Kendall v. Army Bd. for Correction of Military Records
| Decision Date | 25 June 1993 |
| Docket Number | No. 91-5020,91-5020 |
| Citation | 996 F.2d 362 |
| Parties | Paul Lawrence KENDALL, Appellant, v. ARMY BOARD FOR CORRECTION OF MILITARY RECORDS. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Eugene R. Fidell, Washington, DC (amicus curiae) (appointed by the Court), argued the cause, for appellant.
David B. Orbuch, Asst. U.S. Atty., Washington, DC, argued the cause, for appellee. With him on the brief, were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.
Before MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
In the District Court, Kendall sought review of his court-martial and subsequent refusal of the Army Board for Correction of Military Records to upgrade his dishonorable discharge or consider his claims on the merits. The District Court dismissed his complaint on grounds that it lacked jurisdiction and venue over appellant's claim, and that appellant had waived his present claims by failing to assert them earlier. Because appellant did not raise his claims within the six-year limit set forth in 28 U.S.C. § 2401(a) (1988 & West Supp.1991), the District Court properly found that it did not have jurisdiction over the case. We therefore affirm the District Court's judgment of dismissal.
On November 27, 1974, Paul L. Kendall, then a twenty-year-old army private, was tried by a court-martial convened by the commander of the 3rd Armored Division in Frankfurt, Germany. Kendall was charged with assaulting a fellow soldier by kicking him, assaulting a fellow soldier by striking Kendall was transferred to the United States Disciplinary Barracks (USDB) to serve his sentence of confinement. On April 1, 1975, the Clemency and Parole Board remitted his sentence of confinement in excess of 10 months.
[302 U.S.App.D.C. 98] him in the head with a beer bottle, and two specifications of wrongful communication of a threat to kill a fellow soldier. After a two-day trial at which the alleged victim of the offenses never testified, Kendall was convicted of wrongfully communicating a threat to kill a fellow soldier and both assault charges. He was sentenced to a bad conduct discharge, forfeiture of $269 pay per month for twelve months, confinement at hard labor for one year, and a reduction in rank to the grade of Private E-1
Later that month, through counsel, Kendall filed an assignment of error before the Army Court of Military Review (ACMR), requesting that it reject the findings of the court-martial. He asserted that the military judge had erred in failing properly to instruct the members of the court-martial as to the legal definition of excuse and the defenses of self-defense, coercion or distress, and physical and financial inability. However, Kendall did not assert that he was prejudiced by the victim's failure to testify at his court-martial.
On May 21, 1975, the ACMR affirmed the findings and sentence of the court-martial. On June 6, 1975, Kendall, again through counsel, petitioned the United States Court of Military Appeals for review of the ACMR's decision. Appellant raised the same allegations of error that he had raised before the ACMR. The Court of Military Appeals denied his petition on July 17, 1975. Kendall remained on active duty for five months after his release from the Disciplinary Barracks, and was discharged on September 12, 1975.
In June 1977, appellant submitted an application to the Army Board for Correction of Military Records (ABCMR), 1 requesting that he "be tried by a full jury, not a court of five members." The application was filed without further action, because the ABCMR properly decided that it lacked jurisdiction "where the issue is limited solely to the setting aside of a conviction ... or the deletion of such a record," relying on 40 Op.Att'y Gen. 504 (1947), and would not grant effective relief. 2 The Board notified Kendall of that disposition.
In 1986, approximately ten years later, Kendall submitted another application to the ABCMR requesting that his bad conduct discharge be upgraded to an honorable discharge or discharge for "medical conditions." For the first time, Kendall asserted that the trial record was unjust because the alleged victim was not present during the court-martial; he also argued that he had not been afforded proper legal representation because counsel had failed to issue a subpoena for the alleged victim's attendance and that he himself had been victimized by bias.
The ABCMR denied Kendall's application to have his record changed to an honorable discharge in April of 1986, after reviewing his military records, the record of trial from his court-martial, and his explanation for filing his application beyond the three-year time period provided in 10 U.S.C. § 1552(b) for reviewing applications. In holding the application untimely, the ABCMR ruled that "[t]he alleged error or injustice [of the failure of the victim to be called as a witness] was Appearing pro se, appellant filed the present action in the United States District Court for the Middle District of Pennsylvania in May 1989. His initial pleading sought relief from the ABCMR's 1986 decision, and asked that his court-martial conviction be overturned on the grounds that the "guilty verdict was found due to the violation of the plaintiff's right to have a relevant witness present to testify and be cross-examined by the Defense." The pleading and associated papers requested relief including expungement of the court-martial conviction and the bad conduct discharge, and restoration of all benefits to which he would otherwise have been entitled, including medical benefits.
[302 U.S.App.D.C. 99] or with reasonable diligence should have been, discovered on 12 September 1975, the date [Kendall] was separated." The Board concluded that "it was not in the interest of justice to excuse [Kendall's] failure to timely file." 3
Kendall's complaint was referred to a magistrate, who erroneously construed it as a petition for habeas corpus. The magistrate's report recommended that the case be transferred to the District Court for the District of Columbia, reflecting the magistrate's incorrect belief that the ABCMR was Kendall's ultimate custodian, and that it was located in Washington, D.C. The Pennsylvania District Court adopted the magistrate's report and the case was transferred.
On June 18, 1990, the government moved to dismiss, or, in the alternative, for summary judgment, contending that the D.C. District Court lacked jurisdiction over the subject matter, that venue was improper, and that Kendall had waived his claims by failing to raise them until his 1986 application to the ABCMR.
Kendall responded with a pleading entitled "Petition for Rebuttal Instance for Petitioner," once again arguing that he did not receive a "fair trial" because, among other reasons, the soldier he was convicted of assaulting was not present at his court-martial.
On January 15, 1991, the District Court granted the government's motion and dismissed the complaint without opinion. This appeal followed.
In contending that the District Court has jurisdiction over his claim, appellant through amicus curiae asserts a federal question cause of action based on his contention that his court-martial conviction was obtained in violation of the Constitution, that is, because the "guilty verdict was found due to a violation of his right to have a relevant witness present to testify and be cross-examined by the Defense." He argues that the very nature of his claim entitles him to a hearing in federal court.
We disagree. Title 28 U.S.C. § 2401(a) provides that "every 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." 28 U.S.C. § 2401(a) (1988 & West Supp.1991). This bar applies to all civil actions whether legal, equitable, or mixed. Spannaus v. United States Dep't. of Justice, 824 F.2d 52, 55 (D.C.Cir.1987); Calhoun v. Lehman, 725 F.2d 115, 116-17 (D.C.Cir.1983); Impro Products Inc. v. Block, 722 F.2d 845, 849-50 (D.C.Cir.1983), cert. denied, 469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984). The limitation codified in § 2401(a) likewise applies to claims seeking to correct or upgrade the discharge of former service members. Walters v. Secretary of Defense, 725 F.2d 107, 113 (D.C.Cir.1983), reh'g denied, 737 F.2d 1038 (D.C.Cir.1984) (en banc) (per curiam); Saffron v. Department of the Navy, 561 F.2d 938 (D.C.Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978).
In the case at bar, appellant's discharge became final on September 12, 1975. It was on that date that the statute of limitations began to run on any action that he We note that appellant did not raise his claim concerning his right to have a relevant witness present for testimony and cross-examination until almost ten years after his discharge. His failure timely to raise this claim before the ABCMR also compels us to withhold relief.
[302 U.S.App.D.C. 100] might have arising directly from the discharge, that is, on claims based on an allegedly invalid court-martial. See Walters v. Secretary of Defense, 725 F.2d 107, 114 (D.C.Cir.1983) (holding that the § 2401(a) limitation period begins to run when a service member's discharge is final), reh'g denied, 737 F.2d 1038 (1984) (en banc) (per curiam). Therefore, insofar as Kendall is seeking review of the decision of the court-martial, his claims were time barred six years later, on September 11, 1981, though he did not raise them until 1986. Compliance with the limitations period is a condition of
...To continue reading
Request your trial
-
Nihiser v. White
...§ 2401(a) is the period of limitations that applies. Lewis v. Sec'y of the Navy, 1990 WL 454624 at *4 (D.D.C.1990); see Kendall v. ABCMR, 996 F.2d 362, 365 (D.C.Cir.1993); Walters v. Sec'y of Defense, 725 F.2d 107, 111 (D.C.Cir.1983), reh. denied, 737 F.2d 1038 (D.C.Cir.1984) (similarly). T......
-
Conservation Force v. Salazar
...the government ....”) aff'd in relevant part, Felter v. Kempthorne, 473 F.3d 1255 (D.C.Cir.2007); Kendall v. Army Bd. for Corr. Of Military Records, 996 F.2d 362, 365 (D.C.Cir.1993) (Section 2401(a) applies to “all civil actions whether legal, equitable, or mixed.”) The D.C. Circuit has lon......
-
Roane v. Holder, Civil Action No. 05-2337 (RWR).
...of limitations under 28 U.S.C. § 2401 applies to the plaintiffs' claims for injunctive relief. See Kendall v. Army Bd. of Corr. of Military Records, 996 F.2d 362, 365 (D.C.Cir.1993) (holding that § 2401(a) "applies to all civil actions whether legal, equitable, or mixed"). Section 2401(a) a......
-
Vance v. U.S.
...immunity, "[c]ompliance with the limitations period is a condition of federal court jurisdiction." Kendall v. Army Bd. for Correction of Military Records, 996 F.2d 362, 366 (D.C.Cir.1993) (citing Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957)). Second, "[u]nder e......