United States v. John Christopher D'Arcey , 471 F.2d 880 ( 1972 )

HUFSTEDLER, Circuit Judge:

D’Arcey appeals from his conviction for refusing to submit to induction, 50 U.S.C. App. § 462.

D’Arcey registered with the Selective Service System on March 18, 1967. On July 18, 1967, at the Armed Forces Entrance and Examination Station (“AFEES”), he was examined and found physically unacceptable for voluntary enlistment in the Marine Corps. The record of this examination indicated that a question was raised concerning a claimed condition of hypoglycemia or hyperinsulinism (a concentration of glucose in the blood at below normal levels), but' the examining physician was unable to obtain sufficient details to verify this condition. The findings stamped on this record are: “PHYSICALLY DISQUALIFIED — RE-EXAMINATION BELIEVED JUSTIFIED.” At this examination, D’Arcey was given a form to be completed by his physician and returned to his local board. On September 12, 1967, his local board classified him 1-A. On May 1, 1968, D’Arcey submitted a current information questionnaire reporting that he was suffering from hypoglycemia.¹ At the same time, he filed with the local board the form which he had been given at his previous physical, completed by his physician and confirming his claimed condition. The board did not consider this information, but it ordered him for a preinduction physical on June 27, 1968. He was then found physically acceptable. The board therafter reviewed his file and decided not to reopen his classification. With the assistance of a government appeals agent, D’Arcey perfected an appeal. He was retained as 1-A. On June 18, 1969, he refused induction. We reverse D’Arcey’s conviction because the failure of his local board to afford him an individual medical interview denied him due process. We do not reach his other contentions.

At the time the local board acted, 32 C.F.R. § 1628.2(b) provided:

“Whenever a registrant who is in Class 1-A . . . 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. . . (Emphasis added.)²

The referenced list was prepared by the Surgeon General of the Department of the Army. It enumerates medical conditions and physical defects which disqualify registrants from service in the armed forces. Hyperinsulinism is among the listed conditions. (AR 40-501, ch. 2, § VI, SSLR 2205.)

The Government argues that the board was not required to order D’Arcey for a medical interview; instead, it could order him for a preinduction physical under the terms of 32 C.F.R. § 1628.4(e) and Selective Service Operations Memorandum No. 327. Section 1628.4 states the duties of the local board when a medical interview is required: Subsection (a) requires the board itself to conduct the interview when a medical advisor is unavailable; subsection (b) concerns the bookkeeping to be done before the interview takes place; subsection (c) concerns bookkeeping after the interview and requires that the local board determine whether or not to order the registrant for a physical “after considering the findings and recommendations of the medical ad-visor”; subsection (d) outlines the action the board must take if it determines, on the basis of the interview, that the registrant is physically disqualfied; and subsection (e) requires the board to order the registrant for a physical in the normal course if it determines he is qualified; it also provides that if the board has any doubt about the registrant’s physical condition, it shall order him for a physical. Subsection (e) read in context is intended to allow the board to order a man for a physical if, after the medical interview, it still has any doubt about his acceptability. The regulation does not provide an alternative to the mandatory medical interview.

Selective Service System Operations Memorandum No. 327³ provided that in order to be entitled to a medical interview “[t]he claimed defect must be one that has not been previously presented and evaluated by the . Armed Forces Examining and Entrance Station. If the registrant has already had his physical examination, the papers submitted should be sent to the Examining Station. . . .” Prior to May 1, 1968, when he advised the local board of his physical condition, D’Arcey had been found disqualified for enlistment in the Marines by the AFEES. The record is unclear as to whether the claimed condition of hypoglycemia or hyperinsulinism was “evaluated” at that time. Even if it were, however, the memorandum did not relieve the board of its duty to order D’Arcey for a medical interview.

Cases which have upheld a local board’s determination to order a registrant for a second physical rather than schedule a medical interview after he has presented a prima facie claim all involved registrants who had been examined and found physically acceptable prior to presenting a claim for physical disqualification. (See United States v. Neckels (9th Cir. 1971) 451 F.2d 709; United States v. Smith (9th Cir. 1970) 423 F.2d 559.) The rationale of those cases and of Memorandum No. 327 was intended to prevent the disruption of the administrative process that could result if registrants could delay imminent induction by requiring medical interviews for claims which a prior examination had rendered doubtful. D’Arcey was found disqualified by AFEES. The prior determination confirmed his later claim to the board. It makes little sense to require him to submit additional information to the same physicians who had already disqualified him. His situation is similar to that of a registrant who has been found disqualified by AFEES and who may be returned for reevaluation. In that situation, Local Board Memorandum No. 78 required that the registrant be given a medical interview by the local board before he was returned to AFEES.⁴ (United States v. Baray (9th Cir. 1971) 445 F.2d 949.)

The Government’s contention that D’Arcey had to make a specific request for a medical interview is refuted by the plain language of the regulations. Section 1628.2(b), 32 C.F.R., requires the local board to order a medical interview if a registrant classified 1-A claims a disqualifying defect. Similarly, it is settled that the fact that D’Arcey was subsequently found acceptable by AFEES does not mean that he was not prejudiced by the denial of a medical interview. “Unlike the preinduction physical examination in which hundreds of registrants may be examined by several doctors in a day’s processing, the medical interview gives the registrant the opportunity to have a single doctor focus his attention on the registrant’s individual condition and make a specific finding thereon. . . . [T]he denial . of this substantial right granted by Regulation 1628 is alone sufficient to warrant reversal.” (United States v. Baray, supra, 445 F.2d at 954.)

Considerable confusion has been generated by several decisions in this circuit concerning a registrant’s right to a preexamination medical interview. See, e. g., United States v. Neckels, supra; United States v. Baray, supra; United States v. Goodman (9th Cir. 1971) 439 F.2d 810; Vasilj v. United States (9th Cir. 1970) 425 F.2d 1134; United States v. Smith, supra. To the extent that any of them can be read as indicating that a local board, acting under form 32 C.F.R. § 1628.2(b) and related regulations, can deny a medical interview to a registrant who has presented evidence of disqualification before an examination by AFEES, we overrule them. We hold that a registrant is entitled to a medical interview prior to being ordered for a physical examination when there is evidence of a recognized disqualifying medical condition or physical defect that has not been the subject of a previous examination or evaluation by AFEES. Similarly, if a registrant has been duly examined by AFEES and found acceptable before he presents a claim of disqualification to the local board, he is not entitled as a matter of right to a medical interview prior to reexamination.

The judgment is reversed with directions to dismiss the indictment.

1 . Although the term “hypoglycemia” does not appear on the Surgeon General’s list of disqualifying medical conditions and physical defects, the condition to which hypoglycemia relates is inextricably bound to “Hyperinsulinism.” Allan, “Hyperinsulinism, Hypoglycemia, Hypoglycosis,” in The Cyclopedia of Medicine, Surgery, Specialties vol. VI, at 906 (1971 rev. ed.) ; McNalty (ed.), Butterworth’s Medical Dictionary 703-04 (24th ed. 1965) ; Derick, “Spontaneous Hyperinsulinism and Allied States: Hypoglycemic Syndrome,” in Christian (ed.), The Oxford Medicine 178(27) (1949). Even if it could be assumed that hyperinsulinism and hypoglycemia are separable, hypoglycemia is unquestionably encompassed by Alt 40-501, ch. 2, § VI, 1f 2-8 (n) : “Other endocrine or metabolic disorders which obviously preclude satisfactory performance of duty or which require frequent and prolonged treatment.”

2 . After the events in this case, the regulation was amended (E.O. 11553, 35 Fed.Reg. 13719 (Aug. 28, 1970). The amendment is cast in permissive, rather than mandatory, terms.

3 . Revoked Aug. 26, 1970.

4 . Local Board Memorandum No. 78 issued May 29, 1963:

‘‘Whenever the armed forces examination 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.”

An amendment to the memorandum on Aug. 10, 1970, deleted the quoted provision. The former provision was in effect at all relevant times in this case.