United States of America, Plaintiff-appellee, v. Noel Larry Jackson, Defendant-appellant, 454 F.2d 821 (5th Cir. 1972)

Appellant Noel Larry Jackson appeals from his conviction in the district court for refusing, on August 21, 1969, to report for and submit to induction into the Armed Forces of the United States, in violation of 50 U.S.C. App. Sec. 462.

Jackson was classified I-A on June 13, 1966 and was given a physical examination and found medically qualified. However, he filled out a dependency questionnaire and was subsequently granted a III-A hardship classification, effective until July 15, 1967. On August 10, 1967, Jackson was reclassified I-A, but he again furnished documentation to establish his family's dependency and was reclassified III-A on September 21, 1967, to continue until October 1, 1968.

On October 9, 1968, without additional information in the file, Jackson was classed I-A again. Before Jackson took any steps to appeal this classification the clerk, on November 22, 1968, mailed him an order to report for induction on December 10, 1968. However, on December 6, 1968, Jackson's father telephoned the board clerk and informed her that a doctor had conducted tests and determined that the registrant suffered from functional hypoglycemia, a condition requiring a special diet to alleviate fainting spells.¹ 

The clerk testified at the trial as to what she did with this information:

"The chairman of the local board was called and this was discussed with him and in as much as it had not been submitted prior to the orders for induction it was not required to be brought before the board members."

Following this, the doctor submitted a letter to the board in which he said, in part:

" [Larry Jackson] was referred to me by . . . a surgical associate of mine, for he was complaining of 'fainty spells' if he went too long without food. On 12/5/68 a four hour glucose tolerance was done which proved he has a functional hypoglycemia. It is therefore my opinion that he is unfit for military service at this time. He is now on a high protein, low carbohydrate diet, and will be rechecked in 6 months."

The following dialogue took place between the defense attorney and the clerk regarding the letter:

"Q. All right. Did you discuss this with the board?A. No sir. This information is only good to the examining doctor at Armed Forces Examining Station.

Q. So this was not brought to the board's attention?

Appellant contends, inter alia, that the test and diagnosis of his condition occurred after the issuance of the order for induction and was the first time there was an indication that he had this defect, and thus it was a change in status "resulting from circumstances over which he had no control." 32 C.F.R. Sec. 1625.2.³  Appellant also contends that the failure of the clerk to transmit the information to the board was prejudicial and constituted a denial of his right to a medical interview by the board under 32 C.F.R. Sec. 1628.⁴ 

The clerk of the board indeed erred in failing to submit the information concerning Jackson's physical condition to the entire board for consideration. It is for the local board and not the clerk to determine the merits of classification questions. Battiste v. United States, 409 F.2d 910 (5th Cir. 1969); United States v. Ford, 431 F.2d 1310 (1st Cir., 1970). This court has often viewed with disfavor a draft board's failure to follow its own Regulations. United States v. Bagley, 436 F.2d 55 (5th Cir., 1970). The clerk apparently misunderstood the law in stating that the "information is only good to the examining doctor at Armed Forces Examining Station."

Under 32 C.F.R. Sec. 1625.2, information submitted after an order for induction is sufficient for reclassification under specified circumstances. The Supreme Court, in Mulloy v. United States, 398 U.S. 410, 90 S. Ct. 1766, 26 L. Ed. 2d 362 (1970), determined that under this Regulation the local board must reopen a classification whenever a prima facie case for a different classification is made. Only by reopening a classification and determining the issue anew on the merits can the registrant's right to a personal appearance and administrative appeal be assured on substantive issues. Of course, Mulloy involved a reopening before an induction order. 32 C.F.R. Sec. 1625.2 provides that after an induction order is mailed a classification shall not be reopened "unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control." Determining whether a change results from circumstances beyond the registrant's control is clearly a substantive issue. When information arguably meets this requirement, the board itself must determine whether the standards in the Regulations have been met. It cannot properly fail to perform this function by allowing one of its members or the clerk to make the decision. If the board finds that the information does meet the requirement of a change due to circumstances beyond control, and that it makes a prima facie case for deferment, then the board must reopen the registrant's classification even if it then decides on the merits against a different classification.

In Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625 (1971), the Supreme Court has held that, in the case of conscientious objectors, a Selective Service local board need not reopen the classification of a registrant who claims that his conscientious objection to war in any form crystallized between the mailing of his notice to report for induction and his scheduled induction date. Appellant Jackson's case, however, is distinguishable for his claim did not involve conscientious objector status, but rather a medical condition. The Court, in Ehlert, apparently recognized such a distinction:

"The regulation we must interpret in this case . . . bars postnotice reopening 'unless the local board first specifically finds there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.' It is clear that the regulation was meant to cover at least such nonvolitional changes as injury to the registrant or death in his family making him the sole surviving son." (Emphasis supplied.) 401 U.S. at 104, 91 S. Ct. at 1323.

See Grosfeld v. Morris, 448 F.2d 1004, 1011 (4th Cir., 1971).

We need not decide whether the facts in this record entitle Jackson to a postinduction-order deferment on grounds of physical unfitness. This court has held that the failure of a board to consider the post-induction-order claim to be harmless when it was clear that there was no change due to circumstances beyond the registrant's control. See Battiste v. United States, 409 F.2d 910 (5th Cir., 1969). In the instant case there is no such factual or legal clarity. It seems that Jackson first sought medical diagnosis after the order to report. It is unclear how long he had been experiencing the symptoms that led him to seek medical advice.

The law on what constitutes a change due to circumstances beyond control is undeveloped with respect to medical disabilities. Many of the cases dealing with medical reasons for deferment concern the health of others than the registrant. Thus, in Lentine v. Hollingsworth, 308 F. Supp. 317 (D.S.C., 1970), the court found that the registrant's post-order marriage to an emotionally dependent woman was not a circumstance beyond control, because the registrant knew her emotional condition before he married her. In Garrell v. Commanding Officer, 312 F. Supp. 386 (E.D. Pa., 1970), the court found that the disease of the registrant's father-on which a claim of economic dependence was based-had been known and treated by a doctor for five years. On the other hand, the court in Brede v. Allen, 311 F. Supp. 599, 606, n. 5 (N.D. Ohio, 1969), noted that the death of the registrant's father and the emotional breakdown of his mother after the order for induction were circumstances beyond his control.

But there are certain possible questions left open in appellant Jackson's situation. Must the symptoms of a disqualifying disease begin after the induction order to qualify? Or is it sufficient, if the symptoms preexisted the order, that the registrant did not then subjectively realize that he suffered from a serious physical malfunction and that he became aware of the seriousness of the problem and sought medical advice only after the order for induction?

We think it is for the local board in the first instance to determine the issues of fact and the interpretation of the Regulations. It is not for the courts to first rule on an arguable claim for a deferment when the board has failed to consider the issue or has applied the wrong standard. We do not indicate what the board should decide upon reconsideration of Jackson's classification. We hold simply that he presented an arguable case and that the board, which has great discretionary authority, must first fulfill its responsibility by considering whether the information meets the standards set out in the Regulations.

The Government argues that the registrant was not prejudiced because the medical information was forwarded to the Armed Forces Entrance and Examination Station, but the registrant had a right to have this information considered by the Selective Service system. United States v. Mathews, 450 F.2d 439 (1st Cir., 1971); United States v. Ford, supra, 431 F.2d at 1313. See United States v. Polites, 448 F.2d 1321 (3rd Cir., 1971).⁵ 

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* * *Because this error invalidates the order for induction, the judgment of conviction and sentence is reversed and the case is remanded to the trial court with directions to dismiss the indictment.