Seitz, Van Dusen and Adams, Circuit Judges.
This is an appeal by plaintiff Vincent Ragoni from a grant of summary judgment by the district court in favor of defendants in an action seeking a declaratory judgment that the Board for Correction of Naval Records (Correction Board) erroneously refused to change plaintiff's 1947 bad conduct discharge from the Navy to an honorable discharge.
Plaintiff enlisted in the Navy in 1942. On April 26, 1947, while assigned to the U.S.S. North Carolina, he was given a bad conduct discharge pursuant to a summary court martial for being absent without leave from his ship.*fn1 It is admitted that at the summary court martial plaintiff stated that he did not wish counsel, pleaded guilty, and did not make a statement. Plaintiff's discharge was reviewed upon his request in 1948 by the Navy Board of Review, Discharges and Dismissals (now the Navy Discharge Review Board). 10 U.S.C. § 1553. The Review Board found that "the character of the discharge originally issued is proper and that no change, correction or modification" was warranted.
In 1965, seventeen years after the decision of the Review Board, plaintiff requested review of his discharge by the Board for Correction of Naval Records. 10 U.S.C. § 1552. He submitted to the Correction Board a four and one-half page account of his naval service and subsequent events. As to the charge which led to his last court martial and subsequent discharge, he asserted that he had left the ship without permission because he had been suffering from combat fatigue and did not believe he was receiving adequate treatment from the ship's medical personnel. His letter to the Correction Board further stated:
"I left the ship and went to Newark and home where I saw my own Doctor, and I stayed there for several days, until I felt better. I returned to the ship and was emmeadly brought before the Captian. We had some words or rather he did, as you can't say much to a Captian. I requested and insisted on Medical Treatment, he wasn't in any mood to hear anything from the like of me. He called me about everything a Captian, of his standing could do and recommended a Bad Conduct Discharge, and I agreed, I was too afraid not to, and so I was Discharged.
"I fully believe the Captian, who was a wonderful guy and skipper, if I was allowed Counsel and a investigation held. I would of been sent to a hospital, where later on I was to find I had a damaged and nervous stomach, I would of never gotten the Bad Discharge." (spelling as in original)
This material, together with plaintiff's naval records, was reviewed by the Correction Board, which concluded on July 12, 1966, that "insufficient evidence has been presented to indicate probable material error or injustice" and denied plaintiff's application without a hearing.
On June 24, 1967, plaintiff commenced this action in the district court pro se by filing a "Motion for Declaratory Judgment." He challenged the adverse decision by the Correction Board, asserting that his court martial guilty plea and waiver of counsel were rendered invalid by his mental and physical incompetence at the time. The district court granted defendants' motion for summary judgment on the ground that plaintiff's "claims are simply not supported by his naval records."
Initially, defendants assert that the district court had no jurisdiction over this action. Defendants' position is that this action in effect seeks judicial review of a court martial decision, and that such review is barred by Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, which provides that court martial sentences are "final and conclusive" and binding on, inter alia, all courts of the United States.*fn2
The Correction Board "may correct any military record * * * when [it] considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552. In the leading case of Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965), the First Circuit 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. The court pointed out that Congress specifically relieved the Correction Board from the finality provision of Article 76, and that the federal courts have jurisdiction to set aside an arbitrary and capricious refusal by the Board to exercise its power. The court's analysis of the legislative history on this issue is persuasive and need not be reiterated here. See also Smith v. McNamara, 395 F.2d 896 (10th Cir. 1968), cert. denied 394 U.S. 934, 89 S. Ct. 1211, 22 L. Ed. 2d 466 (1969). Indeed, several courts have held that Article 76 was not intended to bar any collateral attacks on court martial decisions. See Kauffman v. Secretary Of The Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991, 994-996 (D.C.Cir.1969), cert. denied 396 U.S. 1013, 90 S. Ct. 572, 24 L. Ed. 2d 505 (1970); Augenblick v. United States, 180 Ct.Cl. 131, 377 F.2d 586, 591-593 (1967), rev'd on other grounds, 393 U.S. 348, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969).
Assuming that the present action can be viewed as one for mandamus under 28 U.S.C. § 1361, we turn to plaintiff's assertion that summary judgment was improper here. He claims that there was a triable issue of fact as to his physical and mental capacity at the court martial. This argument does not advance plaintiff's cause, however, since in considering a petition for a writ of mandamus the district court in these cases may not look beyond the administrative record. Sanford v. United States, 399 F.2d 693 (9th Cir. 1968). This is so because the issue in such a mandamus action is whether the Correction Board acted arbitrarily or capriciously in view of the record before it. We have carefully reviewed the administrative record in this case and are convinced that the Correction Board did not act arbitrarily or capriciously in denying plaintiff's claim without a hearing. As is evident from the above-quoted language from his letter to the Correction Board, plaintiff's allegations of various symptoms of illness do not constitute a showing of likely incapacity or involuntariness at the time of the summary court martial.
We next consider whether plaintiff could obtain a trial of his alleged fact issues in a declaratory judgment action. Plaintiff's "Motion for Declaratory Judgment" might conceivably be read, not as seeking to set aside arbitrary action by the Correction Board, but as an attempt to make a habeas-corpus-type collateral attack on his court martial conviction. Cf. Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968). Such a right of action by way of declaratory judgment might be available when habeas corpus is foreclosed because the "in custody" requirement of the habeas corpus statute cannot be satisfied. Presumably, any action or inaction by the Correction Board would be irrelevant under any such theory. Moreover, if such a cause of action were recognized, it would probably allow some factual issues to be relitigated in the district courts in the manner of habeas corpus attacks on court convictions. While at least one court has held that such declaratory relief from a court martial conviction is available, other courts appear to have rejected the theory. Compare Kauffman v. Secretary Of The Air Force, 135 U.S. App. D.C. 1, 415 F.2d 991 (D.C.Cir.1969), cert. denied 396 U.S. 1013, 90 ...