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WHITE v. SECRETARY OF THE ARMY

April 9, 1984

RICHARD N. WHITE, Plaintiff,
v.
SECRETARY OF THE ARMY, Defendant


Howard F. Corcoran.


The opinion of the court was delivered by: CORCORAN

 I. BACKGROUND

 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. *fn1"

 Plaintiff filed his complaint in this Court on June 1, 1983.

 II. ANALYSIS

 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 ...


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