Ask the Lawyer: Would-be conscientious objectors must follow complex legal path - Military Law, Military Law Advice, Ask a Lawyer - Army Times

Ask the Lawyer: Would-be conscientious objectors must follow complex legal path

A conscientious objection is a firm, fixed and sincere objection to participation in war in any form or the bearing of arms, by reason of religious, moral or ethical training, and belief.

Those who join the military and feel they may fit that description may apply for conscientious objector status, a multilayered process with many steps.

A chaplain interviews the applicant and submits a written opinion on, among other things, the sincerity and depth of the applicant’s convictions. A clinical psychologist or psychiatrist also conducts an interview to determine whether the applicant has any psychiatric disorder that would warrant treatment or alternative disposition.

These interviews are made available to the commander, subject to certain restrictions.

The special court-martial convening authority, typically the O-5 commander over the applicant, will appoint an officer senior to the applicant and outside the chain of command to investigate the application.

The investigation will give the applicant a chance to present evidence to support the claim, allow the investigating officer to gather all relevant facts and help the commander make an informed decision.

The hearing is not governed by the rules of evidence except that testimony is taken under oath. The applicant is entitled to counsel at his own expense, the ability to present witnesses, question other witnesses who may appear and examine all evidentiary items.

The hearing is informal and not adversarial. If the applicant fails to appear, this may be considered by the investigating officer and the hearing may proceed in the applicant’s absence.

When the investigating officer’s report is forwarded to the commander, the applicant gets a copy and is informed of the right to submit a rebuttal, typically within seven days.

The commander will review the report and may return it to the investigating officer for further investigation. Once satisfied, the commander will send it with a recommendation via the chain of command for final determination.

Until a final decision is made, every reasonable effort should be made to assign applicants to duties that conflict as little as possible with their asserted beliefs. Applicants are required to conform to normal requirements of military service and perform such duties as assigned.

Applicants must be aware that they can still be disciplined for violations of the Uniformed Code of Military Justice while awaiting action on their applications.

If you feel that you may be a conscientious objector, talk to an experienced legal counsel to avoid reprisal for what may be seen as a “frivolous” claim. There may be alternatives to discharge or reassignment that fall outside of conscientious objector status but achieve the same desired end.

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.com). E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.