448 F.2d 222 (9th Cir. 1971), 22865, Bratcher v. McNamara

Docket Nº:22865
Citation:448 F.2d 222
Party Name:Michael E. BRATCHER, Appellant v. Robert S. McNAMARA, Secretary of Defense, et al., Appellees
Case Date:September 08, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 222

448 F.2d 222 (9th Cir. 1971)

Michael E. BRATCHER, Appellant

v.

Robert S. McNAMARA, Secretary of Defense, et al., Appellees

No. 22865

United States Court of Appeals, Ninth Circuit

Sept. 8, 1971

Page 223

Richard L. Young (argued), Michael H. Rosen, Seattle, Wash., for appellant.

Charles W. Billinghurst, Asst. U. S. Atty. (argued), Eugene Cushing, U. S. Atty., Tacoma, Wash., for appellees.

Before BARNES and MERRILL, Circuit Judges, and McNICHOLS, District Judge.

McNICHOLS, District Judge:

This case has been remanded by the Supreme Court for our further consideration in light of a change of position by the government on the issue of exhaustion of administrative remedies in relation to servicemen seeking court relief from military duty on grounds of conscientious objection to such duty. Bratcher v. Laird, 397 U.S. 246, 90 S.Ct. 1108, 25 L.Ed.2d 281 (1970). Our original opinion is found at 415 F.2d 760.

Briefly re-stated, the record discloses that appellant Bratcher enlisted in the United States Army on January 23, 1966 without prior indication of any conscientious scruples against war. However, after something in excess of a year of service as a medical corpsman, he began to resist military authority and from June 10, 1967 to June 16 of that year was absent from his duty station without leave. Following his apprehension by military police on June 16, 1967, he, for the first time, filed a written statement of his beliefs as a conscientious objector. At about the same time he defied certain direct orders to perform non-combatant type duties (i e., to cut weeds growing behind the hospital buildings). Specifications of court martial charges alleging absence without leave and disobedience of orders were drawn up and, on July 21, 1967, a court martial was authorized by Bratcher's commanding officer.

While the court martial was pending, but before trial, appellant's formal application for separation from the service as a conscientious objector was filed and processed through appropriate military channels. On September 27, 1967, the Secretary of Army determined that Bratcher qualified for classification as a conscientious objector. The Secretary did not however grant his request for I-O status which would have provided for discharge, but placed him in I-A-O classification which had the effect of retaining appellant in the Army subject only to non-combatant type duties. This determination was, it developed, totally unsatisfactory to Bratcher.

The action below was commenced in the District Court on October 24, 1967, again while the court martial trial was pending. The complaint, founded on theories of Habeas Corpus, Mandamus, Declaratory Judgment and Injunctive relief, sought appellant's discharge from the Army. A hearing was had on October

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27, 1967, at which time the Army administrative record was before the trial judge. Relief was orally denied on that day and subsequently formal findings of fact, conclusions of law and a judgment against the appellant were entered. The court held: (a) that habeas corpus was inappropriate in view of the pending court martial and (b) that assuming jurisdiction to review the Secretary's classification, the same was in accord with controlling principles.

As reflected in our original opinion, supra, the issue of exhaustion of administrative remedies was glossed over by the parties and the District Court. We raised the question at the time of oral argument and determined that the holdings of the Craycroft case (Craycroft v. Ferrall, 408 F.2d 587 (9th Cir. 1969) and the Krieger case (Krieger v. Terry, 413 F.2d 73 (9th Cir. 1969) were controlling. We held, on these authorities, that Bratcher was required to appeal the decision of the Secretary, relative to his conscientious objector status, to the Army Board of Military Records in order to exhaust the administrative procedure available to him, as a pre-requisite to seeking court intervention. No such appeal having been taken, we affirmed the order of the District Court, albeit on different grounds.

Bratcher effected certiorari to the United States Supreme Court. Before that tribunal the Solicitor General advised the court that the Department of Justice, with the concurrence of the Department of Defense, had concluded that "proper application of the exhaustion of remedies principle does not mandate application to the boards of correction of records for the various military...

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