Through a writ of habeas corpus brought under 28 U.S.C. § 2241 (1970), petitioner seeks an honorable discharge from the United States Marine Corps (Marine Corps). Petitioner is in the custody of the Marine Corps at the United States Naval Base in Philadelphia. The Marine Corps desires to return petitioner to his parent base at Parris Island, South Carolina, where it is likely that he will be court martialed. To prevent the Marine Corps from removing petitioner from this District until a hearing was held, petitioner obtained a temporary restraining order and also moved for a preliminary injunction. A hearing was held on January 17 and 20, 1975, at the conclusion of which all parties agreed that the temporary restraining order should be dissolved and petitioner withdrew his motion for a preliminary injunction.
The only issue remaining is whether a writ of habeas corpus should be granted discharging petitioner from the Marine Corps.
Petitioner claims that he is unlawfully retained in the Marine Corps since, in breach of his enlistment contract, he did not receive a monthly allotment of $150.00 during basic training and a 10 day leave upon completion of basic training.
The government contends that we should not entertain petitioner's application for habeas corpus until he has exhausted remedies available within the military judicial system. After a careful and thorough consideration of the evidence introduced at the hearing, and the authorities cited in support of the parties' respective positions, we conclude that petitioner is not entitled to the relief he requests.
From an examination of the evidence presented at the hearing certain facts are clear. Petitioner enlisted in the Marine Corps on October 30, 1973, under a deferred enlistment program
and entered active duty December 6, 1973. He completed basic training on March 4, 1974, and on that date left the Marine Corps without leave, failing to return until January 13, 1975, when he surrendered to Marine Corps authorities in Philadelphia. While in basic training, petitioner was assigned the duties of a scribe (office clerk) placing him in daily contact with Marine Corps officers. Before enlisting petitioner was told that upon request he would receive pay allotments while in basic training and that upon completion of basic training he would receive up to 10 days leave. He was also told that there would be a delay of one or two months in making an allotment payment after requested. After commencement of basic training, petitioner sought information from his drill instructors as to the manner of obtaining a pay allotment. Upon being told by these instructors that as a reservist he was not entitled to pay allotments, he made no other attempts to secure them.
While petitioner did not receive pay allotments, within two months after he started basic training he had received compensation of $250.00 from the government and, within three months he had received total compensation of $750.00.
The writ of habeas corpus is an appropriate remedy for servicemen who claim to be unlawfully retained in the armed forces. Parisi v. Davidson, 405 U.S. 34, 39 (1971). Generally, however, a serviceman must exhaust remedies within the military judicial system before habeas corpus recourse may be had to a federal court, and federal courts should not entertain habeas corpus petitions until all available remedies within the military judicial system have been exhausted. See Sedivy v. Richardson, 485 F.2d 1115, 1118-1119 (3 Cir. 1973). The exhaustion doctrine allows
an administrative agency to perform functions within its special competence -- to make a factual record, to apply its expertise, and correct its own errors so as to moot judicial controversies. 405 U.S. at 37.