by J. E. McNeil

“My commanding officer told me that he was going to court martial me if I filed a CO application.”

“I went to the chaplain for advice and he told me to go to church more and I would feel better.”

“I had a child in the sight of my weapon.”

These are the types of comments that the Center on Conscience & War (CCW) receives from military personnel. CCW answers approximately one or more daily inquiries about a Conscientious Objector (CO) discharge from the military-ranging from mundane questions about process to heart-wrenching stories about impossible choices. In each case, the story would have a better outcome if there were a statute detailing a unified treatment of CO discharges from the military.

As the US occupation of Iraq and military presence in Afghanistan continue with no end in sight, military personnel increasingly face personal questions about war, morality and vocation. Answers to those questions are not simple. Nor is the law surrounding Conscientious Objection.

Unlike the military during the Vietnam War, the current US military is all-volunteer. Members are recruited and sign a contract to join—;albeit often based upon misleading information or questionable recruitment practices. In other words, soldiers “consent” to serve in the military. Given that, what does it mean to be a “conscientious objector?”
The Department of Defense in DoD Directve 1300.6 defines a CO as “A member who, by reason of conscientious objection, sincerely objects to participation of any kind in war in any form.”

That means that a CO must be opposed to all wars, not selectively oppose certain wars for particular reasons. Most COs object to any participation, but some find comfort in meeting their original enlistment obligation as a non-combatant providing medical or other services. The Directive explains that the basis for the belief can be religious or moral reasons.

A member of the military applying for CO status must explain why he or she is morally, religiously or ethically opposed to war in all forms, and how that belief formed after he or she voluntarily joined the military. The process of applying for recognition as a conscientious objectors is long and involved [see box on page 10] and, therefore, not the most expedient way to leave the military. There is no incentive to apply for a CO discharge if one is not a CO because there is almost always an easier way to get discharged from the military. Some of the ways are honorable, such as a dependency discharge. Others have a stigma attached, such as going AWOL to obtain an Other Than Honorable Discharge [see Galvin]. Most people prefer one of these faster routes over CO.

Contrary to popular understanding, the right to a military discharge on the basis of conscientious objection is neither guaranteed in the Constitution nor in any other legal statute. At present, CO discharges are granted by military largess, and each branch operates with its own regulations. Furthermore, what the military gives, the military can take away. Since CO discharges are not supported by statute but only by military policy, they can be denied by that same policy. For example, during the Gulf War in 1991, the military issued an across the board "stop-loss" policy that basically prohibited any discharge during the conflict. For this reason, according to a New York Times article of the era, more than 2,500 GIs went to jail rather than fight in Kuwait.
In 1992, Rep. Ron Dellums (D-CA) introduced the Military Conscientious Objector Act (MCOA) as a direct result of the Gulf War Stop Loss. Under this bill, the legal definition of a CO would be redefined to state that someone who is conscientiously opposed to his or her participation in a “particular war” could also be classified as a CO. The military would no longer be able to arbitrarily take away the right of discharge, and the soldier would not be deployable or be forced to carry a weapon. This would broaden the rights of conscientious objectors. Unfortunately, MCOA sank without a trace.

Since the US invasion of Iraq in 2003, an increasing number of GIs have realized that they cannot participate in war, thus making the need for the MCOA once again obvious. As the number of CO applications has increased, the percentage of refusals has increased. For example, in the Army more than 70% of CO applications are denied as reported by the Public Affairs Office of the Army.

The MCOA seeks to establish a regulatory system that is statutory, fair, and even handed from branch to branch. The Center on Conscience & War has been working with members of the House Armed Services Committee on both sides of the aisle to find the right members to introduce this bill. In the meantime, all members of the House and Senate need to be educated about conscientious objection as a fundamental right recognized by the United Nations, courts and the US military.

Although details and applications vary from branch to branch, generally people apply for a CO discharge by answering more than 20 questions, seven of which relate to beliefs about war and violence. Say you are an objector. In the application you must address your beliefs about war, which include your ability to participate in war as a non-combatant or not at all. You must object to war in any form and cannot believe that you would participate in some wars but not others. You must explain where the belief came from although it can be a religious or moral or ethical belief. It cannot be a political, expedient or practical belief. You must—and this is crucial—explain when this belief crystallized or became firmed and fixed, and it must be after you voluntarily joined the military.
After submitting this essay to your commanding officer, he or she appoints an Investigating Officer (IO) who is under their command, but not over you in the chain of command. The IO first sends you to both a military psychiatrist-who determines whether mental or emotional issues caused you to apply for the CO discharge-and a military chaplain who is charged with determining whether you are sincere. The IO meets with you and others who shed light on the issue, and then writes a report with a recommendation. But you are not done. You can file a rebuttal to the report with this same commanding officer who then makes the decision about whether you should be discharged. The commanding officer's decision, however, is sent up the chain of command all the way to the Pentagon, where an ever-changing CO review board reassesses the decision of the commanding officer. If they agree, they send it back down the chain of command again.

The whole process is supposed to take three months. In fact, it rarely takes less than one year and more frequently 18 months to two years. And during this entire time you remain a member of the military and must follow all commands, including orders to deploy, and sometimes even to pick up a weapon.

Unfortunately, not everyone can wait for the lengthy CO process to conclude. That was the case for David, a young African American from Brooklyn who joined the Marines to advance his proposed career as a firefighter. He was immediately trained and assigned duty in the infantry. He won marksmanship awards and was generally a very conscientious Marine.
David was deployed to Iraq. After several months, his duties became more real to him. After one night on patrol during which he fired at people, David found himself praying “Please God, don't let me kill anyone.”

The more he thought about it, the more troubled he became. He approached the chaplain who told him to go to church more. On the ship returning to the states for leave he attended church but was disturbed by the images in the ship chapel of soldiers rather than apostles. Stateside, David did go to church and he became convinced that what he was doing in the military was wrong and he could not do it anymore. He approached the command and asked for a CO discharge.

His command told him he could not obtain a CO discharge because he had signed a statement when he joined that he was not a CO (true) and that if he said he was one now he would be disciplined for fraudulent enlistment (false). He found the regulations and CWW on his own. He filed a CO application with CCW's help. His command “lost” the application. He filed it again. His command said that they could order him deployed (true) and to fight (false) and that if he withdrew the application they would give him a promotion (illegal).

He refused to withdraw the application. The command “lost” the application again and gave him orders to deploy. He filed it again. They rushed the process, denied it and told him he had to deploy (true) and fight (false) as the command had denied it. But it had not gone up to the Commandant of the Marine Corp and therefore under Marine regulations he theoretically could not be forced to fight.
David went AWOL rather than fight. When he turned himself in later, he received 6 months jail time.

Protecting the right to be a conscientious objector is essential to providing the men and women who have joined the military the most basic right of all: to live within the moral bounds of their own consciences. All other rights flow from this one. Anything else is slavery.

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J. E. McNeil is the Executive Director of Center on Conscience & War, 1830 Connecticut Avenue NW, Washington, DC 20009; (202) 483-2220; www.CenteronConscience.org.