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UNITED STATES EX REL. WHITAKER v. CALLAWAY

March 6, 1974

UNITED STATES of America ex rel. Francis Craig WHITAKER
v.
Howard CALLAWAY, Secretary of the Army and Captain Roy R. Neitheimer, Jr., USAR, Commanding Officer


Luongo, District Judge.


The opinion of the court was delivered by: LUONGO

This is a petition for a writ of habeas corpus by Francis Craig Whitaker, a member of the reserves, who seeks to have his enlistment voided on the ground that the Army, in violation of its own regulations, failed to give him a complete physical examination prior to his enlistment in the reserves. Whitaker's contention is that the failure to give him a complete physical misled him into the belief that he was physically qualified, and caused him to enlist in the reserves to avoid the draft notice which he believed to be imminent.

 An evidentiary hearing *fn1" was held on the petition and the evidence produced at the hearing revealed the following:

 FACTS

 Whitaker was classified 1-A by his local draft board on December 15, 1970, and he was ordered to report for a preinduction physical examination on January 14, 1971. On the day of the examination, the audiometer, the instrument used to test hearing was not in operation, and that fact was brought to the attention of the examinees, including Whitaker. An audiometer test is a mandatory part of the pre-induction physical examination under Army regulations (AR 40-501, Chap. 2, Section V.2-7). Upon completion of the balance of the physical examination, Whitaker's record was marked to indicate that he was physically fit and medically qualified for induction with a notation in box 75 of the form under "Remarks," "Audio at induction," to indicate that the pre-induction physical examination had not been complete.

 From the evidence presented, it appears to be the practice that candidates for induction who have passed the parts of the examination given, but whose pre-induction physical examination have not been completed for one reason or another, are rated as "medically qualified," with a notation on the examination record as to the remaining part or parts of the physical examination which are to be given "at induction." This practice has arisen from administrative necessity. If candidates were rated "medically unqualified" simply because of the failure to perform a particular test, many who were actually physically fit and medically qualified would "fall out" of the Selective Service process. The omitted tests are given "at induction" and weed out those who are not medically qualified.

 In Whitaker's case, the incomplete pre-induction physical examination had unusual consequences. For a period of time following the physical he was a college student and had a deferment and he was not classified 1-A again until December 1971. His Selective Service lottery number was 14, sufficiently low that he could reasonably expect to receive his order to report for induction sometime during the first two months of 1972. At that time Whitaker was starting up a business as an agent in the entertainment field, specifically for rock and roll groups. Fearing the effect that an extended absence would have on his business if he were drafted, and operating under the reasonable assumption that his "call up" was imminent, Whitaker decided to try to enlist in a reserve unit as a preferred alternative *fn2" to the draft. Time was of the essence in this effort, however, since the opportunity to enlist in the reserve would be foreclosed by receipt of an order to report for induction.

 Accordingly, on or about January 6, 1972, Whitaker visited a reserve unit in Bristol, Pennsylvania. He spoke to the recruiter, Gerard Tighe, and advised him that his number was about to come up, and that he wanted to join the reserves. Tighe informed Whitaker that he would be required to take a physical examination unless he had had a pre-induction physical examination within one year of the date of enlistment. When Whitaker responded that he had had the examination less than one year before, Tighe furnished to him the requisite form to have the report of examination released from the Selective Service. Aware that the one year period was soon to run out, Whitaker acted quickly. If he failed to complete the enlistment in the reserves while the pre-induction physical remained valid, he would be compelled to wait until another physical was arranged, and in the meantime his order to report for induction might arrive. On January 13, 1972, the last day on which the pre-induction physical was effective for the proposed enlistment in the reserves, Whitaker returned with the record of the pre-induction physical. Tighe, following his customary practice, looked only at Whitaker's overall profile, which showed the "1" and the "medically qualified" ratings, and he concluded that Whitaker was eligible for immediate enlistment. Although Whitaker was aware that the audiometer test had not been administered, *fn3" he did not mention to Tighe that the pre-induction physical was incomplete, fearing that any delay in the enlistment process might result in his receiving the order to report for induction. Whitaker signed the reserve contract on January 13, 1972 and took the oath of enlistment on the same day.

 Shortly after the enlistment, the military apparently became aware of the fact that the audiometer test had not been administered and arranged to have Whitaker's hearing checked. An audiometer test was given on February 1, 1972. The results showed Whitaker's hearing to be deficient and that he was not medically qualified. At the request of the military, Whitaker's hearing was checked on February 8, 1972, by a Dr. Simon Ball, a specialist. Dr. Ball found a significant hearing loss, recommended that Whitaker be given a disqualifying "H-3T" hearing profile, with the further recommendation that he be examined again in six months. Dr. Ball's report set forth his conclusion that Whitaker was suffering a noise-induced hearing loss. Whitaker testified that Dr. Ball advised him to reduce his exposure to loud noises, apparently referring to Whitaker's business which put him in frequent contact with loud rock bands.

 On June 19, 1972, pursuant to a request by the office of the Surgeon of the Army, Whitaker was again examined, this time at Fort Dix, New Jersey, and his hearing was found to be within normal (H-1) limits. Up to this point, Whitaker had not been required to attend drills, but following this examination, he was ordered to begin attending drills and he was told that he could expect to receive orders for the six months' active duty to begin in September 1972.

 On September 21, 1972, Dr. Simon Ball again examined Whitaker and reported that his hearing was deficient, noting that Whitaker suffered from a "bilateral sensori-neural hearing loss." Pursuant to the direction of the Surgeon of the Army, Whitaker's hearing was tested at the Walter Reed General Hospital. On January 29, 1973, extensive tests were conducted. Dr. David A. Mann, who supervised the tests at Walter Reed General Hospital, testified before me that Whitaker's hearing was well within normal limits. He testified further that on an initial screening with the Lengthened Off-time Test (LOT), Whitaker manifested a "non-organic" hearing loss, a medical euphemism for "faking" or "exaggerating" a hearing loss. Dr. Mann testified that the LOT test was more than 96% effective in identifying persons attempting to fake a hearing loss. I was impressed by Dr. Mann's testimony and I am satisfied that Whitaker did attempt to mislead the examiners at Walter Reed into believing that he had a hearing deficiency when his hearing was normal. Dr. Mann also testified that in his opinion the pattern of Whitaker's responses to the tests was inconsistent with the prior hearing loss which had been noted in Dr. Ball's report. On the basis of the findings of the examination at Walter Reed General, the Surgeon of the Army found Whitaker medically qualified to carry out his reserve obligation. Thereafter the order to report for active duty issued, resulting in the instant petition for writ of habeas corpus.

 DISCUSSION

 It is clear, and respondent concedes, that the Army's regulation requiring an audiometric test before enlistment was violated in Whitaker's case. The question is whether that violation entitles Whitaker to have his enlistment contract set aside.

 There are no precise precedents dealing with attempts to rescind enlistment contracts. There is a line of criminal cases which sheds some light on the subject. Those cases, involving prosecutions for failure to submit to induction, hold that if the Army violates its own regulations relating to completeness of physical examinations, and if the violation results in substantial prejudice to the inductee, the induction order is vitiated, at least as a basis for criminal prosecution. United States v. Pace, 454 F.2d 351 (9th Cir. 1972); United States v. Brown, 438 F.2d 1115 (9th Cir. 1971); United States v. Salisbury, 469 F.2d 826 (8th Cir. 1972); Briggs ...


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