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NETHERY v. ORR

June 30, 1983

DONALD NETHERY, Plaintiff,
v.
VERNE ORR, Secretary of the Air Force, et al., Defendants



The opinion of the court was delivered by: RICHEY

 This matter is before the Court on defendants' motion to dismiss or for a judgment of affirmance of the decision of the Air Force Board for Correction of Military Records ("AFBCMR"), plaintiff's opposition thereto and the entire record herein. Defendants argue that plaintiff's claim is barred by the statute of limitations and even if not barred, should be denied because the AFBCMR decision was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Because the Court finds that the AFBCMR decision was reasonable, defendants' motion will be granted and that decision will be affirmed.

 BACKGROUND

 Plaintiff served in the Air Force from July of 1951 until his discharge in September of 1955. At the time of his separation, plaintiff was given an "undesirable" discharge certificate, following an inquiry into charges by several Marines that he had made homosexual advances toward them. *fn1" Plaintiff waived his right to a hearing before an administrative discharge board. Because of the nature of his discharge, plaintiff was denied payment for accrued leave time and mustering-out. *fn2"

 In 1956 and again in 1961, plaintiff applied to the Air Force Discharge Review Board ("AFDRB"), seeking to upgrade his discharge. Both times, he was denied relief. In 1962, plaintiff applied to the Air Force Board for Correction of Military Records ("AFBCMR"), also unsuccessfully. In 1977, however, the Air Force instituted a policy change which allowed past discharges to be administratively reviewed on the basis of the Air Force's then current policies. See 32 C.F.R. §§ 70.1(a)(1), 70.6(c)(1)(1981); P.L. 95-126, § 1(a)(2), 91 Stat. 1106 (1977). Pursuant to this authority, plaintiff applied to the AFBCMR in 1978. He sought to have his discharge upgraded to "honorable" and to have entered on his record a notation that he was discharged because of "expiration of enlistment." On March 20, 1979, the AFBCMR granted plaintiff the former item of relief, upgrading his discharge to "honorable," but denied the latter.

 Plaintiff remained unsatisfied with the relief granted him. Consequently, he applied to the AFDRB and the AFBCMR to delete from his non-public discharge papers *fn3" a reference to "AFM 39-12," which had been cited as the basis for his discharge. AFM 39-12 was the successor to AFR 35-66, the regulation under which plaintiff had originally been discharged. This regulation is entitled "Enlisted personnel, separation for unsuitability, misconduct, personal abuse of drugs; resignation or request for discharge for the good of the service; procedures for rehabilitation program." Two subsections of this regulation could relate to homosexuality. Plaintiff argued that reference to AFM 39-12 created damaging implications and therefore should be removed. Additionally, plaintiff sought payment for unused leave time and mustering-out pay, to which an honorable discharge entitled him. Plaintiff's two applications -- to the AFDRB and the AFBCMR -- were consolidated for procedural convenience. The Air Force instructed the AFDRB to supply its views to the AFBCMR, which would adjudicate the applications.

 The AFDRB recommended and the AFBCMR determined that reference to AFM 39-12 should be deleted from plaintiff's records. Instead, reference to " 10 U.S.C. § 1553," the AFDRB enabling statute, was inserted as the basis for his discharge. Further, the AFBCMR instructed plaintiff to provide to the Air Force Accounting and Finance Center the documentation necessary to obtain payment on his claims for monetary relief.

 On December 22, 1981, plaintiff wrote a letter to the Accounting and Finance Center requesting mustering-out pay and payment for unused leave time. The Center responded that it had no record of the amounts due plaintiff because his pay records had been routinely destroyed due to the passage of time. The Center requested that plaintiff provide the documentation required to demonstrate his entitlement to payment. Although plaintiff failed to comply, counsel for defendant certified after the commencement of this suit that plaintiff had not received mustering-out pay. This certification substituted for the documentation plaintiff failed to provide. Consequently, plaintiff's claim for mustering-out pay was satisfied, although he never received payment for unused accrued leave time. *fn4"

 NEITHER THE STATUTE OF LIMITATIONS NOR THE DOCTRINE OF LACHES BARS PLAINTIFF'S SUIT.

 Defendant argues that plaintiff's action arose at the time of his discharge in 1955 and therefore is barred by 28 U.S.C. § 2401(a), which sets a six year statute of limitations for civil suits against the government. Initially, it is not clear that § 2401(a) is the applicable statute of limitations for cases of this type. See Walters v. Secretary of Defense, 533 F. Supp. 1068, 1970 (D.D.C. 1982) appeal docketed No. 82-2089 (D.C. Cir. Sept. 17, 1982); Calhoun v. Lehman, C.A. No. 78-0988 (D.D.C. Jan. 27, 1982). See also Reeves v. Marsh, C.A. No. 82-3439 (D.D.C. June 7, 1983). Moreover, even if the six year limitations period applies, the Court finds that plaintiff's claim is not time barred because it arose in 1979, well within the statutory period.

 Generally, all avenues of military administrative appeal must be exhausted before a plaintiff may seek judicial review. See Knehans v. Alexander, 184 U.S. App. D.C. 420, 566 F.2d 312, 315 (D.C. Cir. 1977) cert. denied, 435 U.S. 995, 56 L. Ed. 2d 83, 98 S. Ct. 1646 (1978). Further, in Wood v. Secretary of Defense, 496 F. Supp. 192, 197-98 (D.D.C. 1980), this Court held that a plaintiff's cause of action does not accrue until after he has been denied relief by the relevant review board. In this case, plaintiff is seeking review of a decision by the AFBCMR which occurred in 1979. Accordingly, the Court finds that this action did not accrue until 1979 and is therefore not time barred. Moreover, to hold that the Court could not review AFBCMR decisions which were issued more than six years after the original discharge, would render these decisions unreviewable, contrary to this Court's well established authority to review such decisions. See, e.g., Amato v. Chafee, 337 F. Supp. 1214, 1216-17 (D.D.C. 1973). See also Walters v. Secretary of Defense, 533 F. Supp. 1068, 1071 n.6 (D.D.C. 1982) appeal docketed No. 82-2089 (D.C. Cir. Sept. 17, 1982).

 In addition to their statute of limitations claim, defendants assert that plaintiff's suit is barred by laches. In support of this claim, defendants assert that plaintiff has not been diligent in pursuing his cause of action. Defendants further argue that this asserted lack of diligence has resulted in prejudice to them because a fire in 1973 destroyed records needed to provide the defense in this case. The facts demonstrate, however, that plaintiff has been very diligent in pursuing his claim. Prior to the Air Force's 1977 policy change he thrice attempted to obtain vindication through the military administrative processes. Subsequent to the 1977 policy change which opened the door for plaintiff's relief, he applied several additional times to the AFBCMR and AFDRB, finally filing suit in this Court.

 Moreover, the Court is unswayed by the prejudice defendants assert. Defendants have not explained how a fire in 1973 could have effected their defense of the AFBCMR's 1979 decision and the Court finds that their papers have adequately defended this decision without whatever records may have been destroyed. Additionally, the Court is unwilling to impose upon plaintiff the penalty for such a fortuity as a fire destroying ...


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