set forth at 28 U.S.C. § 2401(a)(1976 & Supp. V 1981). Plaintiff opposes the motion. Because both parties have repeatedly made reference in their briefs to matters outside the pleadings, we treat the motion as one for summary judgment. Fed. R. Civ. P. 12(b); June v. Secretary of the Navy, 557 F. Supp. 144, 146 n.1 (M.D. Pa. 1982). For the reasons given below, we grant defendant's motion.
Plaintiff enlisted in the Army on March 20, 1972, for a two year tour of duty. During his military service plaintiff was punished pursuant to the Uniform Code of Military Justice for repeatedly being absent without leave (AWOL). One such charge was referred to special court-martial. As a result of allegedly erroneous legal advice given to him by counsel appointed by the Army, plaintiff decided to request an administrative discharge in lieu of trial by court-martial. Consequently, plaintiff was discharged on July 20, 1973 under less than honorable conditions.
On September 25, 1974, plaintiff applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. After considering plaintiff's military records and other evidence before it, the ADRB determined on February 5, 1975, that plaintiff had been properly discharged. Subsequently, on February 11, 1975, plaintiff applied to the Army Board for Correction of Military Records (ABCMR) for similar relief. Plaintiff's application for correction of his military records was denied by the ABCMR on July 18, 1975.
Two years later Congress enacted a statute, Act of October 8, 1977, Pub. L. No. 95-126, 91 Stat. 1106, which required the boards of review of the various services to review applications for a change in discharge status under published uniform standards and procedures. It also provided veterans who had been discharged under conditions other than honorable with an opportunity to have their discharges reconsidered under the published guidelines. See, 38 U.S.C. § 3103(e)(1) (Supp. V 1981).
On July 26, 1979, after the uniform standards had been published, plaintiff applied to the ADRB for reconsideration of his discharge. A hearing was scheduled for July 1980. However, since plaintiff had changed his residence in August 1979, notice of the hearing never reached him. Consequently, on July 25, 1980, the ADRB, on the basis of plaintiff's military records alone, denied his request for an upgrade of his discharge.
Because he had not received notice of the July 1980 hearing, plaintiff filed on October 1, 1980, a third application with the ADRB for a review of his discharge. On May 17, 1982, a hearing was held by the ADRB at which time testimony was heard. On June 3, 1982, on the concurrence of three of the five members of the ADRB, plaintiff's application for an upgrade in discharge was again denied. While all five members of the ADRB agreed that the plaintiff had not been properly counseled by his Army-appointed attorney, three of the members determined that the erroneous advice had not been prejudicial to the plaintiff.
Plaintiff filed his complaint in this Court on June 1, 1983.
The complaint includes three claims. However, it alleges only two different and distinct causes of action. The first two claims are essentially the same in that they attack as a violation of Army Regulations and the U.S. Constitution the procedures used by defendant in the 1973 administrative proceeding which led to his discharge under conditions other than honorable. The third claim, the second cause of action, seeks judicial review under the Administrative Procedure Act, 5 U.S.C. § 706(2) (1982), of the decisions of the ADRB and ABCMR denying plaintiff's application for an upgrade in his discharge. In addition to declaratory relief, plaintiff seeks an injunction requiring defendant to recharacterize his discharge to honorable.
Defendant asserts that all of plaintiff's claims should be dismissed because they were not brought within the time limit prescribed by 28 U.S.C. § 2401(a)(1976 & Supp. V 1981), which, in pertinent part, provides:
Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action accrues.
In opposition plaintiff argues that section 2401(a) has no application to any of the claims raised in his complaint. Alternatively, he contends that his action was brought well within the time limit established by section 2401(a).
Because, as noted above, plaintiff's complaint sets forth two different causes of action, the impact of section 2401(a) on each of them must be assessed separately. In doing so, we are concerned with three basic issues: (1) whether the six-year statute of limitations of section 2401(a) is applicable, (2) if so, when the limitations period began to run, and (3) whether plaintiff's cause of action was filed within the limitations period.
A. Plaintiff's 1973 Administrative Discharge
The first cause of action (Counts 1 & 2) centers on alleged improprieties in the 1973 administrative proceeding which resulted in plaintiff's discharge from the Army under conditions other than honorable. Specifically, plaintiff alleges that he received ineffective assistance from his Army-appointed counsel in that he was erroneously advised that the special court-martial convened in his case had the authority to issue him a bad conduct or dishonorable discharge. As a result of his counseling, plaintiff alleges that his request for an administrative discharge in lieu of court-martial was coerced and that command approval of his request and the subsequent issuance by the defendant of a discharge under conditions other than honorable were improper.
In opposing defendant's motion to dismiss this cause of action, plaintiff argues, inter alia, that section 2401(a) does not apply to equitable actions brought against officials of the United States primarily seeking corrective relief to remove the stigma of an unfavorable discharge. Plaintiff contends that federal courts have routinely reviewed the merits of corrective actions which would have been dismissed upon strict application of section 2401(a).
The issue of whether section 2401(a) is applicable to an equitable claim seeking to correct or upgrade the discharge of a servicemember under conditions less than honorable was laid to rest by the recent decision of the Court of Appeals for the District of Columbia Circuit in Walters v. Secretary of Defense, 233 U.S. App. D.C. 148, 725 F.2d 107 (D.C. Cir. 1983). In Walters, the plaintiff brought suit for declaratory and injunctive relief to upgrade to honorable his general discharge from the Marine Corps. In holding that section 2401(a) applied to plaintiff's action, the court rejected, as contrary to the express language of the statute and the case law in the D.C. Circuit, the reasoning of a line of cases which had recognized an implicit exception from section 2401(a) for equitable actions seeking prospective relief from court martial convictions. The court explained:
We thus adhere to the analysis set forth in Saffron that treats legal and equitable claims identically under section 2401(a). Even though the relief sought in this case is purely prospective, and does not involve reinstatement, the plaintiffs seek a remedy that significantly compels very extensive government action and in addition may eventually result in substantial demands on the federal fisc. Such claims for relief must be viewed as within the scope of the statute.