Barney v. United States

57 Fed. Cl. 76, 2003 U.S. Claims LEXIS 172, 2003 WL 21513050
CourtUnited States Court of Federal Claims
DecidedJune 26, 2003
DocketNo. 02-1185C
StatusPublished
Cited by12 cases

This text of 57 Fed. Cl. 76 (Barney v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barney v. United States, 57 Fed. Cl. 76, 2003 U.S. Claims LEXIS 172, 2003 WL 21513050 (uscfc 2003).

Opinion

OPINION

HORN, Judge.

FINDINGS OF FACT

James L. Barney, plaintiff, joined the United States Air Force on November 24, 1959 under a contract of enlistment for four years. On June 18, 1961, Airman Barney was demoted to the rank of Airman Basic for failure to obey an order. During the summer of 1961, Airman Barney underwent surgery for [78]*78an inguinal hernia which plaintiff claims arose from military duties that involved “heavy lifting and pulling,” after which he was placed on medical leave. On September 14, 1961, Airman Barney returned to active duty.

On September 29, 1961, Major Wagner H. Roberts, Airman Barney’s commander, proposed that Airman Barney be recommended for an Honorable Discharge from the Air Force prior to the expiration of his four year term, pursuant to Air Force Regulation (AFR) 39-16. Major Roberts described Airman Barney’s attitude as “negative and apathetic,” and stated that Airman Barney “failed to grasp the basic essentials of [his] career,” after repeated counseling by supervisors. The record reflects that Major Roberts made arrangements for Airman Barney to undergo a medical evaluation prior to his discharge. On September 29, 1961, according to plaintiffs medical records submitted to the court, the Air Force physician, Captain Martin J. Shulman, found Airman Barney to be free of physical or mental defects, which would warrant discharge pursuant to Air Force Manual (AFM) 35-4. Plaintiff also was informed that he would be “given an opportunity to submit a rebuttal and make statements in your own behalf.” In his complaint filed with this court, however, plaintiff states he was “denied the opportunity to be examined by a doctor for my groin and low back pain complaints.”

In a document submitted in the record by the plaintiff, Airman Barney acknowledged in a typewritten statement, signed by him on October 5, 1961, that “I understand that I have the right to submit statements in my own behalf with regard to my pending Air Force Regulation 39-16 discharge action. I have been fully afforded the opportunity of submitting such statements. I do not desire to submit statements in my own behalf.” In his complaint, Airman Barney, however, claims that he was told to sign the documents and was promised copies of the signed documents by Major Roberts. The evaluating officer, like Major Roberts earlier, recommended an Honorable Discharge. On October 10, 1961, Airman Barney was officially and honorably discharged from the Air Force. According to the plaintiffs complaint, he never received his final pay for the ten days served from October 1, 1961 to October, 10,1961.

The record before the court reflects that, in an application dated June 27, 1990, plaintiff petitioned the Air Force Board for Correction of Military Records (AFBCMR) to change his Honorable Discharge to a medical discharge with entitlement to disability retirement pay. The AFBCMR, however, denied the relief requested by plaintiff in a letter from the Board dated July 1,1991. In the July 1, 1991 letter, the AFBCMR found that plaintiffs application was not timely filed, and that “it would not be in the interest of justice” to accept the untimely claim for review. The AFBCMR’s record of proceedings states that “[although the applicant asserts a date of discovery which would, if correct, make the application timely, the essential facts which gave rise to the application were known to applicant long before the asserted date of discovery. Knowledge of those facts constituted the date of discovery }f

Plaintiff submitted a second request for relief to the AFBCMR, dated July 19, 1991. The AFBCMR construed plaintiffs second request as one for reconsideration, and denied the request, according to the defendant, on September 1, 1991, on the grounds that plaintiff had failed to provide any newly discovered evidence. On October 24, 1991, plaintiff sent a third request to the AFBCMR, which was denied in a decision dated November 15, 1991. The AFBCMR denied the third request on the grounds that “reiteration of facts previously addressed by the Board, uncorroborated personal observations, or additional arguments on the evidence of record are not adequate grounds for reopening a case.” Plaintiff then sent a fourth request for relief, on November 23, 1991, which was denied on January 14, 1992 in a Board letter stating that, “unless you submit newly discovered relevant evidence which meets the criterion for reconsideration of your appeal, further action by the AFBCMR is not possible.” The Board indicated that “any further correspondence regarding your appeal, which does not contain [79]*79new or relevant evidence, will be filed without action.”

On July 29,1993, plaintiff also filed a complaint against the Department of the Air Force, Attorney General Janet Reno, and Assistant United States Attorney, Kent W. Penhallurick in the United States District Court for the Northern District of Ohio, Eastern Division, alleging that plaintiffs “civil and constitutional rights were violated by the Air Force’s arbitrarily [sic] action and subsequently unlawfully discharged [sic] without proper provisions of law or disability pay.” On June 17, 1994, the District Court dismissed plaintiffs complaint, holding that “the United States Court of Federal Claims has exclusive jurisdiction over claims ‘not sounding in tort’ against the United States, in excess of $10,000. 28 U.S.C. §§ 1346(a)(2), 1491(a)(1).” Barney v. Dep’t of the Air Force, No. 1:93 CV 1589, slip op. at 2 (N.D. Ohio June 15, 1994). The District Court also dismissed any of plaintiffs claims that could be construed as tort claims on statute of limitations grounds. Id. Plaintiff then filed a motion to reconsider, which was denied by the District Court on July 7, 1994. See Barney v. United States Air Force, No. 94-3744, 1994 WL 696106 (6th Cir. Dec.12, 1994).

Plaintiff appealed the District Court decision. The Sixth Circuit Court of Appeals affirmed the lower court in a decision dated December 12, 1994, holding that the District Court lacked subject matter jurisdiction over the retirement disability claim and that the tort and constitutional claims were barred by the applicable statues of limitations. Barney v. United States Air Force, 1994 WL 696106, at *1-2. The court also stated that “Barney’s complaint, which seeks disability retirement pay since 1961 pursuant to a federal statute, falls within the exclusive jurisdiction of the Court of Federal Claims.” Barney v. United States Air Force, 1994 WL 696106, at *1.

Plaintiff filed his complaint in this court on September 11, 2002. Plaintiff seeks: 1) back pay for his alleged wrongful discharge; 2) payment for the ten days worked between October 1, 1961 and plaintiffs discharge on October 10, 1961; and 3) disability retirement pursuant 10 U.S.C. §§ 1201, 1218 (2000). Plaintiff claims that the delay between his discharge in 1961, his petitions to the AFBCMR during the years 1990-1992, and his complaint in the District Court in 1993 for unlawful discharge and disability retirement is due to his futile attempts to obtain his medical and service records from the time of his discharge until February 22, 1988, when he states he obtained his records with assistance from Ohio Senator Howard Metzenbaum’s office. Plaintiff also asserts that he learned in October, 2001 that his military pay records were destroyed six years and three months after his discharge.

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57 Fed. Cl. 76, 2003 U.S. Claims LEXIS 172, 2003 WL 21513050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barney-v-united-states-uscfc-2003.