“ The Solicitor General concedes that the administrative remedies that the Court of Appeals held should first be exhausted by the petitioner, have either been exhausted or are nonexistent. The sole remaining question therefore seems to be whether petitioner's failure to seek relief in the Court of Military Appeals precludes consideration of petitioner's claims by the federal courts. While the Solicitor General concedes that resort to that judicial remedy does not preclude consideration of petitioner's claim by the federal courts, there is a conflict among the circuits. ”