they believe? By its nature, isn’t a belief something that can’t be proven?
From the Instruction:
“3.3. BURDEN OF PROOF.
- The burden of establishing a claim of conscientious objection as a ground for separation or assignment to non-combatant training and service is on the applicant. To this end, the applicant must establish by clear and convincing evidence that:
(1) The nature or basis of the claim falls within the definition of and criteria prescribed herein for conscientious objection.
(2) Their belief in connection therewith is firm, fixed, sincere, and deeply held” (DODI 1300.06) [Emphasis added].
So while the burden of proof is on the applicant to show that they sincerely believe what they say they believe, the revised DODI has removed the very questions which ask the applicant directly for evidence to support their claim. This could be setting conscientious objectors up for failure unless they receive good counsel. As of this printing, each military branch has left the use of force question and the evidence questions in its essay portion of the application, and generally, applicants will follow the application from their own branch’s regulations and not the one found in the DOD Instruction. Those counseling COs must make sure that the “clear and convincing evidence” that the applicant is required to provide is included within the answers to the other questions if the various branches follow the DOD and delete these questions from their own regulations.
1-O conscientious objectors apply to be discharged, while 1-A-O conscientious objectors apply to remain in the military in a non-combatant status. The previous version of the DODI contained these words: “An applicant claiming a Class 1- O Conscientious Objector status shall not be granted a Class 1-A-O Conscientious Objector status as a compromise” (paragraph 5.5). Those words have been eliminated from the revised regulation. A concern we had was that this revision would appear to allow the military to classify 1-O applicants as 1-A-O as a compromise. The DOD official I spoke with, though, indicated that they had not seen evidence of this happening in the military, so they felt it was unnecessary to retain this specific language in the revised Instruction.
Under the 2007 version of the DODI, 1-A-O conscientious objectors were required to sign this statement:
I have been counseled concerning designation as a Conscientious Objector. Based on my training and/or belief, I consider myself to be a Conscientious Objector within the meaning of the statute and regulations governing Conscientious Objectors and am conscientiously opposed to participation in combatant training and service. I request assignment to non-combatant duties for the remainder of my term of service. I fully understand that on expiration of my current term of service I am not eligible for voluntarily enlistment, re-enlistment, extension or amendment of current enlistment, or active service in the Armed Forces by reason of my a Class 1-A-O Conscientious Objector classification.
The revised DODI requires all applicants for conscientious objector status, including those applying for 1-O status, to sign such a statement. This appears to be a typographical error. The DOD official acknowledged that this was a mistake, that this paragraph should apply only to 1-A-O conscientious objectors, and that it would be fixed next time they reissue the Instruction.
A number of definitions have been revised, and as stated above, for the most part they are essentially the same, but have been edited for clarity. With this revised Instruction, it is evident that the decisions in U.S. v. Seeger, 380 U.S. 163 (1965) and Welsh v. U.S., 398 U.S. 333 (1970) are still having an impact 50 years later. These Supreme Court decisions eliminated the requirement that COs believe in a God-like “supreme being,” and broadened conscientious objector status beyond those whose objections were based on religious faith by allowing for the inclusion of people whose objections are secular – moral or ethical in nature. Since then, while the regulations have continued to use the language of “religious training and/or belief,” they explain that ethical and moral beliefs qualify as “religious beliefs.”
The wording below replaces language in the previous version of the DODI (para. 3.2, Definitions, 2007) about religious training and/or belief:
religious, moral or ethical belief. Deeply held religious, moral, or ethical belief, to which all else is subordinate and has the power or force to affect personal moral well-being. The belief need not have found expression in either religious or societal traditions. However, it should sincerely occupy a place of at least equal value in the life of its possessor. Deeply held moral or ethical beliefs should be valued with the strength and devotion of traditional religious conviction. The term “religious, moral, or ethical belief” does not include a belief that rests solely upon considerations of policy, pragmatism, expediency, or political views (para. G.2 Definitions, 2017).
While the meaning is essentially the same as what was stated in the 2007 version of the Instruction, this update more directly reflects the intent of the decades-old Supreme Court victories: Seeger by completely eliminating the references to an “external power” or “being;” and Welsh in the way the language is reframed to give equal weight to non-religious CO beliefs. Maybe this is what the DOD official meant by “current reality” – only a half century later!
Implementation in military branches
Each branch of the military establishes its own regulations to implement this DOD Instruction. The DOD official indicated that each branch should review their CO regulations and may revise them if they feel it is necessary in light of the new DODI. So, until that happens, we won’t really know the full impact of this new DODI. The current regulations are still in effect in each branch, and, for example, they all still retain the three questions that have been omitted in the updated DODI.
Comparing this to the recently revised Air Force Instruction raises a couple of interesting questions. On the one hand, the AFI was completely reorganized, and made more clear, as was the DODI. However, some of the specific changes seem at odds with this new DOD Instruction.
The recently revised AFI, rather than delete questions from the written application, actually has increased the number of questions that must be addressed by those applying for 1-A-O classification. And while new AFI makes it clear that only 1-A-O conscientious objectors must sign the counseling statement about being a 1-A-O conscientious objector, the DODI now requires it of 1-O applicants as well. (Which, although they have acknowledged that to be an “editorial error,” it is nonetheless what the regulation in its current form requires.)
Whether or not the Air Force and the other military branches will reissue their CO regulations to align with the changes found in the new DoD Instruction remains to be seen. We will continue to monitor any developments.
Bill Galvin is Counseling Coordinator with the Center on Conscience & War in Washington, DC, and serves on the board of directors of the GI Rights Network.