Plaintiff does not argue that there is no obligation to exhaust
administrative remedies before bringing a non-statutory
collateral attack on a court-martial. However, he argues that
there is no obligation to exhaust the procedures under
10 U.S.C. § 938 (1994) or 10 U.S.C. § 1552 (1994). He asserts that by
filing an Article 69(b) application for JAG review, he has
exhausted his military remedies.
It is established that a serviceman charged with crimes by
military authorities must exhaust all available military remedies
before seeking collateral relief in the federal courts.
Schlesinger v. Councilman, 420 U.S. 738, 758, 95 S.Ct. 1300, 43
L.Ed.2d 591 (1975); New v. Cohen, 129 F.3d 639, 643 (D.C.Cir.
1997) (finding servicemen are "barred from seeking collateral
review of their court-martials before they have exhausted their
appeals within the military system"); Cooper v. Marsh,
807 F.2d 988, 990 (Fed.Cir. 1986) ("[B]efore seeking to collaterally
attack [a] court martial conviction in the civilian courts [a
plaintiff] must have exhausted all remedies available to him
within the military"). However, courts have not required
servicemen to exhaust procedures which could not grant them the
relief they sought. See Cooper, id. (holding that "a plaintiff
need seek review only before military tribunals empowered to
provide the remedy sought" and thus "a plaintiff has exhausted
his military remedies when he has attempted to obtain review in
every forum which could provide meaningful relief".); Baxter v.
Claytor, 652 F.2d 181, 185 (D.C.Cir. 1981) (holding in context
of review of military actions that exhaustion requirement does
not compel the performance of "clearly useless acts"). The
principle issue disputed by the parties is whether motions
pursuant to 10 U.S.C. § 1552 and 938 can provide plaintiff with
the relief he requests, which is (1) to have his summary
court-martial set aside and (2) to have all documents in his
record resulting from the summary court-martial expunged.
Addressing § 1552 first, this provision provides in general
that the Secretary of a military department, acting through a
board of civilians, may correct records "when the Secretary
considers it necessary to correct an error or remove an
injustice." 10 U.S.C. § 1552(a)(1) (1994). However, in 1983,
Congress significantly narrowed the Secretary's power to correct
the records of court-martial specifically. Section 1552(f) now
provides that the Secretary can correct the record of a
court-martial only in two circumstances: (1) to reflect actions
taken by other military "reviewing authorities" or (2) as "action
on the sentence of a court-martial for the purposes of clemency."
10 U.S.C. § 1552(f) (1994).
On its face, this provision cannot provide plaintiff with the
relief he is seeking since he is not asking for clemency and has
not obtained reversal of his conviction through military
channels. Not surprisingly, courts which have considered the
post-1983 version of the remedy have held that a serviceman
seeking to vacate a court-martial conviction need not exhaust
this procedure. Cooper, 807 F.2d at 990-91 (where plaintiff was
trying to have court-martial conviction declared void, court held
that "[b]ecause of its limited powers, [the Army Board for
Correction of Military Records] is incapable of providing
meaningful relief for the constitutional violations"). Cf.
Williams v. Secretary of the Navy, 787 F.2d 552, 559, n. 9
(Fed.Cir. 1986) (holding that exhaustion requirement mandated use
of pre-1983 version of § 1552 for person seeking, inter alia,
to correct records related to his court-martial conviction on
grounds of unconstitutionality). This Court therefore concludes
that plaintiff need not exhaust his § 1152 remedy before seeking
collateral review of his court-martial conviction.
The next question is whether plaintiff was required to exhaust
10 U.S.C. § 938 (1994), entitled "Article 138 Complaint of
Wrongs" (hereinafter "Article 138"). This section states:
Any member of the armed forces who believes himself
wronged by his commanding officer, and who, upon due
application to that commanding officer, is refused
redress, may complain to any superior commissioned
officer, who shall forward the complaint to the
officer exercising general court-martial jurisdiction
over the officer against whom it is made. The officer
exercising general court-martial jurisdiction shall
examine into the complaint and take proper measures
for redressing the wrong complained of; and he shall,
as soon as possible, send to the Secretary concerned
a true statement of that complaint, with the
proceedings had thereon.
Defendant does not cite any case where a court held that
Article 138 was available to overturn a court martial conviction.
Defendant merely states without any support that "[u]nder Article
138, redress of a wrong is not limited in either the scope of the
remedies or the bases for granting the remedies." Def.Mem. at 11.
Thus, defendant argues, plaintiff could have petitioned the chain
of command, up to the Secretary of the Navy, to set aside the
conviction and grant the his requested relief.
Plaintiff disputes the availability of Article 138 to set aside
a conviction. Plaintiff relies in part on interpretations of
Article 138 in an article, Tompkins, Article 138: A
Resurrection, 27 Jag.J. 463, 469-470 (1974), portions of which
are attached to plaintiff's motion to cite supplemental
authorities. Pl.Supp.Ex. A. In the article, Tompkins quotes from
a JAG memorandum which stated that the "Judge Advocate General of
the Army and the Air Force have held [Article 138] to be
inapplicable to the field of discipline." Pl. Suppl.Ex. A at 469.
The quoted JAG memorandum goes on:
The Army JAG stated in JAGA 1955/8257 that: "It is
the opinion of this Office that Article 138 does not
cover the `redress of wrongs' which the complaining
member has suffered as the result of imposition of
non-judicial punishment or conviction by
court-martial, but rather is directed to the
allegations that the member's commanding officer has
deprived him of some property right, abused his
command discretion, or otherwise dealt with him
unjustly in a field other than discipline."
Id. Plaintiff has also provided an excerpt from one of the
"Digest of Opinions" issued by the Judge Advocates General "for
guidance within the respective armed forces and the information
of all concerned." Pl.Supp.Ex. B (Digest of Opinions — Judge
Advocates General of the Armed Forces, 1953-54). Among these
opinions, it is stated that "[a] complaint of wrongs made under
UCMJ, Art 138, does not authorize the Judge Advocate General or
the Inspector General to reexamine a court-martial conviction
which has become final and conclusive pursuant to Art 76 . . .
inasmuch as Art 138 was intended as a means of protecting
soldiers and officers from individual arbitrary or unjust actions
of a commander and neither expands the review procedures of the
Code nor limits the conclusive nature of the findings and
sentence." Pl.Supp. B at 3 (digest citing JAGJ 1953/1012.29 (Jan.
1953)). In absence of any authority indicating that an Article
138 petition may be used to attack a court-martial conviction,
this Court will follow the JAG's interpretation. Because Article
138 is thus not available to attack a court-martial conviction,
plaintiff was not required to exhaust the procedure. Therefore,
the Court finds that plaintiff has exhausted every available
forum that could provide meaningful relief.