Brady ( 1968 )

Plaintiff sues to recover disability retired pay from the date of bis release from active duty on December 13,1967, not by reason of physical disability in tbe grade of lieutenant colonel. Plaintiff’s application for a correction of bis military records to show his retirement for physical disability was denied October 12,1960. Upon plaintiff’s request for a hearing before the Correction Board, a hearing was held and his claim was denied by the Secretary of the Army on February 14,1962. Defendant has moved to dismiss the petition on the ground that it was filed more than six years after the cause of action, if any, accrued, and is therefore barred by the statute of limitations. 28 U.S.C. § 2501. It is defendant’s contention that the claim accrued on December 13, 1957, when plaintiff was relieved of active duty. On October 9, 1967, the court, upon consideration of defendant’s motion, plaintiff’s opposition thereto, and without oral argument, concluded that plaintiff’s claim accrued no later than October 12,1960, the date on which the Army Board for the Correction of Military Records denied plaintiff’s first application for correction, and that his petition filed on November 25, 1966, was barred by limitations. On that same date (October 9,1967), the court ordered that the petition be dismissed. On April 19,1968, the court denied plaintiff’s motion to alter or amend the court’s order of October 9, 1967, and also plaintiff’s motion to permit oral argument.