Judicial Review of Military Determinations and the Exhaustion of Remedies Requirement

• Author: By Edward F. Sherman
• Pages: 03

This article deals with administrative determinations in the armed services and their interrelationship with Civilian and militorv courts. The author discusses the most recent Supreme Court cases affecting the ezhaustion of remedies vepairement. In conclusion, the increased seope of jwlietal review is noted with approval.

1. INTRODUCTION

   Civilian courts have traditionally acknowledged that they lack jurisdiction to interfere with determinations by the military concerning its own personnel. It has been asserted that this doctrine is required by the Constitution's delegation of powers over the armed forces to the executive and legislative branches ' and by the need for military autonomy in maintaining internal diacipline and order * Buttressed by a line of Supreme Court decisions spanning the last hundred years, the doctrine was reaffirmed in 1962 by Chief Justice Warren in an address devoted to examining the principles of military justice:

   [Ilt is indiaputabie that the tradition of our Country, from the time of the Revolution until now, has supported the miliary eatsbliah-menVa brasd power to deal with its om personnel. The molt ob. iioue reason 1% that cowti are illquipped ta determine the impact

   'Reprinted from 65 VIRGI~IA L. REV. 48a (1969) (with modifications required for updating), wlth the permi~sion of their Editorial Board and Pub-ilshern. Refemnees to this article should bear the VmoISM L. REY. citation.

   **A.B.. 1959, Georgetown Cniveraity; M. A,, 1967, University of Teras

   at El Pam; LL.B., 1962. Harvmd Cniversity; Teaching Fdlow, Harvard Law School, 1967-69, Aaaislant Profeaiar of Law, Indians Uniuenity School of Lar, 1969-70. Mr. Sherman served in tha United States Anny from 1965 ta 1967 and holds a commission I" the United Staten Army Re.serve, Judge ridweate General's Carps.lSse W. WIWHROP, Xlrr~r~~r

   LAW AND PRECDE~T~

   49 (Id ed. 1920). %See Barker, Mibtory Low-A Sepamte Syilsm of JuriipNdancs, 88 U.CIN. L. REV. 223 (1967): Frateher, Review by the Civil Courtr 01 Ids.mnts of Fedma1 .Military Tizbunola. 10 OHID ST. L. J. 271 (1949) j Comment, God, The Anny. and Judicial Rewe%, The In-Ss7vicr Cana&nliau Objector, 55 CALIF. L. REV.

   319 (1968)

   48 Military Law Review

   upon discipline chat any partieuiai ~nmuiion upon miiitav a". thmty might have ~

   Despite the fact that the military has continued to enjoy relative autonomy over determinations affecting its own personnel, several areas have been carved out in which federal court review is permitted, particularly involving claims of denial of constitutional rights during the course of courts-martial' and discharge proceedings.s The Vietnam War has resulted in a rash of new suits challenging the doctrine of nonrewewability by attempting to obtain federal court relief from a variety of military determinations. Suits have been filed in the last four yean to require B discharge an the grounds that the military improperly determined conscientious objector status,& medical fitness,' and personal hardship? to declare void the activation of reserve and national guard units and individuals,'o to prevent transfer of

   ' Wsrren, The Btli 01 Right8 and the lilztary, 37 S. Y K. L. RE) 181, 187 (1962)

   Burns Y. Wilson, 346 U.S. 13i (1953).

   Harmon Y. Brueker, 355 U.S. 579 (19581 (per eurim).

   Hsmmond V. Lenfesi, 398 F.Zd 705 (Id Cir. 1968) : Brown Y. Mc-, 387 F.2d 150 (3d Cir. 19671, CeTt denied, 390 U.8 1005 (19681, nfg 263 € Supp 686 (D \I J. 1967) : Noyd V. MleNamara, 378 F. 2d 538(10th C h i , cw!. denied. 389 U S 1022. d r

   Cdo.

   1967) ; Cooper I

   Barker, 291 F SVPP 952 (D Md 19681, G m n V. Wilson 289 F. Supp. 191 (X.D.

   Cal. 19683.E.#, Petition of Bank. 290 F. SUPP 120 (N.D. Csl 1968); Weber Y .

   Clifford, 289 F. Supp 960 (D Md 1968)' Rank V. Glearer, 28s F Supp. 174 ID Calo 1968)

   'Eo.,

   United States ez ,if Schonbrvn Y. Commanding Ofleer. 403 F.2d 371 (2d Cir 18681, iecansulriatm of d e n d of stay dented. 394 U.S. 929

   , 402 F.2d 57 (4th Cir. 19681; MeArthur stay dsnud. 393 U.S 810, owt. dentad, diraentingi ; M o m Y. Bowell, 401 F 2d 544 (4th Cir.1, atoy dm*ed. 393 U.S. 802 (19881 (Douglas, J.. diaiientmg), ceit. denied, 393 U.S. 1052 (1869) (DOYEIPB, J., dissenting): MeAbee V. Martinez, 281 F. Supp 77 (D Md.1. inj~mtive rehe/ denisd, 381 C.S. 904 (1968): Sullivan I

   Cushman. 290 F. Supp. 669 (D.

   MPBI 19681 (three-judge court) IuniueeessfUI action by A m y ieBen%ts to prevent activation and orders to Vietnam on grounds af wolatmn of reseme eontrset and denialof due praeeas far failure to pronde individual hardship hearings), *laydented, 393 US. 810 119681 IDaugiaa, J., diaaentingl i Llnaslsta Y. Ciiffard,290 F. Supp 338 18.D A' Y 19681, GaldaUin Y. Ciiffard, 280 F SUPP. 275

   vent ordering to active duty for noncompliance with reserve obiigatiena on

   267 F. Supp. 701 (D.

   Exhaustion of Remedies

   unita I' and individuals I* overseas, to rescind orders concerning duty assignments,," and to prevent the court-martial of servicemen." Most of these suits have foundered on the threshold question of jurisdiction, with federal courts denying jurisdiction in reliance on the traditional doctrine of nonreviewability or on a finding that the complainant failed to exhaust military remedies. However, in June 1968, a decision was handed down by the Second Circuit which appears to have made a significant breach in the old nonreviewability doctrine and to have liberalized the requirement of exhaustion of remedies. In Hammond v. Lenfept," the Second Circuit reversed the district court's determination that it lacked jurisdiction to consider a reservist's application

   grounds eontract obligatima changed) ; Winteia Y. United States, 393 U.S. 896 (1968) (stay granted by Justice Douglas to prevent reactivation second time pending decision on merits by 9th Cir.) ; Ali Y. United States, 289 F.Supp. 530 (C.D. Cal. 1968) ; Cion Y. MeNsmara, Clvii No. 7bl5E3-EC (C.D. Cd. 9 Jan. 1969) (order to active duty far more than 45 daya because of uniatisfaetory participation in reserves held in violation of eontilet and constitutional rights),

   "E,& Morae V. Baswell, 401 F.2d 544 (4th CiY.1, 8tw dmnied, 393 U.S. 802 (1968) (Douglas, J., diaaentingl, cert. denzed, 393 U.S. 1502 (1969) (Dougla.a, I.,dissenting): MeAbee Y. Martinez, 291 F. Supp. 77 (D.

   Md.),

   injvnctivr *cite/ denzrd, 393 U.S. 904 (1968) : Sullivan Y. Cushman, 290 F. Supp. 669 (D. Maaa. 1968); Johnson Y. Powell, 393 U.S. 920 (19681 (8pplication for stay denied) (Douglas. J,, dissenting, objecting that National Guard petitioners were "spirited out of the country" to Vldmm by militari and thereby deprived of hearing)

   "Smith V. Ritehey, SO S. Ct. 64 (10681 (may granted) (stay issued byD ~ ~ g l s s , J., to prevent transfer of serviceman to Formosa under or-ders issued after he organized peace march) ; Earl V. Cushman, Misc. Civil No. Eb116PJ (D. Para. 18 Dee. 1968) (denied of tempomry mitrain-ihg order to prevent shipment of afleer LO Vietnam. such ilhipment nliegedly in dolation of A m y regviation that he muat be retained in Unit upon Rling application fer mnscientims objector discharge) ; Bates Y. Commanding OSeer, Miac. Civil No. 68-64-F (D. Mass. 29 Oet. 196s) (habeas eorpu8 action to require discharge on gmmds no basis in fact for denial of conscientious objector status resulting in voluntary return a i petitioner by military to jurisdiction of district court pending court determination and appai), mv'd, No. 7241 (1st Cir. 7 Jan. 1969), liltit denied 0% rcmnd, Miae. Civii No. 68-6PF (D.

   Maas. 14 Mar. 1969). vrv'd. 413 F.2d 475 (1st Cir. 19691.

   "E.&, Noyd V. MeNnmsrs, 378 F.2d 53s (10th CiF,), o w l dmisd, 389U.S. 1022, aUr 261 F. Supp. 701 (D. Coio. 1967); Noyd V. Bond, 402 F.2d 441 (10th Cir,), mw'u IS5 F. Supp. 785 (D. N.M.), nahincwcrrard italui umntsd, 393 U.S.

   1048 (18881, and, 395 U.S. 683 (19S9).

   "E.u., In i e Kelly, 401 F.2d 211 (5th Cir. l9SS) : Levy Y. MeNnmlirs, Civii No. 955-67 (D.

   D.C. 9 May 19S71, affd erb nom Levy Y. Corcoran, 389 F.Zd 929 (D.C. Cir.) (Bazelen, J., dimenting) Slav denied, 387 U.S. 915, car!. dsnisd, 889 U.S. 960 (1967) (unmceeasful sttempf to e~nvenethree-judge

   and enjoin convening of couR-maitisI on prwndi of chilling effect anfirit amendment r'ightll ,

   "888 F.2d 105 (2d Cir. lSS8).

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   for a writ of habeas corpus, and ordered him discharged from the Nary unless evidence was introduced at rehearing to pronde a basis in fact far denial of his request for a conscientious objector discharge.'( In haldlng that a serviceman IS entitled to federal court review of a military admnistrative determination concerning a request for discharge. without requiring that he exhaust his military remedies through a court-martial proceeding, the Second Circuit rejected the stringent exhaustion rule which had been adapted in decisions by other circuits.1-Other courts have now fallowed Hammond by accepting jurisdiction in bath conscientious objector discharge and non-discharge cases I* This article will re.examine the doctrine that federal courts lack jurisdiction to review military determinations concerning personnel in light of Hammond and its progeny, and will consider what standards are now' required for reriew.ability.

   11. HISTORICAL BASIS FOR DESIAL OF FEDERAL COURT JURISDICTIOS TO REVIEW MILITARY DETERMINATIONSA military determination affecting personnel can be made either by a court-martial decision or a non-court administrative determination. The historical development of nomeviewability differs somewhat between the two categories

   A. REVIEW OF COCRT-MARTIAL DECISIOYSWith respect to re\-iew of court-martial decisions, American law has foilowed the English concept that military courts provide an autonomous system of jurisprudence whlch, due to the exi- "Tro and B half months after its deeman in Hommod. the Second Circuit issued a new per euiiam opinion on petllloP lor rehearinn The court stated that because the armed ~ewiceb had adapted new regulations concerning discharge of mnieientiou obieetors...