Benitez-Manrique v. Micheli, 7536.

• Citation: 439 F.2d 1173
• Decision Date: 22 March 1971
• Docket Number: No. 7536.,7536.
• Parties: Jose Antonio BENITEZ-MANRIQUE, Petitioner, Appellee, v. Col. Harry P. MICHELI, Commandant, Induction Station, Col. Bert Perrin, Commandant, U. S. Army, Southern Command, Puerto Rico, Col. John P. Moyar, Commandant, Rodriguez Army Hospital, Fort Brooke, Respondents, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

439 F.2d 1173 (1971)

Jose Antonio BENITEZ-MANRIQUE, Petitioner, Appellee, v. Col. Harry P. MICHELI, Commandant, Induction Station, Col. Bert Perrin, Commandant, U. S. Army, Southern Command, Puerto Rico, Col. John P. Moyar, Commandant, Rodriguez Army Hospital, Fort Brooke, Respondents, Appellants.

No. 7536.

United States Court of Appeals, First Circuit.

March 22, 1971.

Ezra H. Friedman, Atty., Dept. of Justice, with whom Will Wilson, Asst. Atty. Gen., and Blas C. Herrero, Jr., U. S. Atty., were on brief, for appellants.

Olaguibeet A. Lopez Pacheco, Rio Piedras, P. R., with whom Juanita Trevino Monserrate was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This is a petition for habeas corpus. Petitioner is a Selective Service inductee who complains because of a failure to receive a medical examination by the Board. The District Court for the District of Puerto Rico granted the writ, 305 F.Supp. 334, and respondents appeal.

The facts are extensive. Petitioner, a resident of Puerto Rico, executed his original questionnaire on November 7, 1967, noting that he had been "operated in the heart — Will bring medical certificate." Not having done so, on December 14 he was requested to comply as soon as possible. On December 20, no response having been made, the Board notified him that he was classified I-A.

Petitioner's complaint that this action was hasty is ill-founded. He overlooks the fact that he had promised six weeks before to supply the certificate. The Board is entitled to progress. If, for some reason, further delay was unavoidable, it behooved petitioner to report this fact. A heart operation, not otherwise defined, is not necessarily disabling. Having received no further description, there was no error in the Board's classifying petitioner I-A on December 20. Moreover, even had there been error, petitioner lost his rights by failure to appeal.

On January 29, 1968 petitioner submitted a certificate of a Dr. Romero to the effect that in 1962 he had been operated upon for an interauricular septal defect. "Recovery was uneventful." There was no suggestion that petitioner was in any way disabled, or, as we will come to later, that this disorder came within the government's disabling classifications. The Board did nothing as a result of this submission, and in April 1969 petitioner was given his pre-induction physical. In May he received notice from the Board that he had passed, together with a further questionnaire. Petitioner completed the questionnaire, claiming he was medically disabled, and submitting another copy of Dr. Romero's certificate, together with an "Annual routine X-ray examination" of July 23, 1968. This latter showed, "The heart is normal in size with prominent pulmonary veins and dilated main pulmonary arteries. No other abnormality is seen." On or about June 22 the Board notified petitioner that he might submit more medical certificates, giving him until August 13.¹ Petitioner then submitted a full copy of the 1962 hospital records, which, besides describing the operation, his discharge in good condition, and the absence of any heart murmur, indicated good health and "excellent physical activity." Accompanying this was a current letter of the operating surgeon, which made no mention of any residual effects. In addition petitioner filed a July 1969 electrocardiogram and fluoroscope report and a mother's non-medical letter.

The Board reviewed this file and stated, by letter of August 13, that it had concluded that the Armed Forces should determine petitioner's fitness to serve, and that the new documents would be forwarded and considered at the time set for induction. Petitioner was inducted on August 27, 1969, the Army apparently not finding these matters persuasive. He was ordered to report to Fort Jackson, South Carolina, on September 1st. For reasons not elucidated in the record he, instead, submitted himself for a medical examination at the San Juan Army Hospital on September 2d. Copies of the documents he had filed with the Board were there inspected. Petitioner was found fit for duty. On the same day, he filed the present petition. His sole complaint is that he should have received an examination by a doctor appointed by the Board.

We must first consider jurisdiction. The respondent Micheli is the commandant of petitioner's Induction Station; the respondent Perrin is commandant of the Puerto Rico Army Command; the respondent Moyar is commandant of the Army Hospital. All deny custody of the petitioner. Col. Moyar is clearly correct. Petitioner did not go to the hospital by order of the Army. He was no more in custody there than he would have been in custody of the civil police had he gone to the station to ask a question. Col. Micheli asserts he lost custody when petitioner was inducted. Col. Perrin asserts that he lost custody, either because petitioner was, by order, required to be at Fort Jackson prior to the date of the filing of the petition, or because of the fact that, on that date, he was A.W.O.L.

Custody, of course, for the purpose of habeas corpus relief is something less than total physical restraint. Jones v. Cunningham, 1963, 371 U.S. 236, 83 S. Ct. 373, 9 L.Ed.2d 285. Against the logic of respondents' contentions, it may be argued that if the order of induction was invalid, Micheli's custody never ceased. No court that we are aware of, however, has so held. If Perrin did obtain custody, it may be suggested that the transfer to the commandant of Fort Jackson required some physical act beyond the execution of a piece of paper. The cases which have recognized the continuing custody of the initial command, however, involve petitions filed prior to the date that the transferee was due at his new post, and are accordingly not too helpful. See, e. g., Feliciano v. Laird, 2 Cir., 1970, 426 F.2d 424, 427 n. 4. By not filing the petition until he was A.W.O.L., petitioner faced a further strain upon any concept of custody by a command from which he was officially detached. Since, for reasons that we will come to, we find no...