(dissenting):
Increasingly has this Court embroiled itself in the daily affairs of our society’s many walks of life. Schools, prisons, hospitals — all are supervised in various aspects by our Olympian pronouncements. This case invites us to add to the list the military, in effect, the Army, Navy, Air Force and Marines. I would decline the invitation and respectfully dissent.
I. THE ORLOFF DOCTRINE
Judicial comity dictates that the lower court should have declined review and dismissed the complaint. This doctrine traces its modern evolution back to the landmark decision, Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). In Orloff the petitioner had been inducted into the Army pursuant to a statute authorizing conscription of personnel in certain medical and allied specialist categories. Bringing a habeas corpus suit, he sought to be discharged because after he had been conscripted, he had not been assigned to one of those specialized categories nor given a commission to which he was assertedly entitled by virtue of his qualifications. The court acknowledged that to divert conscriptees from the class of work on the basis of which they had been inducted would raise *1128questions of unlawful discrimination. Orloff, supra, at 88. Nonetheless, the Court refused to either commission or discharge the petitioner and held that the petitioner’s challenge of the particular duty assignment was non-reviewable. Orloff, supra, at 93. The Court’s rationale is the cornerstone of the comity doctrine. It stated:
“[JJudges are not given the task of running the Army . . . The military constitutes a specialized community governed by a separate discipline from that of the civilian.
Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters. . . . [W]e cannot go into the discriminatory character of his orders. Discrimination is unavoidable in the Army.” Orloff, supra, at 94, 73 S.Ct. at 540.
As citizens of a democratic republic, we confront a political paradox that has plagued democracies since Athens. In a perilous world of sovereign nation states, the protection of our civil liberty is, of necessity, entrusted to military institutions which must be rigidly disciplined and authoritarian. Were it not so, no one could predict the jeopardy we would face or whether this great Republic would long survive. Of course, neither sphere exists free of the influence of the other. The same citizens who enjoy the blessings of liberty as civilians defend it as soldiers. But it is equally obvious that neither sphere can be forced into a common mold. These considerations are the foundation of the principle of non-reviewability and mandate its application to this case. We should sit as judges of matters appropriately within our limited jurisdictional domain, not as generals ruling upon matters unsuited to our expertise.
Specifically, I dissent from the assumption by the judiciary of a power to nullify and declare unconstitutional regulations of the Marine Corps designed to regulate the conduct of those admitted for enlistment and with which by their acceptance into the Corps all enlistees had to comply. I find no justifiable application of the constitutional principles of “due process” and “equal protection” to the facts of this case. Those who seek military careers are forced to forego many constitutional rights. For example, a civilian has a First Amendment right to stand on a street corner and publicly decry the evils of the Vietnam War. But that same person in the Corps on the verge of an ordered attack on a machine gun nest would scarcely have the right to protest and urge withdrawal of the order because he felt that the war was wrong. When this appellant chose to leave her civilian status and become “Semper Fidelis” to her country and the Corps, she voluntarily altered her rights and privileges.
II. CASES RELIED UPON BY THE MAJORITY ARE INAPPOSITE
None of the limited exceptions to the judicial comity doctrine to which we are referred by the majority have any relevance to this case. This case does not present a challenge to military regulations intended to benefit the allegedly grieved party. Compare, e. g. Naskiewicz v. Lawver, 456 F.2d 1166 (2d Cir. 1972). Appellant does not claim that the military has violated a regulation which it originally adopted of its own volition. Compare, e. g. Smith v. Resor, 406 F.2d 141,145 (2d Cir. 1969). Nor does this case involve the imposition of quasi-criminal penalties of court martials or less than honorable discharges. Compare, e. g., Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965); cf. Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968) (“[Pjetitioner’s challenge, in reality, [was] to a determination of the Selective Service System, not the military” p. 714).
Equally inapposite are the cases which arose in a purely non-military context that are relied upon by the majority in its discussion of the merits. Of no precedential value are the cases mostly involving the pregnancy of married school teachers; see Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 *1129(1974); Green v. Waterford Board of Education, 473 F.2d 629 (2d Cir. 1973); or monetary benefits; see Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).
Nor in my opinion is it the function of this Court (or any other) to remold the views of society with respect to pregnancy. Assuming that we no longer have “Victorian embarrassment at its [pregnancy’s] physical manifestation” and that many school teachers have the physical capacity to teach up until almost the last moment, these facts have no bearing upon the requirements of the military. The majority would protect appellant in her “personal choice in matters of marriage and family life,” but her personal choice was to enlist in the Marine Corps, to subject herself to its regulations. We have not as yet elevated the right to sexual enjoyment to a constitutional level, even though an expansive interpretation might categorize it as “the pursuit of happiness”. In my opinion, a woman who is “physically able to be mobile and ready” and who for personal reasons cares to “give birth and give a child away for adoption” does not have a constitutional right to use the Corps for this activity.
The majority say that the regulation against pregnancy is unconstitutional because “it penalizes the decision to bear a child by those Marines whose mobility and readiness would not be reduced, neither during most months preceding birth nor during their careers after birth”. This assumption is belied by the condition of appellant herself who during the early months of pregnancy and before its discovery had reported to the base infirmary on 18 occasions, complaining of nausea, fainting, abdominal pains and fatigue — rather normal pregnancy symptoms. Daily policing of barracks at 0600 and 0730 for duty, might well present problems, but her participations in formations might be even more disconcerting to the drill sergeant. In open barracks a special crib and normal baby crying might be somewhat disturbing to the nightly rest of the others and the necessitous abandonment of work for the nursing period would be equally disruptive. In short, the majority would have the Marine Corps adapt itself and facilities to a day and night baby care center instead of having appellant adapt herself to the known regulations of the Corps.
III. RELIEF
An equally disturbing aspect of the majority approach is the remedy which it fabricated. Even assuming that it were appropriate to ignore the military context which permeates this controversy, no court has ever gone so far as the majority does today. In a case relied upon by the majority, it was flatly declared that a claim to enjoin the Navy from discharging its personnel would be frivolous and would not provide a basis for the court’s jurisdiction to interfere with normal operations of the military. Reed v. Franke, 297 F.2d 17, 20 (4th Cir. 1961). However, appellant’s claim and the remedy constructed by the majority is nothing less than the monetary equivalent of appellant’s reinstatement. Under Reed, this claim is not reviewable a fortiori. The remedy infringes a particularly vital military concern — the ability to control personnel requirements within the bounds of the resources allotted by Congress. At most, sick leave could have covered the period from May to December 1970. The regulations prohibiting her retention in the Corps after the baby had been born is not challenged; hence her discharge and denial of re-entry were lawful.
IV. EXHAUSTION OF REMEDIES
Moreover, in its headlong rush to reach the merits, the majority has overlooked the appellant’s failure to exhaust intraservice remedies If the exhaustion requirements could fairly be characterized as a procedural snare to deprive citizens of meritorious claims, I would not be heard to object. But the requirement is a salutary principle of judicial administration which minimizes the *1130Federal judiciary’s interference with the affairs of other governmental institutions by providing them with the initial opportunity to review claims involving their regulations and special expertise.
Even if this case arose in a purely nonmilitary context we could not sidestep this principle. When we are asked to strike down a Marine regulation governing its treatment of disabled soldiers, the necessity of considering whether the affected soldier has in the first instance presented her grievance to the Marines is beyond cavil. This is confirmed by the holding of yet another case relied upon by the majority where the court cautioned that the merits of claims involving the armed services should not be reviewed unless all available intraservice remedies have been exhausted. Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971).
Appellant offered no objection to her discharge. Nor did she apply for a waiver of the then applicable regulations which precluded her re-enlistment. The majority believes that no significance was attributed to her failure to raise objection “because she wanted to remain in the Marine Corps.” This apologia strikes me as strained. If she wanted to remain in the Marines so badly, she should have complained when she was released. But regardless of what appellant’s motive for disregarding intraservice procedures might have been, the question is not why appellant failed to take advantage of available avenues of review, but whether or not she did.
At the time of her discharge, appellant was entitled to a mandatory hearing before the Marines Discharge Review Board. This Board was empowered to recommend changing the type of discharge or eliminating the discharge and restoring the party to his or her prior duty and rank. The Secretary of the Navy would then pass upon the recommendation. 22 F.R. 3436 (1957) as amended 26 F.R. 12660 (1961).1
Even today, she could still petition this Board to change her discharge in light of
“other standards differing [in appellant’s favor from those requiring her discharge], not having been made expressly retroactive, were subsequently made generally applicable on a service-wide basis to separations of the type and character received by the petitioner.” 32 C.F.R. 724.32 (1975).
This provision expressly covers appellant’s situation.
Additionally, up to three years after her discharge, appellant might have petitioned the Board of Correction of Naval Records, which is empowered to correct any military record to remove an injustice or correct any error. 10 U.S.C. § 1552(a) (1975). Indeed, this review may still be available because that Board is empowered to waive its three year statute of limitations; 32 C.F.R. 723.-(3)(b) (1975). This Board has authority to initiate action at a higher administrative level which could result in reinstatement. 32 C.F.R. § 723.7 (1975).
Furthermore, appellant could have sought review after she was denied re-enlistment. She could have applied for a waiver, and if that was denied, review of the decision would have been available *1131through the same military channels which encompass her discharge grievance.
From among all these available procedures, appellant chose not one. To characterize this as a matter of “knowing” waiver, I believe misstates the issue. By dismissing the complaint we would not be depriving appellant of any claims; we would merely be directing her to first seek out the forum to which she had always had access. Simultaneously, we would effectuate the principles so ably expressed in Orloff and prevent unnecessary civilian interference in military matters by insuring military autonomy over its own business. Furthermore, by requiring utilization of available military forums, this Court might ultimately have been relieved of the necessity to delve into the constitutional issues. Reed v. Franke, supra, at 27. This is especially pertinent in this ease where military review of appellant’s situation is expressly contemplated by regulation. In such circumstances, to uphold jurisdiction merely because the complaint alleges the deprivation of an allegedly constitutional right, is unwarranted.
As far as the interest in military autonomy is concerned, dismissing a complaint on the ground that judicial interference should be limited or upholding a regulation after discounting the challenge to reflect the armed services unique concerns, causes the same impact. In Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the Court without disapproving Orloff seemed to adopt the latter approach. In reviewing a First Amendment vagueness claim, it stated:
“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.” Parker, supra, at 758, 94 S.Ct. at 2563.
Similarly, the Court in Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 512, 42 L.Ed.2d 610 (1975), in upholding the challenged statute on the merits, factored into its analysis the interests of military autonomy as articulated in Orloff. Schlesinger, supra, at 510.
The interest of allowing the military to have the initial opportunity to arrange its own affairs must be considered at some point. I believe that the majority has sidestepped the question with assurances that the Government does not contend [on appeal] that its actions are beyond the scope of judicial review. That more is required is demonstrated most emphatically in Bolger v. Marshall, 90 U.S.App.D.C. 30, 193 F.2d 37 (1951).
In Bolger, a former enlisted member of the Women’s Army Corp sought a declaratory judgment restoring her status as a Corp member and for relief in the nature of mandamus vacating her discharge and restoring her to her former rank. She had been honorably discharged and had initiated suit after seeking relief from the Army Board for Correction of Military Records. Even though it was then unclear whether the Army Discharge Review Board could grant the relief requested, the court affirmed the dismissal of the complaint for failure to exhaust that additional intraservice remedy. The Court observed:
“Appellees’ failure to contest the allegation of exhaustion cannot foreclose us from inquiry into, it since exhaustion is a matter which involves the District Court’s authority to entertain the suit— whether because it is a jurisdictional prerequisite or the result of a ‘long-settled rule of judicial administration.’ ” Bolger, supra, at 39.
A fortiori where appellant has not sought review before any Board.
I would affirm.
. Five years after appellant’s discharge, the Board’s procedural regulations were further amended to prohibit recommendations for reenlistment. 32 C.F.R. 724.33 (1975). In light of the language it is uncertain whether the Board retains authority to recommend reinstatement. In such circumstances, exhaustion of remedies is required to permit the Board to determine the scope of its remedial powers. Bolger v. Marshall, 90 U.S.App.D.C. 30, 193 F.2d 37, 39 n.5 (1951).
Even on the assumption that the Discharge Board was stripped of this power when the regulations were amended, such relief was, nonetheless, available to appellant for almost five years after her discharge. The Fay v. Noia doctrine which ascertains the availability of remedies at the time of the institution of a habeas petition has not been adopted in the military context even in cases involving court martial convictions. See, Sherman, Judicial Review of Military Determinations and the exhaustion of Remedies Requirement, 55 Va.L. Rev. 483, 501 (1969). Even if Fay v. Noia were applicable to this case, review was still available at the time of commencement of this action. See text, infra.