United States v. Baray, 26094.

• Decision Date: 13 July 1971
• Docket Number: No. 26094.,26094.
• Citation: 445 F.2d 949
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel BARAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.2d 949 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel BARAY, Defendant-Appellant.

No. 26094.

United States Court of Appeals, Ninth Circuit.

July 13, 1971.

COPYRIGHT MATERIAL OMITTED

Victor Sherman (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant.

Brian J. O'Neill, Asst. U. S. Atty. (argued), Larry Flax, Asst. U. S. Atty., David R. Nissen, Chief, Crim. Div., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before BARNES, HUFSTEDLER and TRASK, Circuit Judges.

BARNES, Circuit Judge:

Juan Manuel Baray appeals his conviction of failure to submit to induction into the Armed Forces in violation of 50 U.S.C.App. § 462(a).

Baray, a Jehovah's Witness, registered with the Selective Service System on October 4, 1963. In September, 1964 he completed a classification questionnaire (SSS Form 100) in which he stated that he was a minister of the Jehovah's Witnesses and was a conscientious objector. He also indicated that he had been treated for tuberculosis and had been institutionalized for treatment for a period of five months.

Subsequently, the Local Board sent Baray SSS Form 150 (Special Form for Conscientious Objectors) which he completed and returned within ten days. The form detailed appellant's claim for deferment as a conscientious objector and again indicated that Baray was a minister of the Jehovah's Witnesses. In response, the Board requested Baray to appear personally before them for the purpose of clarifying information in his Selective Service file.

No determination of classification was made by the Board at the time of Baray's appearance. Instead, the Board voted to "hold for further information pertaining to ordination of registrant." SSF 22¹ On May 15, 1965, Maple M. Johnson, Presiding Minister of the Huntington Park Congregation of Jehovah's Witnesses, sent a letter to the Local Board certifying Baray's ordination by baptism as a Jehovah's Witness minister. SSF 23 Then on September 8, 1965, appellant was classified I-A. No reason was given by the Board for denying either the requested I-O or IV-D classification. Baray did not appeal the I-A classification.

On November 2, 1965, the Board ordered Baray to report for a physical examination at the Armed Forces Entrance and Examination Station. AFEES At that examination Baray was found not physically accepable for military service under current standards because of his history of tuberculosis. As a result of that examination, the Board classified appellant I-Y. Unacceptable for military service under current standards except in case of national emergency.

Baray was ordered to report for a second physical examination on June 9, 1967. At that time he was found acceptable, whereupon he was reclassified I-A by the Board and ordered to report for induction. He reported as ordered but was found to be unacceptable at the induction physical inspection. Baray was not reclassified at that time.

On October 16, 1967, Baray was ordered to report for a third pre-induction physical examination. Again he was found to be unacceptable. Despite this fact, he was not reclassified I-Y by his Board but was retained in classification I-A.

On January 19, 1968, Baray was once again ordered to report for examination. This time he was found to be acceptable and was subsequently ordered to report for induction. That induction was postponed.

Baray was next ordered to report for examination on July 15, 1968, at which time he was found acceptable. Appellant was ordered to report for induction on August 21, 1968. At that time he refused to submit to induction as ordered.² This prosecution followed.

The validity of Baray's classification is challenged on two grounds. The first is the rejection of his claim for deferment as a conscientious objector. A review of Baray's file reveals that he presented a prima facie case for deferment as a CO. Appellant was a Jehovah's Witness and was considered an active minister of that faith. On appellant's Form 150 he stated that his beliefs against the use of force were based on his study of the Bible and upon the teachings of Christ. SSF 16 Nevertheless, the Board rejected his claim without stating its reasons for so doing. That failure constitutes reversible error under this Court's decision in United States v. Haughton, 413 F.2d 736 (9th Cir. 1969) wherein we held that:

"The local board * * * must state the reasons for its denial of a requested classification when a registrant has `met the statutory criteria\' * * * for that classification or, * * * has placed himself `prima facie within the statutory exemption.\'" (at 739)

However, because Baray failed to appeal the classification decision of the Local Board, he is precluded from relying upon Haughton unless he can show that his failure to appeal was the result of "exceptional circumstances". Lockhart v. United States, 420 F.2d 1143, 1147 (9th Cir. 1969) (en banc). Baray presents several factors which he believes constitutes sufficient "exceptional circumstances". However, because we find compelling appellant's suggested alternative grounds for reversal, we do not find it necessary to consider in this opinion, the "exceptional circumstances" he urges.

Turning to the alternative grounds for reversal, we find that Selective Service Regulation 1628.2(b) grants to registrants the right to an interview with the Local Board's medical advisor under certain conditions.³ Specifically, the Regulation provides that:

"Whenever a registrant who is in class I-A, class I-A-O, or class I-O claims that he has one or more of the disqualifying medical conditions or physical defects which appear on 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)."⁴

At the time Baray registered with the Local Board, he indicated that he had been treated at Olive View Sanitarium, a tuberculosis treatment facility, from March 1961, to August 1961. This statement alone can be characterized as insufficient to state a claim, strictly interpreted, of a disqualifying medical condition or physical defect. The Surgeon General's list of disqualifying conditions, which is published in Army Regulation 40-501, states with respect to tuberculosis that the registrant must: 1) have tuberculosis which is active, or which has been active within the previous two years, 2) have a history of relapses of pulmonary tuberculosis, or 3) have residual physical or mental defects from past tuberculosis that would preclude satisfactory performance of duty. Baray's registration questionnaire stated that he had been treated for tuberculosis more than two years prior to the time of registration and did not indicate whether there was a history of relapse or restrictions on his physical capabilities. Therefore, in the very restrictive sense of the word, the statement did not "claim" a "disqualifying condition" as expressed by the language of the pertinent provisions of Army Regulation 40-501. See United States v. Ehret, 431 F. 2d 1146, 1148 (9th Cir. 1970). Nevertheless, even though this claim may have been insufficient to require the Board to order Baray to report for an interview with the Local Board medical advisor at the time of registration, Baray was subsequently found to be physically unacceptable for military service by reason of his history of tuberculosis at the pre-induction examination.⁵ This finding was sufficient to alert the Board that Baray suffered from a condition which in fact was disqualifying. Furthermore, it should be noted that the AFEES examining officer indicated that Baray could be returned in the future for re-evaluation. With such a comment, Baray's Local Board was under the directive of Local Board Memorandum 78, (May 29, 1963) which stated that:

"Whenever the armed forces examining and induction station suggests that a registrant be returned for reevaluation after a specified time, the registrant should be interviewed by the medical advisor to the local board before he is returned to the station, to determine whether it would be appropriate to forward the registrant for reevaluation."⁶

In this instance, the directive was not followed, even though the Board was then aware that Baray suffered from a disqualifying physical condition.

We find that this case is unlike United States v. Smith, 423 F.2d 559 (9th Cir. 1970), relied upon by the government, in which the registrant, after having been found acceptable at his pre-induction physical examination, notified the Local Board that he was suffering from migraine headaches and requested a medical interview. There we held that the Board had reason to doubt the existence of the claimed disability and acted properly when it ordered the registrant to report for another physical examination. Here, the registrant had a history of pulmonary tuberculosis and had in fact been found unacceptable by the military's examining officers.

We reject the government's argument that failure to follow the prescribed regulation regarding medical interviews was not prejudicial because the registrant was found acceptable in a...