MacDonald

202 Ct. Cl. 1083, 1973 U.S. Ct. Cl. LEXIS 99

• Court: United States Court of Claims
• Decided: June 1, 1973
• Docket: No. 476-69
• Status: Published

Opinion

Military fay; connection of military records; invohmtary discharge; active duty fay; limitation of action. — Plaintiff, a grounded Air Force pilot whose involuntary discharge in January 1959 for physical disability was voided in October 1960 by a Correction Board •which converted his record to show release to inactive duty, in 1969 sued in this court for active duty pay. The defenses are the 6-year statute of limitations (28 U.S.C. § 2501), lach.es and finality of the correction board decision in 1960 granting plaintiff all he had then asked for, at which time he had expressly disclaimed interest in a monetary recovery so long as his separation record was relieved of the stigma of mental incompetency and he was either restored to active dnty or released to inactive duty. On March 15, 1973, Trial Judge Bernhardt filed an opinion holding that plaintiff’s claim is time-barred. It accrued, if at all, with the approved board action in October 1960 ordering the relief requested, which started the limitations period. Plaintiff’s application in 1962 to the correction board for reconsideration and the denial of it in 1964 did not toll the limitations period. This case came before the court on defendant’s motion requesting the court to adopt, as the basis for its judgment, the recommended decision of the Trial Judge, plaintiff having failed to file a notice of intention to except thereto. Upon consideration thereof, and without oral argument, since the court agrees with the decision of the Trial Judge, it granted defendant’s motion and adopted the decision as the basis for its judgment herein. On June 1,1973 the court ordered that plaintiff is not entitled to recover and dismissed the petition.