a serviceman need not exhaust his section 1552 remedies before seeking judicial review of earlier actions by military authorities, but a court may, in the exercise of its discretion, delay consideration of such claims until after administrative consideration under section 1552
How later courts described this case
- a serviceman need not exhaust his section 1552 remedies before seeking judicial review of earlier actions by military authorities, but a court may, in the exercise of its discretion, delay consideration of such claims until after administrative consideration under section 1552
- “The Board furnishes a means by which to seek correction of error or injustice, but neither statute nor regulation requires this means to be pursued as a condition to finality of the Secretary’s action.”
- Air Force major sought declaratory judgment establishing right to be retired rather than discharged because of physical disability
- “The statute under which the Board was established obviously was intended to take the place of private bills for relief from error or injustice at the hands of the Armed Services.”
Written by the judges who cited it.
The opinion
BURGER, Circuit Judge
(dissenting).
I think the District Court correctly held that appellant had failed to exhaust administrative remedies available to him. Congress has authorized creation of a special body, made up of civilians, “to correct an error or remove an injustice.” 1 The majority opinion concedes, and I think correctly, that the Board for Correction of Military Records “would, if requested assume jurisdiction of Major *318 Ogden’s problem, and * * * could make a recommendation which, if approved and acted upon by the Secretary, would afford plaintiff the relief he seeks * * I have difficulty in seeing why that is not dispositive of the case. Congress need not explicitly forbid resort to the courts absent exhaustion of administrative remedies. The familiar doctrine, not challenged by the majority, is that if an administrative remedy is available it must be employed before the courts may be called upon to exercise judicial power. E. g., Allen v. Grand Central Aircraft Co., 347 U.S. 535 , 74 S.Ct. 745 , 98 L.Ed. 933 (1954); National Council of American-Soviet Friendship v. Brownell, 100 U.S.App.D.C. 116 , 243 F.2d 222 (1957).
It is not suggested by the majority that the unexhausted remedy here would be merely an ineffective formality. The majority recognizes the effect of Proper v. United States, 154 F.Supp. 317 , 139 Ct.Cl. 511 (1957), to be that the Secretary of one of the military branches may not overrule the recommendations of the Board for Correction where the findings of that Board are justified by the record on which the findings are made. A “final” order of a Secretary may thus be reversed by an independent Board such as the one involved here, which he cannot arbitrarily disregard. This administrative compulsion, under which a secretarial order may fall, distinguishes this case from United States v. Abilene & Southern Ry., 265 U.S. 274 , 44 S.Ct. 565 (1924), upon which the majority relies, since there, despite Justice Brandéis’. characterization of a rehearing before the full Interstate Commerce Commission as resembling an “appeal to another administrative tribunal,” that unexhausted remedy would merely have been to request the same adjudicating body, free of independent check, to reverse itself. That situation would be analogous here only if Major Ogden were being challenged for not having applied to the Secretary of the Air Force individually for re-consideration of his discharge order.
I would not deny the Major resort to judicial remedies. I suggest only that he should not call upon the judicial branch until he has exercised or exhausted all the administrative machinery provided by Congress for solution of these essentially internal problems of the executive branch. When he has done this, then of course judicial review is available. To me the Congress has plainly intended that the courts are not to be burdened with armed forces personnel matters except as a last resort. We should not try to be their housekeepers.
. 60 Stat. 837 (1946), as amended, 10 U.S.C. 1552(a) (1958).