C.F.R. § 865.1 - 19 (1984). Even if plaintiff Bittner were unsuccessful before the Personnel Review Boards, these boards would provide for the Court a complete factual record, as well as give expert consideration to plaintiff Bittner's claims.
In opposition to defendants' claim that plaintiff Bittner must first pursue available administrative remedies, plaintiffs claim, inter alia, that these review boards lack the authority to examine constitutional claims, that the review process is too long and time-consuming, and that prior board action with respect to other individual plaintiffs suggests that plaintiff Bittner will also be unsuccessful with his claims.
The Court is not persuaded by plaintiffs' arguments. The Court should not address constitutional claims where issues may be resolved in plaintiff's favor at the administrative level on nonconstitutional grounds. Further, as demonstrated by other individual plaintiffs in this action, the administrative review process is not inordinately long. Additionally, it provides the Court with valuable agency expertise and fact finding that could assist the Court in reviewing plaintiff Bittner's claims. Finally, prior board actions of other plaintiffs in this action are not determinative as to plaintiff Bittner's claims. The review boards must determine individually the factual basis and propriety of plaintiff Bittner's general discharge. The Court notes that beyond any information assistance these review boards may render in reviewing plaintiff Bittner's claims, pursuing administrative remedies within the Air Force affords the defendants the opportunity "to discover and correct its own errors," if any. Eastmead v. Marsh, No. 83-1682, Mem. at 2 (D.C. Cir. Feb. 8, 1984). Accordingly, the Court determines that plaintiff Bittner must pursue his administrative remedies with the Personnel Review Boards before pursuing these claims in court and, therefore, his claims are dismissed without prejudice.
B. Eight Remaining Individual Plaintiffs
Defendants seek to dismiss the claims of the eight remaining individual plaintiffs in this action on statute of limitations grounds. These plaintiffs, Harry R. Lorenz, Lilli M. Vincenz, John J. Howard, Albert Thomas DiManno, John Lawrence Mario, John Doe, Jane Roe, and John Wade, each challenge the characteristics of their discharges, as well as the administrative appellate review of their discharges. These individual plaintiffs were discharged more than six years before this action was commenced. The challenged administrative determinations, however, all occurred less than six years prior to the time of suit.
In seeking to dismiss the eight individual plaintiffs on statute of limitations grounds, defendants argue that these plaintiffs' claims are all barred by the six-year statute of limitations as set forth in section 2401 of Title 28, United States Code.
Defendants aver that because plaintiffs are pursuing claims which essentially accrued on the date of their discharge and each of these eight plaintiffs was discharged more than six years before the suit was filed, section 2401 bars these eight plaintiffs from attaining relief in Federal court.
As support for this contention, plaintiffs look to the United States Court of Appeals for the District of Columbia Circuit's ruling in Walters v. Secretary of Defense, 233 U.S. App. D.C. 148, 725 F.2d 107 (D.C. Cir. 1983). In that decision the court ruled that "the six-year statute of limitations of section 2401(a) bars [a] civil action for declaratory and injunctive relief brought seven and one-half years after the former servicemember's discharge." Id. at 108. The Walters case involved a Marine who was given a general discharge from the service, following an administrative determination of drug abuse. Instead of availing himself of administrative remedies, suit was filed in district court. The district court granted plaintiff's motion for summary judgment. On appeal, the Court of Appeals reversed the district court's determination. It concluded that the appellant's "cause of action first accrued at the time when he began to suffer an alleged disadvantage - - when he received his less-than-honorable discharge in 1973." Id. at 114. Because more than six years had elapsed between that appellant's discharge and his filing suit, the court concluded that the statute of limitations barred him from challenging the discharge in court.
Plaintiffs appear not to contest this analysis of Walters and agree that the eight individual plaintiffs' challenges of their discharges are barred by the statute of limitations. They argue, however, that this action seeks not only to challenge the initial discharge, but also the administrative review by the DRB and the BCMR. Plaintiffs note that the Court of Appeals left open the question of whether a court may review administrative decisions from review boards of discharges that occurred more than six years after an individual's discharge. See id. at 115. Although defendants argue that Walters clearly implies that the limitation period of six years must have some meaning and must, therefore, prevent any court review of challenges to a discharge or the administrative review of the discharge, the question remains open. As noted by Judges Wald and Mikva in their concurrence in the denial of the motion for rehearing en banc in Walters :
We want to emphasize the limited reach of the holding in this case. As we read Walters, the panel opinion, 233 U.S. App. D.C. 148, 725 F.2d 107 (D.C. Cir. 1983), merely holds that, in independent civil actions brought to correct a serviceman's record, the six-year statute of limitations found in 28 U.S.C. § 2401(a) applies. Walters explicitly does not speak to the altogether distinct question of what time period governs when review is sought of administrative discharge decisions. See [725 F.2d] at 115. ("Nor do we address the reviewability of such an administrative decision in federal court.") (emphasis added). Congress has granted discharged service members 15 years from discharge to petition a review board for an upgrade, 10 U.S.C. § 1553(a), and this court has expressly held that Congress did not intend to preclude judicial review of decisions reached by those review boards. Van Bourg v. Nitze, 128 U.S. App. D.C. 301, 388 F.2d 557, 564 n. 14 (D.C. Cir. 1967). As a result, we do not believe Walters in any way limits jurisdiction to review a correction board's treatment of a petition for a discharge upgrade that is timely filed, under 10 U.S.C. § 1553(a), with the relevant administrative body.
Walters v. Secretary of Defense, 237 U.S. App. D.C. 333, 737 F.2d 1038 (D.C. Cir. 1984 (emphasis in original).
The majority of courts that have addressed the question of whether individuals may attack review board decisions in Federal court, despite the fact that the original discharge took place more than six years before suit was filed, have concluded that there is no bar. See Weber v. Weinberger, No. K 83-664 (W.D. Mich. Nov. 13, 1984); Schmidt v. United States, No. C-83-3834 JPV, slip op. at 4-5 (N.D. Cal. Apr. 25, 1984); White v. Secretary of Army, 629 F. Supp. 64, slip op. at 9-11 (D.D.C. 1984); Miskill v. Lehman, 566 F. Supp. 1486, 1489 (D.D.C. 1983); but see Geyen v. Marsh, 587 F. Supp. 539 (W.D. La. 1984), appeal pending, 775 F.2d 1303 (5th Cir. 1985). If a plaintiff has alleged that when he sought administrative relief for a discharge upgrade and that such relief was arbitrarily and capriciously denied, then there is a strong presumption that this former servicemember may pursue his claims pursuant to the Administrative Procedure Act, 5 U.S.C. § 706, before a district court. It is undisputed that judicial review of agency action by an aggrieved individual will not be cut off unless there is persuasive proof that Congress intended that result. See Dunlop v. Bachowski, 421 U.S. 560, 567, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). Further, as this Circuit has stated in Van Bourg v. Nitze, 128 U.S. App. D.C. 301, 388 F.2d 557 (D.C. Cir. 1967),
the function of the [Discharge] Review Board and the Correction Board is to review the type and nature of discharges in order to correct errors or remove injustices. And it is the duty of the judiciary to inquire into an allegedly wrongful and detrimental refusal to grant deserved relief.
Id. at 563 (footnote omitted). For this reason, the Court concludes that plaintiffs' challenge of the administrative decisions denying an upgrade in discharge is reviewable in this action despite the fact that the actual discharges occurred more than six years before the action was filed.
The Court must emphasize the fact, however, that it does not and cannot review the actual discharges of these plaintiffs, but only the review boards' decisions denying a request for upgrade. Defendants argue that applying the six-year limitations period from the date of a review board's denial of upgrade discharge would render the statute of limitations period meaningless because these boards' decisions are actually a reconsideration of the decisions made at discharge to characterize it as less than honorable. This claim, however, is not necessarily true. For example, the DRB's are required to review a discharge based on current policies and procedures and not those which were in effect at the time of discharge. E.g., 32 C.F.R. 70.9(c)(1)(1984). In examining the review boards' decisions a court determines whether these review boards properly applied current law and current policies and procedures. This examination can only be described as distinct from reviewing the original discharge qualification itself.
Accordingly, these eight plaintiffs are not barred from seeking review of denied applications for an upgrade in discharge.
The Court, notes, however, that all but two of these eight individual plaintiffs have failed to pursue all available administrative remedies. With the exception of plaintiffs Vincenz and Doe, the individual plaintiffs have failed to pursue their claims with the various military branches' BCMR. As Judge Corcoran explained in White v. Secretary of the Army, No. 83-2554,
the statute of limitations of section 2401(a) does not begin to run until plaintiff's right of action has accrued. "In the agency context, the logical inference is that the cause of action accrues when all statutorily required or permitted agency review has been exhausted." Impro Products, Inc. v. Block, 232 U.S. App. D.C. 359, 722 F.2d 845, 850.