JOHN R. VAN DRASEK, PETITIONER V. JOHN F. LEHMAN, SECRETARY OF THE
NAVY, ET AL.

   No. 86-319

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Federal Circuit

   Brief for the Respondents

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statutory and regulatory provisions involved
   Statement
   Summary of argument
   Argument:
       I. There is no justiciable controversy between
          petitioner and respondents at this stage of the
          litigation
          A. Petitioner's employment-related claims were
             reviewed and rejected by the courts below,
             and petitioner has not sought certiorari on
             that question
          B. Insofar as petitioner raised constitutional
             objections to the manner in which his Article
             138 Complaint was handled, his arguments
             were considered and rejected by the courts
             below, and petitioner has not challenged the
             merits of those constitutional holdings
          C. Insofar as petitioner's Article 138 Complaint
             advanced generalized grievances and addressed
             wrongs allegedly suffered by third parties,
             petitioner lacks standing to pursue his
             claims in federal court, and his request
             for judicial review of those claims was
             properly dismissed
          D. Insofar as petitioner's Article 138 Complaint
             alleged injury personal to himself, his claims
             are now moot or are otherwise nonjusticiable
      II. Article 138 was designed by Congress as an
          internal mechanism for the correction of military
          grievances, and judicial review of Article 138
          proceedings is therefore inappropriate
          A. There is no presumption in favor of judicial
             review of military decisions
          B. The nature and function of the Article 138
             grievance process counsel against routine
             judicial review
          C. There are ample alternative means by
             which a serviceman injured by official action
             may seek judicial redress
   Conclusion

                            OPINIONS BELOW

   The opinion of the United States Court of Appeals for the Federal
Circuit (Pet. App. A1) is unreported.  The opinion of the United
States Court of Appeals for the District of Columbia Circuit
transferring the appeal to the Federal Circuit (Pet. App. A9-A18) is
reported at 762 F.2d 1065.  The opinion of the district court (Pet.
App. A2-A8) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on January 23,
1986, and a petition for rehearing was denied on April 1, 1986.  On
July 8, 1986, the Chief Justice extended the time within which to file
a petition for a writ of certiorari to and including August 29, 1986.
The petition was filed on August 28, 1986, and was granted on December
1, 1986.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

             STATUTORY AND REGULATORY PROVISIONS INVOLVED

   Article 138 of the Uniform Code of Military Justice, 10 U.S.C. 938,
provides as follows:

         Any member of the armed forces who believes himself wronged
      by his commanding officer, and who, upon due application to that
      commanding officer, is refused redress, may complain to any
      superior commissioned officer, who shall forward the complaint
      to the officer exercising general court-martial jurisdiction
      over the officer against whom it is made.  The officer
      exercising general court-martial jurisdiction shall examine into
      the complaint and take proper measures for redressing the wrong
      complained of;  and he shall, as soon as possible, send to the
      Secretary concerned a true statement of that complaint, with the
      proceedings had thereon.

   The pertinent regulations in effect at the time of petitioner's
Article 138 Complaint, including Chapter 11 of the Manual of the Judge
Advocate General of the Navy (JAGMAN) and Chapter 11 of the Navy
Regulations (Navy Regs.), which are lengthy, have been lodged with the
Court as a separate Regulatory Appendix (Reg. App.).

                          QUESTION PRESENTED

   Whether the district court erred in declining to review
petitioner's Complaint of Wrongs, filed pursuant to Article 138 of the
Uniform Code of Military Justice, 10 U.S.C. 938.

                               STATEMENT

   1. Article 138 of the Uniform Code of Military Justice, 10 U.S.C.
938, is one of several mechanisms designed by Congress to handle the
grievances of military personnel.  Article 138 provides that any
memeber of the armed forces "who believes himself wronged by his
commanding officer, and who, upon due application to that commanding
officer, is refused redress," may file a complaint with a superior
commissioned officer.  The latter must forward the complaint to the
officer exercising general court-martial jurisdiction over the officer
against whom the wrongs are alleged.  The officer exercising general
court-martial jurisdiction must then "examine into the complaint and
take proper measures for redressing the wrong complained of."

   In August, 1982, petitioner was on active duty as a Captain in the
United States Marine Corps.  He was assigned to the Officer Candidates
School (OCS) in Quantico, Virginia.  The OCS is a subordinate command
to the Marine Corps Development and Education Command (MCDEC) in
Quantico.  J.A. 8.

   Petitioner served at OCS in a variety of positions.  For a time, he
was also the OCS representative on an Administrative Discharge Board
(ADB).  J.A. 8-9.  An Administrative Discharge Board is a board of
Marine officers constituted to decide whether a Marine should be
recommended for separation before the expiration of his enlistment.
The Board hears testimony and considers documentary evidence, then
votes whether to recommend discharge or retention.  If the Board
recommends discharge, it also suggests the proper characterization of
service (honorable, general, or other than honorable).  Petitioner had
been appointed by the Commanding General of MCDEC to serve as the OCS
representative on an ADB for the period from July 1 to December 31,
1982 (J.A. 9).

   On August 10, 1982, the commanding officer of OCS, Colonel M.T.
Cooper, ordered petitioner transferred from OCS to another command
within MCDEC (J.A. 10).  Two days later, another officer was named to
replace petitioner as the OCS representative on the ADB (ibid.).  On
August 13, petitioner met with Colonel Cooper and convinced him to
allow petitioner to remain at OCS;  the order concerning petitioner's
transfer was thereupon cancelled (ibid.).  Two days later, however,
petitioner suffered a severe leg fracture while parachuting, and
Colonel Cooper again ordered his transfer, effective September 28
(ibid.).

   On September 29, 1982, petitioner initiated a Complaint of Wrongs
under Article 138 against Colonel Cooper.  Petitioner's Complaint
described what he perceived to be a general attitude and morale
problem at OCS, which petitioner claimed was due, at least in part, to
the "illegal and immoral" conduct of Colonel Cooper.  Record of
Proceedings, Article 138 Complaint 41 (Art. 138 Rec.).  More
specifically, petitioner charged Colonel Cooper with using his
influence as a commanding officer to keep subordinates from providing
favorable character evidence for OCS Marines who were defendants at
courts-martial and administrative discharge proceedings (id. at
41-42).  Petitioner further alleged that officer members of ADBs had
been pressured to vote in accordance with Colonel Cooper's personal
wishes (ibid.).

   Petitioner indicated in his Complaint that the himself had never
succumbed to improper command pressure with respect to his votes on
the ADB.  He did claim, however, that he had been chastised by Colonel
Cooper's Executive Officer for voting to retain a particular OCS
Marine despite Colonel Cooper's recommendation that the Marine be
discharged (Art. 138 Rec. 42).  Petitioner further alleged that he had
been transferred from OCS, and in consequence removed as the OCS
representative on the ADB, in retaliation for the way he had voted
during his three-month tenure on the Board (id. at 42-43).

   Petitioner's Complaint was submitted to the Commanding General of
MCDEC, Colonel Cooper's immediate superior.  On October 6, 1982, the
Commanding General responded to petitioner, noting that his charges of
undue command influence did not appear to be a proper subject for an
Article 138 Complaint, but instead should be pursued by the
alternative method of "request mast" (Art. 138 Rec. 40).  /1/ He
further advised petitioner that the Complaint was not in the proper
format (ibid.).  As required by regulations (JAGMAN 1108e;  Reg. App.
7), however, the Commanding General also advised petitioner that
despite these defects he could have his Article 138 Complaint
forwarded if it was amended to contain, inter alia, a statement of the
specific relief desired (Art. 138 Rec. 40).

   On October 8, 1982, petitioner restated his grievances and
expressed his continuing desire to avail himself of the Article 138
process (Art. 138 Rec. 37-39).  His restatement of grievances was
substantially the same as his original Complaint, except for the
addition (id. at 39) of the following paragraph:

      7. The relief I desire in this matter is:  First, that this
      matter be investigated in accordance with (the JAGMAN);  second,
      that appropriate administrative action be taken to assure this
      situation does not occur in the future (see enclosed statement).

   In the statement enclosed with this resubmission, petitioner noted
that reassignment to OCS was "not a preferable (form of) relief" for
him because he believed his effectiveness there would be hindered as a
result of his perceived "lack of command loyalty" (id. at 44).

   In accordance with regulations (JAGMAN 1103(c), 1106(d);  Reg. App.
4, 6-7), Colonel Cooper received petitioner's revised Article 138
Complaint and filed a rebuttal to petitioner's charges (Art. 138 Rec.
29-34).  Colonel Cooper admitted making comments to his staff about
providing testimony at courts-martial and before ADBs.  He stated,
however, that these comments were part of wide-ranging staff
briefings, and he considered them to be only in the nature of
"professional guidance" to the junior officers under his command.  Id.
at 29-30.  Colonel Cooper denied ever having threatened anyone,
counseled anyone, or taken action against anyone in his command for
their participation in courts-martial or ADBs (id. at 30).  Colonel
Cooper further explained that petitioner had been transferred from OCS
because of general dissatisfaction with his performance (id. at
30-33).

   Attached to Colonel Cooper's rebuttal were statements from several
of his staff officers.  These statements disputed petitioner's
contention that there was a morale problem at OCS.  They also
supported Colonel Cooper's claim that petitioner's transfer from OCS
and consequent removal from the ADB were not the product of
petitioner's vote in any particular ADB proceeding.  Art. 138 Rec.
45-49.

   When the Commanding General received petitioner's revised Complaint
and Colonel Cooper's rebuttal, he concluded that the rebuttal added
"substantial comments and new factual matter" to the issues raised in
the Complaint.  As a result, on December 1, 1982, the Commanding
General referred Colonel Cooper's endorsement back to petitioner so
that he might provide material or comment in surrebuttal.  Art. 138
Rec. 27.  Because petitioner believed that the issues had been
complicated by Colonel Cooper's comments, he requested and received
assistance from a military lawyer in formulating his response (id. at
28).  /2/

   On January 14, 1983, petitioner provided his response, a
seven-page, point-by-point surrebuttal containing 29 attachments.  The
attachments included statements by other individuals supporting
petitioner's allegations of improper command influence and documents
offered to rebut allegations that petitioner's performance of duty at
OCS had been other than exemplary.  Art. 138 Rec. 20-26.  Petitioner
also amended his Complaint with a demand for additional relief:  "I
request from Colonel Cooper a formal, written apology for and a
retraction of all adverse matter affecting me" (id. at 26).

   2. The Commanding General directed Colonel Curtis G. Lawson to
conduct a "comprehensive preliminary inquiry and report into
(petitioner's) complaint" (Art. 138 Rec. 92-93).  On February 28,
1983, Colonel Lawson submitted a 22-page report, containing 26
attachments in addition to the 36 exhibits that were already part of
the file (id. at 95-116).  Among these attachments were statements
from 22 individuals, including expanded or explanatory statements from
many of the individuals who had earlier provided statements to
petitioner and Colonel Cooper (id. at 133-163, 179-181, 186-242).
Colonel Lawson's report contained specific findings of fact, with
citations to supporting evidence, and made recommendations concerning
three separate issues:  petitioner's transfer from OCS, his removal as
a voting member of the ADB, and his allegations about the exertion of
improper command influence by Colonel Cooper in ADB proceedings and
courts-martial.

   After reviewing and weighing the evidence, Colonel Lawson concluded
(1) that petitioner's transfer from OCS had not been improper but in
fact had been planned prior to petitioner's appointment to the ADB;
(2) that petitioner's removal from the ADB, although accomplished in
an administratively incorrect manner, was precipitated by his transfer
from OCS and was not in retaliation for his vote in any particular ADB
proceeding;  and (3) that, while the OCS command was highly sensitive
to adverse rulings in courts-martial and ADB proceedings, Colonel
Cooper had not exerted any "official or formal improper command
pressure." Art. 138 Rec. 99-103, 103-107, 107-116.  Colonel Lawson did
note, however, that some members of OCS had misconstrued the command's
sensitivity and felt themselves discouraged from providing favorable
character evidence on behalf of defendants in courts-martial and
administrative discharge proceedings (id. at 115-116).  Colonel Lawson
also observed that some members of ADBs believed that their votes were
subject to undue scrutiny from their superiors (ibid.).  Colonel
Lawson, therefore, recommended that steps be taken to eliminate these
perceptions (id. at 116).

   The Commanding General accepted Colonel Lawson's findings and
concluded that petitioner "has neither wrongfully suffered any
detriment, harm, or injury as a result of any improper action by
Colonel Cooper nor does he seek redress which is cognizable under the
provisions of (Article 138 and JAGMAN)" (Art. 138 Rec. 12).  The
Commanding General concluded that petitioner's transfer from OCS was
not improperly motivated, and that petitioner was removed from the ADB
simply because of his impending transfer from OCS, not because of his
vote in any particular case (id. at 13).  The Commanding General
specifically noted that, when the administrative irregularities
involved in petitioner's removal from the ADB were discovered, those
irregularities were corrected and petitioner was returned to duty on
the ADB.  In fact, petitioner continued to serve on the ADB even after
his transfer from OCS insofar as his medical condition permitted.
Ibid.

   In keeping with Colonel Lawson's recommendations, the Commanding
General also issued directives concerning the general operation of the
OCS command.  First, the Commanding General directed that "proper
administrative practices (be) followed with regard to the nomination,
appointment, and relief of members of administrative discharge boards"
(Art. 138 Rec. 14).  Second, the Commanding General directed Colonel
Cooper to "ensure that his subordinate leaders fully understand the
prohibition against improper interference with judicial and
administrative proceedings and * * * ensure that personnel who serve
on courts and boards are not improperly questioned with regard to the
performance of these duties.  In addition, members of the organization
will be advised that their participation in judicial or administrative
proceedings is not the subject of improper scrutiny" (ibid.).
Finally, the Commanding General adverted to a statement made by
Captain Becker, a witness in the Article 138 investigation, concerning
alleged discrimination by Colonel Cooper against women Marines at OCS.
 Although this claim formed no part of petitioner's Complaint of
Wrongs and, therefore, was not specifically investigated as part of
the Article 138 proceeding, the Commanding General ordered that this
allegation be brought to Colonel Cooper's attention, with the
direction that policies concerning women Marines at OCS be formalized
in accordance with regulations concerning the treatment of women in
the armed forces.  Id. at 14-15.

   On April 25, 1983, the Judge Advocate General of the Navy reviewed
the entire Article 138 proceeding in order to ensure substantial
compliance with Article 138 and applicable regulations (see JAGMAN
1113a.(1)(a);  Reg. App. 8).  The Judge Advocate General agreed with
the determinations made by the Commanding General and recommended that
no further action be taken on petitioner's Complaint (Art. 138 Rec.
8-9).  On May 17, 1983, the Secretary of the Navy concurred (J.A. 9).

   3. Meanwhile, in March, 1983, while his Article 138 Complaint was
still pending, petitioner was considered but not selected for
promotion to Major (J.A. 12).  Petitioner had previously been passed
over for promotion in April, 1982 (J.A. 9), three months before he was
appointed to serve on the ADB and five months before he filed his
Article 138 Complaint.  Since the March, 1983, decision marked the
second time that petitioner had been passed over for promotion to the
rank of Major, he was subject to mandatory discharge from the Marines
under the "up or out" rule set forth in 10 U.S.C. 632.

   Petitioner brought this suit in the United States District Court
for the District of Columbia on June 17, 1983 (J.A. 1).  The relief
sought included a temporary restraining order preventing his discharge
from the service and a declaration that his rights under Article 138,
the First and Fifth Amendments, the JAGMAN and the Navy Regulations
had been violated.  Petitioner also sought a declaration that he had
standing to use Article 138 to enforce the rights of third-party
members of the Naval Service;  a declaration that Colonel Lawson had
inadequately investigated Captain Becker's allegations of
discrimination against female OCS Marines;  a declaration that Colonel
Lawson's investigation into petitioner's Complaint and the record of
that investigation were in violation of Article 138, the JAGMAN and
other Navy Regulations;  and a writ of mandamus ordering a new
investigation into petitioner's Complaint, carried out by someone not
associated with MCDEC.  Petitioner also asked the district court to
order the Navy to rewrite its regulations governing the processing of
Article 138 Complaints so as to make military counsel available to
assist complainants.  Complaint 41-43 (June 17, 1983).

   Petitioner's district court pleadings also advanced several
employment-related claims that he had not raised in his Article 138
Complaint.  He alleged that two of his performance evaluations were
the result of bias and did not accurately reflect his conduct of his
duties.  He challenged his having been twice passed over for promotion
as attributable, in part, to those biased evaluations.  He challenged
his involuntary discharge from the Marine Corps, which, because of his
two passovers, was scheduled for no later than November 1, 1983.  And
he requested back pay stemming from his allegedly wrongful
nonselection for promotion.  Complaint 38-40, 41-42 (June 17, 1983).

   On June 25, 1983, with the court's approval, the parties agreed
(J.A. 2) to stay the proceedings in the district court while
petitioner pursued available remedies for his employment-related
claims with the Board for the Correction of Naval Records (BCNR).  The
focus of the BCNR's consideration was to be petitioner's allegations
involving his performance evaluations, his two passovers for
promotion, and his impending involuntary discharge that was predicated
upon those passovers.  Joint Stipulation 2.  The BCNR also undertook
to examine matters raised in petitioner's Article 138 Complaint to the
extent that such matters were relevant to petitioner's
employment-related claims (J.A. 19-20).

   On November 7, 1983, after considering petitioner's application for
relief, the 66 exhibits attached to it, testimony from petitioner and
others, and advisory opinions from several specialized offices within
the Marine Corps, the BCNR issued its opinion (J.A. 6-20).  The BCNR
declined to amend or to remove from petitioner's records the two
performance evaluations that he challenged, finding no reason to
conclude that those reports were not fair and accurate (J.A. 19).  The
BCNR further concluded that petitioner's two promotion passovers were
neither erroneous nor unjust, and specifically found to be groundless
petitioner's allegation that his second passover was in retaliation
for his Article 138 Complaint (J.A. 19-20).  The BCNR, therefore,
recommended no relief except that efforts be made to locate a 1980
performance evaluation that was found to be missing from petitioner's
file (J.A. 20).  On November 9, 1983, the Assistant Secretary of the
Navy for Manpower and Reserve Affairs approved the BCNR's decision
(ibid.).  /3/

   On November 10, 1983, petitioner filed an amended complaint in the
district court.  In order to preserve the district court's
jurisdiction over his backpay claim (see 28 U.S.C. 1346(a)(2)),
petitioner amended that claim to waive all monetary relief in excess
of $9,999.99.  Amended Complaint 50-51 (Nov. 10, 1983).  In all other
respects, the prayers for relief in the two complaints were the same.

   4. On December 6, 1983, the district court granted judgment for
respondents (Pet. App. A2-A8).  First, with respect to the Article 138
claim, the court held petitioner's First and Fifth Amendment
objections to be insubstantial, concluding "that the processing of
(his) Article 138 complaint comport(ed) with constitutional
requirements" (id. at A6).  The court determined that "(t)he
investigation, report of findings, and remedial action satisf(ied) the
minimum standards of procedural due process," and that petitioner's
"allegations of (F)irst (A)mendment violations similarly do not
warrant relief" (ibid.).  The court concluded, however, that it
"(could) not reexamine the substance of the Article 138 decision," by
which the court appeared to mean the evaluation of evidence, factual
findings, and remedial recommendations made by the various officers
who reviewed petitioner's Article 138 file (id. at A5).  The court
pointed out that "Article 138 is an internal, military mechanism for
handling complaints" and concluded that "judicial deference in matters
of internal military management" compelled the conclusion that it
"lack(ed) jurisdiction to review the merits of (petitioner's) Article
138 claim" (id. at A5, A4).

   Turning to the BCNR's decision concerning petitioner's
employment-related claims, the district court undertook review of that
decision and held that the BCNR's conclusions were neither arbitrary,
capricious, nor lacking a basis in substantial evidence (Pet. App.
A7).  The court stated that the BCNR had "carefully addressed
(petitioner's) complaints both as to the accuracy of his fitness
reports and as to the correctness and fairness of his failures of
selection for promotion" (ibid.).  The court recited the BCNR's
findings that petitioner's "record before both promotion selection
boards was substantially complete," that there was no indication that
the 1983 Selection Board was even aware of petitioner's Article 138
Complaint, and that petitioner's record was not "so good that his
failure to be promoted must have been on improper considerations"
(ibid. (emphasis added)).  The court determined that "these findings
(were) reasonable and supported by substantial evidence" (ibid.).

   5. Petitioner filed a notice of appeal to the Court of Appeals for
the District of Columbia Circuit.  On May 31, 1985, the court of
appeals concluded that, because the case involved a back-pay claim and
hence was based in part upon the Tucker Act, 28 U.S.C. 1346(a)(2), the
appeal was required to be heard in the Court of Appeals for the
Federal Circuit.  Pet. App. A9-A18 (citing 28 U.S.C. 1295(a)(2)).  The
appeal was accordingly transferred to that court pursuant to 28 U.S.C.
1631.

   On January 23, 1986, in a per curiam judgment order, the Federal
Circuit affirmed the district court's decision "on the basis of that
court's December 6, 1983 opinion" (Pet. App. A1).  A request for
rehearing, with suggestion for rehearing en banc, was denied on April
1, 1986.

                          SUMMARY OF ARGUMENT

                                  I.

   There is no justiciable controversy between petitioner and
respondents at this stage of the litigation.  In his brief, petitioner
has marshalled his every grievance against the military without regard
to considerations of standing or mootness or relevance to the question
upon which the Court granted certiorari.  But neither singly nor
together do these various complaints add up to anything susceptible to
this Court's review.

   Petitioner's allegations can be grouped into four general
categories:  (1) that he was given biased performance evaluations and
wrongly passed over for promotion;  (2) that his First and Fifth
Amendment rights were violated during the investigation of his Article
138 Complaint;  (3) that his transfer out of OCS and removal from the
ADB were improper;  and (4) that third parties at OCS, including
pregnant female Marines and defendants at courts-martial and ADB
proceedings, have had their rights violated.

   No justiciable controversy is to be found in any of these
categories.  (1) Petitioner's employment-related claims were rejected
by the BCNR, whose decision was reviewed and affirmed by both the
district court and the court of appeals.  Petitioner did not seek
certiorari on that issue, and the judgment against him on those claims
is therefore final.  (2) Petitioner's constitutional allegations were
also considered on the merits by the district court and rejected.
Petitioner has advanced no argument to suggest that the decision of
the district court, as affirmed by the court of appeals, was
erroneous.  (3) Given petitioner's disability retirement from the
Marine Corps, his claims that he was wrongly transferred out of OCS
and improperly removed from the ADB are now moot.  (4) Petitioner is
not a pregnant female Marine and he was never a defendant at either a
court-martial or an ADB proceeding.  His attempt to redress injuries
allegedly suffered by such third parties fails for lack of standing.

                                 II.

   The questions posed by petitioner in his petition and in his brief
are not presented in this case.  Petitioner's constitutional claims
were reviewed on the merits and rejected by the district court.  His
claims for equitable relief, to the extent that they related to those
constitutional claims or to his challenge to the decision of the BCNR,
were also reviewed and rejected.  Thus, the district court did not
hold, and we do not contend, that military personnel are "barred from
all redress in civilian courts for constitutional wrongs" (Pet. i) or
that military personnel should be categorically "denied judicial
review when seeking only equitable relief for Constitutional,
statutory, or regulatory violations committed by their superior
officers" (Br. i).

   The question presented by this case, assuming petitioner has
standing to raise it, is whether federal courts should review Article
138 grievance proceedings.  We contend that such review is both
inappropriate and unnecessary.  Article 138 was designed by Congress
as an internal mechanism for the correction of military grievances.
The military has established numerous regulations to make this remedy
broadly available to servicemen without compromising the command
structure and the demands of discipline.  Courts are ill-equipped to
review either those regulations or the merits of the myriad grievances
that a serviceman can raise in an Article 138 Complaint.  Congress has
not authorized such review, and the settled reluctance of courts to
intervene in the internal management of the military counsels against
it.

   Furthermore, such review is unnecessary.  After exhausting his
military remedies, an aggrieved serviceman has various avenues
available to him by which judicial review of military decisions can be
and frequently is obtained.  To the extent that the underlying
substance of an Article 138 Complaint of Wrongs presents a judicially
cognizable controversy, that controversy can be presented to the
courts through one of these avenues explicitly designed by Congress or
mandated by the Constitution.  But in such cases, review is the the
underlying controversy, not of the military's internal grievance
process.  Thus, all of a serviceman's constitutional, statutory, and
regulatory rights, to the extent they are cognizable in federal court,
can be protected without involving the courts at all in Article 138
proceedings.

                               ARGUMENT

   I. THERE IS NO JUSTICIABLE CONTROVERSY BETWEEN PETITIONER AND
RESPONDENTS AT THIS STATE OF THE LITIGATION

   Article III of the Constitution confines federal courts to the
adjudication of actual "cases" and "controversies." The principal
component of this restriction is the requirement that the party
invoking the court's jurisdiction have "standing" to maintain his
suit.  Allen v. Wright, 468 U.S. 737, 750 (1984).  Standing itself is
a complex notion, embracing both prudential and constitutional
considerations.  See Valley Forge Christian College v. Americans
United, 454 U.S. 464, 474-475 (1982).  But it is well settled that, at
an "irreducible minimum" (id. at 472), the plaintiff must "allege
personal injury fairly traceable to the defendant's allegedly unlawful
conduct and likely to be redressed by the requested relief." Allen v.
Wright, 468 U.S. at 751.  See also Gladstone, Realtors v. Village of
Bellwood, 441 U.S. 91, 99 (1979);  Simon v. Eastern Kentucky Welfare
Rights Org., 426 U.S. 26, 38, 41 (1976).  Furthermore, this
"irreducible minimum" must exist at all stages of the litigation.  If
at any time there ceases to be a live controversy between the parties,
the case is moot.  Iron Arrow Honor Society v. Heckler, 464 U.S. 67,
70 (1983) (per curiam);  DeFunis v. Odegaard, 416 U.S. 312, 316 (1974)
(per curiam).

   This Court has stated that the typical standing inquiry "requires
careful judicial examination of a complaint's allegations to ascertain
whether the particular plaintiff is entitled to an adjudication of the
particular claims asserted." Allen v. Wright, 468 U.S. at 752.  That
inquiry is complicated in the instant case by the fact that petitioner
brought two separate causes of action in district court, one seeking
review of the BCNR decision and the other seeking review of his
Article 138 Complaint.  In seeking judicial review of the Article 138
proceeding, moreover, petitioner advanced both constitutional and
nonconstitutional claims, and he sought relief both on his own behalf
and on behalf of anonymous third parties.

   Petitioner (e.g., Br. 36-37) indiscriminately intermixes those
various claims, altogether heedless of their relevance to the question
on which he sought certiorari and of his own standing either to have
raised them initially or to pursue them now.  It is necessary,
therefore, as a preliminary matter to separate out the various strands
of petitioner's district court complaint, ascertain which of his
claims are fairly encompassed by his petition for certiorari, and
determine whether any of those claims presents a live controversy that
petitioner has standing to pursue.  Once the dust clears, we believe
it apparent that in its present posture petitioner's lawsuit is not
justiciable.

   A. Petitioner's Employment-Related Claims Were Reviewed And
Rejected By The Courts Below, And Petitioner Has Not Sought Certiorari
On That Question

   Petitioner claims to have suffered employment-related injuries
traceable to respondents.  First, he contends (Br. 4, 6, 36, 37-38)
that, as a result of his complaints about sex discrimination against
female OCS Marines, he was given biased and inaccurate performance
evaluations by Colonel Cooper which led to his being twice passed over
for promotion.  /4/ Second, petitioner argues (Br. 3, 22, 37) that the
Selection Board considering promotions to Major retaliated against him
for his Article 138 Complaint by improperly denying him a promotion.
/5/

   Neither of these employment-related claims is properly before this
Court.  All of petitioner's allegations concerning his service record
-- including his fitness reports and promotion passovers -- were
considered and rejected by the BCNR.  The BCNR found "no basis for
removal of either of the two contested fitness reports" and hence
found "nothing objectionable in the fact that one or both of those
reports was in Petitioner's record before the 1982 and 1983 promotion
boards" (J.A. 19).  The BCNR found that "Petitioner's record before
both boards was substantially complete" and that neither of his
failures of selection for promotion "was erroneous or unjust" (ibid.).
 And the BCNR expressly rejected petitioner's contention that he has
been passed over in retaliation for his Article 138 Complaint (J.A.
19-20).  The BCNR's decision was reviewed at petitioner's request by
the district court and was affirmed "as supported by substantial
evidence" (Pet. App. A7).  That determination was in turn affirmed by
the court of appeals (id. at A1).  Petitioner did not seek certiorari
on this question, nor would such fact-bound contentions have merited
this Court's attention.

   Petitioner's request for review by this Court (see Pet. i, 6) was
restricted to the question "whether a district court has the
jurisdiction to review an Article 138 proceeding." Petitioner's
wide-ranging allegations concerning retaliation and promotion denial
were not part of his Article 138 Complaint and have nothing to do with
either the substance or the processing of that Complaint.
Petitioner's employment-related claims therefore are not before this
Court, and those claims must be ignored in determining whether
petitioner's lawsuit in its present posture presents a justiciable
controversy.

   B. Insofar As Petitioner Raised Constitutional Objections To The
Manner In Which His Article 138 Complaint Was Handled, His Arguments
Were Considered and Rejected By The Courts Below, And Petitioner Has
Not Challenged The Merits Of Those Constitutional Holdings

   Petitioner alleges two species of constitutional injury connected
with his Article 138 Complaint.  He asserts that "the Article 138
Complaint investigation violated the Due Process Clause of the Fifth
Amendment" (Br. 36).  And he asserts that "his First Amendment right
to free expression was chilled by Colonel Cooper's biased fitness
reports and by the command influence exerted by Colonel Cooper"
(ibid.).  His First Amendment claims also appear to encompass the
promotion board's supposed retaliation "against those who made
official complaints" (Br. 37).  Once again, of course, petitioner is
intermixing the substance of his Article 138 Complaint with
employment-related claims which formed no part of that Complaint and
which, as we have shown above, are not properly before this Court.
More fundamentally, however, petitioner proceeds from the erroneous
premise that the district court refused to consider his constitutional
claims, and states that the question presented (Pet. i) is "(w)hether
citizens should be barred from all redress in civilian courts for
constitutional wrongs suffered in the course of military service."

   This case does not present that question.  Although the district
court "conclude(d) that it (could) not reexamine the substance of the
Article 138 decision" (Pet. App. A5), the district court did consider,
and reject, petitioner's First and Fifth Amendment objections to the
manner in which the Article 138 investigation was conducted.  The
court specifically held "that the processing of (petitioner's) Article
138 complaint comports with constitutional requirements" (Pet. App.
A6).  It concluded that "(t)he investigation, report of findings, and
remedial action satisfy the minimum standards of procedural due
process" (ibid.).  And it concluded that petitioner's "allegations of
(F)irst (A)mendment violations similarly do not warrant relief"
(ibid.).  Because the district court did in fact consider the alleged
constitutional defects in the Article 138 proceeding, this case does
not present the question whether military personnel "should be barred
from all redress in civilian courts for constitutional wrongs" (Pet.
i).  And because this case, therefore, provides no occasion for the
Court to consider the terms on which judicial review of a serviceman's
constitutional claims might be permitted, petitioner's extended
discussion of that issue (Br. 35-43) is beside the point.

   Petitioner, moreover, has advanced no argument that would tend to
show that the district court's rejection of his constitutional claims
was erroneous.  Petitioner nowhere specifies the procedural defects
that allegedly tainted the investigation of his Article 138 Complaint,
much less contends that the defects, if any, were such as to violate
the Due Process Clause.  In fact, a review of the procedural steps
comprising the investigation (see pages 5-10, supra) shows that it was
conducted both thoroughly and fairly.  Nor does petitioner offer any
argument to suggest that the district court erred in rejecting his
First Amendment contentions.  Indeed, those contentions are largely
based on allegations about fitness report bias and promotion board
retaliation that the BCNR and the district court found to be factually
unsupportable.  In short, petitioner has said nothing to support
reversal of the judgment below on the merits of the constitutional
issues.

   C. Insofar As Petitioner's Article 138 Complaint Advanced
Generalized Grievances And Addressed Wrongs Allegedly Suffered By
Third Parties, Petitioner Lacks Standing To Pursue His Claims In
Federal Court, And His Request For Judicial Review Of Those Claims Was
Properly Dismissed

   In his original Article 138 Complaint, petitioner alleged that
there existed poor morale at OCS and improper command influence over
courts-martial and administrative discharge proceedings.  His
Complaint requested that these matters be investigated and that
"appropriate administrative action be taken to assure this situation
does not occur in the future" (Art. 138 Rec. 39).  Petitioner
reiterates his allegations about improper command influence here (Br.
3, 5-6, 10-12, 16-17, 25, 36-38), supplementing them with allegations
about sex discrimination against pregnant female Marines (Br. 6, 45).
/6/

   Petitioner has not alleged that he was a pregnant female Marine.
Nor has he alleged that he was ever a defendant at a court martial or
ADB proceeding, such that he could have been personally aggrieved by
any reluctance of other individuals to vote or testify in accordance
with their consciences.  Petitioner nevertheless asserts (Br. 44-45)
that he has standing "to submit a complaint on behalf of pregnant
Marines, of oppressed members of Administrative Discharge Boards, and
of any persons dissuaded from testifying on behalf of another due to
command influence exercised by Colonel Cooper." Petitioner also
asserts a generalized interest in seeing Article 138 and its
accompanying regulations complied with -- to ensure, "in other words,
that Respondents obey the law" (Br. 38;  see id. at 43).

   Petitioner plainly lacks standing to advance these claims in
federal court.  As noted above, in order to have standing a litigant
must "allege personal injury fairly traceable to the defendant's
unlawful and likely to be redressed by the requested relief." Allen v.
Wright, 468 U.S. at 751.  It is well established that a person cannot
establish standing by piggybacking on harms allegedly suffered by
absent third parties.  Warth v. Seldin, 422 U.S. 490, 502 (1975);
Sierra Club v. Morton, 405 U.S. 727, 733-734 (1972).  In seeking to
vindicate the rights of women Marines and court-martial defendants,
petitioner advances concerns in which he "has an interest but no
direct stake." Diamond v. Charles, No. 84-1379 (Apr. 30, 1986), slip
op. 11.  Such an "abstract concern * * * does not substitute for the
concrete injury required by Art. III." Id. at 11-12 (quoting Simon v.
Eastern Kentucky Welfare Rights Org., 426 U.S. at 40).  The power to
seek judicial review "is not to be placed in the hands of 'concerned
bystanders,' who will use it simply as a 'vehicle for the vindication
of value interests.'" Diamond v. Charles, slip op. 7 (quoting United
States v. SCRAP, 412 U.S. 669, 687 (1973)).  /7/

   Nor does petitioner's abstract interest in ensuring compliance with
Article 138 and its accompanying regulations afford him standing.
"(A)n asserted right to have the Government act in accordance with law
is not sufficient, standing alone, to confer jurisdiction on a federal
court." Allen v. Wright, 468 U.S. at 754.  Petitioner must have a
concrete interest stemming from a "distinct and palpable" injury.
Gladstone, Realtors v. Village of Bellwood, 441 U.S. at 100.  As a
Marine asserting generalized grievances about the Marine Corps,
petitioner has no more of an individual stake in the outcome than a
person seeking to complain of governmental misconduct based solely on
his status as a citizen.  "This Court has repeatedly rejected claims
of standing predicated on 'the right, possessed by every citizen, to
require that the Government be administered according to law.'" Valley
Forge Christian College v. Americans United, 454 U.S. at 482-483
(quoting Fairchild v. Hughes, 258 U.S. 126, 129 (1922)).  Legal
questions must be resolved, "not in the rarified atmosphere of a
debating society, but in a concrete factual context conducive to a
realistic appreciation of the consequences of judicial action." Valley
Forge Christian College v. Americans United, 454 U.S. at 472.  /8/

   D. Insofar As Petitioner's Article 138 Complaint Alleged Injury
Personal To Himself, His Claims Are Now Moot Or Are Otherwise
Nonjusticiable

   In his Article 138 Complaint, petitioner might be thought to have
advanced two claims of concrete injury that were personal to himself
and accordingly could provide him with standing to challenge the
investigation of that Complaint.  Petitioner contended (Art. 138 Rec.
38-39) both that he was transferred from OCS to another MCDEC unit,
and that he was subsequently removed from the ADB, as a direct result
of Colonel Cooper's dissatisfaction with his voting record on the
Board.  Both of these contentions were examined and rejected during
the Article 138 investigation, and, as we explain below, we believe
that the district court properly declined to undertake judicial review
of these aspects of petitioner's complaint.  There is, however, no
need for this Court to consider the correctness of the district
court's declination of such jurisdiction, since both of petitioner's
claims of injury are now moot.

   Petitioner originally cited his transfer from OCS merely as an
example of what he considered to be improper command influence.  He
specifically noted in his Article 138 Complaint that he was not
seeking reassignment to OCS because he believed that he would no
longer be effective in that post (Art. 138 Rec. 44).  Even if
petitioner had requested reassignment to OCS, however, that request
would now be moot due to petitioner's disability retirement from the
Marine Corps.  Reassignment to OCS is not a possible form of relief;
nor is there any other form of relief that petitioner has requested or
that a court could grant to redress this alleged wrong.  Thus,
petitioner's allegedly improper transfer from OCS does not present a
live controversy.

   Petitioner's claim that he was improperly removed from the
Administrative Discharge Board is likewise moot.  During the Article
138 investigation, it was determined that petitioner's removal from
the Board, even though not improperly motivated, had been accomplished
in an administratively incorrect manner.  Art. 138 Rec. 106-107.
Petitioner was thereupon reinstated as a voting member of the ADB,
notwithstanding his transfer from OCS.  Petitioner in fact continued
to participate in ADB proceedings as his schedule and medical
condition permitted, until the term of the Board to which he had been
appointed expired on December 31, 1982.  Since petitioner has already
received the relief he requested on this score, and since his
retirement renders further relief along these lines impossible, this
claim of injury also fails to present a live controversy.

   In a subsequent endorsement to his Article 138 Complaint,
petitioner did allege a third species of "injury" personal to himself,
but not of a kind cognizable in federal court.  In the course of the
Article 138 proceedings, Colonel Cooper responded to petitioner's
Complaint of Wrongs with comments that petitioner considered
unfavorable to himself and incorrect.  Petitioner thereupon amended
his Complaint to include a rebuttal to that material and a demand that
Colonel Cooper make "a formal, written apology for and a retraction of
all adverse matter affecting me." Art. 138 Rec. 26.  Neither this
alleged affront, however, nor petitioner's umbrage and demand for
satisfaction, create a justiciable controversy.

   Petitioner's service record was totally unaffected by Colonel
Cooper's comments since the Article 138 proceeding is self-contained
and forms no part of the complainant's service record (see note 15,
infra).  No personnel action was taken with respect to petitioner on
the basis of those comments.  /9/ Colonel Cooper's comments,
therefore, caused no "concrete injury" to petitioner.  Schlesinger v.
Reservists to Stop the War, 418 U.S. 208, 220-221 (1974).  The harm to
petitioner, if any, is necessarily abstract, since the only
conceivable remaining redress would be a belated apology from Colonel
Cooper.  The federal courts do not exist to serve as seconds in such
affairs of honor.  "The power to declare the rights of individuals and
to measure the authority of governments, this Court said 90 years ago,
'is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy.'" Valley Forge
Christian College v. Americans United, 454 U.S. at 471 (citation
omitted).

   In sum, all the various claims that petitioner has indiscriminately
thrown into the hopper of his brief, whether considered separately or
together, fail to create a justiciable controversy.  His
employment-related claims have already been decided against him both
in the military and in the courts.  He did not seek certiorari on that
issue, and the judgment against him on those claims is therefore
final.  Petitioner's constitutional allegations were likewise rejected
below, and he has advanced no argument to suggest that the decision of
the district court, as affirmed by the court of appeals, was erroneous
in that respect.  To the extent that petitioner has claimed injury
personal to himself, his claims are either moot or otherwise
nonjusticiable.  To the extent that he is seeking to redress injuries
allegedly suffered by third parties, he has no standing to do so.  And
to the extent that petitioner might be thought to raise miscellaneous
procedural or constitutional objections, not considered by the courts
below, to the manner in which the Article 138 investigation was
conducted, those objections must also fail on grounds of mootness or
lack of standing.  /10/

   II. ARTICLE 138 WAS DESIGNED BY CONGRESS AS AN INTERNAL MECHANISM
FOR THE CORRECTION OF MILITARY GRIEVANCES, AND JUDICIAL REVIEW OF
ARTICLE 138 PROCEEDINGS IS THEREFORE INAPPROPRIATE

   If, contrary to our primary submission, the Court determines that
this case in its present posture does involve a justiciable
controversy, then the question before this Court is whether federal
courts should undertake routine judicial review of the substance of
Article 138 grievance proceedings.  As we have already intimated
(pages 22-24, supra), the contours of that question are not nearly as
broad as petitioner suggests.  Because the district court did review
petitioner's constitutional claims, the question presented is not, as
he says in his petition, whether military personnel "should be barred
from all redress in civilian courts for constitutional wrongs" (Pet.
i).  Nor is the reformulation of the issue set forth in petitioner's
brief -- "(w)hether military personnel should be denied judicial
review when seeking only equitable relief for Constitutional,
statutory, or regulatory violations committed by their superior
officers" (Br. i) -- an apt rendering of the question before this
Court.  The district court did not suggest -- nor would we, in light
of this Court's settled precedents to the contrary (see pages 44-46,
infra), suggest -- that all avenues of equitable relief are closed to
members of the military.  Indeed, the district court did review the
employment-related claims that petitioner had presented to the BCNR,
and those claims, had they been meritorious, could well have yielded
petitioner some form of equitable relief.

   Rather, the question presented here is whether the district court
erred when it concluded "that it (could) not reexamine the substance
of the Article 138 decision" (Pet. App. A5 (emphasis added)).  That
conclusion, in our view, represents a determination that the federal
courts should not undertake plenary review of Article 138 grievance
proceedings to ascertain, for example, whether the investigation was
conducted in accordance with military regulations, whether the
credibility of various witnesses was properly evaluated, whether the
conclusions reached were supported by the evidence, and whether the
relief ordered, if any, was adequate to redress the grievance.  The
district court held, in other words, that the judiciary should not
undertake to review Article 138 proceedings qua Article 138
proceedings, as if they were proceedings of some civilian federal
agency.  That holding is correct.

   A. There Is No Presumption In Favor Of Judicial Review Of Military
Decisions

   Petitioner cites no statutory authorization for judicial review of
Article 138 grievance proceedings.  Rather, he relies (Br. 31) upon
the general presumption in favor of judicial review of final agency
actions.  See, e.g., Lindahl v. OPM, 470 U.S. 768, 778 (1985);  Abbott
Laboratories v. Gardner, 387 U.S. 136, 140-141 (1967).  Petitioner
concludes that since Congress has not expressly precluded judicial
review of Article 138 proceedings, such review follows as a matter of
course.  Petitioner, however, has the presumption backwards.  He
overlooks the settled reluctance of courts to intervene in internal
military affairs without an express mandate to do so.

   The Constitution gives Congress the power "(t)o raise and support
Armies," "(t)o provide and maintain a Navy," and "(t)o make Rules for
the Government and Regulation of the land and naval Forces." U.S.
Const. Art. I, Section 8, Cls. 12-14.  These powers are "broad and
sweeping" (United States v. O'Brien, 391 U.S. 367, 377 (1968)), and it
is well established that, in the regulation of the military, the role
of the courts is decidedly subordinate to that of Congress.
"(P)erhaps in no other area has the Court accorded Congress greater
deference.  * * * Not only is the scope of Congress' constitutional
power in this area broad, but the lack of competence on the part of
the courts is marked." Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981).

   Congress, in turn, has recognized that substantial discretion must
be afforded to the military in molding an effective fighting force.
Brown v. Glines, 444 U.S. 348, 360 (1980).  "To prepare for and
perform its vital role, the military must insist upon a respect for
duty and a discipline without counterpart in civilian life."
Schlesinger v. Councilman, 420 U.S. 738, 757 (1975).  For this reason,
"the military is, by necessity, a specialized society separate from
civilian society.  * * * (T)he military has, again by necessity,
developed laws and traditions of its own during its long history."
Parker v. Levy, 417 U.S. 733, 743 (1974).  These "laws and traditions
* * * are founded on unique military exigencies as powerful now as in
the past.  Their contemporary vitality repeatedly has been recognized
by Congress." Schlesinger v. Councilman, 420 U.S. at 757.

   Courts, therefore, have been especially reluctant to intervene in
any matter which "goes directly to the 'management' of the military
(and) calls into question basic choices about the discipline,
supervision, and control of a serviceman." United States v. Shearer,
473 U.S. 52, 58 (1985).  The "complex, subtle, and professional
decisions as to the composition, training, equipping and control of a
military force are essentially professional military judgments,
subject always to civilian control of the Legislative and Executive
Branches." Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (emphasis
omitted).  On such matters, it is not appropriate for a "civilian
court to second-guess military decisions." United States v. Shearer,
473 U.S. at 58.  Indeed, "it is difficult to conceive of an area of
governmental acitivity in which the courts have less competence."
Gilligan v. Morgan, 413 U.S. at 10.

   In view of these principles, it would be plainly inappropriate for
courts, when asked to pass upon military actions, to employ the same
presumption in favor of judicial review that applies to decisions of
civilian regulatory agencies.  /11/ The federal courts are neither
authorized nor equipped to oversee the military to that extent.  In
the military context, therefore, this Court has always looked for an
express mandate before exercising its jurisdiction in a way that might
interfere with the smooth functioning of the military.  See, e.g.,
Feres v. United States, 340 U.S. 135 (1950) (declining to apply the
Federal Tort Claims Act to suits by servicemen for service-related
injuries);  Orloff v. Willoughby, 345 U.S. 83 (1953) (declining to
review propriety of duty assignment);  Burns v. Wilson, 346 U.S. 137,
142, 144 (1953) (plurality opinion) (giving narrow interpretation to
scope of federal habeas corpus relief available to servicemen);
Gilligan v. Morgan, 413 U.S. at 10 (declining to assume jurisdiction
over training, weaponry and orders of National Guard);  Schlesinger v.
Councilman, 420 U.S. at 757-758 (limiting ability of servicemen to
obtain injunctive relief for alleged wrongs, including constitutional
violations);  Chappell v. Wallace, 462 U.S. 296 (1983) (refusing to
permit military personnel to maintain suit to recover damages from a
superior officer for alleged constitutional violations).

   It is against the background of these cases that petitioner's claim
must be judged.  It cannot be assumed, simply because Congress has
provided servicement with a statutory grievance procedure within the
military, that Congress thereby intended to grant the courts plenary
review powers over that grievance process.  "(C)ourts must be careful
not to 'circumscribe the authority of military commanders to an extent
never intended by Congress.'" Brown v. Glines, 444 U.S. at 360
(citation omitted).

   B. The Nature And Function Of The Article 138 Grievance Process
Counsel Against Routine Judicial Review

   The district court in this case observed that "(t)here is no
statutory authority for judicial review of Article 138 proceedings"
and that this Court's decisions reveal a "fundamental reluctance to
intrude on military decisionmaking, as a matter of judicial prudence
if not always judicial power" (Pet. App. A5, A6).  Noting the absence
of precedents to support such review, as well as the "well-established
principle() * * * of judicial deference in matters of internal
military management," the court correctly concluded "that it (could)
not reexamine the substance of the Article 138 decision" (Pet. App.
A5).

   Article 138 Complaints and similar avenues for the redress of a
serviceman's grievances against his superior officers have been an
integral part of the military's disciplinary structure for well over a
century.  /12/ The Article 138 process is a completely internal
mechanism, integrated into the military justice system, and designed
to allow the military chain of command to address and correct such
grievances.  By providing for investigation, review and redress by the
immediate superior of the officer at whom the complaint is directed,
Article 138 serves two functions.  First, it provides an institutional
avenue by which servicemen may complain about their immediate
superiors.  Second, it provides the chain of command with an
opportunity to resolve substantiated complaints at the lowest possible
level.  The latter is a practical necessity if the concepts of command
authority and command responsibility are to have meaning.

   Consistently with both these functions, internal regulations have
been promulgated to ensure that Article 138 is a broadly available
remedy, but not one without limits.  The regulations in effect at the
time of petitioner's Article 138 Complaint, which have changed only
slightly since then, set limits on the scope of "wrongs" that are
cognizable in, as well as who may file and who may be the subject of,
a Complaint (JAGMAN 1104, 1105(a) and (b);  Reg. App. 5).  Regulations
also govern the form of the Complaint, the time limitations and
exhaustion requirements that attend the filing of Complaints, and
procedures for the withdrawal of, and precluding joinder in,
Complaints (JAGMAN 1106(a)-(f);  Reg. App. 6-7).  The procedures for
the processing, investigation and review of Complaints are likewise
specified in the regulations (JAGMAN 1105(d), 1108-1114;  Reg. App.
6-9).  All these regulations have evolved over time and represent the
considered judgment of the military as to the appropriate method to
respond to grievances without disrupting the chain of command and
undermining discipline.

   The courts are ill-suited to engage in a review of these procedural
regulations and their application in the context of particular Article
138 proceedings.  To permit this internal military mechanism to be
continually readjusted by civilian courts would involve those courts
in a disruptive foray into the established command structure of the
military.  It is for the military, not the courts, to determine,
compatibly with the need to maintain discipline and preserve the
command structure, how wide-ranging a particular investigation should
be;  whether the complainant should be entitled to hire outside
counsel, or merely consult with a JAG attorney;  whether the superior
officer at whom the complaint is directed should be permitted a
rebuttal, including statements gathered from members of his staff;
and other such procedural considerations, all of which petitioner
appears to have challenged in this case.  To involve the federal
courts in assessing the propriety of these procedures on an ad hoc
basis would wholly distort the Article 138 process and shatter the
informed balance struck by the military between the twin needs to
redress grievances and maintain the command structure.  As this Court
stated in Burns v. Wilson, 346 U.S. at 140 (footnote omitted):

      (T)he rights of men in the armed forces must perforce be
      conditioned to meet certain overriding demands of discipline and
      duty, and the civil courts are not the agencies which must
      determine the precise balance to be struck in this Adjustment.
      The Framers expressly entrusted that task to Congress.

   Courts are even less suited to judge the merits of the myriad
grievances likely to arise under Article 138.  A grievance may be
filed under Article 138 by any serviceman "who believes himself
wronged by his commanding officer" (10 U.S.C. 938).  The key term,
"wronged," is left undefined, but is clearly wideranging.  As one
commentator noted of a predecessor provision:  "In the absence of any
definition of this term * * *, the authorities have construed it as
referring mainly to such wrongs as result from mistake of fact,
misapprehension of law, or want of judgment on the part of the officer
in regard to some matter connected with the 'internal economy' * * *
of the command." W. Winthrop, Military Law and Precedents 600 (2d ed.
reprint 1920), quoted in Nemrow, Complaints of Wrong, supra, 2 Mil. L.
Rev. at 48.  Article 138 is, in short, a general housekeeping
provision and, given the distinctive characteristics of military life,
it could become a vehicle by which servicemen would seek to involve
the federal judiciary in the day-to-day administration of the Armed
Forces.

   As this Court explained in Parker v. Levy, 417 U.S. at 751, "the *
* * relationship of the Government to the members of the military * *
* is not only that of lawgiver to citizen * * *.  (U)nlike the
civilian situation, the Government is often employer, landlord,
provisioner, and lawgiver rolled into one." Such comprehensive
regimentation can give rise to complaints of unfairness covering every
aspect of military life.  Commanding officers are responsible for each
serviceman's housing conditions, working conditions, duty assignments,
training regimen, and discipline, as well as many other matters of
greater or lesser importance to the serviceman.  All such matters are
potential subjects of Article 138 Complaints and, therefore, potential
targets of judicial oversight.  The "wrongs" covered by Article 138
include, among other things (Nemrow, Complaints of Wrong, supra, 2
Mil. L. Rev. at 54):

      (I)mproper deprivation of pass or leave privileges;  denying,
      without sufficient cause, a married enlisted member of the
      command (the) privilege of living off the post and drawing
      separate rations;  denying a noncommissioned officer, without
      sufficient cause, the privilege of occupying an available
      private squad room, or utilizing a separate noncommissioned
      officers' mess;  imposing duties upon a noncommissioned officer
      which tend to degrade the rank;  utilizing a non-commissioned
      officer for menial tasks, which could be performed by available
      subordinates;  utilization, without proper authority, of
      subordinates on personal matters, such as cook, chauffeur,
      valet, gardener, and the like;  requiring subordinates to
      purchase from personal funds articles of clothing, uniform, or
      equipment which are authorized but not required by regulations
      or custom;  requiring subordinates to obtain permission to
      purchase or own (a) motor vehicle;  failure to adhere to known
      command policies with respect to pretrial or post trial
      confinement;  failure to consider, without justification, a
      subordinate for promotion although he is eligible and (a)
      vacancy exists;  improper efficiency ratings;  (and) imposition
      of punishment in guise of additional training.

   As the above list of examples shows, Article 138 Complaints range
too widely to admit of routine judicial review.  Congress could not
have intended, simply by providing an internal mechanism for the
correction of such grievances, to authorize judicial oversight of all
these aspects of military life.  Nor are courts well qualified to
oversee such matters, which will frequently involve military judgments
that judges are ill-equipped to evaluate.  As already noted, "it is
difficult to conceive of an area of governmental activity in which the
courts have less competence." Gilligan v. Morgan, 413 U.S. at 10.

   The extraordinary demands that military life, in all its aspects,
places on servicemen, will inevitably give rise to tensions not found
in civilian contexts.  See Orloff v. Willoughby, 345 U.S. at 94
("Discrimination is unavoidable in the Army.  Some must be assigned to
dangerous missions;  others find soft spots.").  Moreover, commanding
officers, who are responsible for insisting on military discipline,
must often deal with servicemen who are unfamiliar with "the
longstanding customs and usages of the services" (Parker v. Levy, 417
U.S. at 746-747) and with the "laws and traditions governing
(military) discipline" (Schlesinger v. Councilman, 420 U.S. at 757).
The military must "ingrain * * * reflexes" (Department of the Air
Force v. Rose, 425 U.S. 352, 368 (1976));  the habit of automatic
obedience that will lead a serviceman to risk his life in combat
cannot be taught through the ordinary methods of civilian education.

   For all these reasons, servicemen will sometimes be required to
follow procedures and to adopt routines that may strike a civilian as
arbitrary but that are, in the judgment of military officials,
important in instilling the habits that create an effective fighting
force.  The federal district courts are simply not qualified to judge
the propriety of such procedures and routines.  Commanding officers,
furthermore, should not "have to stand prepared to convince a civilian
court of the wisdom of a wide range of military and disciplinary
decisions," such as "whether and how to place restraints on a
soldier's off-base conduct." United States v. Shearer, 473 U.S. at 58.
 Yet just such an uncalled-for intrusion into military life would
follow if Article 138 Complaints were routinely reviewable.  "It is
not difficult to see that the exercise of such jurisdiction as is here
urged would be a disruptive force as to affairs peculiarly within the
jurisdiction of the military authorities." Orloff v. Willoughby, 345
U.S. at 94-95.

   In short, the potentially wide-ranging nature of Article 138
Complaints and the special nature of military training make Article
138 proceedings a particularly inappropriate candidate for judicial
review.  Such review would inevitably involve the federal judiciary in
the daily micro-management of the military.  Congress has not
authorized such involvement, and courts should not be quick to assume
it.  This Court recently rejected arguments for plenary review of
certain intramilitary disputes on the ground that such review would
inevitably "tamper with the established relationship between enlisted
military personnel and their superior officers," a relationship "at
the heart of the necessarily unique structure of the Military
Establishment." Chappell v. Wallace, 462 U.S. at 300.  And, as the
Court wrote on an earlier occasion (Orloff v. Willoughby, 345 U.S. at
93-94):

      (J)udges are not given the task of running the Army.  The
      responsibility for setting up channels through which such
      grievances can be considered and fairly settled rests upon the
      Congress and upon the President of the United States and his
      subordinates.

   Citing these considerations, the few courts that have expressly
considered the question have anticipated the courts below in
concluding that routine judicial review of Article 138 proceedings
would be inappropriate.  In Cortright v. Resor, 447 F.2d 245 (2d Cir.
1971), cert. denied, 405 U.S. 965 (1972), Judge Friendly noted that
Congress has established "in Art. 138 of the Uniform Code of Military
Justice" a procedure for considering and fairly resolving military
grievances, and he concluded that a federal court "do(es) not sit as a
super-Judge Advocate General to review determinations made under that
Article" (447 F.2d at 253).  At least one district court has reached
the same conclusion.  See Moore v. Schlesinger, 384 F.Supp. 163, 166
(D. Colo. 1974).  To our knowledge, no court has ever accepted
petitioner's argument that the federal courts should undertake plenary
review of a completed Article 138 investigation.  /13/

   C. There Are Ample Alternative Means By Which A Serviceman Injured
By Official Action May Seek Judicial Redress

   "The special status of the military has required, the Constitution
has contemplated, Congress has created, and this Court has long
recognized two systems of justice, to some extent parallel:  one for
civilians and one for military personnel." Chappell v. Wallace, 462
U.S. at 303-304.  These largely parallel systems do, however, converge
at a number of points.  After exhausting his military remedies, an
aggrieved serviceman has various avenues available to him, both from
within the UCMJ and via record corrections boards, by which judicial
review of military decisions can be and frequently is obtained.
Furthermore, a serviceman with constitutional claims may in certain
circumstances bring those claims directly to federal court.  Given the
availability of these options, judicial review of Article 138
grievance proceedings for substantive and procedural defects is not
only unwise and unjustified, it is altogether unnecessary to preserve
the rights of military personnel.

   The most obvious point of convergence between the systems of
military and civilian justice occurs in the case of courts-martial and
administrative discharge proceedings.  Each is governed by its own set
of regulations providing procedural protections for the defendant,
including a right to government-appointed counsel, and numerous layers
of review within the military.  Thus, a Marine may challenge an ADB
decision before both the Navy Discharge Review Board (10 U.S.C. 1553)
and the BCNR (10 U.S.C. (& Supp. III) 1552).  Convictions of
courts-martial may be directly appealed through several layers
culminating in the Court of Military Appeals (10 U.S.C. 864-869).
Once he has exhausted these intramilitary remedies, moreover, an
aggrieved serviceman may seek redress in the civilian courts, whether
by requesting review of an adverse BCNR decision (Chappell v. Wallace,
462 U.S. at 303) or, in the case of courts-martial, by petitioning for
a writ of certiorari (10 U.S.C. (Supp. III) 867(h)) or seeking a writ
of habeas corpus (Burns v. Wilson, 346 U.S. 137 (1953)).  Thus, a
defendant at a court-martial or ADB proceeding who was prejudiced by
the sort of improper command influence alleged in petitioner's Article
138 Complaint could challenge the proceedings in federal court if he
did not receive the redress to which he was entitled within the
military.

   Second, the Board for the Correction of Naval Records, which is
composed of civilians appointed by the Secretary of the Navy,
constitutes a broad avenue by which servicemen may obtain federal
court review of a variety of claims pertaining to their service
records.  Congress has vested the Secretary of the Navy, acting
through the Board, with plenary power to "correct any military record
* * * when he considers it necessary to correct an error or remove an
injustice" (10 U.S.C. 1552(a)).  Under the Board's procedures, an
aggrieved serviceman may request a hearing;  if his claims are denied
without a hearing the Board is required to provide a statement of its
reasons.  32 C.F.R. 723.3(e)(2), (4) and (5), 723.4, 723.5.  In
appropriate cases the Board may issue orders leading to a retroactive
promotion or an award of back pay (10 U.S.C. 1552(c)).  Most
significantly, as this Court recently noted, "Board decisions are
subject to judicial review and can be set aside if they are arbitrary,
capricious, or not based on substantial evidence." Chappell v.
Wallace, 462 U.S. at 303.  Indeed, the district court in the instant
case did in fact review the various employment-related claims that
petitioner presented to the BCNR, although the court, like the BCNR,
found those claims to be without merit.

   Third, as recently emphasized in Chappell v. Wallace, 462 U.S. at
304, "This Court has never held, nor do we now hold, that military
personnel are barred from all redress in civilian courts for
constitutional wrongs suffered in the course of military service." In
appropriate circumstances, therefore, this Court has permitted
servicemen to challenge the constitutionality of prescribed military
procedures directly, rather than indirectly by means of an attack upon
a court-martial or BCNR decision.  See, e.g., Goldman v. Weinberger,
No. 84-1097 (Mar. 25, 1986) (First Amendment challenge to Air Force
regulation prohibiting servicemen from wearing headgear indoors while
on duty);  Brown v. Glines, supra (First Amendment challenge to Air
Force regulation authorizing base commanders to regulate circulation
of petitions);  Parker v. Levy, supra (attack on provisions of Uniform
Code of Military Justice as unconstitutionally vague);  Frontiero v.
Richardson, 411 U.S. 677 (1973) (equal protection challenge to benefit
plans for military women).  In view of the unique demands of military
society, this Court has recognized that the circumstances in which
servicemen should be permitted to raise such constitutional challenges
ought to be narrowly defined.  See, e.g., Chappell v. Wallace, supra
(holding that a serviceman may not bring a Bivens action seeking
damages for alleged constitutional wrongs).  But judicial review of
constitutional claims remains available in a proper case.  /14/

   For these reasons, the Court would by no means be closing the
courthouse door to members of the military by declining to make
Article 138 proceedings routinely reviewable.  Because the avenues to
judicial relief discussed above are wholly sufficient to the redress
of all military claims appropriately heard in federal court, there is
no need for the courts to involve themselves at all in the military's
internal grievance process.  It is entirely possible, of course, that
a claim qualifying for judicial review under one of the avenues
discussed above might also be touched upon, directly or indirectly,
during an Article 138 investigation.  In such circumstances, however,
the serviceman must seek review of the underlying claim, not of the
Article 138 process by which the military investigated that complaint
internally.  A serviceman's underlying claim, in other words, is
either judicially cognizable or it is not.  If it is not judicially
cognizable under the standards set forth by this Court, the claim
becomes no more susceptible to judicial review simply because it
happens to have been the subject of an Article 138 investigation.
/15/

   This Court has already recognized that Article 138 establishes an
internal military grievance process distinct from the various avenues
to judicial review discussed above.  In Secretary of the Navy v. Huff,
444 U.S. 453 (1980) (per curiam), servicemen sought to have certain
military regulations declared facially invalid as constituting an
illegal interference with a serviceman's statutory right to
communicate with members of Congress under 10 U.S.C. 1034.  This Court
refused to invalidate those regulations, concluding that the
military's special structure, long recognized by both Congress and the
courts, required that statutes pertaining to military matters be
reviewed with particular sensitivity to the need for command authority
(444 U.S. at 458).  The Court noted that Article 138 was a means by
which service members might complain about the misapplication of
regulations governing the statutory right to communicate with Congress
(id. at 457 n.5).  Further, the Court stated that the federal courts
could consider a claim that regulations implementing 10 U.S.C. 1034
were being misapplied (444 U.S. at 457 n.5).  But the Court did not
merge the two avenues of redress.  The Court did not say that the
Article 138 proceeding itself would be judicially reviewable.  Rather,
review would be directly of the application of the regulations to
determine whether they improperly impinged upon a statutory right
(ibid.).

   Similarly, in Chappell v. Wallace, the Court discussed the various
means by which servicemen who felt aggrieved by alleged military
misconduct could seek relief.  The Court mentioned both Article 138
and the BCNR.  462 U.S. at 302-303.  With respect to the BCNR, the
Court specifically noted (id. at 303) that the Board's decisions would
be subject to judicial review.  In contrast, the Court neither stated
nor implied that judicial review was available for Article 138
Complaints.  Rather, the Court described the Article 138 procedure as
one component of "a comprehensive internal system of justice to
regulate military life" (id. at 302 (emphasis added)).

   In sum, the Article 138 grievance process is neither a suitable nor
a necessary candidate for judicial review.  Courts should permit the
internal military procedure to function unimpeded.  To the extent that
the claim underlying a Complaint of Wrongs is cognizable in federal
court, that controversy must be presented to the courts through one of
the avenues explicitly designed by Congress or mandated by the
Constitution.  In such cases, there will be no point for the court
even to consider the Article 138 proceedings and, therefore, no
occasion for the court to disrupt the military's informed balance
between the desire to redress legitimate complaints and the need to
maintain command discipline.  /16/ All of a serviceman's
constitutional, statutory, and regulatory rights, to the extent they
are cognizable in federal court, can be protected without involving
the courts at all in the Article 138 process.  /17/

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted,

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   ALBERT G. LAUBER, JR.

      Deputy Solicitor General

   MICHAEL K. KELLOGG

      Assistant to the Solicitor General

   RICHARD A. OLDERMAN

   CHARLES R. GROSS

      Attorneys

   KEITH T. SEFTON

      Lt. Col., USMC Office of the Judge Advocate General Department
      of the Navy

   MARCH 1987

   /1/ "Request mast" is a nonstatutory means by which members of the
Navy and Marine Corps may request an opportunity to meet with a
superior in the chain of command to air a grievance.  Although
"request mast" is designed to achieve resolution at the lowest
possible level, a dissatisfied Marine can pursue this remedy to
increasingly senior commanders.  With few exceptions, the commander
from whom "mast" has been requested may not refuse to consider the
requestor's complaint.  Navy Regs. 1107, Reg. App. 14;  Marine Corps
Order 1700.23C (Apr. 27, 1983).

   /2/ In accordance with JAGMAN 1107 (Reg. App. 7), petitioner was
allowed to consult with a Judge Advocate to obtain advice concerning
the submission of his Article 138 Complaint.  However, again in
accordance with regulation, this lawyer was not considered to be
"representing" petitioner in the attorney-client sense of that word
(ibid.).  Petitioner was also entitled to retain civilian counsel
(ibid.), but apparently he did not do so until review of his Article
138 Complaint had been completed (Art. 138 Rec. 4-5).

   /3/ Although petitioner had been slated for discharge by November
1, 1983, in the interim it had become apparent to the Marine Corps
that petitioner, because of his medical condition, might be entitled
to retirement with a ratable service-connected disability instead.
See 10 U.S.C. 1201 et seq.  As a result, the Secretary of the Navy
ordered petitioner's discharge held in abeyance while he underwent the
necessary physical evaluations.  See 10 U.S.C. 640.  In any event, on
October 31, 1983, when it was evident that the BCNR would not act
before November 1, and despite the ongoing disability proceedings,
petitioner asked for and the district court granted a temporary
restraining order preventing his discharge.  J.A. 2-3.

   /4/ Despite some intimations to the contrary (Br. 4, 37-38),
petitioner was not, in the end, subjected to automatic discharge due
to twice failing to gain promotion.  Rather, as he himself
acknowledges (Br. 6 n.8), he was retired from the Marine Corps due to
physical disability.

   /5/ Although petitioner is somewhat vague on this latter point
(see, e.g., Br. 3, 22, 37), the alleged retaliation presumably
consisted of his being passed over for the second time by the
Selection Board.  This Board met from March 8 to April 7, 1983 (J.A.
12), after Colonel Lawson had completed his investigation and issued
his report on the Article 138 Complaint.  Petitioner contended before
the BCNR that, somehow, the Selection Board must have known about his
Article 138 Complaint and failed to select him because of it.
Although the BCNR found petitioner's allegations on this point
completely unsubstantiated (J.A. 19-20), here at least there was a
chronological possibility of retaliation.  By contrast, the allegedly
biased performance evaluations and the first promotion passover all
occurred before petitioner made the Article 138 Complaint and, so,
could not have been taken in retaliation for that Complaint.  The two
evaluations covered the periods June 23 to November 30, 1981, and
December 1, 1981 to May 31, 1982;  petitioner was first passed over
for promotion in April, 1982;  he did not file his Article 138
Complaint until September 29, 1982.  J.A. 8-10.

   /6/ Petitioner's belated allegations of discrimination against
women Marines at OCS formed no part of his Article 138 Complaint.
Petitioner's statement to the contrary (Br. 3) is mistaken, as even a
cursory reading of his Article 138 Complaint reveals.  Art. 138 Rec.
17-26, 37-39, 41-43.  The only mention of sex discrimination in the
entire Article 138 proceeding is contained in a statement of a
witness, Captain Becker.  Id. at 50-52.  Captain Becker did not
initiate an Article 138 Complaint on her own, nor could she join in
petitioner's Complaint.  JAGMAN 1106b;  Reg. App. 6.  And petitioner
never suggested that he was adopting these claims as his own.

   /7/ Petitioner contends that he has standing to use an Article 138
Complaint to vindicate the rights of third parties on the theory that
Navy regulations require Marines to "report to proper authority
offenses committed by (Marine personnel) which come under their
observation" (Br. 44 (original quotation marks omitted)).  This
contention is doubly flawed.  First, the general obligation to report
observed misconduct (Nay Regs. 1139;  Reg. App. 18) does not translate
into a right to use Article 138 to make that report.  Article 138 is
designed only to redress grievances personal to the complainant;  a
serviceman is not permitted to raise third-party or generalized
grievances.  See JAGMAN 1104(b), Reg. App. 5;  Nemrow, Complaints of
Wrong Under Article 138, 2 Mil. L. Rev. 43, 56 (1958).  Second, and
more importantly, even if a serviceman could use Article 138 to report
general misconduct in the military, it would not follow that he had
standing to air third-party grievances in federal court.  A citizen
has a civic duty to report suspected crimes to the police;  but he
does not have standing to invoke a court's jurisdiction to challenge
the manner in which the police force goes about investigating tips.
See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

   /8/ Petitioner claims (Br. 43) that a ruling in his favor "as to
command influence, sex discrimination and the substance of his Article
138 Complaint, could only have served to enhance the military society
by showing the lower ranks that even colonels can, and when
appropriate should, be disciplined." But petitioner is obviously
without standing to request, and the federal courts without
jurisdiction to provide, such discipline, however salutory petitioner
considers it to be.  Diamond v. Charles, slip op. 9;  Linda R.S. v.
Richard D., 410 U.S. at 619.  "The federal courts were simply not
constituted as ombudsmen of the general welfare." Valley Forge
Christian College v. Americans United, 454 U.S. at 487.

   Furthermore, aside from the disciplining of Colonel Cooper,
petitioner appears to have received all the relief that he requested.
With respect to his claims of illegal command influence, he asked
simply that they be investigated and that appropriate action be taken
to assure that the problem did not recur.  Art. 138 Rec. 39.  His
claims were investigated and, despite the lack of any specific finding
of wrongdoing on Colonel Cooper's part, the Commanding General did
order that steps be taken to ensure that all subordinate leaders and
members of OCS fully understand the prohibition against improper
interference in judicial and administrative proceedings, and that
their participation in such proceedings would not be subject to
improper scrutiny.  Id. at 14.

   In addition, although petitioner failed to assert any sex
discrimination claims in his Article 138 Complaint, the Commanding
General also advised Colonel Cooper of Captain Becker's allegation
about discrimination against women students at OCS.  The Commanding
General neither accepted nor rjected this allegation, but it was a
matter that he believed should be brought to Colonel Cooper's
attention.  He did so by directing that policies concerning women
Marines at OCS be formalized in accordance with applicable service
regulations.  Art. 138 Rec. 14-15.

   /9/ As noted above, petitioner's claim that his Article 138
Complaint resulted in his non-promotion was considered by the BCNR and
found to be groundless (J.A. 19-20), and that finding was affirmed by
the district court as "supported by substantial evidence" (Pet. App.
A7).

   /10/ Because this case does not in fact present the question (Pet.
i) on which the Court granted certiorari, and because petitioner's
claims are nonjusticiable under a straightforward (albeit factually
intricate) application of well-settled principles, the Court may wish
to dismiss the writ of certiorari as improvidently granted.

   /11/ Contrary to petitioner's assertion (Br. 45-46), the district
court did not hold, nor do we here contend, that the Administrative
Procedure Act, 5 U.S.C. 701(b)(1)(F), precludes judicial review of
Article 138 proceedings.  That Section defines the term "agency" to
exclude "courts martial and military commissions," and we do not
contend that an Article 138 proceeding is conducted by either of those
entities.  Our point is, rather, that Article 138 does not itself
authorize, nor does any other statute expressly authorize, judicial
review of the military grievance process.  Thus, in keeping with the
general reluctance of courts to intervene in internal military affairs
and the special function of Article 138 as an internal mechanism for
the correction of grievances, such review is inappropriate.  In terms
of the APA, Article 138 proceedings must be considered as "committed
to agency discretion by law" and therefore nonreviewable (5 U.S.C.
701(a)(2)).  Furthermore, the denial of an Article 138 Complaint is
not "final agency action for which there is no other adequate remedy
in a court" (5 U.S.C. 704).  See pages 43-49, infra.

   /12/ Article 138 itself, in substantially its present form, was
enacted in 1950 as part of the Uniform Code of Military Justice.  It
was intended as a "virtual reenactment" of similar provisions in the
Articles of War and the Navy Regulations.  Nemrow, Complaints of
Wrong, supra, 2 Mil. L. Rev. at 46, 47.  See H.R. Rep. 491, 81st
Cong., 1st Sess. 36 (1949);  S. Rep. 486, 81st Cong., 1st Sess. 33
(1949).  The Articles of War have recognized such a procedure since at
least 1806 (W. DeHart, Observations on Military Law and the
Constitution and Practice of Courts-Martial 252-253 (1962)), and
commentators have traced the history of Article 138 back to a military
code promulgated by King James II of England in 1688.  Nemrow,
Complaints of Wrong, supra, 2 Mil. L. Rev. at 46.

   /13/ Petitioner cites ten cases (Br. 35) to document his assertion
that "(n)umerous courts have reviewed Article 138 Complaints," but
none of those cases in fact supports that assertion.  Six of the cases
cited by petitioner did not involve Article 138 Complaints at all.  In
the seventh, United States ex rel. Berry v. Commanding General, 411
F.2d 822 (5th Cir. 1969), the court dismissed a suit brought by two
servicemen for failure to exhaust their intramilitary remedies under
Article 138.  Accord, Muhammad v. Secretary of the Army, 770 F.2d
1494, 1495-1496 (9th Cir. 1985);  Ogden v. United States, 758 F.2d
1168, 1178 (7th Cir. 1985);  McGaw v. Farrow, 472 F.2d 952, 957-958
(4th Cir. 1973).  In the eighth case, Turner v. Callaway, 371 F. Supp.
188 (D.D.C. 1974), the court specifically declined to review the
serviceman's Complaint of Wrongs.

   In the last two cases cited by petitioner -- Colson v. Bradley, 477
F.2d 639 (8th Cir. 1973), and Schatten v. United States, 419 F.2d 187
(6th Cir. 1969) -- the courts did order that an Article 138
investigation be initiated in response to a serviceman's Complaint of
Wrongs.  But neither of those courts undertook what petitioner
requests here -- plenary review of the substance of an
already-completed Article 138 proceeding.  Since the military
authorities in the instant case did investigate petitioner's
Complaint, there is no need for the Court here to consider whether
Colson and Schatten were correctly decided.

   /14/ In undertaking to review petitioner's First and Fifth
Amendment claims here, the district court evidently concluded (Pet.
App. A6) that those claims fell within the category of constitutional
claims subject to immediate judicial review under this Court's
decisions.  Since, however, the district court rejected petitioner's
constitutional claims as nonmeritorious, there is no need for the
Court to consider whether that assumption of jurisdiction was correct.

   /15/ Petitioner at one point suggests (Br. 47-48) that, even if
Article 138 proceedings are not directly reviewable in federal court,
the BCNR, whose decisions are judicially reviewable, should itself
have reviewed the "record" of the Article 138 investigation for
substantive and procedural errors.  This backdoor effort by petitioner
to secure review of his Article 138 Complaint is not properly before
the Court.  The BCNR expressly declined petitioner's request "for
correction of the record of proceedings under Article 138," noting
that the latter formed no part of "Petitioner's military personnel
record" (J.A. 18).  Petitioner not only failed to challenge this
aspect of the BCNR's decision in the district court;  he in fact took
exactly the opposite position, stating unequivocally that the BCNR's
decision not to review the Article 138 proceeding was correct.
Memorandum of Points and Authorities in Support of Plaintiff's
Cross-Motion for Summary Judgment at 27-28 ("More importantly, as
plaintiff originally contended, Article 138 and the BCNR are separate
methods for complaining of military misconduct.  The BCNR * * *
clearly agreed with this analysis in refusing to review the 138
Complaint investigation.  Actually, their view is correct.  * * *
(A)rticle 138 proceedings and BCNR proceedings are separate remedies,
the BCNR not sitting as an appellate body to review Article 138
proceedings which occur in factual contexts such as that in the
instant case." (citations omitted)).  In any event, the question of
the scope of the BCNR's statutory jurisdiction to correct military
records is, by the terms of the statute, expressly delegated to the
Secretary of the Navy, subject to approval by the Secretary of
Defense.  See 10 U.S.C. (& Supp.) 1552 ("The Secretary * * * may
correct any military record * * * when he considers it necessary to
correct an error or remove an injustice." (emphasis added)).  In view
of petitioner's failure to raise this argument below, this case
presents no occasion for the Court to consider whether the BCNR's view
of its own jurisdiction is accurate.

   /16/ In an appropriate case, however, a court may well decide that
exhaustion of intraservice remedies, including Article 138, is
required prior to a resort to federal court.  Such an exhaustion
requirement would ensure against unnecessary judicial intervention in
military affairs.

   /17/ Once it is determined that petitioner's Article 138 Complaint
does not merit judicial review simply in virtue of being an Article
138 Complaint, then his suit collapses.  His underlying claims,
insofar as personal to himself, concerned only his transfer from OCS
and his removal from the ADB.  Not only are these claims moot (see
pages 28-29, supra), but this Court has already held that such claims
are not reviewable in federal court.  Orloff v. Willoughby, supra
(declining to review propriety of duty assignment).