Opinion
No. 71-1567.
June 21, 1971.
Michael S. Sorgen, San Francisco, Cal., for plaintiff-appellant.
James L. Browning, Jr., U.S. Atty., Brian B. Denton, Asst. U.S. Atty., San Francisco, Cal., for defendants-appellees.
Before HAMLEY, ELY and WRIGHT, Circuit Judges.
In his complaint for declaratory relief, appellant sought to enjoin the Navy from releasing him with an undesirable discharge. The district court dismissed the complaint and denied a preliminary injunction, 326 F. Supp. 1086.
While his appeal was pending, appellant stipulated with Navy authorities that, subject to the court's approval, he be given an undesirable discharge. This court approved the stipulation and vacated an earlier order staying the discharge pending appeal. We now affirm the action of the district court.
Appellant enlisted for four years and, after basic and advanced training, was assigned to Moffet Field Naval Air Station, California. He had received non-judicial punishment on three occasions prior to the incident giving rise to the Navy's determination to discharge him.
In March 1970 appellant and a young woman occupied a private motor vehicle in the rear of a barracks on the base. A security officer summoned to the area observed several plants of marijuana on the dashboard of the vehicle. When the young woman was asked to leave the vehicle, she attempted to take a cardboard box which proved to contain dried marijuana. She identified appellant as the owner of the vehicle. There followed an official investigation.
Appellant was formally advised of his rights and signed a statement to that effect and permitted a search of his locker and the vehicle. Marijuana, a cigarette roller and hashish were found in his locker. In a letter to the Chief of Naval Personnel, appellant admitted that the evidence indicated possession of marijuana.
He now urges that the proceedings by which the Navy processed him for discharge violated his constitutional right to due process. He does not contend that the Navy failed to follow its own regulations but asserts that the somewhat informal procedures of the Field Review Board allowed the consideration of evidence which would have been inadmissible before a court martial or civilian court.
Before the courts will intervene and interfere with the military's exercise of its authority over persons lawfully entered into its service, the complaining serviceman must utilize available administrative processes or demonstrate a substantial likelihood of success. Locks v. Laird, 441 F.2d 479 (9th Cir. 1971), Schwartz v. Covington, 341 F.2d 537 (9th Cir. 1965).
Appellant has not attempted to explore any administrative remedies, let alone exhaust them.
The judgment of the district court is affirmed.