By Matt Apuzzo, The Associated Press, November 21, 2006

WASHINGTON — A federal appeals court is rereading cases from the Vietnam era as it considers whether to allow an honorable discharge for an Army medic who announced his objections to war on the eve of his deployment to Iraq.

Appeals courts heard several cases on “conscientious objectors” during the Vietnam War draft but such appeals are much more rare in an all-volunteer military.

Agustin Aguayo, who enlisted in 2002 during the lead-up to the Iraq war, is asking the U.S. Court of Appeals for the District of Columbia to release him from a military prison. It is believed to be the first federal appeal in a conscientious objector case during the Iraq war.

 Aguayo, who is being held in a U.S. prison in Germany after going absent without leave, said he enlisted as a way to earn money for his education. Though military operations in Afghanistan were under way and discussions about Iraq were ongoing, he said he never considered that he’d have to fight.
Judge A. Raymond Randolph, one of three judges on the case, said he’d been reading up on the Vietnam appeals and asked how the case differs from those filed decades ago by people who realized their opposition to war only after receiving a draft card.

Attorney Peter Goldberger said the Aguayo’s beliefs evolved over time and “crystalized” to the point that he could no longer take a life.

Government attorneys say that’s not enough. To receive conscientious-objector status, Assistant U.S. Attorney Kevin K. Robitaille said, a soldier must show a deeply rooted objection to war in any form.

In a statement submitted to the court and released on a Web site dedicated to his cause, Aguayo said he is being guided by his principles.

“My beliefs and morals come from a transformation as a direct result of my combined religious/family upbringing, military experience, and new experiences I’ve created and sought,” he said.

The government argued _ and a federal judge in August agreed _ that Aguayo’s religious beliefs existed when he enlisted. A soldier may not hide his beliefs to obtain military benefits, then use them as a way to get out of service, the court said.

Attorneys also noted that Aguayo applied as a conscientious objector only after receiving his orders to Iraq and did so at the same time as his best friend.

Supporters said Aguayo’s actions are not uncommon. They said beliefs frequently evolve over time.

“People change their hearts and the law allows for it,” said J.E. McNeil, executive director of the Center on Conscience & War.