Ortiz v. Secretary of Defense

• Decision Date: 07 December 1994
• Docket Number: No. 94-5026,94-5026
• Citation: 41 F.3d 738
• Parties: , 63 USLW 2372 Gilbert ORTIZ, Jr.; Nollie Plowman, Appellants, v. SECRETARY OF DEFENSE; Secretary of the Army, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 738

41 F.3d 738

309 U.S.App.D.C. 342, 63 USLW 2372

Gilbert ORTIZ, Jr.; Nollie Plowman, Appellants, v. SECRETARY OF DEFENSE; Secretary of the Army, Appellees.

No. 94-5026.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 6, 1994.

Decided Dec. 6, 1994.

As Amended Dec. 7, 1994.

Joseph R. Guerra, Washington, DC, argued the cause for appellants. With him on the briefs were Ronald S. Flagg, Donald H. Smith and Gershon M. Ratner, Washington, DC.

Michael T. Ambrosino, Asst. U.S. Atty., Washington, DC, argued the cause for appellees. With him on the brief were Eric H. Holder, Jr., U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Before: WALD, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The Army Board for the Correction of Military Records is a board composed of civilians that processes servicemembers' claims regarding alleged errors or injustices in their military records. By statute, the Correction Board resolves those claims made "within three years after [the servicemember] discovers the error or injustice." 10 U.S.C. Sec. 1552(b). These appeals require the court to decide whether, when a former servicemember seeks to upgrade a discharge, the three-year limitation period begins to run from the date of discharge or from the time the servicemember exhausts remedies before the Army Discharge Review Board, which reviews only dismissals and discharges. See 10 U.S.C. Sec. 1553. We hold, in view of the regulatory requirement that servicemembers exhaust their remedies with the Review Board before they seek redress from the Correction Board, that the three-year statute of limitations begins to run at the conclusion of Review Board proceedings. Accordingly, we reverse the grant of summary judgment to the Secretaries of Defense and the Army.

I.

Appellants Gilbert Ortiz, Jr. and Nollie Plowman principally contend that the district court erred in ruling that the three-year statute of limitations began to run from the dates of their discharges, rather than from the dates of the Review Board's denials of their applications. After their discharges under other than honorable conditions, both appellants filed timely applications with the Review Board for upgraded discharges. Within three years after the Review Board denied them relief, they both filed applications for upgraded discharges with the Correction Board. In each instance the Correction Board denied their applications as untimely, because more than three years had elapsed since their discharges, and declined to consider the merits of their applications in the "interest of justice." Ortiz v. Secretary of Defense, 842 F.Supp. 7 (D.D.C.1993). ¹ Thereafter, appellants sued the Secretary of the Army and the Secretary of Defense, alleging that the Correction Board's decisions were arbitrary, capricious, abuses of discretion, and contrary to law. The district court granted summary judgment in favor of the Secretaries, and appellants appeal.

Applications before the Correction Board to correct an error or injustice must be filed "within three years after [the former servicemember] discovers the error or injustice." 10 U.S.C. Sec. 1552(b) (Supp. V 1993). Appellants maintain that the district court erred in two respects in ruling that the Correction Board properly interpreted the phrase "discover[y] [of] error or injustice" in Sec. 1552(b) to mean "the date of the discharge," a phrase Congress used in Sec. 1553(a) in providing a time limit for Review Board applications. ² First, this construction of Sec. 1552(b), appellants argue, is inconsistent with the plain language, structure and legislative history of the statute. Second, they continue, it cannot be reconciled with the Army's two-step administrative review procedure, which requires former servicemembers to exhaust their administrative remedies with the Review Board before seeking redress from the Correction Board.

The Secretaries respond that the three-year filing requirement in Sec. 1552(b) is clear and unambiguous, that the errors or injustices appellants challenge are their original discharges, and that none of the relevant statutes or their legislative histories demonstrate a congressional intent to require exhaustion of Review Board remedies before applying to the Correction Board. Although the Secretaries concede that their regulations require exhaustion of certain remedies before recourse to the Correction Board, they maintain that such exhaustion is required only when the Correction Board determines that it is practical and appropriate. The Secretaries agree that our review of when the Correction Board's three-year statute of limitations begins to run is de novo, Transohio Sav. Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 614 (D.C.Cir.1992), and applying that standard, we respectfully disagree with their interpretation in view of the plain meaning of the Army's regulation requiring exhaustion.

II.

Congress has enacted statutes providing at least two administrative procedures by which a former servicemember may seek an upgrade of his or her discharge. First, 10 U.S.C. Sec. 1552 authorizes the Secretary of the Army, acting through boards of civilians, to correct military records. Under subsection (b):

No correction may be made ... unless the claimant ... files a request for the correction within three years after he discovers the error or injustice. However, [the Correction Board] may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.

10 U.S.C. Sec. 1552(b). Second, 10 U.S.C. Sec. 1553(a) authorizes the Secretary to establish a Review Board, consisting of five members, to review dismissals and discharges, provided that "[a] motion or request for review [is] made within 15 years after the date of the discharge or dismissal." Subsection (c) requires the review to be based on the military records and any evidence presented by the applicant to the Review Board; applicants may present witnesses and appear personally or through counsel. Id. Sec. 1553(c).

In providing these two avenues of administrative review, however, Congress did not indicate the relationship between them. Neither statute provides that one avenue must be pursued before the other. Remedying this lack of clarity, the Army promulgated a regulation requiring exhaustion of Review Board procedures before an application to the Correction Board will be considered. The regulation provides:

Exhaustion of other remedies. No application will be considered [by the Correction Board] until the applicant has exhausted all effective administrative remedies afforded him by existing law or regulations, and such legal remedies as the [Correction] Board shall determine are practical and appropriately available to the applicant.

32 C.F.R. Sec. 581.3(c)(3) (1994).

A.

In maintaining that the district court erred in equating the date of discovery with the date of discharge, appellants first point to the different language used by Congress in Secs. 1552(b) and 1553(a). Congress required, in setting the time for applications to be submitted to the Review Board, that applications shall be made within "15 years after the date of discharge...." 10 U.S.C. Sec. 1553(a). Congress included no such language in Sec. 1552(b), requiring instead that applications to the Correction Board shall be made within three years after the servicemember "discovers the error or injustice." Appellants argue that, in the absence of further guidance from the statutory language itself, the different language in two companion provisions demonstrates that discovery of the "error or injustice" means something other than "date of discharge." See Energy Research Found. v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581, 583 (D.C.Cir.1990) (" 'when [Congress] employs different words, it usually means different things' ") (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes in BENCHMARKS 224 (1967)); Association of Maximum Service Telecasters v. FCC, 853 F.2d 973, 978 (D.C.Cir.1988) ("interpretive significance should be drawn from Congress' use of two different words"). However, this ignores the broader scope of the Correction Board's authority to correct any military record as compared to that of the Review Board, which is limited to review of dismissals and discharges.

Still, appellants' position finds some support in the legislative history; a sponsor of the bill stated that the three-year period did not necessarily begin to run from the date of discharge but rather from the date of discovery of the error. ³ However, this history indicates only that the date of discovery of the error may be different from the date of discharge, not that it will always, or even often, be different. Nonetheless, appellants argue, in light of the legislative history and the fact that the Review Board has authority to provide relief to applicants such as appellants, that there is no final "error or injustice" until the Review Board has acted. Therefore, appellants contend that the most natural and appropriate interpretation of Sec. 1552(b) is that the limitations period for appellants began to run on the date that the Review Board denied their applications to reclassify their discharges.

The Secretaries' response is that the three-year language of Sec. 1552(b) is clear and unambiguous. We disagree with both parties. Although the language differences relied on by appellants are not dispositive of the issue before us, appellants have demonstrated at least that the use of different language creates uncertainty about the triggering event for the Correction Board's three-year statute of limitations and clearly does not rule out a triggering event other than a discharge. Indeed, the Secretaries acknowledge that the Correction Board's statute of limitations "does not run from a uniform...