Boswell v. United States , 128 F. App'x 118 ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-5006
JAMES D. BOSWELL
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
DECIDED: April 5, 2005
__________________________
Before LOURIE, CLEVENGER, and LINN, Circuit Judges.
PER CURIAM.
James D. Boswell ("Mr. Boswell") seeks review of the final decision of the United
States Court of Federal Claims dismissing as time-barred his complaint concerning his
1989 Army discharge. Boswell v. United States, No. 01-649C (Fed. Cl. Aug. 16, 2004).
The Court of Federal Claims dismissed the action on the same basis as the Federal
Circuit dismissed a companion case. See Boswell v. United States, 83 Fed. Appx. 313(Fed. Cir. 2003) ("Boswell I"). Because the outcome of Boswell I controls this case, we
affirm the dismissal of the action by the Court of Federal Claims.
I
Mr. Boswell petitioned the Court of Federal Claims for review of a November 6,
2000 decision by the Army Board for Correction of Military Records ("ABCMR") which
stemmed from a petition to amend a 1997 decision by the ABCMR. The 1997 decision
was the subject of the appeal in Boswell I. Mr. Boswell also petitioned for review of a
September 5, 2001 decision by the Promotions Branch which had denied
reconsideration of retroactive promotions in 1989 and 1990. In essence, Mr. Boswell
again attempts to seek review of events surrounding his 1989 discharge from the Army.
The Court of Federal Claims stayed the instant case pending the outcome of the
review by this court of the Court of Federal Claims decision in the companion case
brought by Mr. Boswell. The Federal Circuit issued the opinion in Boswell I which held
that the six-year statute of limitations barred review of Mr. Boswell's 1989 discharge
from the Army and that this statute of limitations was not tolled by his appeals to the
ABCMR. Subsequently, the Court of Federal Claims issued a show cause order
requesting an explanation from Mr. Boswell of why his case was not foreclosed by the
decision in Boswell I. Mr. Boswell responded to the court with additional allegations
unrelated to his Army discharge including issues involving his termination from the
Texas Army National Guard and a disputed educational credit. The Court of Federal
Claims found that Boswell I was determinative of the instant action and found
Mr. Boswell's claims relating to his discharge were time-barred. Mr. Boswell then
appealed to this court. We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1295(a)(3) (2000).
II
We will overturn decisions of the Court of Federal Claims if the court has made
an error of law or if the findings of fact are clearly erroneous. Matias v. United States,
923 F.2d 821, 826 (Fed. Cir. 1990).
05-5006 2
III
In Boswell I, this court held that the statute of limitations runs from the date of
discharge and is not tolled by reviews of the corrections boards. Because Mr. Boswell
was discharged in 1989, his claims relating to that discharge are now time-barred.
Mr. Boswell is free to pursue the claims dismissed without prejudice by the Court of
Federal Claims relating to the educational credit and the Texas Army National Guard.
However, the decision of the Court of Federal Claims that Mr. Boswell is time-barred
from challenging his 1989 Army discharge must be affirmed.
05-5006 3