United States v. Jenkins

Darden, Chief Judge

(dissenting):

As I view this case, the issue is whether one Air Force physician may revoke a so-called permanent profile if a later examination discloses that the reasons for the original exception no longer exist.

Dr. Fagan testified that he had the authority to change profile limitations. Dr. Noto made a change in the accused’s profile, and such a change appears to be authorized by Air Force Manual 160-1, Medical Examinations and Medical Standards (1971). The accused testified that he was notified of the change and that Dr. Fagan had informed him he no longer had a shaving waiver.

In these circumstances, I would not accord controlling significance to the accused’s testimony about the continuing validity of a shaving waiver. In my opinion, his testimony presented only a factual question of whether the earlier waiver could be revoked. Because I believe this record supports the military judge’s finding that the existence of every element of the offense charged was established beyond a reasonable doubt, United States v Guerra, 13 USCMA 463, 32 CMR 463 (1963), I would affirm the decision of the U. S. Air Force Court of Military Review.