Bonen v. United States, 305-80C.

• Decision Date: 02 December 1981
• Docket Number: No. 305-80C.,305-80C.
• Parties: C. Anne BONEN v. The UNITED STATES.
• Court: U.S. Claims Court

666 F.2d 536

C. Anne BONEN v. The UNITED STATES.

No. 305-80C.

United States Court of Claims.

December 2, 1981.

John A. Everhard, Washington, D. C., atty. of record, for plaintiff.

Nancy R. Sills, Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant.

Before DAVIS, NICHOLS, and KUNZIG, Judges.

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

KUNZIG, Judge:

This military pay case comes before the court on the parties' cross-motions for summary judgment. By this action, plaintiff seeks a correction of her military records to show continuous active duty during the nine-year separation period following her discharge in 1965 and an award of back pay on the basis of the change in her records pursuant to Title 37 of the United States Code. The government contends that plaintiff's claim arose in 1965 on the date of her discharge and that consequently her suit is time-barred.¹ Plaintiff counters that the 1978 decision of the Air Force Board for the Correction of Military Records (AFBCMR) granting her "constructive service" gave rise to a new cause of action under the "half-a-loaf" doctrine established in this court. Arguing that the AFBCMR decision recognized the injustice done to plaintiff without affording her an appropriate legal remedy, plaintiff requests that this court overturn the Board decision as arbitrary, capricious and an abuse of discretion. We find plaintiff's argument unpersuasive and hold for the government.

I.

Plaintiff was appointed a Second Lieutenant in the United States Air Force Reserve (Nursing Corps) on April 30, 1962, and began extended active duty in that grade on June 23 of that year. On September 8, 1965, plaintiff was honorably discharged from the Air Force pursuant to Air Force regulation 36-12, which implemented contemporary agency policy of automatic separation of women officers from military service due to pregnancy.

In 1971, the Department of Defense reversed its position on discharge due to pregnancy and plaintiff subsequently regained her commission, reentering the Air Force on extended active duty as First Lieutenant on July 26, 1974. In 1976, plaintiff applied to AFBCMR for correction of her military records because of certain evaluation and promotion problems which she alleged were caused by her 1965 discharge. Plaintiff requested from the Board that:

1. Her service and grade data be adjusted to reflect continuous service from June 1962 (entry date of prior active duty) to the present time.

2. She be promoted to the corresponding temporary and permanent, Reserve of the Air Force, grades as though selected on time with her original 1962 year group.

3. An Officer Effectiveness Report (OER) rendered on her for the period 1 December 1974 through 31 August 1975 with the evaluation of potential of "3-3-3" be declared void.

4. Her application for Career Reserve Status (CRS) be approved.

Plaintiff never specifically requested monetary relief or back pay for the period between her discharge and subsequent reinstatement. In fact, she explicitly attempted on several occasions to waive any rights she might have had in that regard, but was informed by the SAFCB Examiner that she would not be allowed to do so.

On November 14, 1977, the AFBCMR recommended that plaintiff's records be corrected to show, inter alia,² that plaintiff had not been discharged in 1965, but had continued on extended active duty. The Board recognized that plaintiff's petition was not timely filed, applications for review by the AFBCMR requiring filing within three years of the date on which the cause of action arose. 10 U.S.C. § 1552(b) (1976). However, the Board excused the failure to file as it is permitted under its authorizing statute to do "in the interest of justice." Furthermore, the Board found that, despite the fact that plaintiff's discharge had not violated Air Force policies or procedures then in effect, the discharge had worked an injustice on her, pointing out that plaintiff had at all times indicated an "earnest desire to pursue a career in the military." It therefore approved plaintiff's application for the correction of her military records.

On July 5, 1978, Assistant Secretary of the Air Force Antonia Chayes remanded plaintiff's petition to the Board, recommending that the Board explore the feasibility of awarding plaintiff constructive military service instead of active duty credit. Secretary Chayes made this recommendation because of her reluctance, "absent more clearcut judicial guidance on retroactive pay and allowances based on unconstitutional separations because of pregnancy" to give plaintiff a monetary claim through an award of active duty credit. Accordingly, the AFBCMR on August 9, 1978, voted to amend its earlier recommendation so that plaintiff be awarded "constructive service in the Air Force Reserve in lieu of active military service from September 8, 1965 to July 26, 1974." This revised recommendation was implemented on September 9, 1978.

As a result of the Board's final decision, plaintiff was credited with (1) constructive duty at Headquarters Air Reserve Personnel Center for the separation period; (2) sufficient points to give her satisfactory service for retirement/retention purposes; and (3) promotion to temporary grade of major with a date of rank eight months prior to the effective date of promotion. Plaintiff received no back pay for the separation period since her records showed reassignment to the Reserves rather than active duty. As a result of the records correction, however, her current active duty pay was increased, prospectively increasing her future retirement pay.³

Plaintiff filed her petition in this court on June 13, 1980, alleging that the actions of Secretary Chayes and the AFBCMR denying her pay, allowances and active service credit for the separation period were arbitrary and capricious. Plaintiff requests that this court order a correction of her military records to show continuous active duty service from her 1962 enlistment to the present, and payment of military back pay and allowances resulting from the correction.

The government claims that plaintiff's suit for back pay accrued on the date of her allegedly illegal discharge in 1965 and is thus barred by the applicable six-year statute of limitations set out in 28 U.S.C. § 2501 (1976). Defendant contends, therefore, that regardless of the merits of plaintiff's claim, this court is without jurisdiction to entertain the action.

Plaintiff attempts to counter defendant's jurisdictional argument by claiming that the AFBCMR's decision gave rise to a new cause of action accruing on August 14, 1978, under the "half-a-loaf" doctrine. Thus, plaintiff contends that her suit is not barred by the six-year statute of limitations. Because we find the "half-a-loaf" doctrine inapplicable to the present case, we hold for the government.

II.

It is well settled that a claim such as plaintiff's for an illegal military discharge accrues all at once upon the date of plaintiff's removal. Eurell v. United States, 215 Ct.Cl. 273, 566 F.2d 1146 (1977); Kirby v. United States, 201 Ct.Cl. 527 (1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974); Mathis v. United States, 183 Ct.Cl. 145, 391 F.2d 938 (1968), aff'd on rehearing, 190 Ct.Cl. 925, 421 F.2d 703 (1970). In order to be timely, suit must be filed within six years of the date on which the claim first accrues. 28 U.S.C. § 2501 (1976). This court has long held that resort to permissive administrative procedures such as petition to a corrections board does not toll the statute of limitations. See, e.g., Bruno v. United States, 214 Ct.Cl. 383, 386, 556 F.2d 1104, 1106 (1977); Brundage v. United States, 205 Ct.Cl. 502, 507, 504 F.2d 1382, 1385 (1974), cert. denied, 421 U.S. 998, 95 S.Ct. 2395, 44 L.Ed.2d 665 (1975); Mathis, supra; Kirk v. United States, 164 Ct.Cl. 738 (1964). Thus plaintiff's mere application to the AFBCMR, even had it been timely, could not have affected the statutory time bar.

Despite the fifteen-year hiatus between plaintiff's discharge and the filing of her claim in this court, plaintiff urges us to consider her claim a "classic case" for application of the "half-a-loaf" doctrine enunciated in Denton v. United States, 204 Ct.Cl. 188 (1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1949, 44 L.Ed.2d 449 (1975); Ray v. United States, 197 Ct.Cl. 1, 453 F.2d 754 (1972); and DeBow v. United States, 193 Ct.Cl. 499, 434 F.2d 1333 (1970), cert. denied, 404 U.S. 846, 92 S.Ct. 150, 30 L.Ed.2d 84 (1971). Defendant responds that the "half-a-loaf" doctrine is inapplicable where a plaintiff fails to request monetary relief specifically, and thus should not be applied in the instant case, where plaintiff actually attempted to waive such relief....