                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 92-2462

             JOHN F. DIEKAN, CAPTAIN, U.S. ARMY,

                    Plaintiff, Appellant,

                              v.

             MICHAEL P.W. STONE, SECRETARY OF THE
                        ARMY, ET AL.,

                    Defendants, Appellees.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Rya W. Zobel, U.S. District Judge]
                                                  

                                        

                            Before

                  Torruella, Cyr and Boudin,
                       Circuit Judges.
                                     

                                        

   John F. Diekan on brief pro se.
                 
   A. John  Pappalardo, United States Attorney,  Annette Forde,
                                                              
Assistant  United  States Attorney,  Diana  Moore, Major,  United
                                               
States  Aremy,  U.S  Army  Litigation  Division,  and  Lieutenant
                                                               
Colonel W. Gary  Jewell, U.S. Army  Litigtion Division, on  brief
                     
for appellees.

                                        

                        June 10, 1993
                                        

          Per Curiam.   Plaintiff, an active  duty officer in
                    

the  Judge  Advocate  General's  Corps  ("JAGC"), filed  this

action  challenging Army  orders  transferring him  from Fort

Devens, Massachusetts to Camp  Casey, Korea.  Defendant moved

to  dismiss the complaint for  failure to state  a claim upon

which  relief  can be  granted.   Fed.  R. Civ.  P. 12(b)(6).

After a careful and thorough review of the issues in light of

the  test set forth in  Penagaricano v. Llenza,  747 F.2d 55,
                                              

60-61 (1st Cir. 1984),

the district court dismissed plaintiff's complaint because it

presented a non-justiciable  military controversy.   See also
                                                             

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971).  
                

          On appeal plaintiff argues  that the district court

erred  by applying  the wrong  standard under  Rule 12(b)(6).

Plaintiff urges that the  court erroneously failed to resolve

all reasonable  inferences in plaintiff's favor,  and did not

require  a showing  that the  facts alleged  were undoubtedly

insufficient to  make out claims  based on violations  of due

process, army regulations and breach of contract.    

          Plaintiff misperceives  the  focus of  the  court's

decision.  The  court did not undertake  to determine whether

plaintiff's complaint alleged  facts sufficient  to make  out

all  the elements  of a  legally cognizable  claim, the  more

usual  inquiry under Rule 12(b)(6).   Rather, even assuming a

proper  statement of  the claims  under substantive  law, the

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court decided, as a  matter of "policy akin to  comity," that

these were  not claims  "upon which relief  can be  granted."

Fed.  R. Civ. P. 12(b)(6);  see Penagaricano, 747  F.2d at 60
                                            

(quoting Mindes, 453  F.2d at  199).  Under  our cases,  that
               

decision  necessarily  required  a candid  assessment  of the

"nature and strength" of  the claims "in light of  the policy

reasons behind nonreview of military matters."  Penagaricano,
                                                            

747 F.2d at 60 (quoting Mindes, 453 F.2d at 201). 
                              

          We also reject  plaintiff's remaining challenges to

the  balance struck by the  district court under  each of the

policy factors, for essentially the same reasons as stated in

the district court's opinion.

          Affirmed.       
                  

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