The opinion of the court was delivered by: NEALON
According to the complaint, the plaintiff had been an enlisted man, first in the United States Air Force and then in the Navy, for nearly nineteen years prior to his discharge. The defendants concede that the plaintiff's record in both branches of the service had been good, and it is undisputed that the plaintiff's superiors consistently had rated him as above average or outstanding in nearly all areas of performance. In March 1975, the plaintiff applied for a transfer to the "Fleet Reserve," which essentially is a form of retirement. The application was approved, and the plaintiff's transfer was to become effective in early 1976 when his latest four-year enlistment period would expire.
On May 16, 1975, however, the plaintiff was given a general discharge on the ground of "unfitness," pursuant to a naval regulation which mandated the administrative separation of servicemen for having homosexual tendencies or engaging in homosexual acts. During an April 1975 investigation by naval authorities, the plaintiff was interrogated and, according to documents in the record, admitted to having had various homosexual relationships while in the service. Although the plaintiff waived his right to have his case considered by an administrative discharge board, he wrote to the Chief of Naval Personnel on April 25, 1975, asking that, in lieu of discharge, he be permitted to enter the Fleet Reserve a few months early and that he be released from active duty. This request apparently was rejected, because the plaintiff was given a general discharge for unfitness on May 16th, and his transfer to the Fleet Reserve was canceled.
One month after his discharge, the plaintiff wrote to various members of Congress, pleading with them to aid him in his quest for, "at minimum, severance pay." After making inquiries on the plaintiff's behalf, Senator Hugh Scott of Pennsylvania was advised that the plaintiff was not entitled to severance pay because of the type of discharge he had been given. In November 1975, the plaintiff wrote to the Secretary of the Navy explaining the circumstances of his discharge and asking for severance pay. Two months later, the plaintiff was advised that his case had been reviewed and that it was felt that his discharge "was in all respects correct and proper." The plaintiff was told that he could apply to the Board for Correction of Naval Records (BCNR) for additional consideration if he wished. A copy of the applicable forms and regulations was enclosed.
Apparently, the plaintiff did not apply to the BCNR for review and had no contact with the Navy for four years. In June 1980, however, he again wrote to the Secretary of the Navy, this time requesting an upgrade of his discharge so that he could obtain severance pay. Neither party has been able to produce this letter, but its existence is undisputed. It appears that the Secretary forwarded that letter to the BCNR, since that agency responded. The BCNR advised the plaintiff that his request for an upgraded discharge should be directed to the Discharge Review Board (DRB), 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 ...