Martinez v. U.S., 99-5163.

• Decision Date: 17 June 2003
• Docket Number: No. 99-5163.,99-5163.
• Parties: Gabriel J. MARTINEZ, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1295

333 F.3d 1295

Gabriel J. MARTINEZ, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 99-5163.

United States Court of Appeals, Federal Circuit.

DECIDED: June 17, 2003.

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Charles W. Gittins, Law Offices of Charles W. Gittins, P.C, of Middletown, VA, argued for plaintiff-appellant.

James M. Kinsella, Deputy Director, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief was David M. Cohen, Director. Of counsel on the brief were Tara A. Osborn, LTC, and James R. Agar II, Major, Army Litigation Division, United States Army, of Arlington, Virginia. Of counsel were Aileen M. Bell, Joseph Trautwein, and Opher Shweiki, Attorneys, Department of Justice, of Washington, DC. Also of counsel was Captain David E. Mendelson, Army Litigation Division, United States Army, of Arlington, Virginia.

Before MAYER, Chief Judge, NEWMAN, MICHEL, Circuit Judges, PLAGER, Senior Circuit Judge, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge BRYSON, in which Circuit Judges MICHEL, LOURIE, CLEVENGER, RADER, SCHALL, and PROST join; and in which Circuit Judges PAULINE NEWMAN, LINN, and DYK join with respect to PARTS I, II, III, V, and VI.

Dissenting opinion filed by Senior Circuit Judge PLAGER, in which Chief

Judge MAYER and Circuit Judges PAULINE NEWMAN, GAJARSA, LINN, and DYK join.

BRYSON, Circuit Judge.

We took this case en banc to address the question whether to overrule our decision in Hurick v. Lehman, 782 F.2d 984 (Fed. Cir.1986), regarding the calculation of the limitations period for military discharge cases brought in the Court of Federal Claims. After careful consideration, we conclude that Hurick should not be overruled, and we affirm the judgment of the Court of Federal Claims.

I

Gabriel J. Martinez was commissioned as an officer in the United States Army Reserve in October 1980. In 1984 he joined the Active Guard Reserve Program and continued on active duty with that program until 1992, attaining the rank of captain.

In 1991, while Captain Martinez was still on active duty, a proceeding was brought against him under Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815, on charges of fraternization, adultery, communicating a threat, and impeding a witness. An Article 15 proceeding is an informal proceeding in which only limited penalties may be imposed upon a finding of guilt. It takes place before a command officer, unlike a court-martial, which is held before a military court.

The charges stemmed from an allegation that Captain Martinez had had an affair with a female sergeant between April and July 1991. The person making the allegation, the sergeant's husband, stated that Captain Martinez had threatened to kill him if he reported the affair to military authorities. Captain Martinez denied the charges and asserted that the husband had fabricated the story about the affair and the threat in order to help Captain Martinez's ex-wife in a custody fight.

On August 9, 1991, at the conclusion of the Article 15 proceeding, Captain Martinez was found guilty of the charges against him and was ordered to forfeit two months' pay. Captain Martinez appealed from the Article 15 determination, but the appeal was denied. On February 25, 1992, based on the outcome of the Article 15 proceeding, Captain Martinez was separated from active duty and transferred to the Army Reserve Control Group. Although his "character of service" was listed as "honorable," the reason for his separation was identified as "misconduct."

In 1994, an Officer Elimination Board convened to consider whether Captain Martinez should be discharged from the United States Army Reserve. The Board considered evidence from Captain Martinez and other witnesses. The evidence included a sworn statement from Captain Martinez's ex-wife, in which she stated that the sergeant's husband had sought to have Captain Martinez disciplined by the Army in order to assist her in her custody battle with Captain Martinez. She also stated that the sergeant's husband had admitted to her that his allegations about the affair between his wife and Captain Martinez were false. After hearing that evidence, the Officer Elimination Board concluded that the charges against Captain Martinez that formed the basis for the Article 15 proceeding were not true. The Board therefore recommended that he be retained as a reserve officer. The Article 15 proceeding remained a part of his military record, however, and later that year he was notified that he was not selected for promotion to major.

In March 1995, Captain Martinez filed an application with the Army Board for Correction of Military Records ("the Correction Board") asking that the Article 15 proceeding be expunged from his military record, that his discharge from active duty be voided, that he be restored to active duty without a break in service, that he be promoted retroactively to major, and that he be awarded the pay he would have received during the period after his discharge. He also requested Correction Board review of an earlier disciplinary letter in his file unrelated to the subject of the Article 15 proceedings.

On August 23, 1995, the Correction Board denied Captain Martinez's application. The Correction Board declined to give any weight to the Officer Elimination Board's conclusion that Captain Martinez had not committed the alleged misconduct that was the subject of the Article 15 proceeding. The Correction Board concluded instead that it was likely that Captain Martinez had committed the acts that were the subject of the Article 15 proceeding and that Mrs. Martinez's sworn statement to the contrary was "unconvincing," because "she probably has a vested interest in the continuation of [Captain Martinez's] career."

Captain Martinez sought reconsideration of the Correction Board's decision, but the Correction Board denied that request on March 26, 1997. In the meantime, Captain Martinez was passed over a second time for promotion to major and accordingly was separated from the United States Army Reserve on March 25, 1997.

On August 17, 1998, Captain (now Mr.) Martinez filed a complaint in the Court of Federal Claims alleging that the Correction Board's decision was arbitrary and capricious, constituted an abuse of discretion, was not supported by substantial evidence, and failed to comply with the Correction Board's statutory mandate. By way of relief, the complaint asked the court for an order correcting his letter of reprimand and his Article 15 punishment from his military record and removing any reference to "misconduct" as the reason for his separation from active duty; reinstating him to active duty in the United States Army Reserve with the rank of captain; directing the Army to place his corrected military record before a special selection board to consider him for promotion to the rank of major without taking into account the Article 15 information in his record; requiring the Army to return the two months' pay he forfeited in the Article 15 proceeding; and awarding him back pay from the date of his separation from active duty in February 1992.

The Court of Federal Claims dismissed the complaint as time-barred. Martinez v. United States, No. 98-662C (Fed.Cl. Aug. 9, 1999). Because Mr. Martinez had filed his complaint more than six years after February 25, 1992, the date of his separation from active duty, the court held that it did not have jurisdiction over his case in light of the six-year statute of limitations for claims against the government brought in the Court of Federal Claims. See 28 U.S.C. § 2501. The court explained that "[a] claim based on unlawful discharge or release from military service accrues on the date of discharge or release because that is the date the injury — i.e., the loss of pay — is incurred." Martinez, slip op. at 8. Thus, the court ruled that Mr. Martinez's claim for reinstatement to active duty, back pay, and other ancillary relief accrued on February 25, 1992. The claim for forfeited pay accrued on August 9, 1991, the court ruled, because that was the date on which the pay was forfeited as a result of the Article 15 proceeding, and thus was the date on which the injury incurred. Id.

The court rejected what it referred to as Mr. Martinez's "attempt to avoid the statute of limitations by characterizing this action as a challenge to the [Correction Board's] decisions rather than the propriety of the disciplinary actions taken against him or his release from active duty." Martinez, slip op. at 9. Citing this court's decision in Hurick v. Lehman, 782 F.2d 984 (Fed.Cir.1986), the court explained that the failure of a civilian correction board to set aside a military discharge does not give rise to a separate and independent claim, because the correction board's action is "merely ancillary to the discharge that the former serviceman is seeking to change." Martinez, slip op. at 9 (quoting Hurick, 782 F.2d at 987). The court noted that resort to a correction board is not a mandatory prerequisite to challenging the discharge in the Court of Federal Claims, and that the statute of limitations "is not tolled by resort to optional administrative remedies, such as an appeal to a military records correction board." Id.

Finally, the trial court rejected Mr. Martinez's argument that the statute of limitations should be tolled until November 4, 1993, when Mrs. Martinez issued her sworn statement that gave rise to his claim that his Article 15 punishment was improper. The court explained that the statute of limitations for an action in the Court of Federal Claims is tolled only if the plaintiff shows that the defendant has concealed the facts giving rise to the cause of action, preventing the plaintiff from learning of those facts, or if the injury...