United States v. Aull, 193

• Decision Date: 14 November 1972
• Docket Number: No. 193,Docket 72-1740.,193
• Citation: 469 F.2d 151
• Parties: UNITED STATES of America, Appellee, v. Robert Edwin AULL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

469 F.2d 151 (1972)

UNITED STATES of America, Appellee, v. Robert Edwin AULL, Defendant-Appellant.

No. 193, Docket 72-1740.

United States Court of Appeals, Second Circuit.

Argued September 22, 1972.

Decided November 14, 1972.

George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for Southern District of New

York, Peter F. Rient, Asst. U. S. Atty., of counsel), for appellee.

Steven J. Hyman and Kunstler, Kunstler & Hyman, New York City, for appellant.

Before SMITH, KAUFMAN and HAYS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Robert Edwin Aull has appealed from a judgment of conviction for willful refusal to submit to induction, 50 U.S.C. App. § 462(a), entered after a non-jury trial in the United States District Court for the Southern District of New York, Edward Weinfeld, Judge.¹ The sole question presented for review is whether appellant's Local Board erred in its handling of two letters submitted in support of a request for a psychiatric deferment. We find no error and affirm the judgment.

The facts are not in dispute. Aull first registered with the Selective Service in November, 1968. He received a student deferment, but in June of 1970, notified the Local Board that he had dropped out of college and wished reclassification as a conscientious objector. That request was denied by the Local Board on October 4, 1970; the New York State Appeal Board concurred on February 3, 1971.²

In the meantime, on December 4, 1970, Aull underwent a pre-induction physical examination. He was found fully acceptable for induction. At the time of the physical, Aull completed a Report of Medical History, Standard Form 89. In the space reserved for a description of present health, he wrote:

"Physically OK but my mind is in a state of confusion due to frequent flashbacks from LSD and similar drugs."

In the portion of the same form reserved for the physician's comments, the examining doctor wrote:

"Multi psy prob. Occ. flash backs from use of LSD—Has not used drugs for 4 mos—will doc."

On Standard Form 88, the Report of Medical Examination, the examining physician filled out the box labeled "Recommendations Further Specialist Examinations Indicated (specify)" with the words: "psy. letter." At the end of the form, the following stamped message appears:

"Registrant is determined acceptable. However, he claims ailments not verified by the medical officer and has been advised to present documented evidence to substantiate claims to his selective service local board prior to his induction."

On December 10, 1970, Aull wrote to the Local Board requesting a 1-Y deferment because of his LSD flashbacks. On December 15, the Board forwarded to Aull DD Form 62, a Statement of Acceptability, which it had received from the induction station. In the box entitled "Remarks," that form reads "Registrant Advised to Present Medical Evidence to Support Unverified Ailments." The Local Board followed this up with a form letter, dated December 18, requesting a "Doctor's statement concerning your physical condition or the ailments claimed at the time of your physical examination."

On December 22, the Local Board received a letter from Andrew L. Sopchak, Ph.D., a clinical psychologist certified in the State of New York. That letter stated that it was written at the request of Aull, that the reason for the request was "not very clear," and that Sopchak had seen Aull but once. The letter went on to recount Aull's descriptions of his drug problems, including treatment at Bellevue, and said that "On questioning it became evident that he has had world destruction fantasies." That letter was followed on January 11 by one from a Community Coordinator of Argosy House, a drug rehabilitation center. That letter stated that Aull was participating in group therapy there, had had several LSD flashbacks in the past six months, and that it would be very detrimental to his health to be inducted.

On December 31, obviously in response to Sopchak's letter, the Local Board sent Aull another copy of the form letter first mailed on December 18. In addition to requesting a doctor's statement, the Board added this notation: "Psychiatrist's Medical Statement Not Psychologist's Report."

Aull was ordered to report for induction on April 7. Since he had undergone a physical examination within the past year, he was afforded only a physical inspection, including a review of the previous medical examination reports "and any accompanying additional documents." AR 601-270, ch. 4, § 2, ¶ 4-21(b) (1969). But the Local Board had refused to forward the two letters to the induction station, so there was no "documentation" before the medical officer who certified Aull fit for induction. Aull subsequently refused to take the symbolic step forward.

At the time of Aull's refusal to submit, a Local Board's duties with regard to claims about physical disabilities was defined by an October 27, 1970 letter from Selective Service headquarters to all State Directors, reprinted at SSLR 2200:61:³

"When a registrant under an order for induction makes inquiry concerning his physical acceptability . . . he shall be notified to bring any new documentation with him to the induction station at which time his condition will be evaluated. . . . If the registrant is not under an order for induction, he will be instructed to furnish documentation. Upon receipt of such documentation, the local board may either return the examination papers and new information to the AFEES for paper evaluation, or, if circumstances warrant, order the registrant for a new examination."

Aull, who was not under an induction order when he submitted the two letters, argues that, at the least, this letter required a "papers review" of his case at the induction station. He also claims that the Board's action violated 32 CFR § 1632.5, which requires the assembling and transmittal at the time of induction "all . . . information concerning the qualification of the registrant for service in the Armed Forces."

Despite the broad language of these directives, however, it is clear that the Local Board would not have erred in failing to forward any letter, for example one by a local banker, that Aull submitted in ostensible support of his physical claims. Judge Weinfeld found, and we agree, that the Board's duty in this regard was defined specifically by two paragraphs of AR 601-270, ch. 4, § 2, then in effect. Paragraph 4.22(d) provided that:

"Registrants claiming, during the pre-induction examination, that they can produce documentary medical information which would have a bearing on the determination of their acceptability for military service . . . will be informed that the information should be presented by them to their Selective Service local board. . . . Such registrants having medical documents in their possession or submitted by Selective Service local boards when returned for induction will have such documents referred to the medical officer. . . .

Registrants claiming a disqualifying defect that cannot be confirmed at AFEES will be required to substantiate such claim with a letter or similar evidence from an attending physician."

(Emphasis added.) Paragraph 4-20h (6) is even more explicit:

"When documents prepared by physicians are submitted by the examinee in evidence of an existing physical condition which indicates that the individual has received treatment for a reported condition, such documents will be attached to each Standard Form 88. The weight to be given medical reports prepared by civilian physicians and submitted by or on behalf of examinees will be determined by the Chief, Medical Examining Section. In this connection, only those documents prepared by doctors of medicine, doctors of osteopathy and doctors of dental surgery fully licensed to practice their professions in a State or territory of the United States, the District of Columbia, or the Commonwealth of Puerto Rico, need be considered."

(Emphasis added.)

These two paragraphs make it abundantly clear that the "documentation" and "information" that the Local Board must forward to the induction station refers to letters and reports from doctors of medicine. Cf. United States v. Wilbur, 427 F.2d 947, 950 (9th Cir.), cert. denied, 400 U.S. 945, 91 S.Ct. 250, 27 L.Ed.2d 250 (1970). Neither letter submitted by Aull is within that category. Nor can it be contended that Aull was not apprised of this requirement; the record shows that the Local Board repeatedly requested a "Doctor's statement,"...