The opinion of the court was delivered by: BARTELS
Stephen Grosso, presently serving with the 25th Infantry Division, Vietnam, petitions this court for mandamus and habeas corpus relief on the grounds that (1) his induction into the Army was unlawful because he was medically unfit under procurement medical standards due to the existence of a left inguinal hernia (Army Regulation 40-501, Chap. 2, Sec. II, Par. 2-3h) and (2) the Army has failed to follow Army Regulation 635-200, Chap. 5, Sec. III, Pars. 5-5 and 5-9 and Army Regulation 40-501, Chap. 11, Sec. XIV, Par. 11-16 (b), in connection therewith.
After a hearing held on December 31, 1970 and January 6, 1971, at which petitioner, petitioner's father, petitioner's doctor and two Army doctors testified, the court makes the following findings of fact and conclusions of law.
On September 5, 1969, petitioner was ordered to report for a pre-induction physical examination on September 22, 1969.
On September 10, 1969, petitioner visited his family physician, Dr. Leonard J. Kirschbaum, who found that petitioner had a left inguinal hernia. The first reference to this condition is found in a report of an ROTC medical examination of the petitioner by Dr. Gray E. Mombello on March 4, 1968, which apparently lists petitioner as having a small asymptomatic left inguinal hernia.
To his pre-induction physical, on September 22, 1969, petitioner took a note from Dr. Kirschbaum. However, Dr. J.D. Grillo, the military doctor who examined petitioner, found no hernia. The military authorities then sent petitioner to a civilian contract physician, Dr. Krasnoff, for a surgical consultation. Dr. Krasnoff examined petitioner for a hernia in the standing position but found no inguinal hernia. As a result, petitioner was found fully qualified for induction.
On October 13, 1969, petitioner was again examined by his family physician, Dr. Leonard Kirschbaum, who again found a left inguinal hernia. It appears that the results of this examination are reported in the doctor's note of October 18, 1969, as well as in his note dated October 13, 1969. On October 21, 1969, petitioner was examined by a surgeon, Dr. Alfred I. Frankel, who found a left inguinal hernia and advised prompt surgical repair.
On October 18, 1969, petitioner wrote to Colonel George W. Sgalitzer, Surgeon, United States Army Recruiting Command, requesting a review of his preinduction physical examination of September 22, 1969. In response to this request, petitioner was medically examined at Fort Hamilton on November 6, 1969, by Dr. William Bilechy, civilian contract physician. The examining physician found no evidence of an inguinal hernia, even after stress, jumping and bearing down. After consideration of the medical evidence theretofore adduced, Colonel Sgalitzer concluded that petitioner was qualified for induction under the induction physical standards applicable, specifically, Army Regulation 40-501, Chap. 2, Sec. II, Par. 2-3h.
On November 22, 1969, petitioner was examined by Dr. Eugene P. Simon, a private physician, who found petitioner had a left inguinal hernia and recommended surgical repair as soon as possible.
On January 8, 1970, Congressman Allard K. Lowenstein wrote to Colonel Sgalitzer requesting a new medical examination for petitioner. On January 22, 1970, another medical examination was performed by Dr. William Bilechy, who again reported that his examination revealed no evidence of any inguinal hernia. On January 26, 1970, Colonel Sgalitzer wrote to Congressman Lowenstein that he had determined that petitioner was medically qualified for induction.
Petitioner reported for induction on March 9, 1970, and was inducted into the United States Army at Fort Hamilton, Brooklyn, New York.
On May 20, 1970, petitioner's father wrote to Congressman John Wydler stating, in pertinent part:
"I believe that pursuant to AR 40-501, II, 2-3h. (1) which states, 'The causes for rejection for appointment, enlistment and induction are -- h. (1) Hernia other than small asymptomatic umbilical or hiatal;' that my son Stephen was wrongly inducted into the Army in view of ...