Maxberry v. United States, 011218 FEDFED, 2017-2271
| Opinion Judge | PER CURIAM. |
| Party Name | DENNIS LEE MAXBERRY, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee |
| Attorney | Dennis Lee Maxberry, Chippewa Falls, WI, pro se. Jessica R. Toplin, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Deborah A. Bynum. |
| Judge Panel | Before Lourie, Reyna, and Chen, Circuit Judges. |
| Case Date | January 12, 2018 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Federal Circuit |
This disposition is nonprecedential.
Appeal from the United States Court of Federal Claims in No. 1:16-cv-01256-CFL, Judge Charles F. Lettow.
Dennis Lee Maxberry, Chippewa Falls, WI, pro se.
Jessica R. Toplin, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Deborah A. Bynum.
Before Lourie, Reyna, and Chen, Circuit Judges.
PER CURIAM.
Dennis Lee Maxberry ("Maxberry") appeals from the decision of the United States Court of Federal Claims (the "Claims Court") dismissing his complaint for lack of jurisdiction and failure to state a claim upon which relief could be granted. Maxberry v. United States, No. 16-1256C, 2017 WL 1854809, at *2 (Fed. Cl. May 8, 2017). Because the Claims Court did not err in its dismissal, we affirm.
Background
Maxberry served in the United States Army from September 29, 1976 to June 23, 1978. He was discharged prior to the end of his term of service because of substandard performance and failed counseling and rehabilitation efforts. On June 15, 1978, Maxberry received notice of his separation from the Army under the Expeditious Discharge Program, which he signed indicating his voluntary consent to the discharge. On June 23, 1978, Maxberry was separated from the Army with a General Discharge under honorable conditions.
Following his discharge, Maxberry filed several requests to change his discharge status. In 1980, he filed three applications to the Army Discharge Review Board ("ADRB") requesting to have his general discharge upgraded to an honorable discharge; these were denied because the ADRB determined that he was properly discharged. In 1985, Maxberry filed requests with the ADRB and the Army Board for Correction of Military Records ("ABCMR") again requesting the same upgrade to his discharge status claiming that the circumstances leading up to his discharge were "fictit[iou]s." J.A. 150. These were all denied as untimely. See 10 U.S.C. § 1552(b) (stating that requests for military record corrections must be made within three years after discovering the "error or injustice"). In 1987, Maxberry filed another application to the ABCMR requesting reconsideration of his discharge status and alleging for the first time that it be changed to a medical disability discharge for injuries suffered during his service. On August 19, 1988, the ABCMR declined to hear his request because it was untimely, leaving its earlier decision undisturbed.
Twenty years later, Maxberry resumed his attempts to change his discharge status. In 2008, he filed two applications to the ABCMR, which were both denied as untimely. Undeterred, Maxberry filed five more applications to the ADRB and ABCMR from 2010 to 2012 again requesting a change in his discharge status. All five applications were denied. Between 2014 and 2015, Max-berry filed another five applications to the ABCMR requesting, inter alia, to upgrade his general discharge to an honorable discharge, and to update his records to reflect a medical separation or retirement. This time, the ABCMR elected to waive the statute of limitations and considered his requests. On May 17, 2016, the ABCMR denied all his requested relief. The ABCMR specifically noted that it had denied all of Maxberry's prior requests and that Maxberry had provided no evidence to support his claims for relief. Maxberry filed an application for reconsideration, which the ABCMR denied for lack of new evidence.
On October 3, 2016, Maxberry filed a complaint in the Claims Court alleging (1) that he was entitled to an honorable discharge, disability pay, retirement pay, back pay, and punitive damages (the "service-related claims"); (2) constitutional violations under the Fourth, Sixth, Eighth, Thirteenth, and Fifteenth Amendments, and the Due Process clauses of the Fifth and Fourteenth Amendments (the "constitutional claims"); and (3) statutory violations under the Civil Rights Act (42 U.S.C. § 1983), Speedy Trial Act (18 U.S.C. § 3161), Defense of Marriage Act (1 U.S.C. § 7), and the Uniform Code of Military Justice (10 U.S.C. § 815) (the "statutory claims"). The government filed a motion to dismiss for lack of jurisdic- tion and failure to state a claim upon which relief can be granted, or in the alternative, judgment on the administrative record in its favor.
The Claims Court granted the motion determining that Maxberry's service-related claims were time-barred because he failed to assert his claims within six years of accrual; and his constitutional...
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