775 F.2d 1303 (5th Cir. 1985), 84-4607, Geyen v. Marsh

Docket Nº:84-4607.
Citation:775 F.2d 1303
Party Name:Calvin GEYEN, Jr., Plaintiff-Appellant, v. John O. MARSH, Jr., Secretary of the United States Army, Defendant-Appellee.
Case Date:November 05, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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775 F.2d 1303 (5th Cir. 1985)

Calvin GEYEN, Jr., Plaintiff-Appellant,


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


No. 84-4607.

United States Court of Appeals, Fifth Circuit

November 5, 1985

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[Copyrighted Material Omitted]

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Lonnie R. Smith, Bobbie J. Ross, Lake Charles, La., for plaintiff-appellant.

Barton F. Stichman, Washington, D.C., for Vietnam Veterans of America, amicus curiae.

Joseph S. Cage, U.S. Atty., D.H. Perkins, Jr., Shreveport, La., Wayne H. Price, Litigation Atty., Dept. of the Army, Dept. of the Judge Advocate Gen., HQDA, (DAJA-LTM), Marshall M. Kaplan, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and JONES, Circuit Judges.


THORNBERRY, Circuit Judge:

Appellant Calvin Geyen filed suit in the United States District Court for the Western District of Louisiana seeking to have his Army discharge upgraded from undesirable to honorable. He alleges (1) that the Army violated the Constitution and its own regulations in involuntarily activating him in 1969 and twice denying him a hardship discharge in 1970, and (2) that the decision of the Army Board for Correction of Military Records (ABCMR) 1 denying him an upgraded discharge was arbitrary, capricious, unsupported by substantial evidence, and erroneous as a matter of law. The district court granted appellees' motion to dismiss on grounds that Geyen's suit was barred by statute of limitation and by laches. Geyen v. Marsh, 587 F.Supp. 539 (W.D.La.1984). Geyen appeals the district court's order. We affirm in part, reverse in part, and remand to the district court for further consideration of Geyen's second claim.


Geyen enlisted in the United States Army Reserve in 1964 and served uneventfully until 1968. Early that year the Army notified Geyen that he had accumulated five or more unexcused absences from mandatory training assemblies and ordered him to active duty. For unknown reasons, the order was not executed. The Army issued Geyen new orders on February 25, 1969, and he reported to active duty on April 30, 1969. After a brief stint in Germany, Geyen was granted a compassionate reassignment and returned to Fort Polk, Louisiana.

In January 1970 Geyen requested a hardship discharge from the Army so that he could care for his ailing parents. The Army denied the request. Geyen reapplied in February 1970 and was again denied. While this second request was under consideration. Geyen went AWOL. He returned to military control in 1972. On August 14, 1972, Geyen requested that he be discharged from the Army in lieu of a court-martial. The Army gave Geyen an undesirable discharge on August 22, 1972.

On April 13, 1977, Geyen applied to the Department of Defense Discharge Review Program (Special) for an upgrade of his discharge. The Special Review Board denied relief on July 8, 1977, and notified Geyen of its decision on September 22, 1977. On December 12, 1978, the Department of Defense informed Geyen that he was entitled to a new review of his discharge. 2 Geyen petitioned the Army Discharge

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Review Board (ADRB) for an upgrade on December 17, 1979. After a hearing, the ADRB found against Geyen. The Board notified him of its decision on April 7, 1981, and informed him of his right to seek further review from the ABCMR. On February 26, 1982, Geyen petitioned the ABCMR for an upgrade. The ABCMR denied relief without a hearing on July 28, 1982, and informed Geyen of its decision on August 26, 1982. Geyen filed suit in the district court on August 24, 1983. He does not seek any monetary relief.


At the outset we must draw a distinction between two avenues of relief available in federal court to a former serviceman seeking to upgrade his discharge. First, after exhausting his administrative remedies, he may seek declaratory and injunctive relief against his branch of the service, alleging that his discharge violated the Constitution, statute, or service regulations. See Nichols v. Hughes, 721 F.2d 657 (9th Cir.1983); cf. Walters v. Secretary of Defense, 725 F.2d 107 (D.C.Cir.1983) (not requiring exhaustion). Second, he may seek review of an adverse decision of the ADRB or ABCMR. A federal court may reverse a decision of these boards if it is arbitrary, capricious, or not supported by substantial evidence. Chappel v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir.1974).

Geyen's complaint in the district court pursues both avenues of relief. 3 He alleges constitutional violations and procedural irregularities in his activation and in the denials of his hardship applications, and he challenges the ABCMR's decision denying him relief in 1982. We consider separately the statute of limitations problems presented by these two causes of action.

  1. Geyen's Challenge to His Activation and the Denial of His Hardship Applications

    Geyen's first cause of action presents two issues: First, does the six-year statute of limitations in 28 U.S.C. Sec. 2401(a) (1982) govern this action? If so, when did Geyen's action accrue for purposes of Sec. 2401(a)?

    1. Application of the Six-Year Statute of Limitations

    Amicus 4 argues that Sec. 2401(a) does not apply to this action because the statute governs only actions for damages under the Tucker Act, 28 U.S.C. Sec. 1346(a)(2), and because Geyen's action is not "against the United States." We reject both arguments. 5

    a. Section 2401(a) and the Tucker Act

    Amicus offers considerable legislative history to support its contention that Sec. 2401(a) applies only to Tucker Act actions. This history demonstrates, according to amicus, that the predecessor of Sec. 2401(a) applied only to Tucker Act claims and that when Congress enacted Sec. 2401(a) in 1948 as part of the Judicial Code, it intended to retain this restriction. Several federal courts have rejected the argument that Sec. 2401(a) applies only to Tucker Act actions. See Christensen v. United States, 755 F.2d 705, 707 (9th Cir.1985); Walters, 725 F.2d at 111-14; Impro Products, Inc. v. Block, 722 F.2d 845, 850 n. 8

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    (D.C.Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984); Werner v. United States, 188 F.2d 266, 268 (9th Cir.1951).

    Moreover, amicus' analysis of Sec. 2401(a)'s legislative history, although extensive, is incomplete. The Federal Rules of Civil Procedure, adopted in 1938, accomplished the merger of law and equity. Fed.R.Civ.P. 1, 2. Congress undoubtedly took account of this merger when it replaced the word "suit" in the statutory predecessor of Sec. 2401(a) with the phrase "every civil action" in the...

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