holding that board review under § 1552 was not required for district court to adjudicate military member’s conscientious objection claim because “§ 1552 was not intended to affect judicial jurisdiction”
How later courts described this case
- holding that board review under § 1552 was not required for district court to adjudicate military member’s conscientious objection claim because “§ 1552 was not intended to affect judicial jurisdiction”
- relying on McKart to conclude that exhaustion was unnecessary
- where record has already been made, only legal questions remain
- essence of exhaustion doctrine is flexibility
Written by the judges who cited it.
The opinion
BUTZNER, Circuit Judge
(dissenting) :
I dissent from the denial of rehearing, but I hasten to add that my differences with the carefully considered majority opinion are indeed narrow. We both recognize that a soldier who applies for a writ of habeas corpus alleging that he is a conscientious objector must first exhaust administrative remedies. Cf. Noyd v. Bond, 395 U.S. 683 , 89 S.Ct. 1876 , 23 L.Ed.2d 631 (June 16, 1969); Gusik v. Schilder, 340 U.S. 128, 131 , 71 S.Ct. 149 , 95 L.Ed. 146 (1950); Negre v. Larsen, 394 U.S. 968 , 89 S.Ct. 1450 , 22 L.Ed.2d 750 (April 21, 1969) (Douglas, J., dissenting). The sole point of division is whether the Army Board for the Correction of Military Records should be accorded judicial recognition as an administrative forum for decision of the controversies that are bound to arise when soliders claim they are conscientious objectors and army officials rule they are not. I believe that this function of the board should be respected by the courts and that the judiciary should not intervene until the board has acted.
I start with the Act that created the board, 10 U.S.C. § 1552 (a). It specifically authorizes the Secretary of a military department acting through boards of civilians to “correct any military record * * * when he considers it necessary to correct an error or remove an injustice.” No one disputes that denial of a claim for conscientious objector status may constitute an injustice. The board recognizes this fact, and — with the concurrence of the Secretary of the Army — has undertaken to review these claims. A literal reading *1142 of the statute does not require us to deny the board jurisdiction or denounce the Secretary’s concurrence. 1 To be sure, the board was created before any provision was made for the army to entertain applications from conscientious objectors. Consequently, it is not surprising that the legislative history does not deal with this facet of the board’s duties. Nevertheless, nothing in the legislative history or in the regulations either pertaining to the board or to the procedures relating to applications for conscientious objector status forecloses this final administrative remedy. Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969).
McKart v. United States, 395 U.S. 185 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (May 26, 1969), the most recent decision on administrative remedies with respect to a registrant for the draft, is not to the contrary. There it was held that the death of a registrant’s mother did not deprive him of his exemption as a sole surviving son. In reaching this conclusion, the Court rejected the government’s contention that the registrant’s failure to appeal his reclassification after the death of his mother barred all judicial review. The distinctions between McKart and the problem before us are substantial. In McKart , insistence upon exhaustion of administrative remedies would have stripped the registrant of a meritorious defense to a criminal prosecution. Here, this harsh result will not occur. On the contrary, Brooks’ failure to seek review before the board simply rendered his petition for a writ of habeas corpus premature. Brooks can yet apply to the board, and if his application is denied, he still can seek judicial relief.
Also, MeKart’s classification turned upon a statutory interpretation, which was not a matter of particular expertise on the part of the administrative forum or a matter of discretion. In contrast, the Court listed conscientious objector claims among the examples of questions requiring the application of expertise or the exercise of discretion. In such cases, the Court noted, there is a stronger interest in having the issues first decided by administrative tribunals. McKart v. United States, 395 U.S. 185, 198 , 89 S.Ct. 1657 , 1665 n. 16 (May 26, 1969). 2
It has been suggested that the Boards for the Correction of Military Records may be inadequate for this task. See Sherman, Judicial Review of Military Determinations and the Exhaustion of Remedies Requirement, 55 Va.L.Rev. 483, 524 n. 197 (1969). But Brooks did not apply to the board, and on the scant record before us I believe it is impossible to say that the army board’s procedure is so ill suited that it should be bypassed. Admittedly, the military and the courts have had comparatively little experience with servicemen’s applications for discharge as conscientious objectors. 3 If in *1143 the future it is shown that the remedy afforded by the army board is illusory, of course, it need not be pursued. Marsh v. County School Bd. of Roanoke County, 305 F.2d 94, 98 (4th Cir. 1962); see Craycroft v. Ferrall, 408 F.2d 587 , 599 n. 18 (9th Cir. 1969). However, I think that the present record is too frail a basis on which to fashion a precedent that this is so.
In Gusik v. Schilder, 340 U.S. 128, 133 , 71 S.Ct. 149 , 95 L.Ed. 146 (1950), the Court directed the district court to retain jurisdiction while a military prisoner resorted to an administrative remedy that became available while his petition for a writ of habeas corpus was pending. Following the teaching of that case, I would grant rehearing, vacate our judgment and that of the district court, remand the case to the district court with directions that it be held while Brooks appeals to the board. If his appeal is not successful, the district court can then consider his application in the light of the full administrative record.
. The statute gives considerable autonomy to the Secretaries of the military departments. Therefore, the fact that the Secretary of the Navy has not designated the Navy Board for the Correction of Military Records as a reviewing agency for conscientious objectors’ claims does not indicate that the Secretary of the Army acted contrary to the statute.
. Mr. Justice White emphasized in his concurring opinion, McKart v. United States, 395 U.S. 185, 204 , 89 S.Ct. 1657, 1668 (May 26, 1969), McKart’s case had been the subject of informal review at the highest levels of the Selective Service System. This served as sufficient justification to allow McKart to present his defense without showing that he had sought a formal review.
Mr. Justice Douglas, noting an analogy to Oestereich v. United States, 393 U.S. 233 , 89 S.Ct. 414 , 21 L.Ed.2d 402 (1968), concurred because McKart had a statutory exemption that relieved him from pursuing “administrative remedies that are designed for quite different categories of cases.” McKart v. United States, 395 U.S. 185, 204 , 89 S.Ct. 1657, 1668 (May 26, 1969).
. The army board’s decision in a similar case was given approximately 90 days after it received the application. Memorandum for Respondent at 3, Negre v. Larsen, 394 U.S. 968 , 89 S.Ct. 1450 , 22 L.Ed.2d 750 (April 21, 1969). The Air Force Board for the Correction of Military Records granted relief to a conscien *1143 tious objector who had been denied a discharge. David T. Bezouska, 1 SSLR 3163 (A.F. Bd. for Correc. of Mil. Rec., May 7, 1968), cited in Sherman, Judicial Review of Military Determinations and the Exhaustion of Remedies Requirement, 55 Va.L.Rev. 483, 524 n. 197 (1969).