The opinion
Littleton, Judge, and Madden, Judge,
concurring in part and dissenting in part:
Defendant has moved to dismiss plaintiff’s petition on two grounds: (1) that the petition does not state a claim within the jurisdiction of this court, and (2) that if plaintiff has stated a claim within the jurisdiction of the court,.her entire claim is barred by the 6-year statute of limitations applicable to suits in this court.
Plaintiff contends that she has stated a claim cognizable by this court because, in her opinion, applicable law and regulations entitled her to a “full and fair hearing” before an Army Eetiring Board prior to her discharge from the service and, she alleges, such hearing was illegally denied to her. Plaintiff also urges that under applicable law and regulations she was entitled to a hearing before the Army Board for the Correction of Military Records and was illegally denied such hearing.
Because we find no merit in either of plaintiff’s contentions, we concur in the opinion that she has not stated a claim cognizable by this court. R. S. § 1253,10 U. S. C. 966, relied on by plaintiff as entitling her to a hearing before an Army Retiring Board, provides that such a hearing shall be granted “if, upon due summons he demands it.” From the pleadings herein it appears that plaintiff did not demand such a hearing and accordingly there was nothing illegal or arbitrary about her discharge without such a hearing.
As to plaintiff’s claimed right to a hearing before the Army Board for the Correction of Military Records, plaintiff relies on a statute ( 65 Stat. 655 ) which does not provide for a *688 hearing, and upon regulation AN 15-185, 32 CFR 581.3 (d) (1), which regulation refers to a hearing, as follows:
When an application has been found to be within the jurisdiction of the Board and sufficient evidence has been presented indicating probable error or injustice, the applicant will be entitled to a hearing before the Board either in person or by counsel of his own selection or in person with counsel.
In this case the Board found that the application of plaintiff was not within its jurisdiction because there was not sufficient evidence indicating probable error or injustice in plaintiff’s case. Under those circumstances, the Board was not required to give plaintiff a hearing. Wales v. United States, 132 C. Cls. 765 . Furthermore, on the facts alleged, we think it cannot be held that the Board acted arbitrarily in determining that the evidence presented was insufficient to indicate probable error or injustice in discharging plaintiff without disability retirement status and pay.
With respect to defendant’s plea of the statute of limitations as a ground for dismissal, we think it is not necessary for the court to pass on this portion of defendant’s motion because of the holding that no claim within the jurisdiction of this court has been stated. If a claim had been stated, however, we would not dismiss so much of plaintiff’s claim as accrued within the sis years just prior to the filing of her petition.