Knierim ( 1962 )

Military pay; active duty pay; benefits under Korean G.I. Bill. — Plaintiff sued to recover active duty pay and allowances as an Air Force enlisted man from August 31,1949, the date on which he alleges he was illegally separated from the Air Force, to October 27,1959, the date on which his discharge was retroactively changed from a general discharge to an honorable discharge by the Air Force Board for the Correction of Military Kecords. Defendant moved for summary judgment dismissing the petition on the grounds that the claim is barred by the statute of limitations, 28 U.S.C. § 2501, and that the petition fails to state a claim upon which relief can be granted (1) because it fails to allege that the correction board acted arbitrarily or capriciously in not making the sort of correction which would result in payment of active duty pay, and (2) because plaintiff did not contest the legality of his 1949 discharge before the correction board, which board accordingly merely changed the type of discharge and not the date. Upon consideration of defendant’s motion, together with, plaintiff’s opposition thereto, the court concluded that plaintiff had failed to state a cause of action since he was discharged from the Air Force on August 31,1949, and is not entitled to pay after that date and, on November 16,1962, the court ordered that the petition be dismissed.