DocketNumber: No. 323-77
Citation Numbers: 217 Ct. Cl. 721
Judges: Bennett, Davis, Kunzig
Filed Date: 6/27/1978
Status: Precedential
Modified Date: 11/23/2022
Plaintiff served in the Army from August 1943 to January 31, 1961; on that date he was discharged as a reserve commissioned officer "under honorable conditions.” This action was taken because of the Army’s view of certain alleged conduct on his part which was connected
It is established law in this court that a suit here for military pay, based on an allegedly unlawful or improper discharge or separation from the service, must be brought within six years of the serviceman’s removal. Mathis v. United States, 183 Ct. Cl. 145, 391 F. 2d 938 (1968); Kirby v. United States, 201 Ct. Cl. 527 (1973), cert. denied, 417 U.S. 919 (1974); Ramsey v. United States, 215 Ct. Cl. 1042 (1978), rehearing denied, April 27, 1978, cert. denied, 439 U.S. 1068(1979). The decision in Kirby applied this principle to a suit, like this, for retirement pay founded on the assertion that the claimant had been improperly discharged (more than six years before suit) and except for that invalid separation he would have continued to serve until eligible for retirement. See 201 Ct. Cl. at 532-540.
Plaintiff attempts to avoid application of this rule to his case by some interrelated distinctions which he advances to preserve his suit. This contention that he differs from the others is said to rest on a combination of two propositions: first, that he did not necessarily have a claim for active duty pay when discharged in 1961 because he could have completed the remaining 25+ months needed for 20-year retirement under 10 U.S.C. § 1331 by taking non-paying
Accordingly we must hold that plaintiffs claim for retirement pay under 10 U.S.C. § 1331 is barred by limitations.
Plaintiff then asks that, if we refuse to entertain his money claim, we transfer the suit (pursuant to 28 U.S.C. § 1506) to the United States District Court for the District of Columbia for adjudication under 28 U.S.C. § 1331(a), as amended by Public Law 94-574 (Oct. 21, 1976). Defendant opposes such transfer on the ground that the District Court would likewise have to dismiss the suit under its six-year limitations statute (28 U.S.C. § 2401 (a)). See Saffron v. Department of the Navy, 561 F.2d 938 (1977), cert. denied, 434 U.S. 1033 (1978). We consider it clear that the amendment to 28 U.S.C. § 1331(a) was not intended to give, and did not give, the district courts jurisdiction of monetary claims against the Federal Government under § 1331(a). H. Rep. No. 94-1656, 94th Cong., 2d Sess. 3,4-5, 11, 12-13, 17, 19-20, 23, 26-28 (1976), [1976] U.S. Code Cong. & Ad. News 6121, 6123, 6124-25, 6131, 6132, 6133, 6137, 6140, 6142, 6145-47. It may possibly be, however, that the 1976 amendment did give jurisdiction to review the Correction Board’s November 1976 refusal to correct plaintiffs military records — treating the suit not as one for money but simply to overturn the allegedly erroneous Correction Board determination respecting plaintiffs records. We do not, of course, intimate in any way that such an action
IT IS THEREFORE ORDERED AND CONCLUDED, Without oral argument,
The gist of plaintiffs claim is that he should not have been discharged in 1961 and that the Correction Board should have recognized the injustice and impropriety of that discharge and held him retained on active duty until retired as a major in June 1971 (when he attained 60 years of age).
Since 20-year, age 60, retirement under 10 U.S.C. § 1331 does not preclude more than 20 years of service, we do not decide that plaintiff would not have had a claim for active duty pay if improperly separated in 1961; we merely accept his contention arguendo.
Plaintiff asks for oral argument but we consider it inappropriate on the settled issues involving this court’s jurisdiction and unnecessary on the transfer issue.