1984, the ADRB declined to upgrade his discharge.
On January 28, 1987, nearly nine years after his discharge from active duty, but less than three years after the ADRB denied his request for a discharge upgrade, Plowman filed an application to the ABCMR for an upgrade of his discharge. Listing the date of discovery of the alleged injustice as 1986, Plowman stated that the Board should find the consideration of the application in the interest of justice because, "mental problems was keeped (sic) in service a year after being completly (sic) busted." Administrative Record II at 62.
The ABCMR decided not to upgrade the status of Plowman's discharge status on August 17, 1988. In a decision similar to its decision with regard to Mr. Ortiz, the Board concluded that Mr. Plowman had not applied to it within the three year limitations period and that Plowman did not present sufficient justification to find it in the interest of justice to waive the statute of limitations.
Count I challenges the ABCMR's determination that the plaintiffs did not file their applications within the statutory period. The relevant portion of the statute which governs applications to BCMRs reads as follows: "No correction may be made . . . unless the claimant . . . files a request [for the correction] within three years after he discovers the error or injustice." 10 U.S.C. § 1552(b). Plaintiffs argue that the ABCMR's three-year statute of limitations period does not begin to run when the applicant is separated from the service, but instead it begins to run only once administrative remedies, specifically all applications to the ADRB, have been denied. Plaintiffs claim that while their applications for review were filed with the ABCMR more than three years after their discharges, this Court should find that the applications were properly filed because plaintiffs applied to the ABCMR within three years after denial of their claims by the ADRB.
Plaintiffs base their argument on two separate facts. First, under 37 C.F.R. § 581.3(c)(3) (1993) in order to apply to the ABCMR, an applicant need to have "exhausted all effective administrative remedies afforded him by existing law or regulations, and such legal remedies as the Board shall determine are practical and appropriately available to the applicant." Thus, appeal for the correction of a military discharge record normally lies first to the relevant DRB and then to the BCMR. See Hodges v. Callaway, 499 F.2d 417, 420 n.7 (5th Cir. 1974). The second fact on which plaintiffs base Count I is that the ADRB has a fifteen year statute of limitations while the ABCMR has a three-year statute. Compare 10 U.S.C. 11553(a) (application to Discharge Review Board must be made within 15 years of date of discharge) with 10 U.S.C. § 1552(b) (3-year limit for boards for the correction of military records created under this statute). Plaintiffs assert that because an appeal to the ADRB is considered an administrative prerequisite to an application to the ABCMR, the ADRB's 15-year statute of limitations would be abbreviated by 12 years if an aggrieved party were required to file with the ADRB within three years in order to preserve any subsequent right of application to the ABCMR. Plaintiffs would have this Court find that no "error or injustice" within the meaning of § 1552(b) has occurred until all administrative remedies, including application to the DRB, have been exhausted.
This Court finds that the ABCMR acted neither arbitrarily nor capriciously in interpreting the "discovery of error or injustice" language to mean from the date of discharge. That there may exist other avenues of relief for the amendment of improper discharges besides the ABCMR does not mean that the ABCMR's 3-year statute must be subjugated to other, longer statutes found in other procedures. Plaintiff's theory runs contrary to the plain language of the statute. In Walters v. Secretary of Defense, 233 U.S. App. D.C. 148, 725 F.2d 107 (D.C.Cir 1983) (rehearing denied) the D.C. Circuit held that for purposes of the statute of limitations in discharge cases, it is perfectly proper to find that the statutory time begins to run at the time of discharge. The Court there noted that waiting until all administrative remedies are exhausted before starting the statutory time clock, "would virtually repeal the statute of limitations in a case . . . where the plaintiff has not exhausted his administrative remedies." Id. at 114. The same would occur in this case under plaintiffs proposed interpretation of the three-year statute in § 1552. The three-year ABCMR statute would become an 18-year statute (or more, depending on how long it takes the ADRB to make a decision) by virtue of the ADRB's 15-year statute. This is an unacceptable result under the terms of the statute.
The ABCMR's determination that the statutory time clock began to tick at the time of discharge for both plaintiffs was neither arbitrary, capricious, nor contrary to law and defendants are entitled to summary judgment on this Count.
In Count II of the complaint, plaintiffs allege that the ABCMR has failed to justify its decision not to waive the three year statute of limitations in the interest of justice. Thus, plaintiffs argue, the decision was arbitrary, capricious and contrary to law. As an initial matter, this court must address whether it has jurisdiction to review a decision that appears from the statute to be wholly committed to the ABCMR's discretion.
Arguing that the "interest of justice" language is routinely interpreted by courts, plaintiffs direct the Court's attention to the case of Allen v. Card, 799 F. Supp. 158 (D.D.C. 1992). In Allen, Judge Flannery found denial of a waiver reviewable and used an "abuse of discretion" standard to review a decision of the Coast Guard BCMR not to waive the statute of limitations in the interest of justice.
Plaintiffs also devote a considerable portion of their brief to the legislative history surrounding the limitations period found in § 1552. Plaintiffs suggest that this 3-year limitations term was added to the BCMR statute specifically to address the concern of the Comptroller General regarding late filed monetary claims. Non-money claims, say the plaintiffs, were not intended to be squelched by the term limitation. Based on this legislative history, plaintiffs argue the statute was not intended to give unbridled discretion to the Army to make the determination whether to waive the statute or not.
There is evidence from the legislative history of 10 U.S.C. § 1552 confirming plaintiffs' assertion. Initially, the Department of Defense favored no time limitation period at all on appeals to the BCMRs. The term limitation was implemented at the request of the GAO:
When the original bill which the Department of Defense recommended was considered before the Committee on Armed Services of the House of Representatives, three specific objections were interposed by the General Accounting Office. First, the lack of any time limitation on the bill. The Department of Defense was opposed to any time limitation but withdrew its opposition if the proviso set forth in the present act . . . were adopted, whereby the boards would have authority to excuse compliance with the limitation in cases where an injustice would result to a member of the armed services who, for instance, because of injury in combat, capture, participation in combat or other exigencies or military service light render it impracticable for him to file his claim within the prescribed period.
Authorizing Payment of Claims Arising from Correction of Military and Naval Records: Hearing on H.R. 1181 Before a Subcomm. of the Senate Comm. on Armed Services, 82nd Cong., 1st Sess. 3 (1951) (Statement of Stephen S. Jackson, Office of Counsel, Office of the Secretary of Defense). In Mullen v. United States, 17 Cl.Ct. 578 (1989) the Claims Court relied on this legislative history and came to the determination that because the Congress had never intended to discourage late-filed applications for non-money claims to the BCMRs, the decision not to waive the statute in the interest of justice should be reviewable:
It is clear from the legislative history that the waiver provision of section 1552(b) was a compromise intended to operate as a safety valve in cases where a service man was unable to file his application within three years from discovery. It provides authority to the boards to waive the three year requirement where it is in the interest of justice to do so. Nowhere in the available legislative history is there any mention of unbridled discretion being placed in the boards. In fact, the general tone of the reports indicates that the boards should waive the requirement when an injustice is present.