and enclosed the proper forms for making such an application. In August 1980, the plaintiff completed the application and enclosed a letter requesting that he be placed in retirement status or, "at bare minimum," that his discharge be upgraded from "general" to "honorable."
On April 17, 1981, the DRB advised the plaintiff that his discharge had been upgraded to an honorable one because the "policies regarding homosexuality under which [he] was discharged differ in material respect from those currently applicable." Specifically, the DRB observed that, pursuant to a memorandum issued by the Secretary of the Navy in 1978, servicemen discharged on the ground of homosexuality "should normally, in the absence of aggravating circumstances . . ., be given an honorable discharge." Upon learning of the DRB's decision to upgrade his discharge, the plaintiff submitted a claim for severance pay. The plaintiff was advised by the DRB that this request would have to be directed to the Navy Finance Center. The plaintiff wrote to this agency, which requested more information. After receiving no further response, the plaintiff asked his congressman to intervene. The congressman was advised by the Finance Center in September 1981 that the plaintiff was not entitled to severance pay because he had not been physically disabled at the time of the discharge. The congressman was also told, however, that the plaintiff would be entitled to retirement pay if his records were changed to show that he had been discharged on the expiration date of his enlistment, because he then would have accumulated the requisite 19 years and 6 months of service. This, according to the letter, could be decided only by the BCNR. Appropriate forms were provided for the plaintiff's use.
The plaintiff did not apply to the BCNR for relief. Instead, he filed this action, seeking a declaration that the regulations providing for the discharge of homosexuals are unconstitutional. In addition, the complaint includes demands for reinstatement, back pay, costs and attorney's fees. The plaintiff recently waived all claims for monetary relief exceeding $10,000.00 in light of the defendants' argument that the Court of Claims would otherwise have exclusive jurisdiction pursuant to the Tucker Act. See generally 28 U.S.C. §§ 1346(a)(2), 1491 (1976). The defendants now concede that the Tucker Act no longer presents a barrier to jurisdiction, but assert that the action is barred by the statute of limitations.
The parties agree that this action is governed by a six-year statute of limitations. Since the action is, in effect, one against the United States, it is controlled by 28 U.S.C. § 2401 (1976), which provides for a six-year limitations period. Similarly, to the extent that the plaintiff may base jurisdiction upon 28 U.S.C. § 1331, see Neal v. Secretary of the Navy, 639 F.2d 1029, 1034 (3d Cir.1981); Lord v. Lehman, 540 F. Supp. 125, 126 (E.D.Pa.1982), the outer limit for commencing the action is a period of six years. See Brewster v. Secretary of the Army, 489 F. Supp. 85, 88 (E.D.N.Y.1980). See generally Mosley v. Secretary of the Navy, 522 F. Supp. 1165, 1167 n. 8 (E.D.Pa.1981); 42 Pa.Cons.Stat.Ann. § 5527 (Purdon 1981).
Although it is clear that a six-year period controls this case, the parties vigorously disagree concerning the manner in which the time should be calculated. The defendants argue that the action is time barred because the plaintiff was discharged on May 16, 1975 and did not commence the action until March 15, 1982, almost seven years later. The plaintiff contends, however, that there should be a tolling of the limitations period for the time during which he pursued his administrative remedies. In addition, the plaintiff asserts that if he cannot benefit from a toll, the court should instead find that his cause of action did not accrue for limitations purposes until June 24, 1981 when the DRB's decision to upgrade his discharge became final.
The plaintiff's argument concerning the accrual of his cause of action must be rejected. A claim against the United States ordinarily accrues "upon the occurrence of the final event necessary to complete the elements of the claim." United States v. Sams, 521 F.2d 421, 429 (3d Cir. 1975). A claim challenging an unconstitutional separation from the military accrues at the time of the discharge. See, e.g., Mosley v. Secretary of the Navy, 522 F. Supp. at 1167; Brewster v. Secretary of the Army, 489 F. Supp. at 87; Mathis v. United States, 391 F.2d 938, 938-39, 183 Ct.Cl. 145, vacated for rehearing on other grounds, 394 F.2d 519, 183 Ct. Cl. 145 at 150 (1968). There is no sound reason to hold that the DRB's decision to upgrade his discharge in 1981 makes this rule inapplicable. An agency decision "changing the nature, but not the date, of [a] discharge does not alter the time of accrual of the action." Brewster v. Secretary of the Army, 489 F. Supp. at 87. Although some courts have stated that "the cause of action does not accrue until the appropriate discharge review board" renders a decision on the serviceman's claim, see, e.g., Walters v. Secretary of Defense, 533 F. Supp. 1068, 1071 (D.D.C.1982); Kaiser v. Secretary of the Navy, 525 F. Supp. 1226, 1229-30 (D.Colo.1981), these comments were made in cases in which the requested relief was an upgrade of the challenged discharge, not a declaration that the separation from the service was void. Although a cause of action for judicial review of the DRB's decision would appear to accrue upon the finality of its determination, it is significant that the plaintiff's complaint challenges only the original decision to discharge him. Hence, the DRB's April 17, 1981 decision is not properly before the court, see Jaffee v. United States, 592 F.2d 712, 719 (3d Cir.), cert. denied, 441 U.S. 961, 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979), and it should have no bearing on the accrual of the cause of action at bar.
The plaintiff's claim that he should benefit from a toll for the period during which he pursued administrative relief also must be rejected. Although some courts have embraced a contrary view, see, e.g., Von Hoffburg v. Alexander, 615 F.2d 633, 641 n. 15 (5th Cir.1980); Bard v. Seamans, 507 F.2d 765, 769 (10th Cir.1974); Martinez v. Brown, 449 F. Supp. 207, 210 (N.D.Cal.1978), it has long been the law within this Circuit that servicemen are not required to look to the DRB or the BCNR before filing suit to overturn a discharge from the military. See Nelson v. Miller, 373 F.2d at 479 & nn. 18 & 20; cf. Mosley v. Secretary of the Navy, 522 F. Supp. at 1167 n. 5 (suit can be brought immediately after discharge, but court should wait until administrative remedies are exhausted before rendering a decision). Since a failure to exhaust will not mandate dismissal in cases of this kind, there is no reason to toll the statute of limitations. Brewster v. Secretary of the Army, 489 F. Supp. at 87; Mathis v. United States, 391 F.2d at 939. Tolling is appropriate only when the existence of administrative relief "prevents the pursuit or exercise" of judicial remedies. E.g., Corson v. First Jersey Securities, Inc., 537 F. Supp. 1263, 1268 (D.N.J.1982).
The plaintiff relies upon dictum contained in Mosley v. Secretary of the Navy, 522 F. Supp. 1165 (E.D.Pa.1981), for the proposition that tolling is appropriate when a party has sought relief from military agencies like the DRB. In Mosley, the court stated that "the proper way to calculate the running of time is to start with the discharge, and toll for any period during which administrative remedies are pursued." Id. at 1167 n. 5. This court will decline to endorse this method of calculation because the Mosley opinion offers no rationale to support the conclusion that a toll applies, and it appears that the court was merely assuming the existence of a toll for purposes of argument. Id. at 1167 ("Even if limitations are tolled for the . . . period during which plaintiff exhausted his administrative remedies, the statute ran for over eight years. . . ."). It would be unfair to assume that the Mosley court, in dictum and without discussion, intended to depart from a substantial body of case law. See, e.g., Brewster v. Secretary of the Army, 489 F. Supp. at 87; Bonen v. United States, 229 Ct. Cl. 144, 666 F.2d 536, 539 (Ct.Cl.1981); cert. denied, 456 U.S. 991, 102 S. Ct. 2273, 73 L. Ed. 2d 1286 (1982); Brundage v. United States, 205 Ct. Cl. 502, 504 F.2d 1382, 1385 (Ct.Cl.1974), cert. denied, 421 U.S. 998, 95 S. Ct. 2395, 44 L. Ed. 2d 665 (1975); Mathis v. United States, 391 F.2d at 939.
It must be emphasized that a statute which limits the time for commencing a suit against the United States is not merely an instrument of repose. It is also one of the conditions imposed upon those plaintiffs who would benefit from a waiver of sovereign immunity. United States v. Kubrick, 444 U.S. 111, 117, 100 S. Ct. 352, 356, 62 L. Ed. 2d 259 (1979). At the same time, it is a limitation upon the jurisdiction of the courts. Since it is Congress, not the judiciary, which has the power to waive sovereign immunity, the courts must be careful not to extend such a waiver beyond the scope intended by Congress. Id.; see United States v. Sherwood, 312 U.S. 584, 587-88, 61 S. Ct. 767, 770, 85 L. Ed. 1058 (1941).
In enacting the legislation which led to the creation of discharge boards and bureaus for correction of records in each branch of the military, see 10 U.S.C. §§ 1552, 1553, Congress did not intend to affect the jurisdiction of the courts. See Nelson v. Miller, 373 F.2d at 479; Ogden v. Zuckert, 111 U.S. App. D.C. 398, 298 F.2d 312, 315 (D.C.Cir.1966). It is at least arguable that the jurisdiction of the courts would be expanded beyond the limits intended by Congress if an attempted exhaustion of remedies before these agencies were to give rise to a tolling of the statute of limitations -- particularly since exhaustion is not a jurisdictional prerequisite to suit. See, e.g., Nelson v. Miller, 373 F.2d at 479 & nn. 18 & 20. It is unnecessary, however, to resolve this question definitively in the present case. Whatever might be said in favor of tolling the statute to benefit a plaintiff who has pursued administrative relief through proper agencies can have no applicability in the present case because the plaintiff made formal application for a remedy to the incorrect board. The DRB simply does not possess power to revoke, or even to recommend revocation of a discharge. 32 C.F.R. § 724.303(a)(2); see note 2 supra. The plaintiff's ignorance of this fact does not provide him with an extension of time. See Mosley v. Secretary of the Navy, 522 F. Supp. at 1167 n. 6. The court can find no evidence that Congress intended that the pursuit of relief through incorrect avenues would provide a tolling of the statute of limitations.
The plaintiff, however, argues that he must be regarded as having pursued a proper avenue of relief because he brought his grievance directly to the Secretary of the Navy. To support this contention, the plaintiff relies upon the Court of Claims' decision in Brownfield v. United States, 148 Ct.Cl. 411 (1962). In Brownfield, the court regarded a direct communication with the Secretary of the Air Force as sufficient for purposes of exhaustion despite the fact that the Air Force Board for Correction of Records had been bypassed. The court noted that the Brownfield plaintiff "took his grievance directly to the Secretary, in writing, on more than one occasion and . . . received a final and definitive answer from the Secretary." Id. at 414-15 (emphasis added). The situation in Brownfield, then, is clearly distinguishable, for the plaintiff in the present case was not given a definitive response by the Secretary of the Navy. On the contrary, after being told that the Secretary felt that his discharge was proper, the plaintiff was advised that he could, if he wished, present his claim to the BCNR for additional consideration. Moreover, the plaintiff was given the applicable forms and regulations for this purpose. Four years later, when the plaintiff wrote again to the Secretary, he was again referred to another agency. Hence, it is clear that Brownfield is inapposite, and the plaintiff cannot rely upon it for his argument that he pursued proper avenues to obtain relief. Accord, Bard v. Seamans, 507 F.2d at 769 n. 9.
Although this court concludes that the plaintiff cannot benefit from a toll of the statute of limitations, a discussion of the Navy's handling of this matter appears to be in order because he urges emphatically that the timeliness problems in this case were brought about by the defendants' conduct. The plaintiff relies heavily upon the fact that he actively pursued relief through many agencies, including the DRB, the BCNR, the Navy Finance Center, the Secretary and various congressmen. See Plaintiff's Answer to Defendants' Supplemental Memorandum at 6-7, Document No. 13 of the Record. He argues that his letters were "kicked" from agency to agency and that he was "jockied" back and forth between these various boards. Id. at 7, 9. In short, the plaintiff claims, he "got a run around." Id. at 6. After carefully reviewing the documents submitted in connection with this motion, and having given the plaintiff the benefit of all favorable inferences which can be drawn from them, the court concludes that the plaintiff's attempt to blame the Navy for his timeliness problem must fail. The plaintiff would have this court believe that he actively sought reinstatement to his position during the many years that he corresponded with naval agencies, and that an intransigent Navy ignored his pleas, relegating him from one bureaucrat to another. The record simply does not support this version of the relevant events.
The plaintiff's initial attempts to seek relief, addressed to various congressmen, concerned "severance pay," which, of course, is inconsistent with the plaintiff's present request for reinstatement. Indeed, in one letter, the plaintiff stated, "I do not now desire to remain in the military service to complete my time, but gladly leave it. However, I do not feel that to ask for severence [sic] pay in the amount of one months [sic] pay for each year I have served is to [sic] much to ask." Plaintiff's Letter to Senator Hugh Scott, Defendants' Exhibit E, pp. 100-01, attached to Document No. 8 of the Record. Notably, Senator Scott learned that there were "no provisions" for severance pay applicable to the plaintiff's situation. See Navy's Letter to Senator Hugh Scott, id. at 97-98. Nevertheless, in his first letter to the Secretary of the Navy, the plaintiff asked for this form of relief. See Letter to Secretary of the Navy, id. at 96-97. Significantly, although the plaintiff told the Secretary that he felt that his discharge was unjustified, he did not ask to be reinstated. Id. The discharge was nonetheless reviewed, and upon its affirmance, the plaintiff was invited to apply to the BCNR for further consideration.
The plaintiff could have applied to the BCNR for review at this point, asking for reinstatement, but he did not do so. In addition, it must be remembered that he could have instituted suit as well. Instead, he waited for approximately four and one-half years, and then sent a second letter to the Secretary. In this letter, the plaintiff apparently asked for an upgrade of his discharge, and was referred to the DRB. See Letter to Plaintiff from BCNR, attached to Plaintiff's Memorandum in Opposition to Defendants' Motion, Document No. 7 of the Record.
The Navy's response was entirely proper, since it is the DRB which considers requests for upgrading of discharges.
The plaintiff then made formal application to the DRB for an upgrade of his discharge. This application is significant, for it is the first time that the plaintiff can be said to have requested reinstatement. Although an upgrade request would be inconsistent with a claim for reinstatement, the plaintiff also requested "Transfer to Fleet Reserve Vice [ i.e., in lieu of] Discharge." Giving the plaintiff the benefit of a favorable inference here, the court will conclude that the transfer request was fairly presented as a demand for revocation of the discharge.
The flaw in the plaintiff's presentation of the facts involved in this case is that he cannot point to any document in the record demonstrating that he was advised to apply to the DRB by any official who was aware that the plaintiff was demanding reinstatement. If the plaintiff could point to any evidence tending to demonstrate this, he would be on firmer ground with respect to his contention that he was given a "runaround," for it is well settled that the DRB cannot revoke a discharge. See note 2 supra. Absent such proof, the court can only conclude that the plaintiff misunderstood his remedy. Although such a mistake is unfortunate, it is not a ground for tolling the statute of limitations.
An appropriate Order will enter.
In accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT the defendants' motion for summary judgment is granted. The Clerk of Court shall close this case.