587 F.Supp. 539 (W.D.La. 1984), Civ. A. 83-2030, Geyen v. Marsh

Docket Nº:Civ. A. 83-2030
Citation:587 F.Supp. 539
Party Name:Geyen v. Marsh
Case Date:July 18, 1984
Court:United States District Courts, 5th Circuit, Western District of Louisiana

Page 539

587 F.Supp. 539 (W.D.La. 1984)

Calvin GEYEN, Jr.


John O. MARSH, Jr., Secretary of the United States Army.

Civ. A. No. 83-2030.

United States District Court, W.D. Louisiana, Lake Charles Division. .

July 18, 1984

Lonnie R. Smith, SW La. Legal Services, Lake Charles, La., for plaintiff.

Lawrence W. Moon, Jr., Asst. U.S. Atty., Lafayette, La., Major Wayne H. Price, JAGC, for defendants.

VERON, District Judge.


Plaintiff Geyen filed suit in this court on August 24, 1983 alleging various improprieties by the Department of the Army during his tenure with them from 1969 to 1972. Plaintiff essentially seeks to have his undesirable

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discharge from the service upgraded to an honorable one (with concomitant restoration of military benefits). Defendants John O. Marsh, Jr., Secretary of the United States Army and the United States Army (hereinafter "defendants" or the "Army") moved to dismiss or for summary judgment. After hearing oral argument on April 17, 1984 and analyzing the parties' submissions and applicable caselaw, the court grants defendants' motion to dismiss. Consequently, we do not reach defendants' motion for summary judgment.


Plaintiff maintained throughout his checkered history with the Army that he be granted a hardship discharge in order to care for his aging and sickly parents. Plaintiff ultimately went AWOL for 2 years after denial of a second hardship discharge request, despite his being transferred back to Fort Polk, Louisiana, or 65 miles from his parents. Nonetheless, plaintiff's claim basically alleges that he was: (1) improperly activated from the reserves to active duty in 1969; (2) improperly denied a hardship discharge (twice) in 1970; (3) invalidly discharged in 1972 because his commanding officer lacked court-martial jurisdiction; and (4) improperly denied relief by the Army Board for Correction of Military Records ("ABCMR") finally in 1982 because its decision was arbitrary, capricious, unsupported by substantial evidence and contrary to law, regulation and fact. It is abundantly clear from the record, however, that plaintiff was a disciplinary problem from 1969 to 1972 and that he knowingly and voluntarily accepted an undesirable discharge in lieu of a criminal court martial after being AWOL for over two years prior to 1972.

Defendants' move to dismiss contending that 28 U.S.C. § 2401(a)'s 6-year statute of limitations bars all of plaintiff's claims against the United States since this suit was filed in 1983 and the alleged improprieties occurred during 1969-1972. In the alternative, defendants argue that laches would also bar plaintiff's claims. Plaintiff counters, although erroneously, that exhausting administrative remedies "tolls" the statute of limitations and/or that President Carter's 1978 order granting additional administrative claims to veterans gave plaintiff a "new cause of action" from that date.


28 U.S.C. § 2401(a) provides:

[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues....

Thus, plaintiff's 1983 suit claiming improper Army actions in 1969, 1970 and 1972 is time-barred since not filed within six years after the right of action first accrued. See generally Crown Coast Front Co. v. United States, 386 U.S. 503, 510, 87 S.Ct. 1177, 1181, 18 L.Ed.2d 256 (1967) and Neher v. United States, 265 F.Supp. 210, 216 (D.Minn.1967). Failure to bring an action within the time specified is a jurisdictional bar to the claim. United States v. Sams, 521 F.2d 421 (3d Cir.1975); Mann v. United States, 399 F.2d 672 (9th Cir.1968).

More specifically, plaintiff's claim of wrongful activation (despite missing numerous reserve meetings and disregarding specific warnings) accrued on April 30, 1969 when plaintiff was ordered and did report, to Fort Polk, Louisiana. He could have contested...

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