United States v. Lavin, 71 CR 860.
| Decision Date | 09 June 1972 |
| Docket Number | No. 71 CR 860.,71 CR 860. |
| Citation | 346 F. Supp. 76 |
| Parties | UNITED STATES of America, Plaintiff, v. Gregory Crawford LAVIN, Defendant. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
M. James Spitzer, Jr., New York City, New York Civil Liberties Union, for defendant.
Whitney North Seymour, Jr., U. S. Atty., for the Southern District of New York, by George E. Wilson, Asst. U. S. Atty., for plaintiff.
On August 13, 1971, Gregory Crawford Lavin was indicted for violating the Military Selective Service Act of 1967 by refusing to submit to induction on December 28, 1970, as ordered by his local board on December 14, 1970. The case was tried to the Court on May 17 and 18, 1972, defendant having waived his right to a jury by written stipulation reaffirmed by him in open court before trial commenced. The government's case consisted of items in defendant's selective service file and the testimony of several witnesses including a medical expert. Defendant adduced no evidence. He has moved for acquittal on several grounds, and both sides have submitted post-trial briefs on the points of law involved pursuant to leave granted by the Court.
On February 26, 1970, defendant reported to the Armed Forces Examining and Entrance Station (AFEES) pursuant to an order issued by Local Board No. 12, Peekskill, New York, and there began to undergo a pre-induction physical examination. At this time defendant was a student at Colgate University located at Hamilton, New York and was classified 2-S (full-time undergraduate college student); he expected to graduate on May 31, 1970.
At the request of AFEES authorities, defendant's local board ordered defendant to return to the examination station for cardiology consultation on April 17, 1970. Defendant, however, obtained a transfer of the examination to the area in which he was attending college, and the consultation date and place were changed to June 1 at Norwich, New York. The pre-induction physical was completed on that date and defendant was found fully acceptable.
Meanwhile, during March and April, defendant interposed a claim for conscientious objector classification. His local board concluded thereon that defendant opposed only the war in Vietnam, and accordingly denied his claim on August 20, 1970, reclassifying him from 2-S to 1-A (available for military service). After receiving notification and pursuing an unsuccessful appeal, defendant was ordered on December 14, 1970 to report for induction on December 28, 1970.
On the latter date, defendant appeared at the induction center, received another physical examination and was again found fully acceptable. However, according to the testimony of the processing officer present at the station on that date and the documentary evidence in defendant's file, defendant refused to take the symbolic step forward, i. e., to submit to induction.
Reports from two medical doctors which appear in defendant's file are in contention. They relate to the condition of defendant's eyes. The first, dated February 19, 1970, is addressed to the local board by Philip Knapp, M.D. of New York City, and is date-stamped by the local board at February 20, 1970. Another stamp on this letter indicates that it was "reviewed and considered in examinee's defendant's profile" on June 1, 1970. The second letter, dated February 24, 1970, is addressed simply "To whom it may concern" by Maurice Tannenbaum, M.D. of Peekskill, New York. It contains the same notation of having been reviewed and considered in examinee's profile on June 1, 1970.
The Knapp report states in pertinent part that in 1966 defendant showed "an esotropia of 25 for distance and 30 for near with a double hypertopia". The other report recites that it was "Copied by Tannenbaum from the records of S. Karash, M.D. deceased" without mention of any date of those records, reading:
Defendant claims that the Knapp report evidences a "potentially disqualifying defect" which required the local board to order an interview with the board's medical advisor pursuant to 32 C.F.R. § 1628.2(b). (This section was revoked August 27, 1970).1
Section 1628.2(b) of 32 C.F.R. at the time defendant was being processed required such an interview only when the registrant claimed one or more of the disqualifying medical conditions or physical defects which appeared in a Surgeon General's list. See 32 C.F.R. § 1628.1. According to Local Board Memorandum No. 78 (May 29, 1963, unamended), this list is set forth in Chapter 2 of Army Regulations (AR) No. 40-501 entitled "Medical Fitness Standards for Appointment, Enlistment, and Induction".
Paragraph 2-12(h) of AR 40-501 sets out two disqualifying defects which, according to defendant, were "potentially indicated" by the Knapp report. These defects are Strabismus of 40 prism diopters or more, uncorrectable by lenses to less than 40 diopters (subparagraph 4) and Strabismus of any degree accompanied by documented diplopia (subparagraph 5).
Neither of the reports, however, indicates the presence of either of the disqualifying defects, potentially or otherwise, assuming their submission constitutes a "claim" and that they were made in proper form (But see 32 C.F.R. § 1628.3(b)(2) requiring or at least suggesting medical affidavits). Cf. United States ex rel. Signorelli v. Malleck, 314 F.Supp. 153 (D.Conn.1969), aff'd, 428 F. 2d 823 (2d Cir. 1969), cert. denied, 397 U.S. 1008, 90 S.Ct. 1236, 25 L.Ed.2d 421 (1970). Alternating Esotropia per se, the type of strabismus mentioned in the Tannenbaum report, has no effect on sight whatsoever according to the government's medical expert. Neither of the reports indicate that defendant's form of strabismus was accompanied by diplopia, which the evidence describes as an extremely rare occurrence. Accordingly, the submission of these reports did not require a medical interview.*
Defendant further contends that the local board order of March 25, 1970, requiring defendant to report to AFEES for cardiology consultation, constituted a "reevaluation" order requiring an interview by the board's medical advisor before defendant's cardiological examination. This claim is made under LBM No. 78 (May 29, 1963, as am. 8/30/63) which provided at paragraph 2:
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.
Defendant's contention labelling the order as a "Reevaluation", is without merit. Defendant's initial evaluation had not been completed when AFEES requested that defendant submit to a cardiological consultation. "Reevaluation" refers to reexamination of a registrant discharged because of failure to meet entrance medical fitness standards. This is not the case here. State Director Advice No. 769 (April 9, 1969), 2 S.S. L.R. 22; see also United States v. Baray, 445 F.2d 949 (9th Cir. 1971), United States v. Smith, 1 SSLR 3370 (D.Ore. February 6, 1969), aff'd, 423 F.2d 559 (9th Cir. 1970); cf. Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972).
Consideration by the Board of the reports
Defendant also contends that the Knapp and Tannenbaum reports were not considered by the local board when his classification was reclassified on August 20, 1970. This, according to defendant, violated section 1622.1(c)2. That regulation is made applicable to reclassification by 32 C.F.R. § 1625.11.3
There is no specific evidence on the subject whether the local board did or did not consider the reports in deciding defendant's classification on August 20, 1970. In the absence of proof to the contrary, the Court is entitled to presume that the board acted in compliance with the regulations and considered all the material in the file including all of defendant's medical papers when the board met and reclassified defendant from 2-S to 1-A. See United States v. Harris, 436 F.2d 775 (9th Cir. 1970), cert. denied, 402 U.S. 981, 91 S.Ct. 1645, 29 L.Ed.2d 147 (1971), United States ex rel. Signorelli v. Malleck, 314 F.Supp. 153 (D.Conn.1969), aff'd, 428 F.2d 823 (2d Cir. 1969), cert. denied, 397 U.S. 1008, 90 S.Ct. 1236, 25 L.Ed.2d 421 (1970); cf. United States v. Sandbank, 403 F.2d 38, 40 (2d Cir. 1968), cert. denied, 394 U.S. 961, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969).
It has been held in other circuits that failure of a local board to consider separately new medical evidence of a disqualifying defect submitted after a pre-induction physical, renders an induction order based on AFEES findings alone invalid. United States v. Miller, 455 F.2d 358 (9th Cir. 1972); United States v. Jackson, 454 F.2d 821 (5th Cir. 1972); United States v. Ford, 431 F.2d 1310 (1st Cir. 1970). But even if the Court assumes that the local board did not consider the reports separately, prejudice to the registrant must be established before the induction order may be voided. Briggs v. United States, 397 F.2d 370 (9th Cir. 1968); United States v. Mangone, 333 F.Supp. 932, 940 (S.D.N.Y. 1971); cf. Grosso v. Resor, 322 F.Supp. 670 (E.D.N.Y.1971), aff'd 439 F.2d 233 (2d Cir. 1971).
Where the medical evidence in question clearly contains nothing that is inconsistent with the findings of the AFEES examiners, no prejudice has been shown. See United States v. Kirkpatrick, 446 F.2d 1371 (10th Cir. 1971). The medical evidence in question in the Miller, Jackson and Ford cases contradicted the AFEES findings there. Here, however, the Knapp and Tannenbaum reports do not describe a disqualifying defect.
Moreover, no Court in this Circuit has required a local board to consider medical claims apart from AFEES findings. The question of the medical...
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