The opinion of the court was delivered by: FISHER
Clarkson S. Fisher, District Judge.
Petitioner, Jose Vallecillo, a private in the United States Army, seeks a writ of habeas corpus alleging that when, within the first four months of his enlistment, it was discovered that he could not meet the medical standards for enlistment, the Army, under its own regulations, should have discharged him or given him the option of remaining in the Army notwithstanding his medical condition. Petitioner contends that the Army is required by its regulations to give him an opportunity to exercise this option in writing. Since the Army never obtained petitioner's written choice and since the Army regulations do not provide any remedy in this situation, the petitioner urges that he is entitled to the writ of habeas corpus or other appropriate judicial relief.
Petitioner's claims present trouble-some legal questions in addition to one important factual dispute. Also, he has been found guilty of being absent without leave by a military court martial and was sentenced to a bad conduct discharge which has been appealed unsuccessfully to the highest military authorities. This Court must decide whether the petitioner will be released from the Army by the granting of the relief sought here or by the imposition of the penalty imposed by the military courts.
Private Vallecillo, a citizen of Honduras, was voluntarily enlisted in the United States Army on February 13, 1969 for three years. At that time, he informed the recruiting officials of his medical condition commonly known as "flat feet". Petitioner was examined by Army physicians who noted the condition but nevertheless found him acceptable for enlistment. He was guaranteed that he could undertake basic combat training with a "buddy" and that he would be trained as a paramedic under the "Army Career Group 91 Medical Care and Treatment" enlistment option. After completing approximately one half of basic combat training, petitioner's feet were so troublesome that a medical examination was necessitated. On March 14, 1969 a medical board made certain findings based upon this examination. The findings of this Board are disputed.
In a habeas corpus proceeding the burden of proof is on the petitioner to establish his right to relief by the fair preponderance of all the credible evidence and from the reasonable deductions and inferences which can be drawn therefrom. Scatena v. Brierley, 310 F. Supp. 406, 409 (W.D. Pa. 1970); Williams v. Smith, 434 F.2d 592, 595 (5th Cir. 1970). In order to meet this burden of proof in support of his contention that the Army discovered him unable to meet enlistment medical standards, petitioner offered the following uncontradicted evidence.
After completing basic training, he was transferred to Fort Sam Houston, Texas to begin his medical training which ended when his commanding officer requested that he be re-assigned because of his feet. On May 1, 1969 he was removed from this training and assigned to Fort Gordon, Georgia, as a communications specialist. On August 26, 1969 Private Vallecillo was examined again. This medical board of physicians reported his previous profile as "L-3P".
Even though this board recommended an "L-2" profile which was approved on September 5, 1969, the fact that it accepted petitioner's previous profile as "L-3P" tends to show that his profile prior to September was within the "3" category. Finally, in the interest of justice, this Court requested that Private Vallecillo consent to an examination to determine his physical profile. On August 18, 1972 petitioner was examined by Dr. N. A. Camson of the Walson Army Hospital Orthopedic Clinic at Fort Dix, New Jersey. Dr. Camson recommended a "PL-3C" profile.
Based upon a review of all of the evidence this Court is satisfied that petitioner has met his burden of proof, that on March 14, 1969 he did not meet the Army's medical entry standards because he was categorized with an "L-3" physical profile.
Under these circumstances, the applicable Army Regulation is A R 40-3, Para. 54(e)(3) which provides:
"A patient who meets retention medical fitness standards (Chap. 3, A R 40-501) but does not meet procurement medical fitness standards (Chap. 2, A R 40-501) will be processed for separation on the recommendation of an approved medical board only if he applies for separation within the time limit and as prescribed in paragraph 5-9, A R 635-200. If he declines to apply for separation and his erroneous entry into the service was discovered within the time limit stated in A R 635-200, he must sign a statement acknowledging that he has been informed of his right to apply for such separation but declines to do so, and desires to ...