United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 26, 1997 Decided November 25, 1997
No. 96-5158
Michael G. New,
Appellant
v.
William S. Cohen,
Secretary of Defense and
Togo D. West, Jr., Secretary of the Army,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00033)
Michael P. Farris argued the cause for appellant, with
whom Herbert W. Titus was on the briefs. Ronald D. Ray
entered an appearance.
Michael J. Ryan, Assistant U.S. Attorney, argued the
cause for appellees, with whom Mary Lou Leary, U.S. Attor-
ney, and R. Craig Lawrence, Assistant U.S. Attorney, were
on the brief.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Michael G. New was serving in the
United States Armed Forces as a Medical Specialist in Au-
gust 1995 when he received notice that his unit was to be
deployed to the Republic of Macedonia as part of the United
Nations Peacekeeping Force ("U.N. Force"). Subsequently,
Specialist New refused to follow orders to appear in forma-
tion wearing U.N. insignia and headgear. His brigade com-
mander charged him with failure to obey a direct, lawful
order, a violation of Article 92 of the Uniform Code of
Military Justice. Shortly before his court-martial, New peti-
tioned for a writ of habeas corpus in the United States
District Court, contending that the orders in question (1)
violated the Constitution, federal law, and his enlistment
contract and oath, (2) impermissibly contemplated his trans-
formation into a U.N. soldier, and, therefore, (3) converted his
status from soldier to civilian. New claimed that he was
entitled to an immediate honorable discharge. See Petition
for a Writ of Habeas Corpus ("Habeas Petition"), Joint
Appendix ("J.A.") 2. The District Court, in a decision issued
after the court-martial trial but before military appeals were
completed, refused to reach the merits of New's petition for
habeas corpus, holding that the equitable principle of comity
required the court to stay its hand pending the military
proceedings. See United States ex rel. New v. Perry, 919
F. Supp. 491, 500 (D.D.C. 1996).
We affirm the District Court's dismissal of New's habeas
petition on the ground that he has failed to exhaust his
remedies in the pending court-martial action. In so holding,
we follow the basic principle of comity set forth in Schlesinger
v. Councilman, 420 U.S. 738 (1975), that service members
subject to military discipline must exhaust their military
remedies before seeking collateral review in federal court.
Because New has not completed the appeals of his court-
martial conviction within the military justice system, he cur-
rently is barred from pursuing an action on a habeas corpus
petition in District Court.
I. Background
Specialist New enlisted in the United States Army for an
eight-year term, four years of which were to be served in the
"Regular component of those forces," beginning on February
18, 1993. New, 919 F. Supp. at 492. After receiving basic
training and Medical Specialist training, he was deployed for
two months to Kuwait and then, in July 1995, to Germany.
Id. at 493. On August 21, 1995, New was informed that his
unit would be deployed in October of that year as part of the
U.N. Force. Id. New learned that, as a member of that
force, he would be required to wear a U.N. shoulder patch on
his uniform and distinctive, blue U.N. headgear.
New objected to the particular uniform requirements as
unlawful. He informed his squad leader and platoon leader
that he would not comply with those requirements unless
they were shown to be justified by constitutional authority.
New's superiors responded by ordering him to rethink his
position in light of the history and objectives of the U.N.
Charter. New also received counseling by three non-
commissioned officers in the chain of command and a warning
that he would be subject to discipline if he disobeyed the
order to wear the U.N. insignia. On September 19, 1995,
New submitted a written statement of protest ("Statement")
to his superior officers, in which he indicated a belief that the
U.N. Charter was inconsistent with the United States Consti-
tution. In addition, he repeated his objection to the wearing
of U.N. accoutrements, stating that he interpreted the wear-
ing of a uniform as a sign of allegiance to the authority "so
signified or which issues that uniform," and that, therefore,
he could not wear the accoutrements because he was "not a
citizen of the United Nations ... not a United Nations
Fighting Person [and has] never taken an oath to the United
Nations." Statement, J.A. 147. In the Statement, he also
wrote that, "[i]n order to avoid controversy or to avoid
placing the Army in a bad light," he had requested a transfer
to another unit or, reluctantly as an alternative, an honorable
discharge. Id. According to New, the Army had denied both
of these requests. Id.
On October 2, 1995, New, along with the rest of his
battalion, attended an information briefing on the legal bases
for the deployment of American troops as part of the U.N.
Force in Macedonia. At the briefing, and again at a company
formation two days later, the soldiers who were to be de-
ployed to Macedonia were ordered to appear on October 10,
1995, wearing the U.N. arm patches and headgear. 919
F. Supp. at 493.
New appeared in formation on October 10, 1995 wearing a
uniform that did not display the ordered accoutrements. He
was subsequently charged with an Article 92 violation, and a
trial by court-martial was set to follow. On January 16, 1996,
he moved in the District Court for an emergency stay of the
court-martial and petitioned for a writ of habeas corpus. The
Court heard oral argument and denied the stay. Memoran-
dum Opinion and Order of January 16, 1996, J.A. 123-24.
Afterwards, New was convicted by a court-martial jury and
sentenced to a bad conduct discharge. J.A. 84-85.
In his petition for habeas corpus, New contended that he
was "entitled to an immediate honorable discharge" on the
theory that the United States illegally had attempted to
transform him into a U.N. soldier. Habeas Petition, J.A. 2.
This attempted transformation was prohibited, according to
New, for three reasons. First, he claimed that the United
States Constitution, federal statutes, and applicable regula-
tions prohibited the acceptance by federal employees, includ-
ing uniformed members of the Army, of "any present or
emolument ... from a foreign government without the con-
sent of Congress." Id. at 6. Second, New argued that the
President of the United States was prohibited by the United
States Constitution and sections 6 and 7 of the United
Nations Participation Act of 1945 ("Participation Act"), as
amended, 22 U.S.C. ss 287d to d-1 (1994), from deploying
United States troops as part of the U.N. Force in Macedonia
unless he first obtained the consent of Congress, which he
allegedly had not done. Habeas Petition, J.A. 7. Finally,
New contended that the orders relating to his deployment
and wearing of U.N. accoutrements conflicted with and
breached his enlistment contract. Id. at 8-9. New asserted
that the unlawful orders absolved him of his remaining obli-
gation to serve in the Army; changed his status such that he
was a civilian, not subject to a court-martial; and entitled him
to an honorable discharge. Id. at 2.
On March 28, 1996, in a published opinion, the District
Court denied New's petition for habeas corpus. See New, 919
F. Supp. at 500. The trial court held that the equitable
principle of comity prevented it from considering New's
claims until all military appeals had run their course. Id.
Subsequently, on June 12, 1996, the court-martial convening
authority approved New's bad conduct discharge. J.A. 149;
Appellant's Br. at 6; Appellee's Br. at 4. New's conviction by
court-martial and the resulting sentence are subject to review
by the Army Court of Criminal Appeals. See 919 F. Supp. at
494 (describing pending military proceedings). If that appeal
is unsuccessful, New may seek discretionary review in the
Court of Appeals for the Armed Forces, which is composed of
civilian judges. Id. New now appeals the District Court's
denial of his petition for a writ of habeas corpus.
II. Analysis
A. The Applicable Case Law
1. The Basic Principles of Comity
In Parisi v. Davidson, 405 U.S. 34 (1972), the Supreme
Court outlined the "basic principles of comity that must
prevail between civilian courts and the military judicial sys-
tem." Id. at 46. At the heart of these principles is the
general rule that a federal court must await the final outcome
of court-martial proceedings in the military justice system
before entertaining an action by a service member who is the
subject of the court-martial. Although this rule often "is
framed in terms of 'exhaustion,' it may more accurately be
understood as based upon the appropriate demands of comity
between two separate judicial systems." Id. at 40.
The Court in Parisi allowed the petitioner in that case--a
service member seeking discharge as a conscientious objec-
tor--to pursue a habeas corpus petition in federal court even
though court-martial charges were still pending against him.
The Court concluded that the demands of comity did not
require dismissal of Parisi's habeas petition, because he had
fully exhausted the administrative procedures that were in
place for review of claims by persons seeking discharge as
conscientious objectors. Since the Court found that "[c]ourts
martial are not convened to review and rectify administrative
denials of conscientious objector claims or to release conscien-
tious objectors from military service," id. at 42, it followed
that the petitioner was not required to await the disposition of
a court-martial charge before seeking habeas relief in federal
court. However, the Court in Parisi made it clear that the
decision, which merely "recognize[d] the historic respect in
this Nation for valid conscientious objection to military ser-
vice," id at 45, was narrow and "should not be understood as
impinging upon the basic principles of comity," id. at 46.
Any doubt about the narrow reach of the judgment in
Parisi was put to rest in Schlesinger v. Councilman, 420 U.S.
738 (1975). In Councilman, the Court reaffirmed the general
rule that "federal courts normally will not entertain habeas
petitions by military prisoners unless all available military
remedies have been exhausted." Id. at 758; see also Noyd v.
Bond, 395 U.S. 683, 693-98 (1969); Gusik v. Schilder, 340
U.S. 128 (1950). This rule was seen to be grounded in the
same "considerations of comity," Councilman, 420 U.S. at
756, alluded to in Parisi.
Councilman indicates that there are two principal reasons
why considerations of comity normally preclude a federal
court from intervening in a pending court-martial proceeding.
First, the military justice system must remain free from
undue interference, because "[t]he military is a 'specialized
society separate from civilian society' with 'laws and tradi-
tions of its own developed during its long history.' " Id. at
757 (quoting Parker v. Levy, 417 U.S. 733, 743 (1974)).
Second, Congress sought to balance the competing interests
in military preparedness and fairness to service members
charged with military offenses, by "creat[ing] an integrated
system of military courts and review procedures." 420 U.S.
at 758. "[I]t must be assumed that the military court system
will vindicate servicemen's constitutional rights." Id. Thus,
as suggested in Parisi, the doctrine of comity aids the
military judiciary in its task of maintaining order and disci-
pline in the armed services, eliminates needless friction be-
tween the federal civilian and military judicial systems, and
gives due respect to the autonomous military judicial system
created by Congress. Parisi, 405 U.S. at 40.
2. The Concept of Exhaustion
"The concept of 'exhaustion' in the context of the demands
of comity," Parisi, 405 at 40 n.6, is in part justified by the
same "practical considerations" that justify exhaustion of
administrative remedies generally, namely the "need to allow
agencies to develop the facts, to apply the law in which they
are peculiarly expert, and to correct their own errors."
Councilman, 420 U.S. at 756; see also id. at 758. In connec-
tion with court-martial proceedings, the exhaustion require-
ment is particularly important, because, given the reality that
the military must "prepare for and perform its vital role" of
fighting wars, it "must insist upon a respect for duty and a
discipline without counterpart in civilian life." Id. at 757.
Congress recognized these pressing needs when it created an
integrated system of military courts and review procedures.
Id. at 758.
The Court in Councilman concluded that the same princi-
ples supporting the exhaustion requirement for habeas peti-
tions by service members also governed the proper exercise
of the federal courts' equitable jurisdiction over pending
court-martial proceedings. Absent truly compelling circum-
stances, service members are precluded from bringing suit in
federal court seeking to enjoin court-martial proceedings on
jurisdictional or other grounds, just as they are barred from
seeking collateral review of their court-martials before they
have exhausted their appeals within the military system.
Accordingly, the Court set forth the rule that "when a
serviceman charged with crimes by military authorities can
show no harm other than that attendant to resolution of his
case in the military court system, the federal district courts
must refrain from intervention, by way of injunction or
otherwise." Id.
The exhaustion requirement prevented the District Court
in Councilman from hearing a suit for injunctive relief
brought by an Army captain against whom court-martial
charges had been preferred for drug-related activities. The
Army captain had claimed in his petition that the offenses
charged were not "service connected" and hence were not
within court-martial jurisdiction. Id. at 741-42. The Court
held that this jurisdictional challenge, although not without
support, first had to be fully considered by military authori-
ties, and that the service member had to exhaust any other
military remedies that were available to him before a federal
court could exercise collateral review over the proceedings.
Id. at 759-61.
3. Exceptions to the Rule of Comity
As noted above, at the heart of the comity doctrine is the
general rule that a federal court must await the final outcome
of court-martial proceedings in the military justice system
before entertaining an action by a service member who is the
subject of the court-martial. There are two principal excep-
tions to this rule. One is noted in Parisi, where the Court
held that, "[u]nder accepted principles of comity, the court
should stay its hand only if the relief the petitioner seeks--
discharge as a conscientious objector--would also be available
to him with reasonable promptness and certainty through the
machinery of the military judicial system in its processing of
the court-martial charge." 405 U.S. at 41-42. It is clear
from the Court's decision, however, that the Parisi excep-
tion--allowing a service member to pursue a collateral attack
challenging a military action before the completion of court-
martial proceedings--is limited to situations in which: (1) a
service member subject to military authority asserts a legal
right against the military that has been clearly established by
statute, regulation, or other applicable law; (2) administrative
procedures are in place to enforce that right; and (3) the
service member has fully exhausted these procedures and has
been denied the relief attendant to the right asserted.
In claiming that he wrongly was denied conscientious ob-
jector status, the service member in Parisi asserted a right
clearly recognized by military regulations. See 405 U.S. at 38
n.2 (citing Department of Defense Directive No. 1300.6 (May
10, 1968)). Moreover, because the service member in Parisi
had exhausted his administrative remedies for release from
the military based on this asserted right, the district court
had no good reason to stay its hand pending the court-martial
proceedings. The Supreme Court considered and rejected
comity as a reason for denying the habeas petition, given that
the relief sought by the service member--discharge as a
conscientious objector--could not be obtained through the
military judicial system. Id. at 41-42. It is true, as the
Court recognized in Parisi, that "the writ of habeas corpus
has long been recognized as the appropriate remedy for
servicemen who claim to be unlawfully retained in the armed
forces." Id. at 39 (citations omitted). But the Court in
Parisi also made it clear that the decision in the case "should
not be understood as impinging upon the basic principles of
comity that must prevail between civilian courts and the
military judicial system." Id. at 46. Indeed, it is implicit in
the Court's decision in Councilman that any attempt to
extend the Parisi exception beyond the circumstances of that
case would wreak havoc on military discipline.
The second exception to the exhaustion rule is quite simple:
a person need not exhaust remedies in a military tribunal if
the military court has no jurisdiction over him. In other
words, the military has no authority to subject civilians to
court-martial proceedings. See, e.g., McElroy v. Guagliardo,
361 U.S. 281 (1960); Reid v. Covert, 354 U.S. 1 (1957); Toth v.
Quarles, 350 U.S. 11 (1955). In the cases embracing this
exception, it has been undisputed that the persons subject to
the court-martials either never had been, or no longer were,
in the military. The Court in Councilman held that those
cases, in which " 'the complainants raised substantial argu-
ments denying the right of the military to try them at all,' "
420 U.S. at 759 (quoting Noyd, 395 U.S. at 696 n.8) (emphasis
added), were plainly distinguishable from the situation pre-
sented by a service member challenging the military's juris-
diction. The service member in Councilman, the Court
noted, "was on active duty when the charges against him
were brought" and hence there was "no question that he
[was] subject to military authority and in proper cases to
disciplinary sanctions levied through the military justice sys-
tem." 420 U.S. at 759.
B. Application of the Relevant Law to Specialist New's
Case
With the foregoing legal principles in mind, we now turn to
consideration of New's claims before this court.
1. Comity and the Rule of Exhaustion
Given the record in this case, we hold that the District
Court was fully justified in dismissing New's habeas petition
on grounds of comity for lack of exhaustion. In other words,
as the District Court correctly found, Councilman is disposi-
tive of this case. When New first petitioned for habeas
corpus, claiming that the military did not have jurisdiction
over him and that he was entitled to an honorable discharge,
he already had been charged with failing to obey orders and
his court-martial was imminent. The appeal of his court-
martial and the decision of the military tribunal are still
pending. Moreover, New cannot demonstrate "harm other
than that attendant to the resolution of his case" within the
military system. 420 U.S. at 758. Accordingly, under well
established law, the District Court properly found that it
lacked authority to intervene in the pending military proceed-
ings.
2. New's Jurisdictional Challenge
New claims that the Army no longer has jurisdiction over
him because of the military's allegedly unlawful attempt to
require him to serve as a part of a U.N. mission. There
appear to be two parts to New's claim on this point: first, the
alleged unlawful action by the military relieved him from
having to exhaust court-martial proceedings before filing a
habeas petition in federal court; and, second, the Army's
actions relieved him from all further commitments to the
military and, thus, as a "civilian," he is no longer subject to
court-martial. New's positions are without merit.
In Councilman, the Supreme Court made clear that mili-
tary courts are capable of, and indeed may have superior
expertise in, considering challenges to their jurisdiction over
disciplinary proceedings. Id. at 760 (question of whether
service member's alleged offense is "service related" and
therefore within jurisdiction of military courts raises issues
"as to which the expertise of military courts is singularly
relevant"); see also Apple v. Greer, 554 F.2d 105, 109 (3d Cir.
1977) ("[T]he claim that there is a lack of jurisdiction can be
made to a military tribunal."). Thus, New must argue to the
military authorities reviewing his case that the orders in
question were unlawful and absolved him of any remaining
military service obligations. For this court to hold otherwise
would produce a rule allowing service members to circumvent
the exhaustion requirement merely by contending, without
reference to an applicable statute or regulation, that an action
by the military "released" them from further service. This
result would encourage premature federal judicial interven-
tion in the affairs of the military, a scenario that was express-
ly rejected by the Court in Councilman.
The exhaustion requirement aims to give a military tribunal
a full opportunity to consider the multitudinous claims that
might be brought by service members regarding the terms
and conditions of their service. Comity demands that we give
due respect to the military tribunal to carry out its congres-
sionally prescribed responsibilities. If the orders resulting in
New's court-martial were "unlawful," as he claims, that is a
matter that can be addressed by the military tribunal in their
consideration of the charges against him.
Furthermore, notwithstanding his claims to the contrary,
New is still a member of the military and subject to military
discipline. His contention that the disputed orders effectively
discharged him from the military and rendered him a civilian
before the occurrence of any administrative or judicial pro-
ceeding, and, therefore, that his case is controlled by McEl-
roy v. Guagliardo, et al., is meritless. In his Statement
submitted on September 19, 1995, New indicated that he had
requested an honorable discharge as a secondary alternative
to transfer to another unit; by requesting the transfer, he
acknowledged that he still was a member of the military. In
any event, as New's counsel conceded at oral argument, there
is no authority to support the suggestion that New became a
civilian immediately upon issuance of the allegedly unlawful
orders. On the record at hand, it is clear that when New
disobeyed his orders, he was still in the service, and he cannot
now present a "substantial argument[ ]," Councilman, 420
U.S. at 759, that he is not subject to military discipline and
court-martial.
3. New's Claim that he is Covered by the Parisi Exception
New advances the further argument that his situation
resembles that of the service member in Parisi, and, there-
fore, he should be allowed to bring a habeas petition in
federal district court notwithstanding the pending court-
martial proceeding. We reject this contention, for it is clear
that New can find no solace in Parisi.
The service member in Parisi had initiated an application
for discharge as a conscientious objector nine months after
his induction into the Army as a draftee, but before he
committed the allegedly wrongful act (refusing to board an
airplane for Vietnam) that led to his court-martial. 405 U.S.
at 35-36. While the appeal of his court-martial conviction
was still pending, the Army made a final decision denying him
conscientious objector status. In concluding that the district
court should hear the service member's petition even though
the Army had not yet issued a final determination on his
court-martial charges, the Supreme Court reasoned that the
service member's petition for habeas corpus was based on the
Army's refusal of his application for discharge as a conscien-
tious objector--an application which "antedated and was inde-
pendent of the military proceedings" related to his court-
martial. Id. at 41. Hence, the "case [did] not concern a
federal district court's direct intervention in a case arising in
the military court system." Id. (citations omitted). The
doctrine of comity was seen to have no application in Parisi
because the military tribunal could not award the service
member the desired relief--conscientious objector dis-
charge--in conjunction with the court-martial proceedings.
Id. at 41-44.
New argues that Parisi controls his case because his
petition for habeas corpus constitutes a collateral attack on
the Army's allegedly wrongful denial of his claim for dis-
charge. New says his claim was presented prior to his
disobeying the orders to appear in formation wearing U.N.
accoutrements. According to New, he "initiated his request
for reassignment or for an honorable discharge" six weeks
before his court-martial, when he first objected to the deploy-
ment to Macedonia and wearing of U.N. accoutrements as
unlawful. Appellant's Br. at 13. Moreover, he "sought fur-
ther review from his superior officers up the chain of com-
mand" on September 19, 1995 by submitting the Statement.
Id. at 14. The fact that he took no further action on his
request for discharge was excusable, he contends, for the
simple reason that, as noted by the District Court, there were
no formal procedures for him to pursue. 919 F. Supp. at 497;
Appellant's Br. at 11-12.
New's reliance on Parisi is misplaced. Assuming, arguen-
do, that the military tried to transform him into a U.N.
soldier, or that it otherwise issued him illegal orders, New
cannot show that he has a clearly established right to dis-
charge from the military as a result of such actions. In other
words, there is no authority for the proposition that a service
member who receives an illegal order is entitled to immediate
discharge from the military. So even if New's substantive
claims had merit, this would not provide a basis for his
honorable discharge from the military.
It is also noteworthy that New concedes that there are no
administrative procedures within the military to enforce the
rights that he asserts. Appellant's Br. at 12. Thus, this case
is controlled by Councilman, which requires New first to
present his arguments about the legality of his orders as a
defense to the court-martial action. Under Councilman,
New's personal beliefs about his orders afford him no imme-
diate recourse to relief in federal court. When he disobeyed
the orders of his superiors, he faced discipline and court-
martial, and he cannot now seek judicial intervention before
seeking relief in the system of military justice.
In addition, New's contention, tied vaguely to the judgment
in Parisi, that the lack of administrative procedures for his
claim for honorable discharge entitles him to an immediate
habeas hearing, is unavailing. Upon receiving the orders
which he thought to be illegal, New had two options. He
could have chosen to obey the orders and then sought judicial
review of the military's policies. Cf. Goldman v. Weinberger,
475 U.S. 503 (1986) (suit to enjoin application of Air Force
regulation that forbade officer from wearing yarmulke while
on duty and in uniform). Or he could follow the path that he
took: disobey the orders and challenge their validity in the
subsequent disciplinary proceedings. Having chosen the lat-
ter course of action, New might yet obtain vindication
through court-martial proceedings, or he may seek collateral
review in federal court following an adverse judgment by the
highest military tribunal. However, any option contemplat-
ing an exception to the exhaustion requirement is foreclosed
by the doctrine of comity imposed by Parisi and Councilman.
The Court's emphasis on the need for duty and discipline in
the armed forces makes clear that, absent a clearly defined
right enforceable in a proceeding other than a court-martial--
for example, an administrative proceeding to address a ser-
vice member's conscientious objector status--the federal
courts normally should not interfere with the day-to-day
operations of the military services.
This rule makes sense for obvious reasons. Any other
standard would invite military personnel to challenge disfa-
vored orders of superiors touching upon uniforms, working
hours, training procedures, assignments, and a host of other
matters. Such an absurd result surely was not contemplated
by Parisi. That case was decided prior to Councilman and
has been extremely limited in application. See, e.g., Cole v.
Spear, 747 F.2d 217, 220 (4th Cir. 1984) (en banc) (applying
Parisi and reversing district court's grant of discharge to
conscientious objector; fact that pending disciplinary action
against objector currently prevented final administrative ac-
tion on her application for discharge did not constitute "valid
reason to excuse her from the necessity of exhaustion").
Indeed, New's counsel could cite to no case, other than
Parisi, justifying the claim that New should be free to
challenge disfavored orders by civil action instead of court-
martial.
C. Other Remedial Options Available to Specialist New
During the course of argument, New's counsel suggested
that, absent consideration of his habeas petition, New would
have no reasonable avenues of relief. We disagree.
After New disobeyed the disputed orders and was charged
with violating Article 92 of the Uniform Code of Military
Justice, he faced three potential outcomes within the military
system, two of which are still possible. First, the court-
martial jury could have convicted him of failing to obey a
direct, lawful order and incarcerated him in military prison,
and the military authorities reviewing his case could have
sustained this sentence. Obviously, in this scenario--which is
now foreclosed by the fact that New was convicted and
sentenced only to a bad conduct discharge as opposed to
confinement--New could bring a habeas petition in federal
district court challenging his conviction. See Burns v. Wil-
son, 346 U.S. 137, 139-42 (1953); Curry v. Secretary of the
Army, 595 F.2d 873, 875 & n.8 (D.C. Cir. 1979); cf. Council-
man, 420 U.S. at 747-48.
Second, New could have, and still might, prevail in his
defense against the Article 92 charge. This outcome likely
would render any claims in a habeas petition moot.
Finally, New still faces the possibility that the court-martial
conviction and subsequent review by military tribunals and
officials will result in an other than honorable discharge; this
outcome, no doubt, would not vindicate all of the interests
currently asserted by New. In these circumstances, New
again has some options. If he suffers monetary losses as a
result of his discharge, he may be able to collaterally attack
the underlying conviction in the United States Court of
Federal Claims. See Councilman, 420 U.S. at 748 (citing
Runkle v. United States, 122 U.S. 543 (1887)); id. at 751;
Matias v. United States, 923 F.2d 821, 822-25 (Fed. Cir.
1990) (exercising jurisdiction over former service member's
back pay claim challenging court-martial conviction); Bowling
v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983).
New also might be able to bring an action in district court
seeking nullification of the conviction underlying his bad
conduct discharge. See Hatheway v. Secretary of the Army,
641 F.2d 1376, 1379 (9th Cir. 1981) ("The district court had
equitable jurisdiction under 28 U.S.C. s 1331 and mandamus
jurisdiction under s 1361."); Kauffman v. Secretary of the
Air Force, 415 F.2d 991, 994 (D.C. Cir. 1969) (action to have
court-martial conviction and sentence declared void); Wil-
liamson v. Secretary of the Navy, 395 F. Supp. 146, 147
(D.D.C. 1975) (exercising jurisdiction to review court-martial
under 28 U.S.C. s 1331, citing Kauffman ); 2 Francis A.
Gilligan & Fredric I. Lederer, Court-Martial Procedure
s 26-11.00, at 181 (1991).
In delineating these scenarios, however, we do not mean to
suggest that New's claims have merit or that a federal court
would even reach the merits of his arguments. New argues
on appeal, as he did in substantial part before the District
Court, that the orders relating to his deployment and wearing
of U.N. insignia were illegal on the grounds that: (1) the
wearing of the insignia violates the United States Constitu-
tion's prohibition on office holders from accepting titles or
offices from foreign states without Congressional consent, see
U.S. Const., art. I, s 9, cl. 8, and also violates federal law and
military dress regulations; (2) the President did not have
power under sections 6 and 7 of the Participation Act, 22
U.S.C. ss 287d to d-1, to deploy U.S. soldiers as part of the
U.N. Force without Congressional consent; and (3) the con-
tested orders breached New's enlistment contract and de-
prived him of basic rights as a soldier and a citizen.
It is difficult to see how any of these allegations, even if
shown to be true, would support New's contention that he is
entitled to an honorable discharge from the military. New
points to no legal authority supporting the proposition that
unlawful orders potentially can transform a service member's
"status" to that of a civilian. Indeed, as the District Court
pointed out, case law suggests that military enlistment is a
special sort of contract "which changes the status, and where
that is changed, no breach of the contract destroys the new
status or relieves from the obligations which its existence
imposes." United States v. Grimley, 137 U.S. 147, 151 (1890);
see Bell v. United States, 366 U.S. 393, 402 (1961); New, 919
F. Supp. at 498.
In any event, questions related to the legality of the
deployment of troops to Macedonia and the orders to wear
U.N. accoutrements need not be reached in this appeal,
because New has failed to exhaust his remedies for relief in
the pending court-martial action.
III. Conclusion
For the reasons given above, we affirm the judgment of the
District Court dismissing New's petition for habeas corpus on
grounds of comity.