Mulvaney v. Stetson

• Decision Date: 29 May 1979
• Docket Number: 78 C 3172.,No. 78 C 3019,78 C 3019
• Citation: 470 F. Supp. 725
• Parties: James W. MULVANEY, Plaintiff, v. Hon. John STETSON, Secretary of the Air Force, Lt. Col. Benjamin Balser and Major Herbert J. Lindstrum, individually and/or as agents or servants of the United States Air Force, Defendants. James W. MULVANEY, Plaintiff, v. Max CLELAND, Administrator, Veterans Administration, Defendant.
• Court: U.S. District Court — Northern District of Illinois

470 F. Supp. 725

James W. MULVANEY, Plaintiff, v. Hon. John STETSON, Secretary of the Air Force, Lt. Col. Benjamin Balser and Major Herbert J. Lindstrum, individually and/or as agents or servants of the United States Air Force, Defendants.

James W. MULVANEY, Plaintiff, v. Max CLELAND, Administrator, Veterans Administration, Defendant.

Nos. 78 C 3019, 78 C 3172.

United States District Court, N. D. Illinois, E. D.

May 29, 1979.

COPYRIGHT MATERIAL OMITTED

James W. Mulvaney, pro se.

Thomas P. Sullivan, U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM DECISION

MARSHALL, District Judge.

In these two related pro se cases, plaintiff has brought suit against the Air Force and the Veterans Administration. In his suit against the Air Force, plaintiff seeks to have his general discharge changed to an honorable discharge and all unfavorable discharge material expunged from his military record. Plaintiff also seeks damages from the Air Force and the two officers who allegedly conspired to fabricate the evidence upon which plaintiff was discharged from the Army as an undesirable. In plaintiff's second suit, he seeks to recover medical benefits denied him by the Veterans Administration.

Plaintiff enlisted in the Army in October, 1942. When he was discharged in July, 1945, he was a private in the Army Air Corps serving as a military policeman at Lincoln Army Air Field, in Lincoln, Nebraska. Plaintiff was given an undesirable discharge from the Army after a Board of Officers determined, following a hearing, that he possessed "habits and traits of character which render his retention in service undesirable." Army Regulation 615-368. Plaintiff alleges that the evidence adduced at the hearing was false and that the hearing was designed to "railroad" him out of the service.

Plaintiff states that at the time of his difficulties with the Army, he, a lowly private, was having an affair with the wife of a colonel. Upon learning of plaintiff's sexual insubordination, one of the colonel's colleagues, Major Lindstrum, became determined to remove plaintiff from the military. According to plaintiff, Lindstrum gave plaintiff the choice of accepting an administrative undesirable discharge or being court martialled, for unspecified crimes, with an attendant long jail sentence. Plaintiff chose the former and cooperated with Lindstrum's plan by fabricating evidence to convince the Board of Officers that plaintiff was unfit for military duty.

The following evidence was introduced at the hearing: Lieutenant Colonel Balser, Chief of the Section of Neuropsychiatry, recounted evidence given to him by plaintiff and verified by plaintiff's sister. On the basis of this information Balser diagnosed plaintiff as "constitutional psychopathic state, emotional instability and criminalism" with no chance of rehabilitation. Plaintiff's exhibit 5. Major Lindstrum and a Private Bunce, like plaintiff a military policeman, both testified that plaintiff had a volatile temper. Lindstrum cited two incidents as examples. Plaintiff's exhibit 7. In the first incident, plaintiff allegedly fired his weapon at another military policeman while on duty. Private Winkle, the target of this alleged shot, corroborated Lindstrum's testimony by stating that plaintiff had fired his pistol at Winkle when Winkle approached the guardhouse where plaintiff was on duty. Plaintiff's exhibit 14. Private Bunce, who was often on duty at the same time as plaintiff, corroborated the story to some extent by saying that he once saw plaintiff fire his weapon for no apparent reason. Plaintiff's exhibit 12.

The second incident cited by Lindstrum occurred when the colonel's wife and plaintiff met at the guardhouse where plaintiff was on duty. Plaintiff's wife arrived during the tryst, and, upon discovering the colonel's wife, began fighting with plaintiff. The colonel's wife departed. Plaintiff and his wife continued their dispute in plaintiff's car, during which plaintiff allegedly struck his wife on the head with his pistol, injuring her slightly. Plaintiff's exhibit 7.

Plaintiff now contends that virtually all of this evidence was fabricated. He admits having cuckold the colonel and admits arguing with his wife after the guardhouse encounter, but denies that he ever struck his wife with his pistol. Plaintiff also denies ever firing his weapon at Private Winkle. And of course he denies the psychiatrist's diagnosis that he was suffering a "constitutional psychopathic state, emotional instability and criminalism."

In 1974, almost thirty years after the event, certain of those who had contributed evidence at plaintiff's discharge hearing signed a series of notarized statements retracting or explaining their earlier statements. Plaintiff's exhibits 11-14. Mr. Winkle stated that he had fabricated the testimony that he gave in 1945 with respect to the alleged shooting incident. Winkle's 1974 statement indicates that plaintiff sought Winkle's help in gathering evidence that would enable plaintiff to obtain a discharge in lieu of being prosecuted, and that the two men therefore concocted the shooting incident. Mr. Bunce retracted his earlier testimony regarding plaintiff's bad temper and stated that he signed the original statement because he was "fearful of questioning that statement." Mr. Bunce's wife stated in 1974 that Major Lindstrum had put enormous pressure on Bunce to testify against plaintiff. Finally, plaintiff's sister stated that information that she had provided in 1945 to a representative of the Red Cross was not true and was given only at her brother's prompting. Plaintiff now further states that he was not allowed to be present at his discharge hearing, and that any information he gave in 1945 indicating his alleged anti-social behavior was merely the product of pressure imposed by Major Lindstrum. Furthermore, plaintiff says that a statement purporting to summarize his testimony before the Board of Officers was fabricated. See Plaintiff's exhibit 10.

After obtaining the 1974 statements from the players in the drama, plaintiff petitioned the Air Force Board for the Correction of Military Records (Correction Board) for a correction of his discharge to honorable and for the expungement of adverse material from his record. The Correction Board granted partial relief as to the discharge, changing it from undesirable to general. The Correction Board refused to grant plaintiff an honorable discharge and refused to correct plaintiff's records. See Plaintiff's exhibit 17. These suits followed.

We cannot proceed to the merits of plaintiff's claims until we determine whether we have jurisdiction to entertain these actions. Breaking plaintiff's suits down to their component parts, we note that plaintiff seeks (1) injunctive or corrective relief from the Air Force in the form of a change in plaintiff's records, (2) damages from the Air Force, (3) damages from Lindstrum and Balser, and (4) damages and injunctive relief from the Veterans Administration. The defendants have challenged our jurisdiction to entertain any of these claims.

The Veterans Administration (VA) argues that we have no jurisdiction to hear plaintiff's claim against it because 38 U.S.C. § 211(a) makes all decisions of the Administrator regarding veteran benefits final and unreviewable:

Except as provided in sections 784, 1661, 1761, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans' Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.

We agree with the VA's contention. The language of the statute unequivocally states that we have no jurisdiction to hear this action, and the courts have uniformly so interpreted the statute. See, e. g., DeRodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240 (1971). See also Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). Although a challenge to the constitutionality of a law administered by the VA would not be barred by § 211, Johnson v. Robison, supra, plaintiff does not challenge the constitutionality of any statute. Rather, plaintiff challenges the decision of the Administrator and alleges that the decision violated his constitutional rights. These allegations are insufficient to sustain jurisdiction, because section 211(a) bars a constitutional challenge to actions of the Administrator under the veterans benefits statutes. See Anderson v. Veterans Administration, 559 F.2d 935 (5th Cir. 1977); Ross v. United States, 462 F.2d 618 (9th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 326, 34 L.Ed.2d 249 (1972). Plaintiff's claim against the Veterans Administration is dismissed for want of jurisdiction.

Turning to plaintiff's claim against the Air Force, we note first that this claim is essentially a claim against the United States. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). This is true both for the claim for corrective relief and for the claim for damages against the Air Force and Lindstrum and Balser in their official capacities as Air Force officers. See id. at 620-22, 83 S.Ct. 999. These defendants contend that all claims against the United States are barred by the statute of limitations contained in 28 U.S.C. § 2401, which provides:

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.

We will consider plaintiff's claim for corrective relief separately from the damage claim.

Defendants argue that plaintiff's civil action accrued as of the date of discharge in 1945. See Mathis v. United States, 391 F.2d 938, 183 Ct.Cl. 145 (1968). Thus defendants argue that plaintiff's complaint, filed in 1978, is time-barred. The Court of Appeals for the ...