(3) The Marine commander exercising special court-martial jurisdiction over the member will submit the report of the hearing, together with his appropriate recommendations thereon, to the Marine commander exercising general court-martial jurisdiction over the member. Unless otherwise provided by the commander exercising general court-martial jurisdiction over the member, the member is not entitled to be furnished a copy of the hearing report or the endorsements thereon.

(4) The Marine commander exercising general court-martial jurisdiction over the member will take whatever action he deems appropriate and which he is empowered to take with regard to the alleged violation of probation. See paragraphs (d), (e), and (f) of this section.

(m) Interruption of running of probationary period. The running of any period of suspension of an administrative discharge, or extension thereof, will be interrupted by any occasion, event, occurrence or act which would interrupt the running of a period of suspension in the case of a sentence adjudged by a court-martial. See paragraph (b)(2) of this section and section 0129 of the Manual of the Judge Advocate General.

(n) Honorable or general discharge. Regardless of the type of administrative discharge which has been suspended, any Discharge Authority competent to vacate its suspension and order its execution may, in lieu of the execution of the specific suspended discharge being vacated, authorize or direct the member's discharge with an honorable or general discharge, as warranted by the member's military record, in accordance with the provisions of § 730.52 or § 730.53.

(1 CFR 18.14, and Part 21, Subpart B) [31 FR 16528, Dec. 28, 1966, as amended at 45 FR 8600, Feb. 8, 1980]

§ 730.76 Action by the Staff Legal Officer. (a) Review. Prior to taking his action with regard to

(1) The report of any administrative discharge board, or

(2) A report of misconduct, a recommendation for discharge by reason of unfitness, or a request for discharge

for the good of the service, which has not been the subject of administrative discharge board proceedings; or

(3) Any administrative discharge matter which, under the provisions of this Chapter, is forwarded to the Commandant of the Marine Corps for advice or final disposition,

a Discharge Authority shall cause the case to be reviewed by his Staff Legal Officer. A Discharge Authority may refer any other administrative discharge matter to the Staff Legal Officer for review.

(b) Procedure. The original or a signed copy of the Staff Legal Officer's review will be attached to the record of the case which is forwarded to the Commandant of the Marine Corps, whether SO forwarded for advice, or final disposition, or review and retention. The form and content of the Staff Legal Officer's review will be as required by the Discharge Authority. Normally a typed, stamped, or printed statement that the proceedings have been reviewed and found sufficient in law and in fact will constitute an adequate Staff Legal Officer's review as contemplated herein. If the Staff Legal Officer does not find the administrative discharge proceedings to be correct in law and fact, he should briefly set forth the facts and reasoning leading to such determination.

§ 730.77 Conscientious objectors.

(a) Scope. Procedures herein apply to all commissioned officers, warrant officers, and enlisted personnel in the Marine Corps and Marine Corps Re

serve.

(b) Definitions. (1) Conscientious objection. A firm, fixed, and sincere objection to participation in war in any form, or the bearing of arms, by reason of religious training and belief.

(2) Class 1-0 conscientious objector. A member who, by reason of conscientious objection, sincerely objects to participation of any kind in war in any form.

(3) Class 1-A-O conscientious objector. A member who, by reason of conscientious objection, sincerely objects to participation as a combatant in war in any form, but whose convictions are

such as to permit military service in a noncombatant status.

(4) Religious training and belief. Belief in an external power or being or deeply held moral or ethical belief, to which all else is subordinate or upon which all else is ultimately dependent, and which has the power or force to affect moral well being. The external power or being need not be of an orthodox deity, but may be a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of another, or, in the case of deeply held moral or ethical beliefs, a belief held with the strength and devotion of traditional religious conviction. The term "religious training and belief" may include solely moral or ethical beliefs even though the applicant himself may not characterize these beliefs as "religious" in the traditional sense, or may expressly characterize them as not religious. The term "religious training and belief" does not include a belief which rests solely upon consideration of policy, pragmatism, expediency, or political views.

(5) Noncombatant service or noncombatant duties. (i) Any assignment the primary function of which does not require the use of arms in combat provided that such other assignment is acceptable to the individual concerned and does not require him to bear arms or to be trained in their use.

(ii) Service aboard an armed ship or aircraft or in a combat zone shall not be considered to be combatant duty unless the individual concerned is personally and directly involved in the operation of weapons.

(6) Noncombatant training. Any training which is not concerned with the study, use or handling of arms or weapons.

(c) Policy. (1) Conscientious objection does not exempt marines from active military service. However, as indicated by provisions of 50 App. U.S.C. 456(j) and related statutes, it is more essential to respect a man's religious beliefs than to force him to serve in the Marine Corps and accordingly a person having bonafide religious objection to participation in war in any form (1-O classification) shall not be

(2) The administrative discharge of Marines on active duty prior to the completion of an obligated term of service for reasons of conscientious objection shall be at the discretion of the Commandant of the Marine Corps and will be determined by a judgment of the facts and circumstances. However, a request for classification as a conscientious objector and relief from or restriction of military duties in consequence thereof will be approved to the extent practicable and equitable within the following limitations:

(i) Except as provided for in this order, no Marine who possesses conscientious objection beliefs before entering military service is eligible for classification as a conscientious objector if he failed to request classification as a conscientious objector by the Selective Service System or if a request for classification as a conscientious objector was disapproved by the Selective Service System and a subsequent request is based upon essentially the same grounds, or supported by essentially the same evidence as the request denied by the Selective Service System.

(ii) A Marine who possessed conscientious objector beliefs prior to entering the Marine Corps is eligible for classification as a conscientious objector if:

(a) Such beliefs crystalized after receipt of induction notice/enlistment;

(b) He could not request classification as a conscientious objector by the Selective Service System because of Selective Service regulations prohibiting the submission of such requests after receipt of induction notice.

(3) Individuals inducted into the Marine Corps under 1-A-O Selective Service classification will be assigned to noncombatant duties. Marines in this category will be required by the commanding general of the appropriate recruit training depot to sign and date a statement as set forth in paragraph (c)(1) of this section. The original copy will be included in the Marine's service record book and a copy forwarded to the Commandant of the Marine Corps (code DG).

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(4) The Commandant of the Marine Corps (code DF) will be notified when:

(i) Inducted Marines claim to have been classified as conscientious objectors by the Selective Service System, but records do not so indicate, or

(ii) Inducted Marines claim they were erroneously denied Selective Service classification as conscientious objectors.

(5) In those circumstances cited in paragraph (c)(4) of this section upon receipt of notification that the individuals claim to have been classified as a conscientious objector or erroneously denied such classification by the Selective Service System, the Commandant of the Marine Corps will contact the Selective Service System to resolve such conflict.

(d) Criteria. (1) General: The criteria set forth herein provided policy and guidance in considering applications for separation or for assignment to noncombatant training and service based on conscientious objection.

(2) Consistent with the national policy to recognize the claims of bona fide conscientious objectors in the military service, an application for classification as a conscientious objector may be approved (subject to the limitations of paragraph (c)(2) of this section) for any Marine:

(i) Who is conscientiously opposed to participation in war in any form;

(ii) Whose opposition is founded on religious training and belief; and

(iii) Whose position is sincere and deeply held.

(3) The clause "war in any form" will be interpreted in the following

manner:

(i) An individual who desires to choose the war in which he will participate is not a conscientious objector under the law. His objection must be to all wars rather than a specific war;

(ii) A belief in a theocratic or spiritual war between the powers of good and evil does not constitute a willingness to participate in "war" within the meaning of this order.

(4) Religious training and belief:

(i) In order to find that an applicant's moral and ethical beliefs are against participation in war in any form and are held with the strength of traditional religious convictions, the

applicant must show that these moral and ethical convictions, once acquired, have directed his life in the way traditional religious convictions of equal strength, depth, and duration have directed the lives of those whose beliefs are clearly found in traditional religious convictions. In other words, the belief upon which conscientious objection is based must be the primary controlling force in the applicant's life.

(ii) A primary factor to be considered is the sincerity with which the belief is held. Great care must be exercised in seeking to determine whether asserted beliefs are honestly and genuinely held. Sincerity is determined by an impartial evaluation of the applicant's thinking and living in its totality, past and present. Care must be exercised in determining the integrity of belief and the consistency of application. Information presented by the claimant should be sufficient to convince that the claimant's personal history reveals views and actions strong enough to demonstrate that expediency or avoidance of military service is not the basis of his claim. Therefore, in evaluating applications the conduct of applicants, in particular their outward manifestation of the beliefs asserted, will be carefully examined and given substantial weight.

(iii) Relevant factors that should be considered in determining an applicant's claim of conscientious objection include: Training in the home and church; 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.

(iv) Particular care must be exercised by individuals processing applications not to deny the existence of bona fide beliefs that are incompatible with one's own.

(v) Church membership or adherence to particular theological tenets are not required to warrant separation or assignment to noncombatant train

ing and service for conscientious objectors.

(vi) Mere affiliation with a church or other group which advocates conscientious objection as a tenet of its creed is not necessarily determinative of an applicant's position or belief.

(vii) Conversely, affiliation with a church or group which does not teach conscientious objection does not necessarily rule out adherence to conscientious objection beliefs in any given

case.

(viii) Where an applicant is or has been a member of a church, religious organization, or religious sect, and where his claim of conscientious objection is related to such membership, inquiry may properly be made as to the fact of membership, and the teaching of the church, religious organization, or religious sect, as well as the applicant's religious activity. However, the fact that the applicant may disagree with, or not subscribe to, some of the tenets of his church does not necessarily discredit his claim. The personal convictions of each individual will be controlling so long as they derive from his moral, ethical, or religious beliefs.

(ix) Moreover, an applicant who is otherwise eligible for conscientious objector status may not be denied that status simply because his conscientious objection influences his views concerning the Nation's domestic or foreign policies. The task is to decide whether the beliefs professed are sincerely held, and whether they govern the claimant's actions both in word and deed.

(5) The burden of establishing a claim of conscientious objection as a ground for separation or assignment to noncombatant training and service is on the applicant. To this end, he must establish by clear and convincing evidence that the nature or basis of his claim comes within the definition of and criteria prescribed herein for conscientious objection and that his belief in connection therewith is honest, sincere, and deeply held. The claimant has the burden of determining and setting forth the exact nature of his request, i.e., whether for separation based on conscientious objection (1-0) or for assignment to noncomba

tant training and service based on conscientious objection (1-A-O).

(6) An applicant claiming 1-0 status shall not be granted 1-A-O status as a compromise.

(7) Provisions of this order will not be used to effect administrative separations of Marines who do not qualify as conscientious objectors, or in lieu of administrative separations otherwise set forth in this part (MCOP 1900.16). Marines determined not qualified for conscientious objector status, but the separation of whom would otherwise appear to be in the interest of the Marine Corps will be considered for administrative separation under the provisions of this part (MCOP 1900.16).

(e) Procedures. (1) A Marine who seeks either separation or assignment to noncombatant duties by reason of conscientious objection will submit an application therefor. The application will indicate whether he is seeking a discharge or assignment to noncombatant duties and will include the following items:

(i) The personal information quired by enclosures (2) and (3).1

re

(ii) Any other items which the applicant desires to submit in support of his case.

(2) Prior to processing the application of the individual, he will be advised of the specific provisions of 38 U.S.C. 3103 regarding the possible effects of discharge as a conscientious objector who refuses to perform military duty or refuses to wear the uniform or otherwise to comply with lawful orders, and required to execute the statement contained in enclosure (3).1

(3) The applicant shall be personally interviewed by a chaplain who shall submit a written opinion as to the nature and basis of the applicant's claim, and as to the applicant's sincerity and depth of conviction. "The chaplain's report shall include specific reasons for his conclusions." In addition, the applicant will be interviewed by a psychiatrist (or by a medical officer if a psychiatrist is not reasonably available) who shall submit a written

Filed as part of the original document.

report of psychiatric evaluation indicating the presence or absence of any psychiatric disorder which would warrant treatment or disposition through medical channels, or such character or personality disorder as to warrant recommendation for appropriate administrative action. This opinion and report will become part of the application. If the applicant refuses to participate or is uncooperative or unresponsive in the course of the interviews, this fact will be included in the statement and report filed by the chaplain and psychiatrist or medical officer.

(4) The commander exercising special court-martial jurisdiction over the applicant, will appoint an officer in the grade of O-3 or higher, knowledgeable in policies and procedures relating to conscientious objector matters, to investigate the applicant's claim. The officer so appointed will not be an individual in the chain of command of the applicant. If the applicant is a commissioned officer, the investigating officer must be senior in both temporary and permanent grades to the applicant.

(5) Upon appointment, the investigating officer will review the applicable Marine Corps regulations. During the course of his investigation, the investigating officer will obtain all necessary legal advice for the local staff judge advocate or legal officer. As part of his investigation, the investigating officer will seek information from commanders, supervisors, records, and any other sources which may contribute to his final recommendation. Whenever possible, information so obtained will be presented to the applicant at the hearing.

(6) The investigating officer will conduct a hearing on the application. The purpose of the hearing is to afford the applicant an opportunity to present any evidence he desires in support of his application; to enable the investigating officer to ascertain and assemble all relevant facts; to create a comprehensive record; and to facilitate an informed recommendation by the investigating officer and an informed decision on the merits by higher authority.

(i) If the applicant desires, he shall be entitled to be represented by coun

sel, at his own expense, who shall be permitted to be present at the hearing, assist the applicant in the presentation of his case, and examine all items in the file.

(ii) Should the applicant refuse to make a statement, orally or in writing during the conduct of the hearing, he will submit a signed statement in his own handwriting that he has been afforded the opportunity at the hearing to appear in person, with counsel retained by him, if desired, and that he refuses to make a statement.

(iii) In this regard, any failure or refusal of the applicant to submit to questioning under oath or affirmation before the investigating officer may be considered by the officer making his recommendation and evaluation of the applicant's claim.

(iv) If the applicant fails to appear at the hearing without good cause, the investigating officer may proceed in his absence and the applicant will be deemed to have waived his appear

ance.

(v) The hearing will be informal in character and will not be governed by the rules of evidence employed by courts-martial except that all oral testimony presented shall be under oath or affirmation. Any relevant evidence may be received. Statements obtained from persons not present at the hearing need not be made under oath or affirmation. The hearing is not an adversary proceeding.

(vi) The applicant may submit any additional evidence that he desires (including sworn or unsworn statements) and present any witnesses in his own behalf, but he shall be responsible for securing their attendance. Commanders will render all reasonable assistance in making available military members of his command requested by the applicant as witnesses. Further, the applicant will be permitted to question any other witnesses who appear and to examine all items in the record.

(vii) A verbatim record of the hearing is not required. If the applicant desires such a record and agrees to provide it at his own expense, he may do so. If he elects to provide such a record, he shall make a copy thereof available to the investigating officer,