Legal Research AI

New, Michael G. v. Perry, William

Court: Court of Appeals for the D.C. Circuit
Date filed: 1997-11-25
Citations: 129 F.3d 639, 327 U.S. App. D.C. 147
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                        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.