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United States v. Aull

decided: November 14, 1972.

UNITED STATES OF AMERICA, APPELLEE,
v.
ROBERT EDWIN AULL, DEFENDANT-APPELLANT



Smith, Kaufman and Hays, Circuit Judges. Irving R. Kaufman, Circuit Judge (dissenting).

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

Robert Edwin Aull has appealed from a judgment of conviction for willful refusal to submit to induction, 50 U.S.C.App. § 462(a), entered after a non-jury trial in the United States District Court for the Southern District of New York, Edward Weinfeld, Judge.*fn1 The sole question presented for review is whether appellant's Local Board erred in its handling of two letters submitted in support of a request for a psychiatric deferment. We find no error and affirm the judgment.

The facts are not in dispute. Aull first registered with the Selective Service in November, 1968. He received a student deferment, but in June of 1970, notified the Local Board that he had dropped out of college and wished reclassification as a conscientious objector. That request was denied by the Local Board on October 4, 1970; the New York State Appeal Board concurred on February 3, 1971.*fn2

In the meantime, on December 4, 1970, Aull underwent a pre-induction physical examination. He was found fully acceptable for induction. At the time of the physical, Aull completed a Report of Medical History, Standard Form 89. In the space reserved for a description of present health, he wrote:

"Physically OK but my mind is in a state of confusion due to frequent flashbacks from LSD and similar drugs."

In the portion of the same form reserved for the physician's comments, the examining doctor wrote:

"Multi psy prob. Occ. flash backs from use of LSD -- Has not used drugs for 4 mos -- will doc."

On Standard Form 88, the Report of Medical Examination, the examining physician filled out the box labeled "Recommendations Further Specialist Examinations Indicated (specify)" with the words: "psy. letter." At the end of the form, the following stamped message appears:

"Registrant is determined acceptable. However, he claims ailments not verified by the medical officer and has been advised to present documented evidence to substantiate claims to his selective service local board prior to his induction."

On December 10, 1970, Aull wrote to the Local Board requesting a 1-Y deferment because of his LSD flashbacks. On December 15, the Board forwarded to Aull DD Form 62, a Statement of Acceptability, which it had received from the induction station. In the box entitled "Remarks," that form reads "Registrant Advised to Present Medical Evidence to Support Unverified Ailments." The Local Board followed this up with a form letter, dated December 18, requesting a "Doctor's statement concerning your physical condition or the ailments claimed at the time of your physical examination."

On December 22, the Local Board received a letter from Andrew L. Sopchak, Ph.D., a clinical psychologist certified in the State of New York. That letter stated that it was written at the request of Aull, that the reason for the request was "not very clear," and that Sopchak had seen Aull but once. The letter went on to recount Aull's descriptions of his drug problems, including treatment at Bellevue, and said that "On questioning it became evident that he has had world destruction fantasies." That letter was followed on January 11 by one from a Community Coordinator of Argosy House, a drug rehabilitation center. That letter stated that Aull was participating in group therapy there, had had several LSD flashbacks in the past six months, and that it would be very detrimental to his health to be inducted.

On December 31, obviously in response to Sopchak's letter, the Local Board sent Aull another copy of the form letter first mailed on December 18. In addition to requesting a doctor's statement, the Board added this notation: "Psychiatrist's Medical Statement Not Psychologist's Report."

Aull was ordered to report for induction on April 7. Since he had undergone a physical examination within the past year, he was afforded only a physical inspection, including a review of the previous medical examination reports "and any accompanying additional documents." AR 601-270, ch. 4, § 2, para. 4-21 (b) (1969). But the Local Board had refused to forward the two letters to the induction station, so there was no "documentation" before the ...


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