United States of America, Appellee, v. Robert J. Chorush, Appellant, 472 F.2d 917 (2d Cir. 1973)

Robert Chorush, a conscientious objector exempt from military service, was convicted for willful failure to comply with an order of his local draft board to report on March 8, 1971, for alternative civilian work. On this appeal, Chorush presses several grounds for reversal, including the local board's refusal to afford him an interview with a medical examiner, as prescribed by then applicable Selective Service and Army Regulations. We agree that the board's failure to comply with these regulations compels a reversal of his conviction. Accordingly, we neither address nor decide the remaining claims.¹ 

In our view, the error in this case was patent on the face of the record. At oral argument we asked the Assistant United States Attorney whether any consideration had been given to confessing error, a practice which not only conserves precious judicial resources but, in addition, where error is manifest, upholds the dignity of the prosecutor's office and contributes to the belief that the government's pursuit is not vengeance but justice, and that its advocacy, at all times, is in behalf of truth. The Assistant United States Attorney held to the view that no procedural irregularity had occurred and that Chorush's conviction should be affirmed. Thus, despite Chorush's conceded sincerity as a conscientious objector, and despite the fact that the war, which continues to cast its shadow across all of these cases, has happily become history, this matter must now be the subject of a written opinion of the court. We do not mean to imply for a moment that the government did not act in good faith. We urge only that the cause of justice is not always inconsistent with the art of compromise. This is particularly so when, as now, litigation flows into the appellate court at flood proportions, and when non-judicial solutions to difficult problems are not only feasible, but would bind deep wounds as well. It is only fair to note that the capable United States Attorney for the Southern District of New York, Whitney North Seymour, Jr., has advocated such views. See 1970-1971 Annual Report, United States Attorney for the Southern District of New York 33.

The facts in this case are quite straightforward. In January 1970, Chorush was classified 1-O by the National Appeals Board, as a conscientious objector (CO). On February 3, 1970, he was ordered to appear for a pre-induction physical, the first step in processing CO's for civilian work. On the day Chorush was required to report, February 16, he mailed a letter to his New York board stating that he was travelling throughout the United States, and that he had arranged with an office of the Selective Service System in Fresno, California, to have his physical examination transferred to that location. Chorush also wrote that he was under a physician's care for "debilitating venous varicosities" in his right leg. He requested an interview with a medical examiner, and enclosed a letter from his California physician, Dr. Robert J. Taub, documenting his medical claim. The New York Board transferred Chorush's preinduction physical to Fresno, but did not act upon his request for a medical interview. Thereafter, on March 2, 1970, Chorush again sent a letter to his New York board, which reads: "I hereby request to see a medical adviser. Enclosed is a copy of a letter from my physician indicating that I am physically unable to serve in the Armed Forces." The board totally ignored this request.

On April 1, Chorush was ordered to report for a pre-induction physical in Fresno, scheduled for April 14. On April 6, 1970, in a letter to both the Fresno and New York boards Chorush for the third time requested an appointment with a medical examiner, referring the boards to the applicable Selective Service regulation then in existence. Once again his request was ignored.

On April 14, Chorush reported to the Armed Forces Examining Station in Fresno for his pre-induction physical. He became overwrought, cried, and could not complete the examination. The board was informed that Chorush refused to cooperate with the Army Examiners.

The board, recognizing that Chorush was a legitimate conscientious objector, chose to treat him as being physically acceptable for civilian work and took steps to assign him to some form of alternative service. We need not narrate in detail the progress of this assignment process except to note that Chorush never received a medical interview and never was granted an army physical. Chorush refused to cooperate with the board in the selection of a work assignment and, ultimately, on February 24, 1971, Chorush was ordered by the board to report to New York on March 8, for assignment to a hospital in Poughkeepsie, New York. On February 26, 1971, two days after the work order was mailed, Chorush, in a letter to his board, requested a physical examination. He repeated his request on March 7, and stated that he did not have sufficient funds to pay for his return trip to New York. On March 9, the New York State Director of Selective Service ruled that Chorush was eligible for alternate civilian service; accordingly, the board denied the request for a physical. On April 1, 1971, Chorush again wrote the board enclosing a letter from a psychiatrist, requesting a medical interview, a physical examination, and exemption from service. The request was denied. Chorush was indicted on June 28, 1972, on three counts,²  including a charge of willfully failing to report for civilian work on March 8, 1971.

Although clarity and felicity of expression are hardly the hallmark of Selective Service and Army regulations, the regulations involved in this case present a happy exception to the rule. Indeed, little more is demanded of us in disposing of this appeal than a reference to the pertinent regulations, applicable at the time this matter came before Chorush's draft board. 32 C.F.R. Sec. 1628.2 provided:

Registrants to Be Given Medical Interview

(a) . . . .

(b) 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 in 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).

The regulation clearly gives a registrant who makes a sufficient claim a right to a medical interview.³  The regulation states that such an interview "shall" be ordered; it does not state that the medical interview "may" be ordered in the discretion of the board. The section 1628.1 list, referred to in the regulation, is one prepared by the surgeon general of the Department of the Army which enumerates various medical conditions or physical defects that disqualify registrants for service in the Armed Forces. At the time Chorush sought the medical interview, those who suffered from "Varicose veins, if more than mild . . ." were exempt from service. AR 40-501, 2-19(f), and those registrants who made claims of disqualification for varicose veins, if more than mild, were entitled, as of right, to a medical interview.

The government argues that Chorush did not make out a claim for a disqualifying medical condition. We have been referred to cases which, the government asserts in its brief, articulate the rule of law that "the language used by the registrant in asserting such a claim [must] strictly conform to the language used in the applicable Army regulations." It is sufficient for us to note after reading these cases, United States v. Ehret, 431 F.2d 1146 (9 Cir. 1970); Benitez-Manrique v. Micheli, 439 F.2d 1173 (1 Cir. 1971); United States v. Lavin, 346 F. Supp. 76 (S.D.N.Y. 1972), that they do not uphold any such principle of law. Indeed, common sense, at the very least, would indicate that particularly when a registrant's request for a medical interview is accompanied by supporting documentation submitted by a physician, it is best to allow the qualified medical expert to speak in his own words.

Chorush informed his local board, in a letter dated February 16, 1970, that he was under treatment for "debilitating venous varicosities in my right leg" and he requested a medical interview. We need not decide, in this case, whether such requests must be accompanied by medical documentation, since Chorush did, in fact, submit a letter from his physician, Dr. Taub, which more than adequately served to give notice to the board that Chorush suffered from venous varicosities that were "more than mild." Under the heading, "Physical Examination; Extremities," Dr. Taub wrote: "The left leg is normal. The right leg is carried at a wide angle and the range of motion of the right hip is normal. There are several large distended venous varicosities over the right lower extremity. . . ." Under the heading "Discussion," Dr. Taub wrote, "Mr. Chorush has symptomatic venous varicosities in his right leg. He was advised to use elastic support stockings while in the upright position and to avoid activity which would cause him to be on his feet for a long period of time. Should he have a thrombotic episode or if his symptoms become more severe, surgical correction may be necessary." On any plain reading of this letter, a case of venous varicosities that were more than mild was clear upon the surface of the communication.

The government argues that there is no support in the cases for ordering a medical interview when the registrant has been previously ordered for a pre-induction physical. One difficulty we have with this argument is that there is also no support in the cases for the position advanced by the government, and so the government concedes. Were there no difference between an army pre-induction physical and an interview with a medical examiner, or were the difference merely designed to provide options for administrative convenience, we might be more disposed towards the government's view. But the purpose of a medical interview, at least in part, is to afford an opportunity to a registrant to meet, on a face-to-face basis, with a physician away from the stresses of the induction center, for an evaluation of a claimed disqualifying condition. The personalized setting of the medical interview cannot be said to be of only limited benefit to the registrant. Accordingly, we are of the view that a draft board is without discretion to circumvent the requirements of 32 C.F.R. Sec. 1628.2, which grants registrants the right to a medical interview, merely by scheduling the registrant for a preinduction physical. Cf. United States v. Ford, 431 F.2d 1310, 1313 (1 Cir. 1970).

Failing in that argument, the government has directed our attention to 32 C.F.R. Sec. 1628.4(e), which provides:

1628.4. Duties of the Local Board-