A serviceman is generally required to exhaust administrative remedies offered by the military before bringing a claim against his superiors in civilian courts. Diliberti v. Brown, 583 F.2d 950 (7th Cir. 1978) (vacating lower court injunction against the Secretary of Defense and dismissing complaint for failure to exhaust administrative remedies); Seepe v. Department of the Navy, 518 F.2d 760 (6th Cir. 1975) (enlisted Marine Reservist must exhaust BCNR remedies before suit on breach of enlistment contract); Nelson v. Miller, 373 F.2d 474, 480 (3d Cir. 1967) (exhaustion of remedies required where Board for Correction of military records might obviate the need for judicial review). While failure to exhaust administrative remedies is not always a judicial bar, particularly when the claimant bases his grievance on a Constitutional claim, Martinez v. Brown, 449 F. Supp. 207 (N.D.Ca. 1978), such cases typically involve attempts to enjoin dishonorable discharges or Constitutional challenges to the regulation under which the discharge was made.
After combing the military record for "errors" or "injustices," the ABCMR makes a recommendation to the Secretary of the Army, who has discretion to adopt or reject the ABCMR's recommendation, subject to judicial review under the "arbitrary and capricious" standard. See, e.g., Diliberti v. Brown, 583 F.2d 950, 952 (7th Cir. 1978). In her complaint, Krugler makes several substantive allegations.
However, defendants have referred the court to several opinions that indicate that a serviceman has no property interest or entitlement in continued military service. E.g., Diliberti v. Brown, 583 F.2d 950, 952 (7th Cir. 1978); Knehans v. Alexander, 566 F.2d 312, 314 (D.C. Cir. 1977), cert. denied, 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 83 (1978); Sims v. Fox, 505 F.2d 857, 860-62 (5th Cir. 1974), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975); benShalom v.Secretary of the Army, 489 F.Supp. 964 at 971-72 (E.D.Wis., 1980); Rew v. Ward, 402 F.Supp. 331, 338-39 (D.N.M. 1975). But see Berg v. Claytor, 436 F.Supp. 76, 81 (D.D.C. 1977), vacated on other grounds, 591 F.2d 849 (D.C. Cir. 1978); Suro v. Padilla, 441 F.Supp. 14, 17 (D.P.R. 1976).
Mr. Martinez points out that some courts of appeals have required plaintiffs ordinarily to exhaust their administrative remedies in the correction boards before filing actions seeking equitable relief against the military. See, e.g., Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991); Linfors v. United States, 673 F.2d 332, 333-34 (11th Cir. 1982); Diliberti v. Brown, 583 F.2d 950, 951 (7th Cir. 1978); Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974). Other courts have taken a different approach, authorizing district courts to assume jurisdiction over such military claims, but ruling in particular cases that district courts should stay judicial proceedings until the applicable correction board remedies have been exhausted.
In reaching this conclusion the court of appeals relied on Sampson, along with other decisions, and stated that the distinction between tenured and probationary employees relates to their different procedural rights, not to whether there has been irreparable injury. 518 F.2d at 239 n. 3. In Diliberti v. Brown, 583 F.2d 950, 951 (7th Cir. 1978), the court held that the case of a permanent employee seeking injunctive relief prior to completion of his administrative appeal was controlled by Sampson. See also Wallace v. Lynn, 507 F.2d 1186, 1187 n. 3. (D.C. Cir. 1974); Phillips v. Klassen, 502 F.2d 362, 368 (D.C. Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974).
Involuntary separation from military service with an honorable discharge, absent something more, does not infringe upon a constitutionally protected liberty interest. See Sims, 505 F.2d at 862-63 (holding that liberty interests are involved only when separation from the military is carried out in such a fashion as to stigmatize the separated member, typically this would be a dishonorable discharge); BenShalom, 489 F.Supp. at 971-972; Diliberti v. Brown, 583 F.2d 950, 952 (7th Cir. 1978). Administrative separation under DADT results in a discharge characterized as Honorable, General, or Under Other Than Honorable Conditions. Of those separated under DADT as of 2005, 82% were with an Honorable Discharge, 13% a General Discharge, and 5% an Other Than Honorable Discharge.
With regard to the removal of the so-called charge sheets from the records, there appears to be specific authority which requires the exhaustion of the remedies provided in the military records correction board. In this circuit, see Diliberti v. Brown, 583 F.2d 950, 951 (7th Cir. 1978). See also Horn v. Schlesinger, 514 F.2d 549, 552 (8th Cir. 1975).
Defendants also argue that where a plaintiff "may obtain complete retroactive relief in [an] administrative proceeding or a subsequent judicial review of the administrative proceeding," he has not shown the kind of irreparable injury "sufficient to justify the issuance of a preliminary injunction." Diliberti v. Brown, 583 F.2d 950, 951 (7th Cir. 1978), discussing Sampson. It is apparently within the authority of ABCMR to grant plaintiff a full evidentiary hearing as well as afford all the relief he seeks. There is, however, no guarantee that plaintiff will be afforded a full hearing.
Decisions of the ABCMR "denying corrective action" are reviewable by the federal courts. See Diliberti v. Brown, 583 F.2d 950, 952 (7th Cir. 1978); Ballenger v. Marsh, 708 F.2d 349, 350 (8th Cir. 1983); Neal v. Secretary of Navy, 639 F.2d 1029, 1036-37 (3rd Cir. 1981); Matlovich v. Secretary of Air Force, 591 F.2d 852, 859 (D.C. Cir. 1978); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir. 1974); Sanford v. United States, 399 F.2d 693, 694 (9th Cir. 1968). In determining whether to review internal military decisions, a federal court should first determine whether the plaintiff has exhausted his intraservice administrative remedies and has properly alleged that the military has violated the constitution, a statute, or its own regulations; second, the court must balance sufficiency of the complaint against the policies contravening for review.
The Army Board for Correction of Military Records has the power to reinstate plaintiff and provide him with back pay if it should deem he has such a right.See Chappell v. Wallace, supra, 103 S.Ct. at 2367 and cases cited therein. See also Diliberti v. Brown, 583 F.2d 950, 951-952, n. 2 (7th Cir. 1978). Since the first step of the Mindes test is not satisfied, plaintiff has failed to present a reviewable claim.