By Producer
NBC News
updated 11/21/2006 2:29:06 PM ET 2006-11-21T19:29:06

An Army medic who fled rather than serve a second tour in Iraq because he believes war is immoral had his case heard Tuesday before the U.S. Court of Appeals for the District of Columbia.

This is believed to be the first military conscientious objector case of the Iraq war. It is the first case to come before this court since 1971, during the Vietnam War.

Army Spec. Agustin Aguayo, a U.S. citizen who was born in Guadalajara, Mexico, has said he was not anti-war when he enlisted in the Army in 2002. But his military experiences changed his mind, his lawyers said. He applied for conscientious objector status in February 2004 before he was sent overseas. He is asking the court to release him from a military prison.

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.

Fled after first tour in Iraq
Aguayo surrendered at Fort Irwin, an Army base in the Mojave Desert northeast of Los Angeles in October. He is now being held at a military prison in Germany, where his unit is stationed.

He served a year as a combat medic in Tikrit, Iraq, in 2004 after the military turned down his request for objector status.

Rather than be forced to ship out for a second Iraq tour with the 1st Battalion, 18th Infantry Regiment, Aguayo jumped out of a window of his base housing in Germany on Sept. 2. He made his way back to the U.S. through Mexico.

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 "crystallized" to the point that he could no longer take a life.

Seeking to overturn court-martial
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.

Aguayo was charged with being absent without leave and with a separate charge of missing movement because he didn't ship out to Iraq with his unit, said James Klimaski, one of Aguayo's Washington attorneys.

Last year, Aguayo sued in federal court in Washington to overturn the military's rejection of his conscientious objector bid. He lost the court case but has appealed the decision. If Aguayo wins his lawsuit on appeal, that would overturn any court-martial decision, according to his lawyers.

Aguayo has unsuccessfully fought the Pentagon for more than two years to be declared a conscientious objector and win a discharge.

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