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June 9, 1972

UNITED STATES of America, Plaintiff,
Gregory Crawford LAVIN, Defendant

Pollack, District Judge.

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

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: "Alternating Esotropia since birth. Last vision Nov. 1964 20/20 OD 20/20 OS No fusion present."

 The Medical Interview Claim

 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). *fn1"

 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 ...

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