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January 20, 1967

UNITED STATES of America ex rel. John J. CUFF, Jr.
Colonel R. J. SPRITZEN, United States Marine Corps, Commanding Officer, U.S. Marine Barracks, U.S. Naval Base, Philadelphia, Pa.

The opinion of the court was delivered by: KRAFT

 The petitioner is a United States Marine Corps Corporal whose four-year contract of enlistment was due to expire during November 1966. Shortly before the petitioner would ordinarily have completed his term of service, he was informed that he was required to serve an additional 463 days to make up time which he had spent in a naval hospital, recuperating from injuries sustained in an automobile accident which was investigated by the Judge Advocate General of the Navy, who concluded the accident was the result of petitioner's own reckless, wanton negligence.

 The accident in question occurred on May 31, 1965, on a rural road, 5 miles east of Tunkhannock, Wyoming County, Pennsylvania. The petitioner, with five passengers, was returning from a day of swimming when his car, rounding a curve, left the highway, sheared a telephone pole and plunged into an adjacent creek.

 After a brief confinement in the Scranton General Hospital the petitioner was transferred to the Philadelphia Naval Hospital. On June 21, 1965, he was interviewed there by Captain J. A. Freeman, United States Marine Corps, who was investigating the accident, in accordance with Chapter VIII of the Manual of the Judge Advocate General (Manual). On this date the petitioner signed a form expressing his desire, inter alia, to be represented by counsel, to participate in the investigation by being present during the proceedings, to testify, to introduce evidence, to cross-examine witnesses and to make an argument at the conclusion of the presentation of evidence. He indicated, by an interlineation at the bottom of the form, that he did not desire to make a statement at that time. These rights were available to the petitioner, as provided in the Manual. §§ 0301-0307 of Chapter III.

 This interview became part of an investigative report compiled by Captain Freeman, which also includes a copy of the accident report filed by the Pennsylvania State Police and several statements taken from passengers in the petitioner's vehicle, who were interviewed by Captain Freeman.

 On July 19, 1965, the petitioner signed a statement, which recited that he was permitted to examine Captain Freeman's report of July 6, 1965, concerning his injuries and was advised of his right to consult counsel. He made no requests and again declined to make any further statement.

 The Judge Advocate General determined from the report submitted by Captain Freeman that the petitioner's injuries occurred through his "misconduct not in line of duty." This finding resulted in the requirement that petitioner serve an additional 463 days.

 The petitioner thereupon engaged private counsel, who sought to have the Navy reverse its decision. His efforts, which included a letter request to the Secretary of the Navy were fruitless. Thereafter, the petitioner filed the instant petition for habeas corpus alleging that he was being illegally detained in the Marine Corps beyond the expiration date of his enlistment. He contends that the Navy's finding of misconduct was illegal, because the petitioner was not accorded his right to counsel nor his other rights as a party to the investigation as set forth in the Manual.

 The respondent has moved to dismiss the petition on the ground that the petitioner has failed to exhaust his administrative remedies, which include a petition to the Board for the Correction of Naval Records under 10 U.S.C.A. § 1552. Respondent has filed an alternative motion for summary judgment alleging that no genuine issue of fact exists and that the administrative record contains "substantial evidence" to support the decision of the Secretary of the Navy. Hearing was held December 12, 1966, at which testimony was taken and argument had on the motions.

 In limine, we find that the Court has jurisdiction, which, in its discretion, it may decline to exercise "* * * pending * * * [the petitioner's] pursuit of relief at the hands of the Secretary acting through the Board * * *." Ogden v. Zuckert, 111 U.S.App.D.C. 398, 298 F.2d 312, 317 (1961). Resort to the Board is a permissive remedy, since the Board is designed to assist the Secretary in correcting errors and injustices in military records. However, it is the Secretary's decision which is regarded as the final reviewable administrative decision preceding judicial review. Ogden v. Zuckert, id., 314-316. For reasons hereinafter stated, we believe that justice will be better served if we remand the petitioner to the Board and retain jurisdiction pending the outcome of that proceeding.

 Contrary to the respondent's argument upon his motion for summary judgment, we perceive several issues of fact which are of substantial importance. This matter is not merely the review of an administrative decision, but as well a civil action seeking equitable relief by means of the Great Writ.

 Under § 0304 of the Manual, the petitioner was entitled to his own counsel or "* * * military counsel appointed by the convening authority." The petitioner specifically made known his "desire" to be represented by counsel on June 21, 1965. The investigation nonetheless proceeded ex parte and the report was compiled without participation by counsel acting on behalf of the petitioner, who was confined to the hospital.

 One of these statements, attributed to Donald Stuart, a passenger in the rear seat of the car, contained allegations that the petitioner was travelling at a speed estimated to be 60 to 70 miles per hour and that, on several bends in the road, the petitioner's car went "slightly" off the road. This statement was quite evidently regarded as having significant probative value, since the Judge Advocate General, in his reply to plaintiff's counsel, dated November 7, 1966, refers to "testimony" of two disinterested hitchhikers who were picked up by the petitioner before the ...

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