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DEPINO v. COMMANDING OFFICER

February 5, 1971

Edward W. DePINO, Plaintiff,
v.
COMMANDING OFFICER, U.S.A. OVERSEAS REPLACEMENT STATION, FORT LEWIS, WASHINGTON, Commanding Officer, Co. C 1stBn 41st Inf., Fort Hood, Texas, John F. Forrest, Colonel, G.S. Chief of Staff, Headquarters, 2nd Armored Division, Fort Hood, Texas, Defendants


Zampano, District Judge.


The opinion of the court was delivered by: ZAMPANO

MEMORANDUM OF DECISION

ZAMPANO, District Judge.

 The plaintiff, Edward W. DePino, a sergeant in the United States Army, seeks mandamus and injunctive relief against his military orders to report to Fort Lewis, Washington, for assignment to Vietnam. A temporary restraining order was issued and a series of hearings was held. The hearings were recessed by agreement of the parties to enable the plaintiff to seek redress through the Inspector General's office at Fort Dix. The Inspector General rejected the plaintiff's claims and the hearings before this Court were resumed and concluded.

 On March 19, 1968, DePino, a resident of West Haven, Connecticut, enlisted in the United States Army for a period of three years. He completed his basic training at Fort Dix, and took advanced infantry training at Fort Polk, Louisiana. In August, 1968, he was sent to Vietnam as a light weapons infantryman with a MOS (Military Operational Specialty) rating of 11-B-4, and soon thereafter was promoted to sergeant. He received numerous decorations for his service in Vietnam, some of which were for heroism in battle.

 After being wounded in combat, DePinto was returned to the United States on July 12, 1969, and assigned to Fort Hood, Texas. On July 31, 1970, he received Special Order 212, instructing him to proceed to Fort Lewis on September 6, 1970, for deployment to Vietnam. According to DePino, he immediately complained to his superior officers, but was informed that nothing could be done to relieve him of the order to return to Vietnam. He did not report to Fort Lewis but instead came home to West Haven and retained counsel to represent him. While in AWOL status, DePino instituted the present action.

 DePino contends that the Army is violating its own regulations in reassigning him to Vietnam, cf. Smith v. Resor, 406 F.2d 141 (2 Cir. 1969); Hammond v. Lenfest, 398 F.2d 705 (2 Cir. 1968); that certain applicable Army directives are being applied in an arbitrary and capricious manner in his case; and that, in any event, this Court should exercise its equitable powers in the interests of fairness and justice to restrain the Army from sending him to Vietnam for another tour of duty. The defendants, on the other hand, challenge the jurisdiction of this Court to entertain DePino's grievances, deny that the Army failed to follow its regulations, and affirmatively claim DePino's assignment to Vietnam was fair and reasonable under the circumstances prevailing in Vietnam in August, 1970.

 There is little question that DePino has presented an appealing case and one in which equitable principles weigh heavily in his favor. He is a conscientious soldier who served a long tour of duty in Vietnam, received numerous honors for combat service, and was wounded. He feels strongly, and understandably so, that before he is required to face enemy gunfire again, other soldiers, who are "Stateside" and who have not yet been sent into combat, should be placed ahead of him in the order of call to Vietnam. If this Court had jurisdiction or was empowered to ...


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