Krieger v. Terry
| Decision Date | 25 June 1969 |
| Docket Number | No. 24319.,24319. |
| Citation | 413 F.2d 73 |
| Parties | David M. KRIEGER, Appellant, v. Brig. Gen. James TERRY, U.S.A., Commanding General, 29th Infantry Brigade, Schofield Barracks, Oahu, Hawaii; Col. James Currie, Executive Officer, 29th Infantry Brigade; and Stanley Resor, Secretary of the Army, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Brook Hart (argued), Greenstein & Cowan, Honolulu, Hawaii, for appellant.
Michael R. Sherwood (argued), Asst. U. S. Atty., Yoshimi Hayashi, U. S. Atty., Honolulu, Hawaii, for appellees.
Before HAMLEY and KOELSCH, Circuit Judges, and SOLOMON, District Judge.*
This is an appeal from a district court order dismissing without prejudice an application for a writ of habeas corpus to compel discharge of the applicant from the United States Army as a conscientious objector.
The applicant and appellant, David M. Krieger, is a Second Lieutenant in the United States Army, with a present duty assignment at Schofield Barracks Army Reservation, Oahu, Hawaii. Because of such duty, Krieger is to be regarded as in the custody of Brig. Gen. James Terry, U.S.A., Commanding General, 29th Infantry Brigade, under the command of Stanley Resor, Secretary of the Army.
On November 8, 1968, pursuant to AR 635-20(4), Krieger formally applied for a discharge from the United States Army on the ground of his conscientious objection to military service. On February 26, 1969, after his application had been processed, Krieger received notice from the Secretary of the Army, acting through the Adjutant General, that the application for discharge had been disapproved. The reason given for such disapproval was that it had been determined that Krieger's "professed objection, based upon religious training and belief, to participation in war in any form is not sincere."
On February 26, Krieger was placed under orders to be transferred to Ft. Benning, Georgia, not later than March 24, 1969. According to advice given him, he would there be engaged in jungle warfare training preparatory to deployment to Vietnam for combat duty.1
On March 7, 1969, Krieger applied to the United States District Court for the District of Hawaii for a writ of habeas corpus ordering his release from the Army with an honorable discharge. The grounds relied upon by Krieger in seeking this relief were that there is no basis in fact for the denial of his conscientious objector claim, and that in the processing of his claim, he was deprived of procedural due process in several respects. In his application, Krieger also sought an order restraining his redeployment from the District of Hawaii, and restraining his superior officers from assigning him duties involving training in jungle warfare and the handling of weapons, pending disposition of the habeas proceeding.
On the day this application was filed, the district court entered a show cause order. The order also granted the temporary injunctive relief sought and temporarily restrained the commencement of prosecution of a court martial against Krieger for any refusal to act or obey on order which conflicts with Krieger's claim as a conscientious objector.
Instead of filing a return to the show cause order, the respondents named in the application, appellees here, filed, on April 23, 1969, a motion to dismiss the application and vacate the restraining order. In a supporting memorandum, respondents argued that Krieger had failed to exhaust his administrative remedies and, therefore (a) the court lacked jurisdiction over the subject matter and the person, and (b) the application failed to state a claim upon which relief can be granted.
On May 2, 1969, Krieger made application to the Army Board for Correction of Military Records (Army Board), pursuant to 32 C.F.R. § 581.3, to overturn the denial of his conscientious objector claim.
Following argument, the district court, on May 15, 1969, 300 F.Supp. 242, entered an order dismissing the habeas corpus application without prejudice and vacating the restraining order. However, the court granted a brief stay to enable Krieger to apply to this court for a further stay. Krieger appealed to this court and moved for a stay pending appeal. On May 26, 1969, we granted a stay pending disposition of the appeal and expedited the appeal. The appeal was argued before this court on June 17, 1969.
The district court gave alternative reasons for dismissing the application, namely, (1) Krieger has failed to exhaust his administrative remedies since he has not yet obtained a final decision by the Army Board, and (2) the record as a whole does not present a claim upon which relief can be granted because the denial of the conscientious objector claim has a basis in fact and there was no constitutional defect in the proceedings leading to such denial.
In holding that the application should be denied because of failure to exhaust administrative remedies, the district court relied upon Craycroft v. Ferrall, 9 Cir., 408 F.2d 587. This court there held, among other things, that: (1) under the circumstances of that case, an application to the Board for the Correction of Naval Records (Navy Board) was an administrative remedy available to Craycroft who was seeking discharge from the Navy as a conscientious objector, and (2) under the circumstances of that case the district court did not abuse its discretion in holding that Craycroft should exhaust that administrative remedy before seeking habeas relief.
We first address ourselves to the district court holding that review by the Army Board is an available administrative remedy which Krieger has not exhausted.
In our opinion, the fact that, in this case, the further reviewing agency is the Army Board (32 C.F.R. § 581.3), rather than the Navy Board (32 C.F.R. § 723), involved in Craycroft, does not render Craycroft inapplicable. The rationale of Craycroft, if not its direct holding, applies to the remedy afforded by both boards. Moreover, the specific procedures to be followed in matters before the Army Board and the Navy Board are virtually identical. Compare 32 C. F.R. §§ 581.3(c) (2) and (5), (d) (1), (3) and (4) and (f) (1) (c), with 32 C. F.R. § 723.3-723.9.
Krieger calls attention to the fact that, on April 22, 1969, which was after the opinion in Craycroft was filed, the Navy Board and the Secretary of the Navy determined, in two instances, that a conscientious objector case is not properly a matter for consideration by the Board. Appellees make no reply to this argument. The district court rejected the argument on the ground that whatever position the Navy Board has taken with regard to its jurisdiction in such cases, the Army Board "* * * has consistently assumed jurisdiction of cases of this nature." No Army Board rulings are cited in support of this statement.
In our view, unless and until the Army Board rules that it does not have jurisdiction to entertain Krieger's application, or the similar applications of others, we should, as we did in Craycroft with respect to the Navy Board, treat the Army Board as a potentially available source of administrative relief.
Krieger argues that he should not be required to await the decision of the Army Board before pursuing a...
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