Paul Lawrence Kendall v. Army Board for Correction of Military Records

996 F.2d 362, 302 U.S. App. D.C. 96, 1993 U.S. App. LEXIS 15270, 1993 WL 220578

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 25, 1993
• Docket: 91-5020
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Chief Judge MIKVA.

SENTELLE, Circuit Judge:

In the District Court, Kendall sought review of his court-martial and subsequent refusal of the Army Board for Correction of Military Records to upgrade his dishonorable discharge or consider his claims on the merits. The District Court dismissed his complaint on grounds that it lacked jurisdiction and venue over appellant’s claim, and that appellant had waived his present claims by failing to assert them earlier. Because appellant did not raise his claims within the six-year limit set forth in 28 U.S.C. § 2401(a) (1988 & West Supp.1991), the District Court properly found that it did not have jurisdiction over the case. We therefore affirm the District Court’s judgment of dismissal.

I.

On November 27, 1974, Paul L. Kendall, then a twenty-year-old army private, was tried by a court-martial convened by the commander of the 3rd Armored Division in Frankfurt, Germany. Kendall was charged with assaulting a fellow soldier by kicking him, assaulting a fellow soldier by striking him in the head with a beer bottle, and two specifications of wrongful communication of a threat to kill a fellow soldier. After a two-day trial at which the alleged victim of the offenses never testified, Kendall was convicted of wrongfully communicating a threat to kill a fellow soldier and both assault charges. He was sentenced to a bad conduct discharge, forfeiture of $269 pay per month for twelve months, confinement at hard labor for one year, and a reduction in rank to the grade of Private E-l.

Kendall was transferred to the United States Disciplinary Barracks (USDB) to serve his sentence of confinement. On April 1, 1975, the Clemency and Parole Board remitted his sentence of confinement in excess of 10 months.

Later that month, through counsel, Kendall filed an assignment of error before the Army Court of Military Review (ACMR), requesting that it reject the findings of the court-martial. He asserted that the military judge had erred in failing properly to instruct the members of the court-martial as to the legal definition of excuse and the defenses of self-defense, coercion or distress, and physical and financial inability. However, Kendall did not assert that he was prejudiced by the victim’s failure to testify at his court-martial.

On May 21, 1975, the ACMR affirmed the findings and sentence of the court-martial. On June 6, 1975, Kendall, again through counsel, petitioned the United States Court of Military Appeals for review of the ACMR’s decision. Appellant raised the same allegations of error that he had raised before the ACMR. The Court of Military Appeals denied his petition on July 17, 1975. Kendall remained on active duty for five months after his release from the Disciplinary Barracks, and was discharged on September 12, 1975.

In June 1977, appellant submitted an application to the Army Board for Correction of Military Records (ABCMR),¹ requesting that he “be tried by a full jury, not a court of five members.” The application was filed without further action, because the ABCMR properly decided that it lacked jurisdiction “where the issue is limited solely to the setting aside of a conviction ... or the deletion of such a record,” relying on 40 Op.Att’y Gen. 504 (1947), and would not grant effective relief.² The Board notified Kendall of that disposition.

In 1986, approximately ten years later, Kendall submitted another application to the ABCMR requesting that his bad conduct discharge be upgraded to an honorable discharge or discharge for “medical conditions.” For the first time, Kendall asserted that the trial record was unjust because the alleged victim was not present during the court-martial; he also argued that he had not been afforded proper legal representation because counsel had failed to issue a subpoena for the alleged victim’s attendance and that he himself had been victimized by bias.

The ABCMR denied Kendall’s application to have his record changed to an honorable discharge in April of 1986, after reviewing his military records, the record of trial from his court-martial, and his explanation for filing his application beyond the three-year time period provided in 10 U.S.C. § 1552(b) for reviewing applications. In holding the application untimely, the ABCMR ruled that “[t]he alleged error or injustice [of the failure of the victim to be called as a witness] was, or with reasonable diligence should have been, discovered on 12 September 1975, the date [Kendall] was separated.” The Board concluded that “it was not in the interest of justice to excuse [Kendall’s] failure to timely file.”³

Appearing pro se, appellant filed the present action in the United States District Court for the Middle District of Pennsylvania in May 1989. His initial pleading sought relief from the ABCMR’s 1986 decision, and asked that his court-martial conviction be overturned on the grounds that the “guilty verdict was found due to the violation of the plaintiffs right to have a relevant witness present to testify and be cross-examined by the Defense.” The pleading and associated papers requested relief including expungement of the court-martial conviction and the bad conduct discharge, and restoration of all benefits to which he would otherwise have been entitled, including medical benefits.

Kendall’s complaint was referred to a magistrate, who erroneously construed it as a petition for habeas corpus. The magistrate’s report recommended that the case be transferred to the District Court for the District of Columbia, reflecting the magistrate’s incorrect belief that the ABCMR was Kendall’s ultimate custodian, and that it was located in Washington, D.C. The Pennsylvania District Court adopted the magistrate’s report and the case was transferred.

On June 18, 1990, the government moved to dismiss, or, in the alternative, for summary judgment, contending that the D.C. District Court lacked jurisdiction over the subject matter, that venue was improper, and that Kendall had waived his claims by failing to raise them until his 1986 application to the ABCMR.

Kendall responded with a pleading entitled “Petition for Rebuttal Instance for Petitioner,” once again arguing that he did not receive a “fair trial” because, among other reasons, the soldier he was convicted of assaulting was not present at his court-martial.

On January 15, 1991, the District Court granted the government’s motion and dismissed the complaint without opinion. This appeal followed.

II.

In contending that the District Court has jurisdiction over his claim, appellant through amicus curiae asserts a federal question cause of action based on his contention that his court-martial conviction was obtained in violation of the Constitution, that is, because the “guilty verdict was found due to a violation of his right to have a relevant witness present to testify and be cross-examined by the Defense.” He argues that the very nature of his claim entitles him to a hearing in federal court.

We disagree. Title 28 U.S.C. § 2401(a) provides that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a) (1988 & West Supp.1991). This bar applies to all civil actions whether legal, equitable, or mixed. Spannaus v. United States Dep’t. of Justice, 824 F.2d 52, 55 (D.C.Cir.1987); Calhoun v. Lehman, 725 F.2d 115, 116-17 (D.C.Cir.1983); Impro Products Inc. v. Block, 722 F.2d 845, 849-50 (D.C.Cir.1983), cert. denied, 469 U.S. 931, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984). The limitation codified in § 2401(a) likewise applies to claims seeking to correct or upgrade the discharge of former service members. Walters v. Secretary of Defense, 725 F.2d 107, 113 (D.C.Cir.1983), reh’g denied, 737 F.2d 1038 (D.C.Cir.1984) (en banc) (per curiam); Saffron v. Department of the Navy, 561 F.2d 938 (D.C.Cir.1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978).

In the case at bar, appellant’s discharge became final on September 12, 1975. It was on that date that the statute of limitations began to run on any action that he might have arising directly from the discharge, that is, on claims based on an allegedly invalid court-martial. See Walters v. Secretary of Defense, 725 F.2d 107, 114 (D.C.Cir.1983) (holding that the § 2401(a) limitation period begins to run when a service member’s discharge is final), reh’g denied, 737 F.2d 1038 (1984) (en banc) (per curiam). Therefore, insofar as Kendall is seeking review of the decision of the court-martial, his claims were time barred six years later, on September 11, 1981, though he did not raise them until 1986. Compliance with the limitations period is a condition of federal court jurisdiction. See Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). Because appellant has failed to demonstrate such compliance, the District Court properly dismissed this action.

We note that appellant did not raise his claim concerning his right to have a relevant witness present for testimony and cross-examination until almost ten years after his discharge. His failure timely to raise this claim before the ABCMR also compels us to withhold relief.

Insofar as Kendall intends to attack the validity of his original conviction, we note that the military justice system is independent of the federal court system. We have frequently analogized it to state court systems when individuals punished by court-martial seek redress in the federal courts. Indeed, the military justice system is sufficiently analogous to state justice systems to apply identical waiver rules to bar claims raised for the first time during a collateral attack on a court-martial. Davis v. Marsh, 876 F.2d 1446 (9th Cir.1989); Wolff v. United States, 737 F.2d 877 (10th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 575, 83 L.Ed.2d 514 (1984). Had appellant sought to attack a state court conviction in similar circumstances, he would have been deemed to have waived his claims absent a showing of cause and prejudice. See Engle v. Isaac, 456 U.S. 107, 124-29, 102 S.Ct. 1558, 1570-72, 71 L.Ed.2d 783 (1982) (holding that failure to comply with state contemporaneous objection rule bars federal review absent a showing of cause and prejudice); Wainwright v. Sykes, 433 U.S. 72, 86-91, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977) (same); Roman v. Abrams, 822 F.2d 214, 222-23 (2d Cir.1987) (same), cert. denied, 489 U.S. 1052, 109 S.Ct. 1311, 103 L.Ed.2d 580 (1989); Martinez v. Harris, 675 F.2d 51, 54-55 (2d Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982) (same).⁴

Military courts, like most civilian courts, generally apply a contemporaneous objection rule — that is, appellate courts will review only those claimed errors properly presented to the trial court. See United States v. Sykes, 11 M.J. 766 (N.C.M.R.1981); United States v. Anderson, 10 M.J. 743, 746 (N.C.M.R.1981); Wolff, 737 F.2d at 879-80. Because Kendall did not raise his current claims in the military court system until over 10 years after his discharge and was therefore too late to raise them properly, he is barred from raising them in federal court absent a showing of good cause and prejudice. The ABCMR noted in 1986 when it rejected Kendall’s application to have his bad conduct discharge upgraded, “The applicant has not presented, nor do the records contain, sufficient justification to establish that it would be in the interest of justice to excuse the failure to file within the time prescribed by law.” His subsequent presentations to the District Court and this court contain nothing that refutes this conclusion.

In the alternative, Kendall urges us to construe his complaint as a petition for review of the ABCMR’s decision under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (1988), rather than an appeal from the court-martial itself. Even under that view, the result is the same.

Without considering the question of the District Court’s jurisdiction to review the ABCMR’s decision that it was not in the interest of justice to excuse Mr. Kendall’s failure to file his appeal within the time prescribed by law,⁵ the substance of Kendall’s claim lacks merit. If the ABCMR’s decision is reviewable at all, the applicable standard of review is “whether [the] action of [the] military agency conforms to the law, of is instead arbitrary, capricious or contrary to the statutes and regulations governing that agency.”⁶ Ridgely v. Marsh, 866 F.2d 1526, 1528 (D.C.Cir.1989) (quoting Blevins v. Orr, 721 F.2d 1419, 1421 (D.C.Cir.1983)). Neither appellant nor amicus curiae have presented sufficient evidence to demonstrate that the ABCMR was arbitrary or capricious in holding that Kendall had failed to present sufficient evidence to show it was in the interest of justice to excuse his failure timely to file his appeal.⁷

As part of his argument for APA review, amicus curiae argues that appellant did not have “actual notice” of the claimed inadequacy of his court-martial trial counsel, that is, of the failure to have the alleged victim at his court-martial within the three-year limitation period of 10 U.S.C. § 1552(b). -See Amicus Curiae Brief at 32-33. Yet appellant admitted in his application to the ABCMR that he knew of the alleged error on November 5, 1975. Thus, Kendall was required by 10 U.S.C. § 1552(b) to apply to the ABCMR for correction of his military records by November 4, 1978, or to demonstrate that the failure should be excused in the interest of justice. As appellant offered no evidence to the ABCMR to explain his delay, we cannot say that the ABCMR was arbitrary or capricious.⁸ We therefore affirm the District Court’s decision to dismiss Kendall’s complaint.⁹ Neither this court nor the District Court has subject matter jurisdiction to review Kendall’s court-martial because the statute of limitations has run.

CONCLUSION

Even if the District Court has jurisdiction to review ABCMR decisions on untimely appeals, an issue we do not decide today, there is no reversible error in the Board’s application of the statute of limitations on the facts presented to it. We therefore affirm the District Court’s grant of summary judgment to the government.

It is so ordered.

1 . Under Title 10 U.S.C. § 1552(a) as then effective, "The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove injustice.” Pursuant to this authority, the Secretary of the Army has established the ABCMR. Its procedures arc prescribed by Army Regulation 15-185, Boards Commissions and Committees: Army Board for Correction of Military Records (May 18, 1977).

2 . The opinion of the Attorney General and the policy then in effect, subsequently codified at 10 U.S.C. § 1552(f) (1983), was that the ABCMR’s authority "[w]ith respect to records of courts-martial and related administrative records pertaining to court-martial cases” was limited to "correction of a record to reflect actions taken by reviewing authorities ... [or] action on the sentence of a court-martial for purposes of clemency.”

3 . Under 10 U.S.C. § 1552(b), “a board ... may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice." Procedures specifically governing the ABCMR are found in Army Regulation '15-185, and state that "failure to file within the time prescribed may be excused by the Board if it finds it would be in the interest of justice to do so.”

4 . Because Judge Williams does not const-ue appellant's papers as manifesting a claim for relief from the District Court under a cause-and-prejudice standard, see, e.g., Reply Brief of Amicus Curiae in Support of Appellant at 3, 4-5, he does not join this paragraph or the preceding one.

5 . In Ballenger v. Marsh, 708 F.2d 349 (8th Cir.1983), the Eighth Circuit held that while Board decisions denying "corrective” action are reviewable by federal courts, the ABCMR’s discretionary decision whether to review an untimely application was not subject to judicial review.

6 . The applicable regulation states that “failure to file within the time prescribed may be excused by the Board if it finds it would be in the interest of justice to do so,” Army Regulation 15-185. Therefore, the decision to grant an exception to an applicant appears to be wholly within the Board's discretion.

7 . Even if we accept the dissent's view that the "interest of justice inquiry” which the Board is required to conduct before it reviews the merits includes a review of the merits, Kendall still does not prevail. The clarity of the dissent’s presentation of Kendall’s claim does not mirror his filing with the Board. Kendall’s version alleged, for example, "I was given a court martiall [sic] unjustifiably, and all my rights were violated in result.”

8 . We do not share the dissent’s understanding that Kendall "suggested in his application that he was suffering from a mental health ailment....” Dissent at 370. The only allusions to Kendall's mental state in the entire record are his assertion that he was "suffering mental stress due to this undue treatment,” and his request for treatment of his alcoholism, based on the unexplained contention that he "did acquire an emotional problem” in the military that had induced his abuse of alcohol. There is no suggestion in the record that he offered these as justifications for his long delay in filing, nor could we expect the Board to understand them as such.

Similarly, there is no evidence that Kendall lacked “access to relevant records and legal materials.” Dissent at 370. The only allegation in the record susceptible to such an interpretation is Kendall's statement that "he could not reach his attorney, once he was back in the United States, to effectively check on the appeal that he had asked his attorney to put in.” This would hardly seem to excuse the eleven-year interval between the time Kendall conceded knowing of the supposed violation and his application for correction of his military records.

9 .Although it appears that the government's objection to venue is well taken, 28 U.S.C. § 1391 (1991), as neither the plaintiff nor defendant in the district court action are located in this judicial district, we need not determine the question since we decide against appellant on jurisdictional grounds in any event.