Clinton v. Goldsmith, 526 U.S. 529, 10 (1999)

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538

CLINTON v. GOLDSMITH

Opinion of the Court

ministrative bodies in the military, and the federal courts, have authority to provide administrative or judicial review of the action challenged by respondent.

In response to the notice Goldsmith received that action was being considered to drop him from the rolls, he presented his claim to the Secretary of the Air Force. See Tr. of Oral Arg. 4-5. If the Secretary takes final action to drop him from the rolls (as he has not yet done), Goldsmith will (as the Government concedes) be entitled to present his claim to the Air Force Board for Correction of Military Records (BCMR). This is a civilian body within the military service, with broad-ranging authority to review a service-member's "discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial)," 10 U. S. C. 1553(a), or "to correct an error or remove an injustice" in a military record, 1552(a)(1).12

12 Respondent argues nonetheless that seeking BCMR review in his case would have been futile (especially in light of his life-threatening illness) since BCMR's lack authority to declare statutes unconstitutional, cannot consider records of courts-martial and related administrative records (with two inapplicable exceptions), and are generally " 'unresponsive, bureaucratic extensions of the uniformed services,' " Brief for Respondent 16 (quoting H. R. Conf. Rep. No. 104-450, p. 798 (1996)).

In light of the fact that respondent chose to circumvent BCMR review, we need not address whether the Air Force BCMR has the power to correct a record that is erroneous as a result of a constitutional violation. Cf. Guerra v. Scruggs, 942 F. 2d 270, 273 (CA4 1991) ("The [Army BCMR] has authority to consider claims of constitutional, statutory, and regulatory violations"); Bois v. Marsh, 801 F. 2d 462, 467 (CADC 1986) ("[Appellant's] claims based on [the] Constitution, executive orders and Army regulations 'could readily have been made within the framework of this intramilitary procedure' " (quoting Chappell v. Wallace, 462 U. S. 296, 303 (1983))). And while it is true that unless specifically authorized a BCMR may not correct a court-martial record, see 10 U. S. C. 1552(f), it may still consider the record, especially where, as here, the court-martial record is relevant in determining the validity of the subsequent dropping from the rolls. Finally, the alleged unresponsive nature of the BCMR's, if true, would in

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