Q. If a service member converts to Islam, can he or she refuse to be deployed to places where he or she would fight fellow Muslims?

A. Muslim service members, or others whose religious training or beliefs compel them to object to participating in a war or bearing arms, could petition for conscientious objector status. Depending on the type of status granted, that person could avoid participating "in military service of any kind in war in any form" (Class 1-0). Alternatively, the member could serve in a non-combatant status (Class 1-A-0), according to Department of Defense Instruction 1300.06.

DoDI 1300.06 defines "conscientious objection" as "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." Service members who possessed a conscientious objection prior to entering service cannot qualify for CO status. Troops who convert to Islam, or another religion, during their service could apply for CO status and request administrative discharge or assignment to non-combatant training or service.

In the event the application for CO status is denied, troops have limited options for challenging the decision. The U.S. Court of Appeals for the Armed Forces has noted that a service member in this situation could pursue civil remedies.

Disobedience is not a lawful option for a service member whose application for CO status was denied, approved or is pending.

In a 2008 case, an Army sergeant first class who converted to Islam nine years into his military career was convicted at general court-martial of missing movement by design and disobeying a superior commissioned officer. After being told he would be deployed to Iraq for Operation Iraqi Freedom, he submitted a CO application, which he later withdrew. The appellant did not deploy to Iraq and filed another application on the day he missed movement.

The appellant claimed his beliefs were "incompatible with military service when I was ordered to ... become a combatant soldier who would possibly have to take up arms against other Muslims." He had been offered a non-combatant position in Iraq, but, as a superior explained, the appellant "started drawing lines about whether he wanted to serve or not ... when [the] United States started doing missions in countries that had Islamic people."

However, the U.S. Army Court of Criminal Appeals noted that the appellant's "asserted religious beliefs ... only forbade him from killing other Muslims, not from war in general." Further, the appellant's claim that he missed movement "to avoid a greater evil" was irrelevant. This excuse could not support a duress defense because "such a defense required that the accused 'had no alternative but to break the law.' " Consequently, the court affirmed the findings of guilt and sentence.

Service members interested in applying for conscientious objector status or who have been charged with missing movement, absence without leave, or disobeying orders should consult with an experienced military law attorney. Depending on the circumstances, an attorney can prepare a conscientious objector application, petition for a writ of habeas corpus, file a motion for injunctive relief in the event the application is denied, or raise the facts and circumstances related to the status in order to fight the charges.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.

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