Federal Court

If your CO claim has been turned down, you have the right to go into federal civilian court to ask for a writ of habeas corpus. See The Decision for details. If you resisted the military after your CO claim was turned down, the writ of habeas corpus will also wipe out your military conviction and stop all punishment under it. If you are being court-martialled for non-cooperation which occurred after your claim was denied, it is important to go to federal court before you are actually discharged from the military. After you've been discharged, you cannot apply for a writ of habeas corpus. You would have to petition the Board for the Correction of Military Records or the Discharge Review Board for your branch of the military and ask them to upgrade your discharge to a CO discharge. If denied, you could then file a case in federal court. In some cases, a federal court might issue you a writ of habeas corpus even though your CO claim was not formally turned down. For instance, if the military is taking an exceptionally long time to decide your case, the court might decide that you really have been denied because they have been taking so long.

You do not have to resist to file for a writ of habeas corpus. You just have to have your CO claim wrongly turned down. Federal court is not a sure answer to having your CO claim wrongly denied. A court may rule that denial was lawful, and therefore not grant the writ. If this happens, you will remain in the military. If you were given a bad discharge or other punishment for resistance which occurred after the denial of your CO claim, the punishment will be enforced unless it is modified by the military--for example, by court action or clemency.

It's also possible to ask a federal court to restrain the military from requiring you to perform duty or follow orders which conflict with your beliefs. Such a court order would be based on the military's duty to assign you to work which least conflicts with your beliefs while your CO claim is being decided. For this reason you must already have ?led your CO claim before you can use this remedy.

Court cases always depend on the specific facts of each case. For this reason, it is important to have experienced lawyers evaluate and present your case. Call the GI Rights Hotline for more information.

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