Midgett v. United States

• Decision Date: 18 July 1979
• Docket Number: No. 495-77.,495-77.
• Citation: 603 F.2d 835
• Parties: Earl R. and Montez MIDGETT v. The UNITED STATES.
• Court: U.S. Claims Court

603 F.2d 835

Earl R. and Montez MIDGETT v. The UNITED STATES.

No. 495-77.

United States Court of Claims.

July 18, 1979.

COPYRIGHT MATERIAL OMITTED

Charles M. Munnecke, Washington, D. C., attorney of record, for plaintiffs. Charles E. Poston, Norfolk, Va., and King & Everhard, Washington, D. C., of counsel.

Lawrence S. Smith, Washington, D. C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D. C., for defendant. Bernard M. Brodsky and Levator Norsworthy, Jr., Washington, D. C., of counsel.

Before NICHOLS, KASHIWA and SMITH, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT

SMITH, Judge:

This military benefits case, before us on the parties' motions for summary judgment, presents a novel and difficult issue of the preclusive effect of a state court in rem judgment on the administrative determinations of the United States Army. It might well be subtitled, "The Battle of the Presumptions." Inasmuch as the parties have provided the court with very little guidance, the resolution of this factually uncomplicated case has not been easy. We have carefully considered the filings and oral arguments of the parties, and we have conducted our own independent research in reaching our conclusion. In this long battle between the Army and the Midgetts, the decision must go to the Midgetts.

Plaintiffs are the parents of Pvt. (E2) Dewey Alan Midgett (Midgett). Private Midgett disappeared on Sunday, November 25, 1967, while serving in Vietnam with the United States Army, in the vicinity of Tuy Hoa Phu Hiep. He had been given a pass for the day with instructions to return to the company area by 5 p. m. that afternoon. On his failure to return, the unit commander conducted an "AWOL inquiry," pursuant to Army Regulation (AR) 630-10 (May 1966), which prescribes the procedures for the administration of military personnel who are absent without leave.

An investigative report by Midgett's commanding officer,¹ filed on December 27, 1967, set forth the information "compiled related to the probable causes or motives for the absence." In essence this report stated that Private Midgett did not return at the time ordered, that there was no evidence of intent to disappear beyond a statement by an acquaintance that Midgett said he "had the feeling he wanted to bug out for awhile," and that no other information about Private Midgett's disappearance was available.

Private Midgett was dropped from the rolls as a deserter on December 30, 1967, because of his failure to return to military control upon the expiration of 29 consecutive days after having first been listed as absent without leave (AWOL). This was in accord with AR 630-10 ¶ 29e (May 1966), noted in the "Morning Report" of that date.

On August 11, 1975, plaintiffs obtained from the Circuit Court of the City of Chesapeake, Virginia, a decree (Chancery No. 15144) that Midgett be presumed dead as of November 25, 1967; that his parents be declared the sole heirs at law, and that his father, Earl R. Midgett, be granted letters of administration. The decree was based on the fact that "said Dewey A. Midgett, then a member of the United States Army, disappeared on November 25, 1967, in the Tuy Hoa area of the Republic of Vietnam, which country was in a state of hostilities at the time, and has not been heard of since" (emphasis added). Armed with the Virginia decree, plaintiffs, following years of efforts to locate their son and to clear his name, applied to the Army Board for Correction of Military Records (ABCMR) on August 21, 1975, requesting "the following correction of error or injustice":

(1) Delete from the records:

(a) DA Form (335th Aviation Company) for November 25, 1967, the words "Dept AWOL 1700 hours 25 November 1967".

(b) Discharged from the rolls of this organization as a deserter.²

(2) Correct the records to show: "Died November 25, 1967".

The ABCMR denied the application and Midgett's parents appeal from this decision, contending that the decision was arbitrary and contrary to law, and an abuse of administrative discretion in that it ignored the decree of death from the Commonwealth of Virginia, and that it was not based on substantial evidence. They sue to recover the death gratuity claimed owing, under 10 U.S.C. §§ 1475-80 (1976), as well as for final settlement of accounts of a deceased member of the armed forces, under 10 U.S.C. § 2771 (1976).

I.

Because they are seeking a money judgment, plaintiffs are not barred from litigating the incidental, though necessary, question of Private Midgett's status, and their action is not one for declaratory judgment alone, which we are without jurisdiction to hear. United States v. King, 395 U.S. 1 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), rev'g 390 F.2d 894, 182 Ct.Cl. 631 (1968). This case is easily distinguishable from King: there, the money claim (for back taxes) was otherwise barred by the statute of limitations (jurisdictional in this court), and so the requested determination of disability status was not incidental to any money claim within this court's jurisdiction. Defendant contends that since 37 U.S.C. § 503(a) (1976) provides that those members of the armed forces who absent themselves without authority forfeit all pay and allowances for the period of that absence, any payment to his parents, while Midgett remains in deserter status, would be contrary to statute, citing Borys v. United States, 201 Ct.Cl. 597, 607, cert. denied 414 U.S. 1001, 94 S.Ct. 355, 38 L.Ed.2d 237 (1973). This argument begs the question before us: we are here called upon to determine whether the ABCMR's decision not to change Private Midgett's records was arbitrary and capricious, contrary to law, and unsupported by substantial evidence. If so—if statute or regulation or the Constitution required the board to make the requested changes—then 37 U.S.C. § 503(a) (1976) does not apply, and plaintiffs are automatically entitled to payments under the death gratuity statute and the statute requiring final settlement of accounts of deceased members of the armed forces.³

II.

Plaintiffs also are not barred by the statute of limitations. Defendant analogized the present situation to the cases of 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), and Mathis v. United States, 391 F.2d 938, 183 Ct.Cl. 145 (1968), aff'd on rehearing, 421 F.2d 703, 190 Ct.Cl. 925 (1970), which held that the cause of action in illegal discharge cases "accrued all at once upon the plaintiff's removal." 391 F.2d at 939, 183 Ct.Cl. at 147. Therefore, the argument goes, the Midgetts' claim first accrued in November 1967, when "the pivotal determination of AWOL status was made" by the Army, and this court's statute of limitations, which is jurisdictional, would bar an action after November 1973.

We disagree. The statute of limitations does not begin to toll until "all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action." Oceanic Steamship Co. v. United States, 165 Ct.Cl. 217, 225 (1964). Until they obtained the Virginia decree of death, the parents of Private Midgett had no evidence with which to contest the determination of desertion, under an administrative presumption of continued life, made by the Army pursuant to AR 630-10 ¶ 29e. See Peak v. United States, 353 U.S. 43, 77 S.Ct. 613, 1 L.Ed.2d 631 (1957), where the Supreme Court dealt with a litigant attempting to recover proceeds of a National Service Life Insurance policy, whose proof of death was the statutory presumption of death codified in 38 U.S.C. § 810.⁴ The Court noted that:

Where proof of the insured's death must rest primarily upon his unexplained absence of the insured, suit may not be maintained, as a practical matter, prior to the expiration of the statutory seven-year period. Petitioner's cause of action, therefore, "accrued" at the time when, under § 810, she might have successfully maintained her suit, and that is the date from which the six-year statute of limitations should be computed.

353 U.S. at 45, 77 S.Ct. at 614. The Court went on to note that the presumption of death left open for proof the precise time of death; however, "to compute the six-year limitation period from the date which the trier of fact establishes as the date of death would be to say that the beneficiary's right to recover had expired before she could have successfully prosecuted a lawsuit to enforce that right." Id. at 46, 77 S.Ct. at 615. This court also recognized the procedural hazards that the statute of limitations may pose to plaintiffs whose proof of death is an unexplained absence for a specified period of time. Acosta v. United States, 320 F.2d 382, 386, 162 Ct.Cl. 631, 637 (1963) (a case involving a claim for retirement pay). For reasons discussed below, we do not think that this case requires application of the presumption of death at the end of the 7-year period of absence, as was done in Acosta,⁵ but we do rely on that decision and the Supreme Court's discussion in Peak, supra, for the proposition that plaintiffs' cause of action did not accrue until they had in their possession the decree which stated that Private Midgett had died.

III.

Defendant also argues that our scope of review precludes consideration of the deserter determination made in the first instance, citing Logronio v. United States, 133 F.Supp. 395, 132 Ct.Cl. 596 (1955), for the proposition that this court is without jurisdiction to alter prior determinations of the status of military personnel. While Logronio involved a status determination under the Missing Persons Act, more recent authority construing that same statute has "dismissed out of hand defendant's suggestion that the determinations were expressly intended, and consistently held by this court, to be nonreviewable and conclusive." Crone v. United States, 538 F.2d 875, 877, 210 Ct.Cl. 499, 521 (...