314 F. Supp. 153 | D. Conn. | 1969
MEMORANDUM OF DECISION ON PETITION FOR A WRIT OF HABEAS CORPUS
By this petition for a writ of habeas corpus, Gerald E. Signorelli, a
Petitioner claims that his induction was unauthorized because he is afflicted with severe hay fever, a condition which, under the Selective Service’s own medical fitness standards, disqualifies him for service in the armed forces. Furthermore, he contends that he was improperly denied a medical interview to establish the presence of his hay fever condition.
The Facts
Petitioner’s Selective Service file reveals that from November 19, 1964, until March 21,1968, he was classified II-S as a full-time college student.
On March 20, 1968, he was ordered to report for a preinduction physical examination and on the following day he was classified I-A. His physical examination was scheduled for April 10, 1968. Prior to that date, he delivered two letters to the local board. One disclosed the results of a refraction examination by an optometrist. The other, from Dr. Sidney W. Jennes, read as follows:
“To whom so ever this may concern:
“Gerald Signorelli of Torrington, Connecticut has been under my care since April 1964 for treatment of Hay Fever. He is receiving injections every two weeks as prophylactic therapy.
Sincerely,
Sidney W. Jennes, M.D.”
These written statements from Dr. Jennes and the optometrist served to amplify his medical history and were reviewed and considered in connection with his preinduction physical examination.
The petitioner was found fully acceptable for induction into the armed forces and on April 15,1968, the local board was so informed by the Armed Forces Examination and Entrance Station (AFEES) in New Haven. The board in turn notified petitioner. Based on this finding of acceptability, a new I-A draft card was sent to the petitioner on April 22, 1968.
The Request for a Medical Review
Finally, on August 23, 1969, after the third order to report for induction, the petitioner, through his attorney, requested the local board for a medical interview
It seems paradoxical that a request for a stay of induction pending a medical interview should be made at this point, since a medical interview had been held earlier, although not initiated at the local board level. On July 14, 1969, the date petitioner was notified of his induction scheduled for August 6, petitioner’s father wrote to Senator Abraham Ribieoff complaining of his son’s treatment by the Selective Service System. The father wrote another letter of the same tenor to the Senator on July 22. Senator Ribieoff apparently instituted inquiries at the National Headquarters of the Selective Service System which led to a request on July 29, 1969, from AFEES, New Haven, to the local board and the State Director to return the petitioner to New Haven for a medical consultation
The Merits
Petitioner claimed that he suffered from a disqualifying medical condition specified in the regulation.
Indeed, the evidence shows that complete medical records, including Dr. Esdaile’s report, were reviewed by Col. George W. Sgalitzer, Surgeon General, United States Army Recruiting Command, and by Col. Ralph R. Chapman, Chief, Physical Standards Division, Department of the Army, both of whom also found the petitioner medically qualified under current medical fitness standards.
The fact that the impetus for the interview was initiated from the level of National Headquarters did not deprive petitioner of any right, nor cause him any substantial prejudice.
At the hearing in this court, the petitioner also argued that his examination by Dr. Esdaile was inadequate for lack of scratch tests or patch tests. His own
The burden is on the petitioner to show that his local board had “no basis in fact” for classifying him at I-A and ordering him to report for induction. Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946) ;
On the basis of the foregoing findings and conclusions, the petition is dismissed.
So ordered.
The temporary restraining order heretofore issued pending the court’s decision in this case is continued in effect until October 22, 1969, in order to permit an application to the Court of Appeals for a further stay if deemed advisable.
. Both letters are stamped on the back: “Reviewed and considered in examinee’s physical profile AFEES, NEW HAVEN, CONN.,” dated 4/10/68 and signed by Alexander Pinkes, a contract physician. This was pursuant to AR 601-270, CH. 3, § III, 1T 70d at 3-24, SSLR 2261.
. 32 O.F.R. § 1623.4(a) (1969) : “As soon as practicable after the local board has classified or reclassified a registrant * * * it shall mail a notice thereof on a Notice of Classification * * * to the registrant.”
. 32 C.F.R. § 1624.1 (1969).
. The 1968 letters from petitioner’s optometrist and allergist, see page 154, supra, did not constitute a claim for a medical interview under § 1628.2(b). Section 1628.1 provides that the Surgeon General of the Army shall prescribe a list of medical conditions or physical defects that disqualify registrants for service in the armed forces. The purpose of a medical interview is to screen and disqualify at the local board level those registrants who have conditions enumerated in the list. Apart from the fact that the letters were not in affidavit form, 32 C.F.R. § 1628.3(b) (2) (1969), and the registrant had known about these aspects of his physical condition since 1964 and had never before brought them to the attention of the board, 32 C.F.R. § 1625.1(b) (1969), they failed to describe such a disqualifying defect. Hay fever disqualifies only “if severe; or if not controllable by antihistamines or by desensitization, or both.” AR 46-501, CH. 2, § XIV, f 2-28 at 2-14, SSLR 2216. Had the letters described such a defect, the board might have been required to act on its own volition. 32 C.F.R. § 1628.2(a) (1969). The presumption is that the local board processed him in accordance with the applicable statutes and regulations. Oestereich v. Selective Service System Local Board No. 11, supra, 393 U.S. at 241, 89 S.Ct. 414 (Harlan, J., concurring).
. AR 601-276, CH. 3, § III, If 65h(4) at 3-21, SSLR 2260.
. AR 601-270, CH. 3, § III, IT 65b (4) at 3-15, SSLR 2257.
. Page 154 and note 3, supra.
. If there was any deviation from the regulations because Dr. Esdaile was a contract physician, paid for his services, rather than a volunteer appointed by the President, 32 C.F.R. § 1604.61 (1969), this did not cause any substantial prejudice to the petitioner. Olguin v. United States, 392 F.2d 329, 330 (10th Cir.
. On July 25, 1969, petitioner submitted a letter from his allergist, Dr. Jennes:
“To whom this may concern:
“Gerald Signorelli has been under my care since 1964 for treatment of Hay Fever. He has had severe episodes in the past, sometimes requiring cortisone to control his trouble. He must receive injections of an extract of the pollen every two weeks to control the Hay Fever and prevent Asthma.
Sincerely yours,
Sidney W. Jennes, M.D.”
On July 31, 1969, he submitted a letter from Dr. Vanoni, his family doctor, saying:
“To Whom It May Concern:
“Re: Gerald Signorelli
“Gerald Signorelli has been referred to an allergist and is now being seen regularly every three months. He must also carry medication with him at all times.
“Gerald is still under treatment for this condition.
Sincerely yours,
Frank R. Vanoni, M.D.”
. See note 8, supra, and cases cited therein.
. SSLR 2200:60-61.
. On July 14, petitioner was ordered to report for induction on August 6, 1969.
. See note 4, supra.
. See cases cited note 8, supra.
. 50 U.S.C.App. § 460(b) (3) provides in part:
“ * * * No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. * * * ”
By this proviso, Congress has codified the existing case law, e. g., Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946) ; United States v. Jakobson, 325 F.2d 409 (2d Cir. 1963), aff’d sub nom. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) ; Benzian v. Godwin, 16S F. 2d 952 (2d Cir.), cert. denied, 335 U.S. 886, 69 S.Ct. 235, 93 L.Ed. 425 (1948).