Grosso v. Resor

322 F. Supp. 670, 1971 U.S. Dist. LEXIS 15088
CourtDistrict Court, E.D. New York
DecidedJanuary 13, 1971
DocketCiv. A. No. 70-0-1538
StatusPublished
Cited by7 cases

This text of 322 F. Supp. 670 (Grosso v. Resor) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grosso v. Resor, 322 F. Supp. 670, 1971 U.S. Dist. LEXIS 15088 (E.D.N.Y. 1971).

Opinion

BARTELS, District Judge.

Stephen Grosso, presently serving with the 25th Infantry Division, Vietnam, petitions this court for mandamus and habeas corpus relief on the grounds that (1) his induction into the Army was unlawful because he was medically unfit under procurement medical standards due to the existence of a left inguinal hernia (Army Regulation 40-501, Chap. 2, Sec. II, Par. 2-3h) and (2) the Army has failed to follow Army Regulation 635-200, Chap. 5, Sec. Ill, Pars. 5-5 and 5-9 and Army Regulation 40-501, Chap. 11, Sec. XIV, Par. 11-16 (b), in connection therewith.

After a hearing held on December 31, 1970 and January 6, 1971, at which petitioner, petitioner’s father, petitioner’s doctor and two Army doctors testified, the court makes the following findings of fact and conclusions of law.

Findings of Fact

On September 5, 1969, petitioner was ordered to report for a pre-induction physical examination on September 22, 1969.

On September 10, 1969, petitioner visited his family physician, Dr. Leonard J. Kirschbaum, who found that petitioner had a left inguinal hernia. The first reference to this condition is found in a report of an ROTC medical examination of the petitioner by Dr. Gray E. Mombello on March 4, 1968, which apparently lists petitioner as having a small asymptomatic left inguinal hernia.

To his pre-induction physical, on September 22, 1969, petitioner took a note from Dr. Kirschbaum. However, Dr. J. D. Grillo, the military doctor who examined petitioner, found no hernia. The military authorities then sent petitioner to a civilian contract physician, Dr. Krasnoff, for a surgical consultation. Dr. Krasnoff examined petitioner for a hernia in the standing position but found no inguinal hernia. As a result, petitioner was found fully qualified for induction.

On October 13, 1969, petitioner was again examined by his family physician, Dr. Leonard Kirschbaum, who again found a left inguinal hernia. It appears that the results of this examination are reported in the doctor’s note of October 18, 1969, as well as in his note dated October 13, 1969. On October 21, 1969, petitioner was examined by a surgeon, Dr. Alfred I. Frankel, who found a left inguinal hernia and advised prompt surgical repair.

On October 18, 1969, petitioner wrote to Colonel George W. Sgalitzer, Surgeon, United States Army Recruiting Command, requesting a review of his preinduction physical examination of September 22, 1969. In response to this request, petitioner was medically examined at Fort Hamilton on November 6, 1969, by Dr. William Bilechy, civilian contract physician. The examining physician found no evidence of an inguinal hernia, even after stress, jumping and bearing down. After consideration of the medical evidence theretofore adduced, Colonel Sgalitzer concluded that petitioner was qualified for induction under the induction physical standards applicable, specifically, Army Regulation 40-501, Chap. 2, Sec. II, Par. 2-3h.

On November 22, 1969, petitioner was examined by Dr. Eugene P. Simon, a private physician, who found petitioner had a left inguinal hernia and recommended surgical repair as soon as possible.

On January 8, 1970, Congressman Allard K. Lowenstein wrote to Colonel Sgalitzer requesting a new medical examination for petitioner. On January 22, 1970, another medical examination was performed by Dr. William Bilechy, who again reported that his examination revealed no evidence of any inguinal hernia. On January 26, 1970, Colonel Sgalitzer wrote to Congressman Lowenstein that he had determined that petitioner was medically qualified for induction.

[672]*672Petitioner reported for induction on March 9, 1970, and was inducted into the United States Army at Fort Hamilton, Brooklyn, New York.

On May 20, 1970, petitioner’s father wrote to Congressman John Wydler stating, in pertinent part:

“I believe that pursuant to AR 40-501, II, 2-3h. (1) which states, ‘The causes for rejection for appointment, enlistment and induction are — h. (1) Hernia other than small asymptomatic umbilical or hiatal;’ that my son Stephen was wrongly inducted into the Army in view of his well documented medical disability — inguinal hernia condition.
“If the Army had to take my son with a medically disqualifying condition, I feel that they should not have assigned him to such strenuous duties as advanced infantry in the light of his physical inpairment. If my son must serve in the Army with this disability, I feel justified both morally and legally in requesting that he be transferred from the infantry to a desk or non-physical type of position where he will not continue to aggravate his existing hernia and to suffer daily pain.
“Mr. Wydler, may I implore you to use your influence to look into my son’s situation. I would be happy if you could at least arrange to have him transferred from the infantry as soon as possible.”

This letter was apparently forwarded by Congressman Wydler to the Commanding General at Fort Ord, whose office responded by telegram that “Private Grosso will be evaluated in the U. S. Army Hospital here at Fort Ord.”

On June 15, 1970, petitioner visited the dispensary at Fort Ord, California, complaining of a hernia, but no hernia was found.

On July 25, 1970, petitioner, home on leave, was again examined by his family doctor, Dr. Kirschbaum, who again found a left inguinal hernia (the same one as on his previous examination of October 13, 1969) and recommended surgical repair. On July 27, 1970, Dr. Jurmann examined petitioner and found an impulse upon coughing and a slight bulge of the left internal ring.

Petitioner testified that on July 29, 1970, he visited the Fort Hamilton dispensary and was examined by Drs. Wirth and Tiger, who told him that he had a hernia.

On August 3, 1970, petitioner was examined at Fort Lewis, Washington, by Dr. Schuce, who found an impulse at the level of the left internal ring, which he analyzed as probably a small indirect hernia or lipoma of the cord. Dr. Schuce recommended an operation to explore the left inguinal ring.

Petitioner testified that on August 4, 1970, another doctor at Fort Lewis, Dr. Lavignne, found that petitioner had a hernia after a complete medical examination.

On August 7, 1970, petitioner refused surgery at Fort Lewis and was returned to duty, but was given by Dr. Bruns a 3 T profile, indicating that he was to do no lifting over 30 pounds for the next thirty days.

Petitioner testified that he was examined in Vietnam on October 17, 1970, was found to have a small hernia, and was ordered to do no heavy lifting. Petitioner also testified that on November 16, 1970, he was examined by Dr. Twomey and an unnamed physician, who found a hernia and ordered him continued on a 3 profile.

At no time has petitioner requested a discharge from the Army pursuant to Army Regulation 635-200, Chap. 5, Sec. Ill, Par. 5-5b, upon the ground that a procedural error has resulted in his erroneous induction.1

[673]*673The parties have entered into a stipulation of evidence of medical examinations and reports, which has been received into evidence and is annexed hereto.

On December 21, 1970, petitioner filed his petition in this court for a writ of mandamus, and on December 29, 1970, amended his petition to also seek a writ of

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Bluebook (online)
322 F. Supp. 670, 1971 U.S. Dist. LEXIS 15088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grosso-v-resor-nyed-1971.