ORDER
The plaintiff, a former West Point cadet, was separated from West Point on June 14, 1990. Prior to taking this action, thе Army held a Full Honor Investigative Hearing (FHIH) on January 29, 1990 concerning allegations of lying and cheating. Complaint ¶ 6. The FHIH panel determined that the plaintiff had violated the Cadet Honor Code by cheating and latеr denying that she had cheated. Id. The Staff Judge Advocate of the Military Academy conducted a legаl review of the FHIH proceedings and forwarded the findings of the FHIH panel to the Superintendent of the Academy. Id. ¶ 7-8. On March 5, 1990, the Superintendent approved the findings and forwarded them on to Army Headquarters. Id. 119. The Army nоtified the plaintiff of its approval of her separation from the Academy on June 14, 1990. Id. Ex. 6.
Subsequently, on June 25, 1990, plaintiffs counsel wrote to the Deputy Assistant Secretary of the Army, who had previously assured plaintiffs fаmily that he would give the findings of the FHIH his “personal review.” The letter inquired whether the Army’s review was complete. Plaintiff’s counsel indicated the plaintiff intended to pursue the case in Court once the action was final and did not want to bring such an action prematurely. Complaint Ex. 5. The Army did not respond to this letter.
Plaintiff filed this аction on July 11, 1990, asserting several procedural and evi-dentiary flaws in the FHIH proceedings. On October 10, thе defendant moved to dismiss. The Army argues that the plaintiff has not requested a correction of her military records by the Army Board for Correction of Military Records (BCMR). The Army asserts that the BCMR has the power and authority to grant plaintiff all the relief she seeks, including reinstatement in the Academy. Accordingly, the Army argues that thе plaintiff must or should be required to exhaust her administrative remedies before prosecuting this action.
The Court finds that this case is governed by the decision of the Circuit Court in
Bois v. Marsh,
Although the need for military discipline by no means precludes judicial review of all military matters, the Supreme Court has instructed us that “[cjivilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the estаblished relationship between enlisted military personnel and their superior officers.” ... This teaching reinforces the well-established principle “that a court should not review internal military affairs in the absence of ... exhaustion of available intraservice measures.”
Bois,
The plaintiff acknowledges the rule in
Bois
and has conceded that the BCMR has the authority to grant the relief she seeks; nonetheless, the plaintiff asserts that in light of the special circumstances presented by this case, the Court should not require exhaustion of administrative remedies before permitting this suit. The plaintiff cites an еarlier Court of Appeals decision to suggest that whether or not to require exhaustion is a matter within thе Court’s discretion.
Hayes v. Secretary of Defense,
Although the Hayes decision speaks in terms of the court’s discretion to require exhaustion, the later decision in Bois clarifies the nature of the discretion to be exercised:
We recognize that the exhaustion doctrine is subject to exceptions, even in the context of suits alleging wrongs suffered incident to military service. The doctrine is not, for example, appliеd where “exhaustion in all likelihood would be futile,” ... or where no real possibility of adequate relief еxists.
In
Hayes,
the court found such irreрarable harm where a plaintiff is seeking
discharge
from the service. In that case, the court held that “[t]he delay attendant upon a petition to the Board for Correction of Military Records would significantly increase the length of [the plaintiff’s] involuntary servitude without judicial review.”
In addition, the plaintiff asserts that resоrt to the Board should not be required in this case since the Board would simply be revisiting the issues already considered by the Secretary. Providing agencies with a “useful, second look at an important decision,” however, is one of the justifications for the exhaustion requirement.
Kolesa v. Lehman,
For the foregoing reasons, the Court holds that the plaintiff must exhaust her administrative remedies before the BCMR before pursuing her case in civilian court. Accordingly, this case is DISMISSED without prejudice.