Feliciano v. Laird, 669

• Decision Date: 16 April 1970
• Docket Number: No. 669,Docket 34560.,669
• Parties: Luis FELICIANO, Petitioner-Appellant, v. Hon. Melvin R. LAIRD, Secretary of Defense, Hon. Stanley Resor, Secretary of the Army, Commanding Officer, Fort Wadsworth, Staten Island, New York, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

426 F.2d 424 (1970)

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

No. 669, Docket 34560.

United States Court of Appeals, Second Circuit.

Argued February 26, 1970.

Decided April 16, 1970.

Chester L. Mirsky, New York City, for petitioner-appellant.

James A. Pascarella, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., Eastern District of New York, on the brief), for respondents-appellees.

Before LUMBARD, Chief Judge, ANDERSON, Circuit Judge, and DOOLING, District Judge.^*

LUMBARD, Chief Judge:

Petitioner Luis Feliciano appeals from an order of the United States District Court for the Eastern District of New York which denied his petition for a writ of habeas corpus for release from the Army or, in the alternative, for a mandamus to compel the Army to grant him compassionate reassignment to the New York City area. Finding that the Army has not followed its own regulations governing the processing of hardship discharges, we reverse and, by writ of mandamus, order that the application be reconsidered in accordance with this opinion. Because it is now premature, we do not consider petitioner's claim that the Army's denials are arbitrary and irrational.

Feliciano, then twenty-one years old, was drafted into the Army on June 29, 1969. After basic training he was assigned to Fort McClellan, Alabama, for Advanced Infantry Training.¹ On November 17, 1969, Feliciano was ordered to report to Oakland, California, by December 16, 1969, for shipment to Vietnam. Given leave in the interim, he returned to New York City where he makes his home. On November 25, he sent to the Department of the Army in Washington a formal application for compassionate reassignment to the New York City area which was forwarded to the Compassionate Review Advisory Panel for consideration. He was then attached to Fort Wadsworth on Staten Island to await word, where he still remains.

The grounds for his application were that Feliciano's wife is only seventeen years old; that on November 26, 1969, she gave birth to a premature child; that they had no savings and his wife was on welfare; that his mother, with whom his wife was living in New York, was depressive and suicidal; that there was severe conflict between his wife and his mother; that his wife had progressed to such a state of anxiety that there was according to Dr. Harvey Karkus, a very real possibility of suicide, and that she was diagnosed as "Reactive Depression, severe"; that Feliciano's parents were about to return to Puerto Rico,² that his wife spoke no English. knew no one else in New York City, and lived in a neighborhood composed of hovels, almost totally deserted, and that her apartment was the only one occupied in her building. Feliciano requested that on compassionate grounds he be reassigned to the New York City area, so that his wife and infant child would not be totally alone.

On December 4, 1969, the application was denied without any elaboration by Colonel Jesse LoRe after consultation with the Compassionate Review Advisory Panel. Pursuant to established procedures, Feliciano then submitted his application for consideration as a request for a hardship discharge to the Hardship Separation Review Board at Fort Wadsworth. He supplemented the application with a letter, dated December 16, from Dr. Karkus stating that Mrs. Feliciano's "depression will continue indefinitely with strong suicidal potential, unless her husband is with her permanently." A second supplementary letter told of a job offer if Feliciano was discharged.

The hardship application was reviewed independently by the four members of the Fort Wadsworth Personnel Center Hardship Review Board, each of whom disapproved.³ Their separate opinions were consolidated and forwarded to Lieutenant Colonel Nicholas DeMaria, the officer at Fort Wadsworth with the final authority over hardship discharges. After an independent review, he also disapproved the application on the stated grounds that:

"Evidence presented by EM i.e., enlisted man proved his hardship to be no more severe than that experienced by many other Army personnel and is not sufficient to warrant his separation under the provisions of Chapter 6, Section II, AR 635-200 * * *."

Feliciano was so notified on December 22, 1969, and a week later was ordered to report to Oakland by January 9, 1970, for shipment to Vietnam.

Feliciano then contacted Colonel LoRe in Washington who agreed to review his office's prior denial of Feliciano's application for compassionate reassignment; the reconsideration evidently was granted on the basis of Dr. Karkus' letter of December 16, 1969, which had not previously been presented. As before, Feliciano was continued on the rolls of Fort Wadsworth pending a determination. On January 15, 1970, the application was again denied, on the grounds that:

"Problems presented are no more severe than those experienced by contemporaries and their families in similar circumstances."

For the third time Feliciano was ordered to report to Oakland for shipment to Vietnam. He was to arrive in Oakland on January 31, and was relieved from attachment to Fort Wadsworth as of January 27. On the afternoon of the 27th, his attorney filed the present action in the Eastern District of New York.

The government raises a preliminary objection to the petition for habeas corpus, challenging the jurisdiction of the Eastern District and this court.⁴ As we are treating this as a petition for mandamus, we do not consider the issue. Original jurisdiction to issue mandamus has been vested in the several district courts, 28 U.S.C. § 1361 (1964), and venue is proper, 28 U.S.C. § 1391(e) (1964). As we have often reiterated, this court's power either on habeas corpus or mandamus to intervene in discretionary determinations of the military is extraordinarily limited. Nixon v. Secretary of the Navy, 422 F.2d 934 (2 Cir. 1970). But we do not need to decide whether this is the rare case where the Army's disapproval of the applications was so arbitrary and irrational that it cannot stand. As the Army failed to follow its own regulations in considering Feliciano's application for a hardship discharge it is the kind of error that we do not hesitate to rectify. Smith v. Resor, 406 F.2d 141, 145 (2 Cir. 1969); Hammond v. Lenfest, 398 F.2d 705, 715 (2 Cir. 1968); Dunmar v. Ailes, 121 U.S. App.D.C. 45, 348 F.2d 51 (1965). Accordingly, we order the Army to reconsider the application properly, de novo.

The relevant procedures governing consideration of hardship discharge requests are set out in AR 635-200, ¶ 6-8(b)1:

"If the application does not contain conclusive evidence upon which to base a clear-cut decision that release is or is not warranted, the application and supporting evidence will be forwarded by letter to the Director of Selective Service of the State in which the individual\'s local board of jurisdiction is located. The letter will request a statement as to whether the circumstances presented in the application would result in deferment on the basis of undue and genuine hardship to the individual\'s dependents if he were being considered for induction. * * * It is not mandatory in any way that the officer having discharge authority follow the recommendation of the State Director of Selective Service, but when such statement is received it will be considered in relation to the other supporting evidence. When the need arises, the recommendation of the State Director may be disclosed. If a report by the American National Red Cross is appropriate, it will be handled as prescribed in paragraph 6-9b(3). All subsequent applications for hardship or dependency discharge from the same inductee or enlistee also will be referred to Selective Service. Recommendations made by the Selective Service System become part of the application for separation and will be placed in an individual\'s Military Personnel Records Jacket, U. S. Army."

Despite the mandatory language of the regulation, the Army did not forward the application to the Selective Service System.⁵

When the application does not present a clear case for rejection on its face, the Army must under the mandatory language of the provision forward it to the State Director of Selective Service for an advisory recommendation on the basis of "the circumstances presented in the application." It seems clear that the Army similarly must, within limits of credibility, assume the facts in the application are true when making its initial scrutiny of the request. Instead, Colonel DeMaria quibbled over the financial data, an ancillary element of the application, and...