Who’s Your Guide? The burden of proof falls hard on nonreligious conscientious objectors

On September 2, 2006, Agustin Aguayo–an army specialist who had gone AWOL the day before while his unit was gearing up for deployment to Iraq–emerged from hiding to engage in an unlikely activity.

“I’m about to turn myself over to the MPs,” he told his wife, who videotaped his statement while the two sat in a parked car beside an army military police station (you can find the video on YouTube.com) “It’s 8:32. And I don’t know what will happen. I think I’m just going to stay here all day or part of the day and someone from the unit will come by and pick me up.” He then added a message to his twin daughters, who were eleven at the time: “Hi Raquel, Hi Becky. I love you guys and I miss you guys always when I’m not with you… take care of each other, take care of yourselves. I’ll be fine. And we’ll be together again.”

Spc Augustin AguayoAguayo faced a court-martial and prison time for going absent without official leave and avoiding deployment. But after a year of military service he had developed a profound moral objection to what he was doing and realized that he could no longer stand to be a part of war.

An agnostic who believed in a higher power, Aguayo was raised by a father who was a Jehovah’s Witness and an extreme pacifist. Aguayo grew up with reverence for people like Gandhi and Martin Luther King, Jr. and always favored nonviolence. He enlisted in the U.S. Army partly as an avenue to medical school.

During his training in arms and military operations he began to feel a “crystallization” of belief–and this belief was causing him anguish and guilt. He knew he couldn’t use a bayonet against anyone. He knew he could never shoot someone. As Aguayo would later recount in an official military document:

The more I was indoctrinated the more I realized it was not me. My upbringing, my training, and my personal beliefs had all become conflicted…..I have always had strong feelings about war. I didn’t like the idea of people killing each other. However, it wasn’t till I joined the army that those “feelings” changed into full-fledged objections. I realized after I joined that I could not hurt, injure, or kill anyone under any circumstances.

And this new crystallization of belief was so strong that he’d sooner go to jail than act against it.

He was a conscientious objector.

Aguayo’s story might have ended that day with the military police. It might have ended years before when he had applied for a discharge from the military. Yet the nightmare continued long after he turned himself in on September 2, 2006. Because although Aguayo met many of the requirements of a conscientious objector according to military policy, he failed to meet one important non-official requirement: his belief system wasn’t Christian.

Aguayo wasn’t court-martialed that day. Instead the army told him he was going to Iraq whether he liked it or not–even if he had to be forcefully carried onto the plane. Soon after, Aguayo went AWOL again.


Muhammad AliThe history of conscientious objection in the United States is one that fluctuates between progressive and repressive. Massachusetts became the first colony to pass legislation protecting “non-resisters,” followed by Rhode Island and Pennsylvania. At the beginning of the American Revolution, George Washington exempted “those with conscientious scruples against war” from the draft. During the Civil War, both the Union and the Confederacy allowed conscientious objectors to buy out of the draft. In World War I members of “a well-recognized sect or organization …whose then existing creed or principles forbid its members to participate in war in any form” were granted conscientious objector status. And in World War II objectors were allowed to serve as noncombatants or to volunteer with the Civilian Public Service camps. However, despite these accounts, objectors to war were often treated harshly. At best, they were considered cowards. At worst they were punished–cruelly. During the Civil War, some objectors were starved, others hung by their thumbs. In World War I many draft resisters were arrested and imprisoned, the vast majority of them receiving life sentences and some sentenced to death.

Despite a tradition of exemption for those who belonged to pacifist religious groups, those who were of no religion, non-traditional religion, or even simply of a non-pacifist faith were generally denied conscientious objector status. Only slowly did that change. In World War II the definition of a conscientious objector was broadened to include those with “religious training and belief,” expanding the definition to include adherents of non-pacifist faith. And then in the 1965 Supreme Court case, United States v. Seeger, the Court ruled that an individual’s understanding of his or her own beliefs was relevant in determining qualification for conscientious objector status. Thus, those who didn’t have any formal religious training were now eligible to qualify, as well as adherents of “nontraditional” (read: non-Christian) religions–Judaism, Islam, and Buddhism. Finally, in 1970, during the height of the Vietnam War, the Supreme Court ruled in Welsh v. United States that “depth and fervency” of beliefs qualified a soldier for conscientious objector status, regardless of whether those beliefs were religious in nature.

Current U.S. military policy allows conscientious objectors (COs) to either apply for transfer to a non-combatant post (known as class 1-A-0) or to be discharged from the army (class 1-0). The application process is long and tedious–applicants must fill out a written questionnaire that explains the nature of their beliefs. (Because the United States currently has an all-volunteer army, an emphasis is placed on proving a change in belief system after joining the military, and the burden of proof lies entirely upon the applicant.) The case is then assigned to a range of officials for review, including a military chaplain and an investigating officer. The application is then kicked up the soldier’s chain of command until finally a review board either approves or denies the application. If an applicant is denied they must return to their unit and resume their former duties.

As defined by current military policy, 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 training and/or belief.” (DoD 1300.6) Although this policy allows room for moral objection manifested internally rather than through religious training, there remains a burden of proof.


Agustin Aguayo had stopped loading his weapon. It was in 2004 and he was in Iraq serving as a medic. He was put on guard duty–after he had already applied for discharge as a conscientious objector in February of that year. His conscience was weighing on him heavily.

He had been assigned an investigating officer: Captain Sean Foster. After Aguayo and other witnesses testified at his hearing, Foster recommended that CO status be granted. “It seemed clear to me that PFC [Private First Class] Aguayo is absolutely sincere in his stated beliefs that he is opposed to ‘war in any form’,” Foster wrote. “PFC Aguayo’s stated beliefs that he is internally incapable of participating in any form of war without being in a constant state of personal moral dilemma is absolutely sincere.”

The application went through the chain of command. Aguayo’s company commander recommended approval, but the next four officers to review the application disagreed, recommending disapproval. Many reasons were given, including the assertion that the timing of his application–just before his deployment to Iraq–was questionable. But there was also contention around the nature of Aguayo’s beliefs. The staff judge advocate who reviewed Aguayo’s application wrote:

PFC Aguayo’s convictions do not appear to be sincerely held…PFC Aguayo did not identify any specific ways he has altered his behavior to accommodate his beliefs. Although practicing a religion is not a requirement for CO approval, PFC Aguayo has not discussed any equally significant source of his beliefs other than he was raised in a kind and respectful family.

The Department of the Army Conscientious Objector Review Board (DACORB) then conducted the final review. They denied his application in July 2004. He was to stay with his unit in Iraq.

In August 2005 Aguayo tried again. He petitioned the U.S. District Court for the District of Columbia for a writ of habeas corpus, arguing that he had never been given the chance to rebut the negative recommendations from his commanding officers, as is standard regulation. Aguayo was allowed to revise his written application and the army agreed to have the DACORB reconsider.

In the revised application, Aguayo explained his beliefs more thoroughly and how his beliefs had changed in training:

As the trainings progressed I knew I could not stab anyone with a bayonet…And when I felt the earth tremble beneath me after firing an M-16 I felt and I now know there’s no way I could point it at someone and shoot…My convictions are strong and are deeply rooted based on my upbringing, morals, and the experiences I have had in the army.

His application was again denied in January 2006. DACORB stated that Aguayo did not present “clear and convincing evidence” that he was a conscientious objector.

In March 2006 Aguayo tried a final time with an amended habeas corpus petition in the district court–again to no avail. But this time DACORB filed a memorandum listing the reasons why he was denied, which included (but weren’t limited to) the opinion that he “lack[ed] the religious foundation; the underpinning that supports conscientious objector beliefs” and that he didn’t “[provide] any significant source of his beliefs; conscience or moral views that would warrant conscientious objector status.”

Spc Katherine JashinskiSo two years after first filing his application, Aguayo learned that the reason he didn’t qualify as a conscientious objector–even though he was utterly sincere in his moral objection–was because he didn’t arrive at this belief through “traditional” channels.

The difficulties some nontheists and adherents of non-Christian faiths face when claiming conscientious objector status haven’t been well publicized. Perhaps the most famous case was that of boxer Muhammad Ali during the Vietnam War, when he claimed military service was irreconcilable with his Islamic faith. The draft board, in similar fashion to Aguayo, found Ali’s beliefs to be insincere and sentenced him to prison. (The era was not kind to Muslims in general–hundreds were sent to jail because their faith wasn’t accepted as a basis for CO status.)

Perhaps the only way to understand how it was that a man who would rather go to jail than go to war, a man who even refused to carry a loaded weapon in Iraq, was found to be insincere in his moral aversion to war is by considering the emphasis on religion in the process of applying for CO status, and the fact that there is no objective, equally applied standard for determining sincerity. Christians in the military far outnumber those of other faiths or no religious faith at all, and non-theists are especially challenged in that they must prove their beliefs or worldview constitute a similar place in their lives as do the beliefs of traditionally religious soldiers.

For example, a nontheist might have to demonstrate that they engage in activities similar to attending church to prove a place for belief in their lives. But to someone who is religious, any activity that is not church may be a very poor substitute. An example of this might be seen in Aguayo’s case–the military chaplain who was assigned to assess his application wrote, “PFC Aguayo seems to be sincere in his beliefs…It is difficult to assess the depths of his beliefs because they rest solely within his own thinking and personal values without the support of background, family, or faith group.”

Then there’s the case of Specialist Katherine Jashinski, who enlisted in the Texas Army National Guard in 2002 and filed for CO status in 2004. The army denied her request and ordered her to report for weapons training. Jashinski refused and, in a public statement at Fort Benning on November 17, 2005, explained:

When I enlisted I believed that killing was immoral, but also that war was an inevitable part of life and therefore, an exception to the rule.

… After reading essays by Bertrand Russell and traveling to the South Pacific and talking to people from all over the world, my beliefs about humanity and its relation to war changed. … I developed the belief that taking human life was wrong and war was no exception.

…The thing that I revere most in this world is life, and I will never take another person’s life. Just as others have faith in God, I have faith in humanity. I have a deeply held belief that people must solve all conflicts through peaceful diplomacy and without the use of violence. Violence only begets more violence. Because I believe so strongly in non-violence, I cannot perform any role in the military. Any person doing any job in the army contributes in some way to the planning, preparation or implementation of war.

In May 2006 Jashinski pled guilty to refusal to obey an order. She was sentenced to four months jail and received a bad conduct discharge. She was released and discharged two months later.

It should be noted, however, that nontheists and nontraditionalists are certainly not the only ones who bear the burden of proving their sincerity. Likewise, those of a Judeo-Christian tradition may also come up against difficulties when trying to demonstrate their sincerity to a military officer of the same religion–one who simply might not understand how their own faith could allow for conscientious objection to war.

Nevertheless, it stands to reason that non-traditional and nontheist COs likely face a higher burden. The Center on Conscience and War, a nonprofit anti-war organization founded in 1940 to defend the rights of COs, reports that non-Christians “statistically have a greater difficulty submitting and proving their sincerity to a chain-of-command…who self-identifies as Christian.” And one successful CO I spoke with told me that he believed he had an easier time discharging from the military because he was Christian (and white). Whether due to misunderstanding or due to prejudice, other faiths or a lack of religious faith may simply make little sense to the Christian majority. And, frankly, it’s no secret that prejudice against nontheists and non-Christians is present in the U.S. military. One need only look at the tribulations of PFC Jeremy Hall, who endured discrimination, alienation, and even death threats for his atheist views.


It was after Agustin Aguayo turned himself in and learned he would be sent back to Iraq instead of being court-martialed that he fled once again, jumping out of a window on a military base in Germany. He resurfaced on September 26, 2006, holding a press conference in Los Angeles, California, where he spoke out against war and then turned himself in again.

This time Aguayo was sent into confinement at Coleman Barracks in Mannheim, Germany. While he was there, the circuit court of appeals in Washington, DC, upheld the original denial of Aguayo’s habeas corpus petition. On March 6, 2007, Aguayo was court-martialed and convicted of desertion and missing movement. Although he was facing up to seven years for the offence, a judge sentenced him to just eight months. Aguayo’s attorney, David Court, said:

I believe that Agustin in his closing comments was compelling enough that the judge probably came to the conclusion, he thinks he’s a CO regardless of what the army says and because he believes he is a CO that’s why he did what he did . . . It appeared that at the end the issue was: what is the punishment for a conscientious objector who follows his conscience and not the dictates of the Uniform Code of Military Justice?

Aguayo was released from Mannheim on April 18, 2007, and his general court-martial went through an automatic appeal process as is procedure in a bad conduct discharge. His appeal was eventually denied by the circuit court of appeals, and a bid to the Supreme Court was denied on March 17, 2008.

Conscientious objection is a contentious issue, particularly given that we have an all-volunteer force. Many people argue that conscientious objectors are in fact soldiers who realized they got in over their heads when they discover what’s involved in combat. Others think that if “easy outs” are provided from the military we put our country at risk when we face security threats.

However, the fact remains that current military policy does allow for conscientious objection, and therefore it should be applied impartially. Christian, Jewish, Muslim, Hindu, Buddhist, Wiccan, humanist, atheist–these labels shouldn’t matter when it comes to applying for CO status. What should matter is the sincerity of a moral objection, if we are to allow any moral objection in the first place. It isn’t fair for a Christian CO to have the process made easy, while a non-Christian CO might be denied discharge because she quotes Bertrand Russell instead of the Bible or because he is unable to cite sufficient (read: supernatural) sources.
We live in a pluralistic society that, by definition, should recognize equality between allfaith and non-faith. And when it comes to assessing a conscientious objector, our military should take pains to make sure an emphasis is placed on having faith in that individual–rather than whether or not they agree with that individual’s faith.

Karen Frantz is the policy and advocacy associate at the American Humanist Association.

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