Plaintiff then sought to have this determination reviewed by the United States Court of Military Appeals. However, plaintiff was informed, on March 27, 1968, that the Court of Military Appeals did not have jurisdiction, their reviewing powers being limited to court-martial convictions occurring on or after May 31, 1951.
After exhausting these administrative remedies, the plaintiff petitioned this Court for a Writ of Habeas Corpus. Shortly thereafter, however, plaintiff moved for, and was granted, leave to amend his petition to plead the instant action for mandamus. The defendants argue to no avail that we lack jurisdiction over this matter since we elect to follow the persuasive analysis of the court in Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965), which held that district courts have jurisdiction in an action for mandamus pursuant to 28 U.S.C. § 1361 to review decisions by the Correction Board, including those which involve actions by courts-martial.
In considering this petition for a writ of mandamus the district court may not look beyond the administrative record. Ragoni v. United States, Secretary of the Navy, 424 F.2d 261 (3rd Cir. April 10, 1970); Sanford v. United States, 399 F.2d 693 (9th Cir. 1968). This is so because in such a mandamus action we must determine whether the Correction Board acted arbitrarily or capriciously on the basis of the record before it. After a careful review of the administrative record in this case, we find that the Correction Board did not act arbitrarily or capriciously in denying the plaintiff's claim as there was substantial evidence in the record to support the Board's decision.
As outlined above, plaintiff set forth two grounds in his application to the Correction Board for overturning his court-martial conviction, to wit, that he was denied the right to call witnesses in his behalf and that he was deprived of the assistance of competent legal representation. The only evidence which plaintiff relied on was the transcript of his court-martial.
However, that transcript offers the plaintiff no support and, in fact, flatly contradicts his allegations.
The transcript of the court-martial shows that the plaintiff here was represented by the counsel he requested and, before opening statements were made, plaintiff replied affirmatively to questions by the Trial Judge Advocate as to whether the plaintiff had had sufficient opportunity to discuss his case with counsel, to procure witnesses in his behalf, and to prepare a defense. The prosecution then put on two witnesses to establish the commission of the charged offenses by the plaintiff here. After the prosecution rested, defense counsel made a plea for leniency based on the accused's youth and lack of formal education. Then the following colloquy ensued:
"Court: Private Lima, you don't wish to take the witness stand?