Ludlum v. Resor, 74-1275

• Decision Date: 27 November 1974
• Docket Number: No. 74-1275,74-1275
• Citation: 507 F.2d 398
• Parties: Frederick J. LUDLUM, Petitioner-Appellant, v. Stanley RESOR, Secretary of the Army, and Robert A. Pearson, Acting Post Commander, United States Army Training Center, Fort Devens, Massachusetts, Respondents-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 398

507 F.2d 398

Frederick J. LUDLUM, Petitioner-Appellant, v. Stanley RESOR, Secretary of the Army, and Robert A. Pearson Acting Post Commander, United States Army Training Center, Fort Devens, Massachusetts Respondents-Appellees.

No. 74-1275.

United States Court of Appeals, First Circuit.

Argued Nov. 5, 1974.

Decided Nov. 27, 1974.

M. Warren Browne, Now York City, for petitioner-appellant.

Marshall D. Stein, Asst. U.S. Atty., with whom James N. Gabriel, U.S. Atty., was on brief, for respondents-appellees.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

This is an appeal from a dismissal of a petition for habeas corpus.

In November, 1968 petitioner was inducted into the Army and in February, 1969 he submitted an application for discharge as a conscientious objector. This application was rejected. A few days later petitioner went AWOL, returning only in May, 1971. Court martial proceedings were then instituted, but prior to the hearing petitioner, in accordance with approved Army practice, submitted an application for a 'discharge for the good of the service' in lieu of trial. AR 635-200 (October 7, 1969). This application was accepted, the court martial proceeding was dismissed and petitioner received an undesirable discharge. Meanwhile, while his application was pending, petitioner filed the present habeas corpus petition.

Omitting a number of interim district court proceedings, the matter presently before us relates to the court's dismissal order of July 26, following an order entered on June 10, 1974. The government had moved to dismiss on the ground that petitioner had not exercised available administrative remedies, so that the court was without jurisdiction. The basis of the motion was petitioner's failure to apply to the Army Board for Correction of Military Records (ABCMR), 10 U.S.C. 1552. The government amended its motion to concede the jurisdiction of the court but requested that petitioner nonetheless should be ordered to apply to the ABCMR prior to judicial consideration. The court granted the amended motion on June 10, stating that it had been given reason by the government to believe that if prompt application were made, the ABCMR could and would make a decision within 90 days. The court's order contained a provision that if petitioner did not make such application within 30 days the habeas corpus proceeding would be dismissed. Petitioner declined to make the application, and on July 26 the proceedings were dismissed. ¹

It is clear that there was no jurisdictional defect as alleged in the original motion in the light of United States Department of Justice Memo #652, October 23, 1969, the material portion of which is as follows:

'2. Exhaustion of Military Administrative Remedies. The decision of the Military will be deemed ripe for a judicial review upon the final action of the Adjutant General of the Army . . .. Application to the Army . . . Board for the Correction of Military Records will remain an available procedure but will not be insisted upon by the government as a precondition to judicial review.'

Because of the subsequent issuance of this Memorandum the government stipulated to a remand of the 9th Circuit decision in Craycroft v. Ferrall, 9 Cir., 1969, 408 F.2d 587, which had dismissed a habeas petition because of failure to apply to the ABCMR. See Parisi v. Davidson, 1972, 405 U.S. 34, 38, n. 3, 92 S.Ct. Ct. 815, 31 L.Ed.2d 17. ² The government takes the position, however, that the district court could retain jurisdiction, and require such exhaustion as a matter of discretion.

We think the district court action was within the meaning of Memorandum 652, and we hold that, in the appropriate situation, a district court may require a petitioner to take this step. In so doing we recognize the desirability of allowing an agency to police itself, both from the standpoint of the agency, and from the standpoint of unnecessary burdens upon the courts. See McGee...