Mortimer

652 F.2d 68, 226 Ct. Cl. 638, 1981 U.S. Ct. Cl. LEXIS 45

• Court: United States Court of Claims
• Decided: January 30, 1981
• Docket: No. 527-80C
• Status: Published

Opinion

This case for military back pay is before the court on defendant’s motion to dismiss. Plaintiff alleges in his pro se petition that his honorable discharge from the United States Marine Corps on January 8,1964, is ineffective, and he is therefore entitled to back pay, including reenlistment bonuses, allowances for clothing, and allotments for his spouse and dependent child.

Plaintiff bases his claim on the fact that Form DD 214, the official document used for his discharge, does not contain his signature; this report simply states that plaintiff was unavailable for signature.

Plaintiffs petition was filed on September 26,1980, some 16 years after the alleged improper discharge. Under 28 U.S.C. § 2501 (1976), a claim is barred in this court unless the petition is filed within 6 years sifter such claim first accrues. This court has held that a claim for active duty pay on the ground of a wrongful or illegal discharge from the military service accrues at once upon the member’s discharge and a suit must be brought within 6 years of such date. Kirby v. United States, 201 Ct. Cl. 527 (1973), cert. denied, 417 U.S. 919 (1974). Plaintiffs suit was not filed within 6 years of his discharge.

rr is therefore ordered that defendant’s motion to dismiss is granted. Plaintiffs petition is dismissed.