United States ex rel. Kempf v. COMMANDING OFFICER, ETC., Civ. No. 11-384-C-2.

• Decision Date: 14 March 1972
• Docket Number: Civ. No. 11-384-C-2.
• Citation: 339 F. Supp. 320
• Parties: UNITED STATES of America ex rel. Edward Earl KEMPF, Petitioner, v. COMMANDING OFFICER OF the FORT DES MOINES EXAMINING AND ENTRANCE STATION, Respondent.
• Court: U.S. District Court — Southern District of Iowa

339 F. Supp. 320

UNITED STATES of America ex rel. Edward Earl KEMPF, Petitioner, v. COMMANDING OFFICER OF the FORT DES MOINES EXAMINING AND ENTRANCE STATION, Respondent.

Civ. No. 11-384-C-2.

United States District Court, S. D. Iowa, C. D.

March 14, 1972.

Michael W. Fay, Cedar Rapids, Iowa, for petitioner.

Allan L. Donielson, U. S. Atty., Des Moines, Iowa, for respondent.

MEMORANDUM AND ORDER

HANSON, District Judge.

Edward Earl Kempf, inducted into the Armed Forces of the United States on October 7, 1971, seeks his release from the custody of the Commanding Officer of the Fort Des Moines Examining and Entrance Station. The relief he seeks is in the form of habeas corpus and he bases his claim on 28 U.S.C., Section 2241 et seq. The case was heard by the Court on December 21, 1971.

Kempf claims that his induction was unlawful because he suffers from a disqualifying medical condition specified in the regulations promulgated under the Military Selective Service Act of 1967. Specifically, he claims that he suffers from strabismus and diplopia, two defects of the eye. When these defects occur together, according to Selective Service regulations, a person is disqualified from service in the Armed Forces.

At trial, Kempf's Selective Service file, a record of Local Board 13-6 in Benton County, Iowa, was received into evidence. It reveals the following pertinent facts:

1. August 19, 1966. Kempf registered with Local Board 13-6 one day after his eighteenth birthday.

2. October 17, 1966 until June 1, 1970. Kempf was classified II-S as a full-time college student.

3. January 19, 1970. Kempf's local board advised Kempf that it would extend his II-S until December 1970, to enable him to complete his college education.

4. May 12, 1970. Kempf indicated in SSS Form 127 that he was cross-eyed and experienced double vision.

5. October 23, 1970. The local board classified Kempf II-S until December 1, 1970.

6. November 13, 1970. The local board ordered Kempf to report for his physical examination on December 7, 1970.

7. December 8, 1970. Kempf was found fully acceptable physically for induction into the Armed Forces.

8. December 29, 1970. The local board classified Kempf I-A.

9. January 29, 1971. The local board received a letter from Reid Motley, M. D., an ophthalmologist, stating that Kempf had large-angle esotropia with constant diplopia.

10. January 29, 1971. The local board received a letter from Kempf requesting an interview with the medical advisor to the board. He requested in the alternative that Dr. Motley's letter be submitted to and evaluated by the physicians at the Fort Des Moines entrance station.

11. February 1, 1971. The local board ordered Kempf to report for induction on February 16, 1971. In an accompanying letter the local board stated that it "had no choice but to order you Kempf, since you were the next one eligible for induction." It further advised of the possibility that the state director would cancel the induction order. In a separate letter to the state director, the local board forwarded Kempf's file and requested the state director's review and advice.

12. March 3, 1971. State headquarters advised the local board that Kempf should receive an ophthalmic consultation.

13. March 4, 1971. Local board ordered Kempf to report for an ophthalmic consultation on March 10, 1971.

14. March 11, 1971. The Fort Des Moines examining station sent Kempf to Arthur F. Downing, M.D., an ophthalmologist, for examination. Dr. Downing was requested to examine Kempf's eyes for signs of diplopia and esotropia and to render a medical opinion on Kempf's visual fitness for military service. On the consultation report, Dr. Downing wrote: "Subjective diplopia (all diplopia subjective). Life long history of esotropia .... No subjective diplopia at angle of deviation (hooror fusionis). Suggest the matter of substantiated diplopia be referred to higher authority. This man is not incapacitated from ordinary activities."

15. March 12, 1971. The Fort Des Moines examining station advised Local Board 13-6 that Kempf was found fully acceptable physically for induction into the Armed Forces.

16. March 22, 1971. Kempf requested of the Office of the Surgeon General that it review his file.

17. April 23, 1971. The local board ordered Kempf to report for induction on May 11, 1971.

18. April 26, 1971. Kempf's local board ordered Kempf to report for a physical examination on May 3, 1971.

19. April 28, 1971. The local board received a request from Kempf that it postpone his induction until the Surgeon General's office reached its decision.

20. May 4, 1971. Dr. Downing again examined Kempf at the request of the Fort Des Moines examining center. The Fort Des Moines examining station requested that Dr. Downing run the red lens test for diplopia. Dr. Downing's report reads in part as follows: "Red lens test = 20 prism diopters esotropia. No fusion at 0 prism diopters deviation. States he has subjective double vision in all directions. Diagnosis: Concomitant esotropia of 20 prism diopters."

21. May 10, 1971. The local board postponed Kempf's induction upon the authority of state director until his acceptability had been determined.

22. May 11, 1971. The Surgeon General informed Kempf that he was "medically qualified under current medical fitness standards for induction into the Armed Forces." On the same date, the Fort Des Moines examining station advised the local board that Kempf was found fully acceptable physically for induction into the Armed Forces.

23. May 24, 1971. Kempf's local board ordered Kempf to report for induction on June 7, 1971.

24. June 8, 1971. Kempf presented two additional letters to the medical examiners at Fort Des Moines. One letter, dated June 5, 1971, is from C. A. Hendricks, M.D., an ophthalmologist; the other letter, dated June 7, 1971, is from L. N. Pipkin, O.D., an optometrist. Both letters assert that Kempf has esotropia and diplopia.

25. June 8, 1971. Kempf again was found to be medically qualified for service in the Armed Forces. Kempf then refused to submit to induction into the Armed Forces. In a signed statement he stated: "I am refusing to continue with being inducted on the grounds that I have 3 medical statements stating that I definitely have diplopia and that the Army's ophthalmologist does not agree to this."

26. July 13, 1971. Kempf was indicted by the United States Grand Jury for the Southern District of Iowa for failure to submit to induction into the Armed Forces.

27. October 7, 1971. Kempf submitted to induction into the Armed Forces.

28. October 8, 1971. Kempf brought this present action.

I.

Kempf challenges the legality of his detention and custody in the Armed Forces. In order to be successful in this habeas corpus proceeding, he must show that his induction was unlawful. He must show that there was no basis in fact for the Selective Service System to classify him I-A and thus declare him eligible for induction. United States ex rel. Taylor v. Fritz, 446 F.2d 36, 37 (8th Cir. 1971).

The scope of this Court's review of Selective Service System determinations is set out in United States v. Watson, 442 F.2d 1273, 1277 (8th Cir. 1971):

Decisions of local boards are final even though erroneous if they are made in conformity with the regulations. It is not for the courts to sit as super draft boards substituting their judgment on the weight of the evidence for that of the designated agencies. The scope of review is narrow, permitting the reviewing court to overturn a draft classification only if it has no basis in fact or if the local board's action has the effect of denying appellant basic procedural fairness.

With this very narrow scope of review in mind, the Court turns to the substantive issue.

Subsection 454(a) of Title 50 Appendix of the United States Code reads in part as follows:

No person shall be inducted into the Armed Forces for training and service ... until his acceptability in all respects, including his physical and mental fitness, has been satisfactorily determined under standards prescribed by the Secretary of Defense . . . .

Part 1622 of Title 32 of the Code of Federal Regulations provides for the classification of registrants with physical disabilities which would prevent them from being classed I-A, eligible for induction. Class IV-F is for registrants who are not qualified for any military service; Class I-Y is for registrants who would be qualified for military service in time of war or national emergency.

A registrant's classification must be determined solely on the basis of official forms of the Selective Service System and other written information contained in his file. Oral information cannot be considered unless it is summarized in writing. 32 C.F.R., Section 1623.1(b). A registrant must be placed in the lowest class for which he is determined to be eligible. 32 C.F.R., Section 1623.2.

Army Regulation 40-501, Paragraph 2-12(h) (5) states that a cause for rejection for induction is strabismus in any degree accompanied by documented diplopia. It is uncontroverted that Kempf has esotropia, which is a form of strabismus. The controversy is over whether he has diplopia, or double vision.

Kempf was last classified by his local board on December 29, 1970, when he was placed in class I-A. Because he had been found physically fit for service just prior to that time, the board certainly had a basis in fact for its decision.

Evidence adduced in the hearing of this matter conclusively indicated, however, that the Fort Des Moines examining station has no personnel or equipment for determining whether registrants have defects of the eye such as strabismus or diplopia. Registrants are not tested for these conditions. The letter of Dr. Motley, received by the board on January 29, 1971, indicating that Kempf had esotropia and diplopia, created, therefore, a prima facie case for medical exemption.

Kempf requested that the local board set up a...