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United States v. Powell

decided: October 12, 1971.


Reargued September 10, 1971.

Ganey and Adams, Circuit Judges, and Weis, District Judge.

Author: Ganey


GANEY, Circuit Judge.

This case involves an appeal from a conviction by a registrant for refusing to submit to induction into the Armed Forces of the United States in violation of § 12(a) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a), by refusing to "step forward" when so directed. The registrant makes the following contentions: (1) The Medical Examining Section of the Armed Forces Entrance and Examination Station failed to give him a psychiatric examination as required by the Army Regulations; (2) The local board failed to consider "medical evidence" of his alleged psychiatric disability in accordance with the Selective Service Regulations, and (3) The local board's finding that his post-induction order claim for reclassification as a conscientious objector was not a change in his status over which he had no control is without any basis in fact.

On March 23, 1967, the registrant, then 18 years of age, filed a Classification Questionnaire (SSS Form 100) in which he did not claim any deferment status. On May 19, 1967, he was classified I-A by a vote of 5 to 0 of the local board. He was notified of the board's action three days later. The notice advised him of his right to a personal appearance before the board and his right to appeal from his classification. Although he knew he had those rights, he did not request a personal appearance and he did not appeal.

A few days short of a year later, on May 20, 1968, he reported to the Armed Forces Entrance and Examination Station ("AFEES") where he was physically examined by several doctors. A month later he was advised by his local board that he was found fully physically acceptable for induction into the Armed Forces. On December 27, 1968, he was ordered by the board to report for induction on January 17, 1969. The order to report contained the following statement printed in large type:


(Read Each Paragraph Carefully)

Though he had read the instruction attached to the notice to report, he did not bring any doctor's certificate with him when he reported for induction on January 17, 1969, to indicate any possible disqualifying mental or physical condition. He was given a general physical inspection at the induction station, found fit for military service and then ordered to submit to induction. The reason for his refusal, written on stationery of the induction station, was "because I cannot face the possibilities of being put in a position where I might have to sacrifice the life of another human being to save my own. * * *"


The registrant first claims he was not properly indicted and convicted because he was denied due process of law by the Selective Service System in the processing of his classification and order to be inducted since he was not given the complete physical examination regarding his alleged psychoneuroses as required by the Army Regulations prior to his being ordered to step forward.*fn1 When he was receiving his physical at the AFEES on May 20, 1968, one of the examining physicians recommended that the registrant see a psychiatric consultant. The omission of the AFEES to accept this recommendation and order him to see such a consultant is the basis of his claim of an incomplete physical examination. Turning to the registrant's Selective Service File (Government's Exhibit G-1), we note that a number "1" is written under the code letter "S" in item 76A, designated as "Physical Profile" in Standard Form 88 (Report of Medical Examination). The significance of this notation is that in the opinion of the medical examiner at AFEES on May 20, 1968, the registrant exhibited no overt psychiatric disqualifying defects at the time of the examination.*fn2 Therefore, no further psychiatric examination was necessary at that time. See United States v. Shunk, 438 F.2d 1204 (C.A. 9, 1971); United States v. Haifley, 432 F.2d 1064, 1966 (C.A. 10, 1970). Moreover, this evaluation could be changed after the proper military authorities had a longer time interval to observe the registrant as an inductee.*fn3


At his request some three months later a special form (SSS 150) for conscientious objectors was mailed to him by the local board on April 18, 1969. Thereafter the board received two letters, one on April 30th, and the other on May 30th, ...

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