APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 83-4598).
Before GARTH, BECKER and VAN DUSEN, Circuit Judges.
VAN DUSEN, Senior Circuit Judge.
Plaintiff, Francis Dougherty, Sr., brought this action in the United States District Court for the District of New Jersey challenging a determination of defendant, United States Navy Board for Correction of Naval Records ("BCNR"). In light of a recent decision by the United States Court of Appeals for the Fifth Circuit, which was not available to the district court at the time of its decision,*fn1 we will vacate the December 10, 1984, district court order, which dismissed the complaint "for failure to satisfy the applicable statute of limitations, 28 U.S.C. § 2401," and will remand the case to that court for further consideration in light of this opinion.*fn2
The district court granted the BCNR's motion to dismiss the complaint for failure to satisfy the applicable statute of limitations. For the reasons set forth below, we hold that the statute of limitations did not begin to run until the BCNR's decision in 1984.
Dougherty enlisted in the United States Navy in January 1957. Two months later, after developing apparent stress problems, he received a general discharge on the grounds of "unsuitability." Upon application to the BCNR in 1982. Dougherty's records were changed to indicate that he had received an honorable discharge in 1957. In 1983, the Veterans Administration ("VA") denied an application by Dougherty for disability benefits. The VA found that his disabling psychiatric disorder was not service-connected.
On March 28, 1983, Dougherty again sought a change in his records from the BCNR to reflect a discharge for a nervous disorder contracted during his two months of service in the Navy in 1957. The BCNR referred the case to the Navy Central Physical Evaluation Board ("CPEB"), which found Dougherty had no grounds for a medical discharge or retirement benefits based on medical disability. The BCNR then denied Dougherty's application.
On December 1, 1983, Dougherty filed a complaint pro se in the district court, challenging the action of the BCNR as arbitrary and capricious. Upon the district court's discovery that the BCNR had not considered the complete record, the BCNR agreed to reconsider Dougherty's case. On June 21, 1984, the BCNR again denied Dougherty's application based on new findings of the CPEB. The district court dismissed the action, reasoning that the applicable six-year statute of limitations, 28 U.S.C. § 2401 (1978),*fn3 had expired in 1963, six years after plaintiff's 1957 discharge.
The BCNR may correct a military record if the request if filed within three years of the time when the claimant discovers the error on October 26, 1961, whichever is later. 10 U.S.C. § 1552(b) (1983).*fn4 It may only make such a correction after such period of the BCNR finds the correction to be in the interest of justice. Id. In the instant case, there is no claim that Dougherty was unaware of the status of his discharge. Consequently, the three-year period expired three years after Dougherty's 1957 discharge and the statute of limitations expired on October 26, 1961. The review by the BCNR was premised on its waiving the statute in the interest of justice.*fn5 Dougherty seeks review of this action of the BCNR.
Judicial review of action by an agency such as the BCNR is provided for in the Administrative Procedure Act, 5 U.S.C. § 702 (1977).*fn6 The action is governed by the six-year statute of limitations codified at 28 U.S.C. § 2401 (1978).*fn7 If the six-year statute of limitations runs from the date of discharge, then review by the district court would be precluded. If the statute of limitations does not begin to run until the BCNR acts, then this suit is timely. We must decide when the statute of ...