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Taylor v. Chafitz

decided: May 24, 1972.


Adams, Max Rosenn and Hunter, Circuit Judges.

Author: Rosenn


MAX ROSENN, Circuit Judge.

This is an appeal from an order of the District Court for the District of Delaware, denying an application for a writ of habeas corpus and a mandatory injunction. Appellant is a member of the United States Army Reserve. He sought in his application relief from certain Reserve duties and discharge from service. The district court dealt with appellant's contentions in an exhaustive written opinion. We conclude, for substantially the same reasons as did the district court, that appellant is entitled to neither a writ of habeas corpus nor an injunction.

On June 8, 1971, appellant filed an application for discharge from the Reserves. This application, which forms the foundation for this appeal, was made in the form of a letter to appellant's commanding officer, Major Chafitz. Besides containing a request for discharge, the letter contained a request to be excused from mandatory summer camp obligations scheduled, at that time, to be performed in July of 1971. Accompanying the letter in which these dual requests were made, was a letter from appellant's doctor and a signed statement from appellant. Both documents were in reference to the state of appellant's health. Additionally, there was a letter, signed by appellant, and directed to the Commanding General of the First Army, expressly requesting that appellant be given a medical examination in order to determine whether appellant was fit for retention in the Reserves. In this connection, appellant also requested that a medical board be convened to evaluate his condition, that he be allowed to present testimony and other evidence and be represented by counsel.

The request for discharge, and the papers relevant to it, were forwarded by Major Chafitz to higher authorities. On September 30, together with the results of physical examinations of appellant conducted by Army medical personnel in the fall of 1970,*fn1 the request, and appellant's submissions relevant to it, were reviewed by the Office of the Surgeon, First Army.

The district court carefully reviewed the new materials submitted by appellant in reference to his June 8th application for discharge and the records of appellant's physical examinations made in the fall of 1970 by the Army. It found as fact that the new materials did " not indicate any substantial change" in appellant's symptoms or condition since the fall of 1970. (emphasis supplied). We have also reviewed this material, and agree that the record fully supports the findings of fact reached by the district court.*fn2

On October 8, 1971, higher command informed Major Chafitz that appellant was "medically qualified for USAR retention." No further statement of the reasons appellant was medically qualified accompanied this finding. The documents, accompanying the June 8th request for discharge were stamped "reviewed" by the Office of the Surgeon, First Army Headquarters. Additionally, they were stamped by that office "medically qualified" for USAR retention.

On November 26, 1971, appellant was informed that his request to be excused from summer camp had been disapproved. On December 2, 1971, appellant received an order to report for make-up training to replace his loss of summer camp training for the summer of 1971.*fn3 On December 4, 1971, appellant filed a written request to be excused from the make-up training. Attached to his request were additional materials concerning his health. Major Chafitz refused to excuse appellant from the make-up training.

Appellant appealed to higher authorities, but was denied relief. However, Major Chafitz treated appellant's December 4, 1971, request to be discharged from make-up training as also a renewed request to be discharged from the Reserves on medical grounds. This renewed request for discharge is currently being reviewed by higher military authorities, and is not before this court on review. Appellant filed his petition on December 9, 1971. The district court granted a temporary restraining order initially which was dissolved*fn4 on January 12, 1972, and it dismissed each of appellant's claims for relief. This appeal followed. We affirm.

Army Regulation (AR) 40-501, Chapter 3 sets standards which the Army is to apply on questions of medical discharge. The first issue raised on appeal is whether the Army was required to conduct a medical examination of the appellant, as requested by him on June 8, 1971, to ascertain whether he met those standards. Appellant argues that AR 140-120 makes "mandatory, upon military authorities, the requirement that they medically examine a reservist who has applied for a discharge." The operative section of AR 140-120 states:

Maintenance of medical fitness, including correction of remediable defects, is largely a responsibility of the reservist. It is of paramount importance that every reservist fulfill his personal obligation to maintain a state of good physical condition. Whenever there is reason to believe that his physical well-being is in question, it is incumbent on every reservist to seek timely medical advice. The medical examinations described in this regulation can be of material assistance by providing a means of detecting conditions requiring attention. (emphasis supplied)

It is clear from even a cursory reading of the language quoted above that it contains no language requiring the Army to medically examine a reservist who has applied for discharge. The only positive command in the regulation makes mandatory that the reservist seek a medical examination. The regulation, however, is silent about any duty on the Army's part to give a medical examination when requested.

Nor may such a construction be judicially imposed on the regulation since "the army's construction is at least as reasonable as any other conceivable construction." Keister v. Resor, 462 F.2d 471 (3d Cir. 1972). Moreover, to hold that the Army must give a medical examination whenever requested could subject it to impossible administrative burdens; reservists could perpetually ...

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