Marcellous Cooper, Jr., Etc. v. John O. Marsh, Secretary of the Army

807 F.2d 988, 1986 U.S. App. LEXIS 20736
CourtCourt of Appeals for the Federal Circuit
DecidedDecember 19, 1986
DocketAppeal 85-2759
StatusPublished
Cited by18 cases

This text of 807 F.2d 988 (Marcellous Cooper, Jr., Etc. v. John O. Marsh, Secretary of the Army) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marcellous Cooper, Jr., Etc. v. John O. Marsh, Secretary of the Army, 807 F.2d 988, 1986 U.S. App. LEXIS 20736 (Fed. Cir. 1986).

Opinions

BISSELL, Circuit Judge.

This appeal is from the order of the district court dismissing Cooper’s amended complaint. Cooper v. Marsh, No. 84-0320 (D.D.C. Apr. 18, 1985). We vacate and remand.

BACKGROUND

Cooper, a former captain in the Army, was tried by a court-martial on charges of conduct unbecoming an officer and fraternization. Prior to trial Cooper moved to dismiss the fraternization charge on the grounds that it violated his fifth amendment right to due process and first amendment right to freedom of association. The motions were denied and Cooper was convicted of both charges.

After his conviction, Cooper petitioned the Judge Advocate General (JAG) for review of the conviction. JAG directed that the case be referred for review by the Army Court of Military Review (ACMR). ACMR set aside and dismissed the charge of conduct unbecoming an officer, but affirmed the fraternization conviction. Cooper again petitioned JAG, this time for review by the military justice system’s highest court, the United States Court of Military Appeals (COMA). JAG denied Cooper’s petition. Cooper then petitioned COMA for a writ of habeas corpus on the basis that he was denied due process in his court-martial proceedings because the offense of fraternization was unconstitutionally vague. See generally Carter, Fraternization, 113 Mil.L.Rev. 61 (1986) (discussing the development of fraternization jurisprudence). COMA denied Cooper’s petition. As a result of the court-martial conviction, Cooper was twice passed over for promotion and discharged from the Army. Before he was discharged, Cooper filed this action in district court.

Cooper claims that his conviction for fraternization violates the due process clause of the fifth amendment, the equal protection clause of the fourteenth amendment, the first amendment right of freedom of association, and 42 U.S.C. § 1981 (1982). [990]*990The gravamen of Cooper’s amended complaint is that he wants the fraternization conviction declared void. Although Cooper argued at all levels in the military justice system that the fraternization conviction violated his right to due process, he raised his first amendment claim only at trial. He did not argue either his equal protection or section 1981 claims before the military courts.

The Secretary moved to dismiss the amended complaint on the ground that Cooper had failed to exhaust his military remedies because he had failed to seek review by the Army Board for Correction of Military Records (ABCMR). The Secretary argued, and the district court found, that ABCMR has the power to restore Cooper to active duty, award retroactive promotion, and relegate “all records of [Cooper’s] court martial conviction to restricted sections of his personnel file so that no future selection board would ever be aware of his court martial conviction.” Memorandum Opinion at 3. The district court acknowledged, however, that ABCMR lacks the power to set aside Cooper’s court-martial conviction.

ISSUE

This case presents the issue whether an appellant who has sought review of his court-martial conviction by every military tribunal empowered to review the constitutionality of the conviction has exhausted his military remedies.

OPINION

This court recently stated the general rule of exhaustion of military remedies: “[B]efore seeking to collaterally attack [a] court martial conviction in the civilian courts [a plaintiff] must have exhausted all remedies available to him within the military____ That is true whether [the plaintiff] alleges violation of the Constitution, statutes, or military regulations.” Williams v. Secretary of Navy, 787 F.2d 552, 558 (Fed.Cir.1986) (citations omitted). The purpose of the exhaustion doctrine is to allow the military courts the opportunity to review a question and decide it using their particular expertise. Where, as here, an appellant seeks to collaterally attack a court-martial conviction asserting multiple constitutional claims, we must consider not only whether the appellant has sought review before those military tribunals empowered to consider such claims but also whether each claim now asserted was presented before the tribunals.

Implicit in the exhaustion doctrine is the concept that a plaintiff need seek review only before military tribunals empowered to provide the remedy sought. See id. at 560. Some courts have expressed this concept as an exception to the exhaustion doctrine where pursuit of a remedy before a particular forum would be futile, id. at 559; see Randolph-Sheppard Vendors of America v. Weinberger, 795 F.2d 90, 104-108 (D.C.Cir.1986) (discussing futility as an exception to the doctrine of exhaustion of administrative remedies) or where the tribunal is inappropriate for resolving the issue presented, Downen v. Warner, 481 F.2d 642, 643 (9th Cir.1973). We prefer the view that a plaintiff has exhausted his military remedies when he has attempted to obtain review in every forum which could provide meaningful relief. See Bowling v. United States, 713 F.2d 1558, 1560-61 (Fed.Cir.1983).

In Cooper’s case, ABCMR is not such a forum. ABCMR has the power to correct military records and, where appropriate, order reinstatement and back pay. 10 U.S.C. § 1552 (1982 & Supp. Ill 1985). On December 1983, section 1552 was amended by adding subsection (f):

(f) With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under subsection (a) may extend only to—

(1) correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the Uniform Code of Military Justice [991]*991(Public Law 506 of the 81st Congress)); or

(2) action on the sentence of a court-martial for purposes of clemency.

Pub.L. 98-209, § 11(a), 97 Stat. 1407 (1983). Prior to the amendment, ABCMR exercised broader powers. It could, if it considered it necessary to correct an error or remove an injustice, completely expunge all reference to a court-martial ever having occurred. See Baxter v. Claytor, 652 F.2d 181, 184-85 (D.C.Cir.1981).

Before the amendment, ABCMR lacked the power to overturn a court-martial conviction or to declare a military regulation unconstitutional. After the amendment, it still lacks that power and is now limited in the extent to which it can correct a court-martial record. Because of its limited powers, ABCMR is ’ incapable of providing meaningful relief for the constitutional violations claimed in Cooper’s amended complaint.

Indeed, the Secretary admitted as much in his brief:

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807 F.2d 988, 1986 U.S. App. LEXIS 20736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcellous-cooper-jr-etc-v-john-o-marsh-secretary-of-the-army-cafc-1986.