Benitez-Manrique v. Micheli

• Decision Date: 06 November 1969
• Docket Number: Civ. 591-69.
• Citation: 305 F. Supp. 334
• Parties: Jose Antonio BENITEZ-MANRIQUE, Petitioner, v. Col. Harry P. MICHELI-Commandant Induction Center, Col. Bert Perrin-Commandant U. S. Army Southern Comand of Puerto Rico, Col. John B. Moyar-Commandant Rodríguez Army Hospital, Fort Brooke, Respondent.
• Court: U.S. District Court — District of Puerto Rico

305 F. Supp. 334

Jose Antonio BENITEZ-MANRIQUE, Petitioner, v. Col. Harry P. MICHELI-Commandant Induction Center, Col. Bert Perrin-Commandant U. S. Army Southern Comand of Puerto Rico, Col. John B. Moyar-Commandant Rodríguez Army Hospital, Fort Brooke, Respondent.

Civ. 591-69.

United States District Court D. Puerto Rico.

November 6, 1969.

Olaguibeet A. Lopez-Pacheco, Hato Rey, P. R., for petitioner.

Alfred T. Ghiorzi, Sp. Asst. U. S. Atty., San Juan, P. R., for respondent.

OPINION AND ORDER

FERNANDEZ-BADILLO, District Judge.

Petitioner, Jose Antonio Benítez-Manrique, has applied for a writ of habeas corpus directing his release from the Armed Forces of the United States on the grounds that his induction into the armed services was unlawful because the Selective Service System Local Board failed to properly handle his physical unfitness claim. Benítez was inducted into the Army on August 27, 1969 at the Armed Forces Examining and Entrance Station, Fort Brooke, San Juan, Puerto Rico.

The relevant events leading to Benítez induction are disclosed by examination of his Selective Service file submitted in evidence by stipulation of both parties and may be summarized as follows:

On November 7, 1967 Benítez registered at Local Board No. 78 and in the Classification Questionnaire (SSS Form 100) stated he was suffering from a heart condition that had required surgery of that organ.

Local Board No. 78 mailed Benítez a letter form on December 14, 1967 requesting medical certificates justifying the physical defects alleged by him. Nevertheless, just six days afterward, on December 20, 1967 the Local Board classified Benítez 1 — A.

On January 25, 1968 Benítez returned to the Local Board the letter form accompanied by a medical certificate from Dr. Calixto A. Romero attesting that Benítez had been diagnosed by him as suffering from an interauricular septal defect of the heart, was referred to Dr. Charles Hufnagel at Washington, D. C., who after confirming the diagnosis, performed surgery on petitioner on June 20, 1962.

On April 23, 1969 Benítez reported for Armed Forces physical examination as ordered by the Local Board on February 26, 1969 and April 7, 1969. A statement of acceptability was mailed on May 19, 1969 informing him that he was found fully acceptable for induction into the Armed Forces.

The Local Board mailed Benítez a questionnaire on May 22, 1969 advising him to submit documentary evidence for due consideration by the Local Board if he considered himself entitled to a deferment.

Benítez returned said questionnaire on May 29, 1969 claiming he was suffering from disqualifying medical conditions, as set forth in the Army Regulations issued pursuant to 32 C.F.R., Sec. 1628.1¹ and enclosed medical and radiological certificates stating he was suffering from dilated pulmonary arteries.

On June 3, 1969 the Local Board informed Benítez' mother that upon consideration of the medical evidence submitted by her and considered by the Armed Forces,² petitioner was fit to serve in the military.

On June 24, 1969 the Local Board sent Benítez an Order to Report for Induction (SSS Form 252) on July 22, 1969.

On July 12, 1969 Benítez' mother notified the Local Board of his new address and at the same time requested a reconsideration or a hearing. To this letter the Local Board replied on July 18, 1969 granting the hearing for July 22, 1969 as an administrative grace because there was already a pending order of induction. The hearing was later cancelled by the Local Board (SSS Form No. 264) and the induction order postponed until August 13, 1969 to allow Benítez to submit the medical certificates related to the physical condition that he alleged prevented him from serving in the armed forces.

On or about August 8, 1969 Benítez submitted to the Local Board a statement as to the type of surgical operation of the heart and copy of the discharge summary by Dr. Charles Hufnagel plus a medical certificate by Dr. Ramón M. Suárez indicating that Benítez was suffering a disqualifying condition listed in C22, AR 40-501.³

The Minutes of Actions by Local Board state that on August 13, 1969 "the case and evidence in the file considered, the Board determines that registrant does not meet the requirements for a deferment because of his studies, as he only dedicates 7 hours per week. In regard to the medical certificates it must be the armed forces who determine the acceptability of the registrant, so, he must comply with the induction order, on August 27, 1969." This decision was reached by a 5-0 vote.

Benítez submitted to induction into the Armed Forces on August 27, 1969. On August 28, 1969 he was given orders by the Armed Forces Examining and Entrance Station — later cancelled — to report with a group of other inductees to Fort Jackson, South Carolina on August 29, 1969. Although the record shows that subsequent orders were issued by the Armed Forces Examining and Entrance Station at Puerto Rico, for Benítez alone, to report to Fort Jackson on September 1, 1969⁴ affidavit of respondent, Col. John B. Moyar, (Exhibit B of Respondents' Return) discloses that on September 2, 1969 Benítez was at Rodríguez Army Hospital, under the command of affiant, undergoing a medical examination and interview by Major Carl R. Smith.

Respondents claim (1) that this court lacks jurisdiction over the subject matter and (2) that petitioner is physically fit for induction into the Armed Forces of the United States.

In their Return to Petition for Writ of Habeas Corpus the respondents claimed as an affirmative defense that they did not know petitioner's whereabouts and that he is not, therefore, under their custody, control or command. At the hearing, however, counsel for the government argued, confining his theory to the issue that petitioner is actually under custody of the military but that the jurisdiction lies in Fort Jackson, South Carolina.⁵ Looking into the matter, the court finds that the military authorities at the Armed Forces Examining and Entrance Station at Fort Brooke, Puerto Rico,⁶ issued orders to Benítez and still retained the power to subject him to their orders and supervision. Benítez was inducted and submitted not voluntarily, but in compliance with 32 C.F.R. 1632.15 and 1632.16. As soon as he was inducted he was under the custody of the Armed Forces authorities in Puerto Rico. Certainly he was under their orders.⁷ Once the other inductees ordered with Benítez to go to Fort Jackson, South Carolina, in the first orders, left Puerto Rico they may not have been any longer under the custody of respondents here, — they actually continued to be under the custody of the Armed Forces, although in a different jurisdiction under the custody of different Army officers — but petitioner, the one who was left as ordered by the Army, certainly remained and presently is under the custody of respondents. He is within the jurisdiction of the District of Puerto Rico subject to orders from the Armed Forces.

Also the fact remains that the military authorities still claim jurisdiction over petitioner and the right to subject him to their orders and supervision, including arrest, against his will. Their orders, to which they claim he is subject, are in effect a continuing and effective assertion of custody, a power at the moment only limited because of the restraining order from this court, but a custody which, once the restraining order is removed, may at any time be made as complete as the military establishment by further order shall direct. Based on these facts, this court finds that petitioner's custody lies in respondents in Puerto Rico; therefore, this court has jurisdiction over the subject matter.

As to the second point raised by the government in reference to petitioner's medical fitness, this Court finds that this is a matter to be looked into by the Selective Service System in compliance with the appropriate regulations and procedure.

Now the Court finds that at the initial step of the registration procedure, — in the Classification Questionnaire — petitioner raised a claim that indicated he was suffering from disqualifying medical conditions that appear in the list described in 32 C.F.R. 1628.1. The letter form of December 14, 1967 mailed by the Local Board to Benítez requesting medical certificates justifying the physical defect alleged by him indicate that the registrant raised his claim timely.

32 C.F.R. 1628.2(b) reads as follows:

"Whenever a registrant who is in Class 1-A, Class 1-A-O, or Class 1-O claims that he has one or more of the disqualifying medical conditions or physical defects which appear in the list described in section 1628.1 the local board shall order him to present himself for interview with the medical advisor to the local board at the time and place specified by the local board by mailing to such registrant a Notice to Registrant to Appear for Medical Interview (SSS Form 219)."

The Local Board must follow its own regulations and grant the registrant the medical interview to which he is entitled. The Local Board in violation of its own regulations never sent registrant the SSS Form 219, neither after his first claim nor after his second claim on May 29, 1969 before he had been sent any induction order, when he claimed...