Opinion
No. 71-2289.
December 29, 1972.
Martha Goldin (argued), Alan Saltzman, of Saltzman Goldin, Hollywood, Cal., for defendant-appellant.
Leslie E. Osborne, Jr., Eric A. Nobles, Asst. U.S. Attys., Robert L. Meyer, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, KILKENNY, TRASK, CHOY, GOODWIN and WALLACE, Circuit Judges.
This appeal is taken from conviction of failure to report for induction into the armed forces, a violation of 50 U.S.C. App. § 462(a). The determinative question upon appeal is whether appellant's local board properly gave consideration to his claim for a I-Y (physical disability) classification.
Among the disqualifying physical conditions warranting a I-Y classification is "[b]ronchial asthma, except for childhood asthma with a trustworthy history of freedom from symptoms since the 12th birthday." A.R. 40-501, ¶ 2-26b.
Appellant was classified I-A, and, following preinduction physical examination, was found physically acceptable to the armed forces by the Armed Forces Examining and Entrance Station (AFEES). Appellant then provided the local board with information, including a physician's letter, which, if accurate, indicated that a change of classification to I-Y by reason of bronchial asthma was warranted. The local board ordered him to return to AFEES for further examination. AFEES adhered to its determination of acceptability. However, the local board did not reopen appellant's classification, and the record does not indicate that it gave any consideration to his medical claims other than to defer to the AFEES determination of acceptability.
Under United States v. Miller, 455 F.2d 358 (9th Cir. 1972), this does not suffice. The rule that emerges from that case is that when a prima facie case for a I-Y classification has been presented, the classification must be reopened by the board and the question of reclassification must receive board consideration. In cases where, as here, a preinduction physical examination has already been given and the registrant has been determined to be physically acceptable, it is proper for the board to refer the registrant back to AFEES for further examination and an appraisal of the new medical claims. However, the question of classification does not automatically follow from an AFEES determination of acceptability. The board itself must then act on the question. "While medical acceptability may be determined by AFEES * * * classification [may] not," United States v. Miller, supra, 455 F.2d at 360. and the board's determination respecting classification "must be exercised in an intelligent manner, based upon a review of all the information then available to them, including information forwarded for medical evaluation." Id. at 360-361.
Lending emphasis to this point, the court in Miller, 455 F.2d at 360, quoted from Eagles v. United States ex rel. Samuels, 329 U.S. 304, 315, 67 S.Ct. 313, 91 L.Ed. 308 (1946), as follows:
"It is plain that the local boards and the boards of appeal may not abdicate their duty by delegating to others the responsibility for making classifications. That is their statutory function."
We conclude that the local board's failure to reopen and give the required consideration to appellant's medical claims rendered his retention in I-A improper.
Reversed. The opinions of this court in United States v. Clemence, 460 F.2d 320 (9th Cir., 1972), and United States v. Smith, 423 F.2d 559 (9th Cir. 1970), are overruled to the extent that they are inconsistent with this opinion.
KILKENNY, Circuit Judge, dissents.