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.
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 v. United States, 397 F.2d 370 (9th Cir. 1968); United States v. Silver, 331 F. Supp. 415 (D. Minn. 1971); United States v. Farrington, 5 SSLR 3336 (E.D. Mich. 1972).
The prevailing view in the criminal cases is that there is prejudice from a failure to give a complete examination if there is a significant possibility that the registrant would have been found unfit if the test had been administered.
United States v. Salisbury, supra, 469 F.2d at 828. Certainly the test should be no more stringent in enlistment cases than in criminal prosecutions for failure to submit to induction. Assuming, therefore, without deciding, that the same test is applicable, the question here is whether there is a significant possibility that Whitaker would have failed the audiometer test if it had been administered, as required, prior to enlistment. It is Whitaker's burden to establish prejudice. United States v. Chaudron, 425 F.2d 605 (8th Cir. 1970); United States v. Spiro, 384 F.2d 159 (3d Cir. 1967), cert. denied, 390 U.S. 956, 88 S. Ct. 1028, 19 L. Ed. 2d 1151 (1968).
Whitaker contends that he has clearly established that significant possibility by the fact that he failed the audiometric test administered approximately two weeks after enlistment, and that when retested about a week thereafter by Dr. Ball, his hearing was found to be inadequate.
The difficulty with Whitaker's position is that it requires me to ignore Dr. Mann's testimony that Whitaker was practicing a deception during both those examinations. In Dr. Mann's opinion, Whitaker attempted to fake a hearing loss during the examination at Walter Reed General Hospital, and this was detected by the Lengthened Off-time Test, which is designed to detect such attempts at deception. It was Dr. Mann's opinion that Whitaker's hearing was within normal limits when he examined him and that it had been normal during January and February 1972; and that the hearing losses then manifested had been "faked."
Dr. Mann's testimony was uncontroverted at trial. Whitaker did not produce Dr. Ball to refute in any way Dr. Mann's testimony. Had Dr. Ball been produced, he might well have been able to satisfy the fact finder that he had taken into account the possibility of deception, and that he had taken adequate steps to rule out that possibility, but the fact remains that there was no such testimony. Dr. Mann's testimony was persuasive, and in the absence of competing medical evidence, I believe that the results of the test administered shortly after enlistment were distorted by Whitaker's attempts to deceive. In short, I conclude that Whitaker has not carried his burden to establish that there is a significant possibility that he would have been rejected as unfit if the omitted test had been timely administered. At most Whitaker has shown that there is a significant possibility that he might have succeeded in practicing a deception had not the more extensive tests been conducted at Walter Reed General Hospital, but I hardly think that that is the kind of prejudice the law is, or should be, concerned about.
Whitaker's original petition to this court was predicated, in large measure, on the charge that the Army had induced him to enlist in the reserves by fraud. He has since withdrawn the claim of fraud, conceding that the evidence produced at the hearing furnished no basis whatsoever for such a claim. This case is not, therefore, one in which the military has engaged in "unconscionably misleading conduct" at the expense of an enlistee. Compare United States v. Timmins, 464 F.2d 385, 386 (9th Cir. 1972); United States v. Lansing, 424 F.2d 225 (9th Cir. 1970).
Whitaker seeks also to set aside the enlistment contract on traditional contract principles. He contends that the contract was entered into because of a mutual mistake of fact and is therefore voidable.
There is no disagreement with the basic legal principles upon which Whitaker relies. "It is settled that enlistment in the military service establishes a contractual relationship." Mellinger v. Laird, 339 F. Supp. 434, 444, n. 38 (E.D. Pa. 1972); Bell v. United States, 366 U.S. 393, 81 S. Ct. 1230, 6 L. Ed. 2d 365 (1961). "In the absence of supervening statute," the enlistment contract will be "governed by general principles of contract law." Bemis v. Whalen, 341 F. Supp. 1289, 1291 (S.D. Cal. 1972). Moreover, while, in Williston's words, "there is great confusion of thought in discussions of the subject of mistake," Williston on Contracts, Third Edition § 1535, it is established that "a mistake vitally affecting a fact or facts on the basis of which the parties contracted renders their contract voidable . . . that is, where the parties assumed a certain state of facts to exist, and contracted on the faith of that assumption, they should be relieved of their bargain if the assumption is erroneous. . . ." Willison, supra, § 1544.
These principles, however, do not entitle Whitaker to get out of his enlistment contract. If the mutual mistake on which Whitaker relies is that both parties believed that the audiometer test has been administered, then the mistake of fact was not mutual since, as I have earlier found, Whitaker was well aware that the test had not been administered, consequently he was not operating under any mistake as to the true fact. If, on the other hand, Whitaker asserts that the mutual mistake was that both parties believed he was physically qualified to serve when he wasn't, he runs into the problem earlier discussed, i.e., that his position in that regard requires the court to overlook the testimony as to faking. Since he has not established a significant possibility that he would have been found unfit if the test had been administered, a fortiori he has not established the fact of unfitness.
I have dealt with the merits of Whitaker's claim notwithstanding respondent's contention that the action should not be entertained because of Whitaker's failure to exhaust administrative remedies. McGee v. United States, 402 U.S. 479, 91 S. Ct. 1565, 29 L. Ed. 2d 47 (1971). Respondent contends that AR135-178 furnishes an administrative remedy tailored to Whitaker's situation. That regulation provides, in part:
"4-10. Discharge of members who did not meet the medical fitness standards.
a. Commanders are authorized to discharge members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment. Eligibility for discharge will be governed by the following: