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February 10, 1970

Luis FELICIANO, Petitioner,
Hon. Melvin R. LAIRD, Secretary of Defense, Hon. Stanley Resor, Secretary of the Army, Commanding Officer, Fort Wadsworth, Staten Island, New York, Respondents

Rosling, District Judge.

The opinion of the court was delivered by: ROSLING

ROSLING, District Judge.

Petitioner was inducted into the United States Army June 29, 1969, and received his training at Fort McClellan, Alabama. He was then on November 17, 1969, ordered to report to Oakland, California, by December 16, 1969, where he was to be further assigned to Viet Nam. Pending his reporting at Oakland he was granted leave to November 25, 1969. While on leave he filed an application for compassionate reassignment with the Department of Army, in Washington, D.C.

 In the meantime he appears to have been temporarily assigned to Fort Wadsworth in Staten Island pending determination of such application. The mailing of the application directly to Washington was in conformity with Army procedures in view of the fact that he was at the time on leave and in a period of transition without a commanding officer with whom the application might otherwise have been filed. He was, nevertheless, assisted in the preparation of his papers by personnel at Fort Wadsworth charged with such duty. Additionally he was aided by his own counsel who tried his case before the Court.

 His application with documentation was duly processed in Washington in accordance with the criteria established by the Army for action in such situations and was disapproved by Colonel Lo Re on December 4, 1969. Colonel Lo Re's action was in conformity with the rejection separately and independently recommended to him by two Army officers who passed upon the application.

 The written message of rejection, transmitted through the Pentagon to the Commanding General of Fort Wadsworth, reached petitioner in ordinary course on December 7, 1969, and by Army procedure should have been transmitted orally to petitioner.

 Additionally, on December 4, 1969, a copy was airmailed to petitioner at 171 Eldridge Street, New York City, *fn1" the address of his wife given by him on the application.

 Inasmuch as Colonel Lo Re's determination is subject to no review, the Court determines that petitioner exhausted his remedies with respect to such application.

 Question 27 of the application with petitioner's "X" mark indicates his election of further procedures as follows:

"If reassignment under Para-10, AR 614-240 is not approved, does the applicant desire the application to be considered for a permissive reassignment under Para-11, AR 614-240 yes no, or a hardship discharge (AR 635-207) yes no."

 On December 16, 1969, petitioner executed a detailed four-page Army "Application for Separation - Hardship or Dependency" and filed it with the United States Army Personnel Center Hardship Review Board, Lieutenant Colonel N. DeMaria, commending at Fort Wadsworth. All the documents earlier submitted to Washington in support of the compassionate reassignment application were resubmitted with the hardship application. Two additional documents appear to have been added to the file. These additional items were a brief "To whom it may concern" note dated December 16, 1969, from Dr. Harvey D. Karkus, who had already submitted two somewhat longer letters. One dated April 14, 1969, concerned itself with Maria Bravo, mother of the petitioner. The other, equally long, dated November 26, 1969, dealt with the "psychiatric evaluation" of petitioner and his wife.

 Dr. Karkus' memorandum of December 16th notes the premature birth of the expected child and the continuing depression of the seventeen year old wife of petitioner.

 The second of the additional documents filed by petitioner in support of his hardship application is a memorandum certifying that petitioner's present attorney has a job offer for him in his office with a compensation to be paid of $50 a week.

 Colonel DeMaria testified as to the procedures followed in processing the hardship application. Four officers separately reviewed the complete file and submitted their several recommendations to him. All disapproved. His was the final word. He too disapproved. On the stand he analyzed the basis of such disapproval. His analysis was clear and persuasive. Far less, however, is required to sustain his action, as will later be shown.

 On December 22nd Colonel DeMaria in writing notified the Commanding Officer of U.S. Army Personnel Center, Fort Hamilton, Brooklyn, of such disapproval, and on December 29 formal notice was transmitted through various channels, certifying such disapproval and directing petitioner to report January 9, 1970, to Commanding Officer, United States Army Overseas Replacement Station, Oakland, California, for ...

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