The opinion
IRVING R. KAUFMAN, Circuit Judge
(dissenting):
Hard cases, it is said, often make for bad law. This appeal, however, is not a hard case at all. The Army Regulation in question has been superseded and replaced by a provision which today would require the Local Board to forward to the Army Examining Station a letter of the type written by Dr. Sop-chak. We are told in the press that the war hopefully is drawing to a close (and with it the draft, the press optimistically adds), holding out the hope that cases of this type will not long continue to vex our judicial system. Neither of these considerations can be said in any sense to control the outcome of this ease. But they do underscore the fact that the impact of this decision upon the overall policies governing our Selective Service System will at best be minimal, even while, for the defendant, the conse- *155 quenees of this conviction — grounded as it is in an erroneous interpretation of the applicable regulations — are likely to be seriously and permanently harmful. As I see it, the only issue presented for our consideration is the construction of the concededly conflicting Selective Service and Army Regulations involved in this case. The majority reads the Regulations in such a way as to permit a draft board — composed of laymen — to foreclose from consideration by Army doctors — specialists in their field — a letter written by a clinical psychologist certified by the State of New York to administer therapy and to serve professionally in the mental health area. That letter disclosed that a prospective soldier in the United States Army suffered from “world destruction fantasies” and “suicidal tendencies.” In my view, a construction of the regulations under consideration here that would permit such information to be withheld from the Army is so fundamentally at odds with common sense and sound public policy as to be wholly unreasonable.
The facts in this case are not complex. At his preinduction physical on December 4, 1970, Aull stated on form DD89 that he was “Physically OK but my mind is in a state of confusion due to frequent flashbacks from LSD and similar drugs.” He then was advised “to present documented evidence to substantiate [his] claims to his selective service local board prior to his induction.” Subsequently, on December 22, 1970, Aull’s local board received the Sopehak letter. This letter, however, did not accompany Aull’s other records to the induction center where, after he passed a cursory physical inspection, Aull refused to take the symbolic one step forward.
The selective service regulation in point, 32 C.F.R. § 1632.5 , required local boards to assemble and transmit to the induction center “all . . . information concerning the qualification of the registrant for service in the Armed Forces . . . . ” The letter from Dr. Sopehak certainly appears within the scope of this directive. Regardless of the weight it ultimately might have been given, the statements made by Dr. Sop-ehak were relevant to Aull’s claimed ineligibility because of psychiatric problems. It discussed Aull’s drug experience, noted his admittance to Bellevue, and revealed that “on questioning it became evident that he has had world destruction fantasies” and “suicidal tendencies.” Judge Weinfeld, below, believed that this information was “entirely without medical significance.” I find that conclusion wholly inexplicable.
The majority holds that 32 C.F.R. § 1632.5 did not require the local board to forward Dr. Sopchak’s letter because Dr. Sopehak is not a physician but a clinical psychologist. Support for this conclusion is asserted to come from Army Regulations 601-270, ch. 4, § 2, ¶¶ 4.20(h)(6), 4.22(d), which state that army physicians, in passing on an inductee’s eligibility, only need consider documentary evidence prepared by a medical doctor.
But these Army Regulations do not purport to limit the evidence which Army medical examiners may consider. The Regulations clearly leave open to the examiners’ discretion consideration of information provided by non-medical personnel. The Regulation simply states that this class of statements need not, but may, be considered. When a letter is arguably medically germane, as the Sopehak letter surely is, discretion whether or not to consider such evidence is properly lodged with medical experts. The majority reaches the opposite conclusion by allowing the Board to screen out letters of the kind written by Dr. Sopehak, thereby foreclosing consideration by the Army doctors of matters clearly within the area of their special expertise, and clearly without the area of the Board’s competence. Thus Aull was permitted to pass by the last checkpoint in the induction process without having the Army ever consider his “world destruction fantasies” or “sui- *156 eidal tendencies,” a result I simply do not see written into the scheme of regulations involved in this case.
There is no doubt that if the letter written by Dr. Sopchak had been prepared instead by a psychiatrist or ordinary physician in general practice but with no expertise in mental health, the local board would have been obliged to forward it to the induction center. This much was conceded by the Government at argument. But I cannot understand how any standard of “medical relevancy” can be made to turn on such a meaningless distinction. I agree, of course, that the local board is not incapable of screening out obviously frivolous documents. But a letter from a clinical psychologist about a registrant’s mental health hardly falls in the same category as a banker’s letter about a registrant’s mental health, a fallacious argument which the majority has been compelled to make by virtue of its wooden interpretation of the Army Regulations. As I indicated earlier, Sopchak was a psychologist licensed by the state of New York. His letter noted that Aull was referred to him by Aull’s physician, who obviously believed himself not as competent as Sopchak to appraise Aull’s mental problems. Most important, Sopchak stated that “on questioning it became evident that [Aull] has had world destruction fantasies since his second LSD trip a year prior to his visit at which time he was treated at Bellevue Hospital in New York,” and in addition, had experienced “suicidal tendencies.” . I am at a loss to understand why this was not as relevant to a consideration of Aull’s qualifications to serve in the Army, as would an inductee’s flat feet. The contents of the letter bore directly upon Aull’s eligibility and fitness for service in the Armed forces. The Board’s failure to forward the Sop-chak letter was an abuse of discretion which may seriously have prejudiced Aull’s position at his final induction physical.
Accordingly, I most respectfully dissent and vote to reverse his conviction.