Kelly

197 Ct. Cl. 1068, 1972 U.S. Ct. Cl. LEXIS 48, 1972 WL 5148

• Court: United States Court of Claims
• Decided: March 3, 1972
• Docket: No. 93-71
• Status: Published

Opinion

Military fay; discharge; limitation of action. — Plaintiff enlisted for four years in August 1952 and was separated from the service with an undesirable discharge on November 2,1953. He applied to the Air Force Discharge Keview Board in January 1957 to have his discharge changed to honorable, his application being denied on August 30, 1957. After successive applications, the discharge was changed to honorable on April 22, 1969. In his petition filed in 1971 plaintiff seeks back pay and damages. Defendant contends that plaintiff’s cause of action accrued on November 2, 1953 and that his claim is barred by the statute of limitations. This case comes before the court on defendant’s motion to dismiss the petition and on plaintiff’s motion for leave to file an affidavit. Upon consideration thereof, together with plaintiff’s opposition to defendant’s motion, without oral argument, the court concludes that plaintiff’s alleged claim is barred by the statute of limitations, 28 U.S.C. § 2501. (See Mathis v. United States, 183 Ct. Cl. 145, 391 F. 2d 938 (1968), rehearing granted on another ground, 183 Ct. Cl. 150, 394 F. 2d 519 (1968) ; O'Callahan v. United States, 196 Ct. Cl. 556, 451 F. 2d 1390 (1971) ; Crowe v. United States, 196 Ct. Cl. 565, 452 F. 2d 1034 (1971); and Davis v. United States, 196 Ct. Cl. 517 (1971), cert. denied, 405 U.S. 1046 (1972). On March 3, 1972, by order, the court granted plaintiff’s motion for leave to file an affidavit, granted defendant’s motion to dismiss, and dismissed the petition.