Holt ( 1975 )

Military pay; limitation of actions; accrual of cause of action; tolling of limitations; actvoe duty bach pay claim.— On January 10,1975 the court issued the following order:

Before cowen, Ohief Judge, davis and bennett, Judges.

“This case comes before the court on the parties’ cross motions for summary judgment. Plaintiff, a Colonel in the regular Air Force, retired voluntarily on September 1,1966, and brought this action to recover the active service pay of a Brigadier General from July 1, 1964 to September 1, 1966, and for retired pay as Brigadier General from September 1, 1966 to date of judgment. Upon consideration of the motions and after hearing oral argument, the court finds that plaintiff’s cause of action accrued no later than September 1,1966, the date of his voluntary retirement. Kirby v. United States, 201 Ct. Cl. 527 (1973), cert. denied, 417 U.S. 919 (1974).

“The court concludes that plaintiff’s subsequent application to the Air Force Board For the Correction of Military Records was not mandatory and did not stop the running of the statute of limitations. Since plaintiff’s claim is barred by the statute of limitations, 28 U.S.C. § 2501, defendant’s motion for summary judgment is granted, plaintiff’s cross motion for summary judgment is denied, and plaintiff’s petition is hereby dismissed.

“it is further ordered that plaintiff’s motion for an order under Rule 76, striking defendant’s motion for summary judgment be and the same is also denied.”

Plaintiff’s motion for rehearing and suggestion for rehearing en bane were denied February 28,1975.