Petition for Writ of Certiorari — Bridges v. Secretary of the Air Force

\

9 l= 1868 FILED

Ipreme Cour, US

NO.

| MAYS 1992

{

| SaWGE GB WHE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

CLAUDE J. BRIDGES,

Petitioner

versus

THE SECRETARY OF THE AIR FORCE,

THE AIR FORCE BOARD FOR CORRECTION

OF MILITARY RECORDS,

Respondents

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Claude J. Bridges, Pro Se

2428 Wisconsin N.E.

Albuquerque, NM _ 87110

Uc/

QUESTIONS PRESENTED FOR REVIEW

i. Whether the statute of limitations of

three years, should have been waived, because of

the injustices and the discriminations that were

practiced against me while serving in a dual

status in the grade of Master Sergeant and at

the same time holding a reserve commission in

the Officers Reserve Corps?

2. Whether the Board for Correction of

Military Records excused the time limit in

U.S.C. 1552 (b) by reviewing my application on

the merits of the case. Were the Board’s

actions arbitrary and capricious and not

Supported by evidence?

>. Whether the District Court erred in

granting summary judgment prior to the

opportunity to pursue discovery and in light of

Rule 56(f) affidavit?

4. Did the Federal District Court for New

Mexico and the Court of Appeals tenth Circuit,

err in considering only the time limitation and

not the injustices practiced against me as a

reserve officer on active duty as an enlisted

person?

PARTIES TO THE PROCEEDING

1. Petitioner: Claude J. Bridges

2. Respondents:

a. The Secretary of the Air Force

b. The Air Force Board for

Correction of Military Records

(AFBCMR).

OFFICI Ss OPINIONS

Be The opinion of the Air Force Board for ‘

Correction of Military Records, petition denied

because of untimeliness.

Ye The United States District Court for

New Mexico, motion to dismiss denied, motion for

summary judgment granted.

3+ United States Court of Appeals, Tenth

Circuit, Affirmed. >

ii

TABLE OF CONTENTS

Re Questions Presented for Review .....

2. Parties to the Proceeding

ae Official Reports of Opinions ....

4. Jurisdictional Statement ......

5. Statement of the Case

6. Reasons for Granting the Writ .....

Appendix A Judgment from United States

District Court for the District

of New Mexico, entered May 9,

1991; and Order and Judgment

from United States Court of

Appeals, Tenth Circuit, entered

February 7, 1992

Appendix B War Department Circular No. 310,

dated October 6, 1945

Appendix C War Department Circular No. 10,

dated January 11, 1946

TABLE OF AUTHORITIES

CASES

Vv. Secretar t avy, 525

F.Supp 1226 (D. Colo. 1981) ...-e«« -«

STATUTES

0.8.€. Section 263210) »« « « = *-'«-« *s

26 U.8.C. Seetiom i256 « «§ « © 6 ew

28 U.3.C. BOGGS i334. ss & ss

5 U.S.C. Section 702 .

28 U.S.C. Section 1291

RULES

Supreme Court Rule 10.1 (a) and (c) ..

4473

a

PETITION FOR WRIT OF CERTIORARI

Petitioner, CLAUDE J. BRIDGES, respectfully

prays that a Writ of Certiorari issue to review

the ruling of the United States Court of

Appeals, Tenth Circuit, denying Petitioner’s

Complaint to direct the Air Force Board for

Correction of Military Records to correct his

military records under 10 U.S.C. Section 1552.

JURISDICTIONAL STATEMENT

is Pursuant to 28 U.S.C. Section 1254 and

United States Supreme Court Rule 10.1 (a) and

(c) this Court has jurisdiction to consider this

Petition for Writ of Certiorari to review the

decision of the Court of Appeals, Tenth Circuit.

Jurisdiction in the District Court was based on

28 U.S.C. Section 1331 and 5 U.S.C. Section 702.

Jurisdiction in the Court of Appeals, Tenth

Circuit was based on 28 U.S.C. Section 1291.

The Tenth Circuit entered judgment on

February 7, 1992.

STATEMENT OF THE CASE

I was commissioned a Second Lieutenant in

the Officers Reserve Corps (ORC) 11 November

1945 and relieved from active duty on 8 December

1945. On 14 December 1945, I enlisted under

Section V Paragraph (b), War Department Circular

310, dated 6 October 1945, in the Regular Army

Air Corps, in the grade of Master Sergeant. My

main thoughts at this time was my reserve

commission in the ORC. Captain Albert N.

Hasson, the Commanding Officer of the Recruiting

Station, assured me that I would be serving in

a dual status. I was shown a War Department

Memo dated 8 November 1945 that stated reserve

officers enlisting under Section v Paragraph

(b), in the grade of Master Sergeant, are not

required to resign their reserve commissions,

Signed Edward F. Witsell, Major General, the

Adjutant General.

I was first recommended for promotion by

Colonel Teddy H. Sanford who was the Commanding

Officer of the New Mexico West Texas Recruiting

District, to the Reserve Promotion Board, Eighth

Service Command, Fort Sam Houston, Texas. The

promotion board returned the recommendation and

stated the correct authority for the promotion

was War Department Circular 10, dated 11 January

1946. They informed Colonel Sanford that at

this time they were not promoting reserve

officers who had enlisted in the regular

service. When Colonel Sanford inquired as to

the denial of my promotion he was told that it

was command policy to not promote reserve

officers who were enlisted in the regular

service. War Department Circular 10, made no

references to disqualifying a reserve officer

from promotion who had enlisted in the regular

services.

The second recommendation for my promotion

was submitted by Colonel O. I. Holman, who

succeeded Colonel Sanford as commander, to the

promotion board, Fourth Army, that had succeeded

the Eighth Service Command, Fort Sam Houston,

Texas. Again, I was denied my reserve promotion

to First Lieutenant, by reason of command

policy.

Xe

I was recommended for promotion for the

third time by my commanding officer at Lowry

AFB, Denver, Colorado, 7 March 1951. My reserve

assignment had been transferred to the Tenth Air

Force, Selfridge AFB, Michigan. Again, I was

denied a reserve promotion because of my

enlisted status.

The Air Force had published new regulations

covering the reserve forces. The Air Force

regulations did not disallow the promotion of

reserve officers who were enlisted in the

Regular Air Force. When my promotion was denied

by Tenth Air Force, I visited Tenth Air Force at

Selfridge AFB, Michigan, and inquired as to why

my reserve promotion had been denied. I

informed the reserve promotion board that I had

contacted 12th Air Force, at Brooks AFB, Texas,

and was told that they knew of no regulation

that denied promotions of deserve officers who

were also enlisted as an Airman in the Regular

Air Force. They were promoting Airmen who held

reserve commissions when they became eligible

1 sscneiiien aaa

and was recommended by their Commanding

Officers. This is when I was told by an officer

at the reserve center that if I continued to

pursue questioning the reasons why I was not

promoted, I would be Court-Martialed for

insubordination. I had decided on a military

career and a Court-Martial on my records would

have completely destroyed my career.

From the time of my enlistment on 14

December 1945, until I was recalled to active

duty in my reserve grade, 7 years and 3 months,

I was denied my rightful promotions in my

reserve grade because of the prejudices that the

promotion authorities practiced against reserve

officers who had decided to make a career of the

military, and enlisted in the regular service,

while maintaining his reserve commission.

Reserve officers who remained in a civilian

status were promoted when they became eligible

and recommended by their commanding officers,

under the same regulations that a reserve

d usipiacemeaea cane

officer serving in enlisted status would have

been promoted.

When the reserve promotion authorities used

the status of being enlisted to deny a reserve

officer of his rightful promotion, it amounted

to a violation of his civil rights. Further,

when a reserve officer was distinguished fron,

and not treated in a class as other reserve

officers and was discriminated against because

of his enlisted status, was a gross violation of

his constitutional rights.

The Air Force Board, the Federal District

Court, or the Court of Appeals, Tenth Circuit,

completely ignored the gross injustices that

discriminated against me as a reserve officer

during the period of 14 December 1945 and 10

March 1953. The same regulations that promoted

reserve officers on extended active duty and

reserve officers not on extended duty, applied

to reserve officers not on eitdates active duty,

applied to reserve officers serving on active

duty as enlisted personnel. The regulations

inna

made on distinction between these individuals.

The District Court erred when it stated that I

was not eligible for promotion. The regulations

make one eligible and your commanding officer

qualifies one for promotion.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted because of the

errors and injustices that I was subjected to

that discriminated against me as a reserve

officer. The Board for Correction of Military

Records may, in the interest of justice or to

correct errors, no matter how long ago the

errors of injustices occurred. The Board for

Correction of Military Records, District Court

for New Mexico and the U.S. Court of Appeals,

Tenth Circuit, have completely disregarded and

ignored the errors, injustices and

discriminations that were practiced against me

and denied my application as untimely filed.

When the Board decided to review my application

on its merits, filed far beyond the three year

limit, it implicitly determined that’ the

"interest of justice" far out-weighed any

governmental prejudices. Further, by

voluntarily excusing the untimely filing and

processing and reviewing my application, the

Board waived any previous right they may have

had to deny my application as untimely filed.

Kaiser _v. Secretary of the Navy, 525 F.Supp.

1226 (D. Colo. 1981). I have further listed in

my Original application to the Correction Board,

numerous court cases that support my contentions

of the errors and injustices that discriminated

against me as a reserve office. The Board’s

ruling was arbitrary and capricious, and

unsupported by evidence and erroneous in law.

Both the District Court and the Appeals Court,

Tenth Circuit, abused their discretion not

holding that the injustices had occurred and the

Board’s denial of my application was arbitrary

and capricious. This Court should take the

opportunity to correct the Board and the Court

a

should grant my request for the Writ of

Certiorari.

RESPECTFULLY SUBMITTED,

CLAUDE J./“BRIDGES,

Appellant, Pro Se

APPENDIX A

Pee ee

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CLAUDE J. BRIDGES, FILED: MAY 9, 1991

Robert M. March, Clerk

Plaintiff,

vs.

THE SECRETARY OF THE AIR FORCE

and THE AIR FORCE BOARD FOR CORRECTION

OF MILITARY RECORDS,

Defendants.

JUDGMENT

This matter is presently before the Court

on defendants’ Motion to Dismiss or, in the

Alternative, for Summary Judgment.

The Court, having read the memoranda

submitted by the parties, having examined the

exhibits attached thereto and being apprised of

the applicable law, FINDS that the Motion for

Summary Judgment should be granted. The Court

having filed herein its Memorandum Opinion and

Order, now, therefore, in conformity with the

Memorandum Opinion Order, it is hereby

ORDERED, ADJUDGED AND DECREED that the

Motion to Dismiss or, in the Alternative, for

Summary Judgment of defendants The Secretary of

the Air Force and The Air Force Board for

Correction of Military Records should be, and

hereby is, GRANTED.

/s/ Santiago E. Campos

UNITED STATES DISTRICT COURT

a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

CLAUDE J. BRIDGES, FILED: MAY 9, 1991

Robert M. March, Clerk

Plaintiff,

vs.

THE SECRETARY OF THE AIR FORCE

and THE AIR FORCE BOARD FOR CORRECTION

OF MILITARY RECORDS,

Defendants.

MEMORANDUM OPINION AND ORDER

This case is before the Court. on

defendants’ Motion to Dismiss or, in the

Alternative, for Summary Judgment. The Court

finds that the Motion to Dismiss is not well

taken and will be denied, and that the Motion

for Summary Judgment is well taken and will be

granted.*

Le LEGAL STANDARDS

In ruling on a motion to dismiss, the Court

must accept the factual allegations of the

complaint as true. Jenkins v. McKeithen, 395

*Defendants filed a Motion to Dismiss or,

in the Alternative, for Summary Judgment on

January 2, 1991. On February 11, 1991,

following the filing of Plaintiff’s First

Amended Complaint, defendants filed a

Supplemental Motion to Dismiss or, in the

Alternative, for Summary Judgment. The Court

will treat these motions together.

U.S. 411, 421, reh’g denied, 396 U.S. 869

(1969); Dewell v.Lawson, 489 F.2d 877, 879 (10th

Cir. 1974). Only if, after liberal construction

of the pleadings, there appears to be no

possibility that the Plaintiff can prove a set

of facts which would warrant relief should the

motion to dismiss be granted. Conley v. Gibson,

355 U.S. 41, 45-46 (1957); Gas-a-Car, Inc. v.

American Petrofina, Inc., 484 F.2d 1102, 1107

(10th Cir. 1973).

While the Court considers only the claims

contained in the complaint in ruling on a motion

to dismiss, a motion for summary judgment

requires the Court to examine evidence and to

grant the motion if no genuine issue of material

fact exists, entitled the moving party to

judgment as a matter of law. Fed. R. Civ. P.

56; Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970). The burden of establishing the absence

of a material question of fact is on the moving

party, which may discharge its duty by showing

that there is an absence of evidence to support

the non-moving party’s case. Celotex Corp v.

aire ee

Catrett, 477 U.S. 3317 (1986). The non-moving

party has the opportunity to show the existence

of an issue of material fact; however, the Court

must consider the standard of proof in the case

and determine whether, considering all facts in

favor of the non-moving party, that party’s

showing would allow a reasonable trier of fact

to find for the non-moving party on that issue.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986); Luckett v. Bethlehem Steel Corp.,

618 F.2d 1373, 1377 (10th Cir. 1980).

II. FACTS

Plaintiff, Claude J. Bridges, was appointed

as a Flight Officer in the United States Army on

February 17, 1943, and commissioned as a Second

Lieutenant in the United States Army Air Corps

on August 4, 1944. Upon being released from

active duty on December 8, 1945, Bridges was

commissioned as a Second Lieutenant in the Army

Air Corps Reserves.

On December 14, 1945, as part of a program

designed to retain experienced personnel in

military service, Bridges enlisted in the Army

Air Corps as a Master Sergeant while retaining

his commission in the Army Air Corps Reserves as

a Second Lieutenant. Bridges served on active

duty as a Master Sergeant for seven years and

three months in the Army Air Corps and its

successor, the United States Air Force. On

March 10, 1953, during the Korean Conflict,

Bridges was recalled to active duty in his

status as a reserve officer. He maintained the

rank of Second Lieutenant. Bridges was

honorably discharged from active duty in the

grade of captain and retired for length of

service as of May 1, 1962. At that time Bridges

was credited with twenty years and twenty-eight

days of active duty service.

In his Complaint, Bridges alleges that

between 1945 and 1953 he was wrongfully denied

promotions as a reserve office to which he was

entitled pursuant to regulations then in effect.

Bridges further alleges that while serving as an

enlisted Master Sergeant, before being recalled

to duty in 1953, he asked about his failure to

be promoted as a reserve office. Bridges was

ee

told that he was ineligible for promotion. When

Bridges pursued the inquiring within his chain

of command, he was threatened with court

martial. As a result of the threat, he did not

investigate further.

Bridges claims that he did not become aware

that a remedy existed for the failure to

properly promote him until 1987 when he learned

from a news publication that the Air Force Board

for Correction of Military Records ("the Board")

could correct such wrongs. Bridges went to the

Board and requested that his military personnel

records be corrected to recognize promotions

which he claims to have been wrongfully denied.

Bridges’ request was denied on November 27,

1989. On May 31, 1990, the Board also denied

Bridges request that the decision be

reconsidered. Subsequently, defendant, the

Secretary of the Air Force, followed the

recommendation of the Board and refused to

change Bridges’ military personnel records.

Bridges filed suit, alleging as follows:

OE

i. The Board addressed Bridges’

application for correction on the merits until

a final decision was made denying Bridges’

requested correction on the procedural basis

that the three-year statute of limitations for

seeking correction of personnel records had

expired. 10 U.S.C. § 1552. Bridges alleges

that by addressing the merits of the case, the

Board waived any right to raise his failure to

file his application within the limitation

period.

2. The defendants’ actions were

“arbitrary, capricious, contrary to law and an

abuse of discretion." Complaint at 5.3.

Bridges asks the Court to direct defendants

to correct the personnel record and to award

attorneys’ fees as permitted under the Equal

Access to Justice Act, 28, U.S.C. § 2412.

Alternatively, Bridges requests an award of

damages not to exceed $10,000 if the Court finds

that he is entitled to mandated compensation for

damages sustained pursuant to the Tucker Act.

Bridges asserts that the Tucker Act is

inapplicable.?

III. ARGUMENTS

Defendants argue that Bridges’ claims

accrued in 1953, the last year during which he

contends to have been wrongfully denied a

promotion. Citing Brownfield v. United States,

589 F.2d 1035 (Ct. Cl. 1978). Consequently, the

six-year statute of limitations governing civil

actions against the United States under 28

U.S.C. § 2401 had run when Bridges applied to

the Board in 1989. As a result, defendants

assert that this case should be dismissed.

Defendants also argue that even if the

Court accepts Bridges’ contention that the

*In their original Motion to Dismiss or, in

the Alternative, for Summary Judgment, filed

prior to the filing of Plaintiff’s First Amended

Complaint, the Defendants argued that this

action was founded upon the Tucker Act. Under

the Tucker Act, this Court may only maintain

jurisdiction if the value of the case is $10,000

or less. 28 U.S.C. § 1346. In addition, in

Tucker Act cases, this Court must _ follow

precedent established by the United States Court

of Appeals for the Federal Circuit and its

predecessor, the United States Court of Claims.

see 28 U.S.C. §§ 1295(a)(2) and (3); United

States v. Hohri, 482 U.S. 64 (1987).

7

a

ax”

statute of limitations did not begin to run

until the date of the Board’s decision not to

afford Bridges his requested relief, the Board’s

decision should still be upheld and summary

judgment granted for the defendants on the basis

that the decision of the Board not to waive its

three-year statute of limitations was not

arbitrary and capricious. Citing 10 U.S.c. §

1552(b).

IV. ANALYSIS

The Tucker Act provides subject matter

jurisdiction to the United States District Court

and the United States Claims Court in certain

categories of civil cases brought against the

United States. 28 U.S.C. §§ 1346(a)(2) and

1491. If the monetary relief sought is greater

than $10,000, the Tucker Act vests exclusive

jurisdiction in the United States Claims Court.

28 U.S.C. § 1491.

The Court finds that Bridges’ action is

brought under the Tucker Act. Bridges has

explicitly limited his claim for damages to

$10,000, thereby properly invoking the

8

concurrent jurisdiction of this Court. This

action is appealable to the United States Court

of Appeals for the Federal Circuit and precedent

established by the United States Court of

Appeals for the Federal Circuit is binding on

this Court in this case. 28 U.S.C. §§ 1295(a)(2)

and (3); United States _v. Hohri, 482 U.S. 64

(1987); Hurick v. Lehman, 782 F.2d 984 (Fed.

Cir. 1986).

Under 28 U.S.C. § 2401, there is a six-year

statute of limitations governing civil actions

brought against the United States. Defendants

argue that, pursuant to the _ applicable

precedent, Bridges’ claim accrued in 1953, the

last year during which he contends to have been

wrongfully denied a promotion. Citing Brownfield

v. United States, 589 F.2d 1035 (Ct. Cl. 1978).

Consequently, the six-year statute of

limitations had run when Bridges applied to the

Board in 1989, and this case must be dismissed.

The Court disagrees with defendants’ reading of

Brownfield. Brownfield establishes that a claim

bought [sic] to contest a decision by a body

such as the Board "first accrues when the

government official or agency responsible for

determining the plaintiff’s rights takes final

action that is dispositive of his claim." Id. at

1038. In Brownfield the plaintiff had asserted

the same claim before the Board twice, and the

court held that the second application to the

Board did not extend the plaintiff’s time for

filing suit in federal court. The court seems

to be clearly stating that the statute of

limitations did not begin running until after

the first decision was rendered by the Board.

id. at 1039. Contrary to the arguments of

defendants, the holding in Brownfield is

consistent with the Tenth Circuit’s holding in

Smith v. Marsh, 787 F.2d 510, 511-12 (10th Cir.

1986), in which the court held that the statute

of limitations in an action challenging agency

action does not begin to run until the

10

tk paeesianiatlllia ita

administrative body acts.°?

Bridges had six years from the time that

the Board denied his application to file suit in

this Court challenging the Board’s actions.

Accordingly, this action is not barred by the

expiration of the statute of limitations.

Summary Judgment, however, is warranted.

There has not been even a scintilla of evidence

presented to the Court to Support the

proposition that the actions of the Board were

arbitrary or capricious. Anderson v. Liberty

Lobby, 477 U.S. at 252. Bridges admits that he

Suspected that the Army improperly failed to

promote him prior to being recalled to duty as

an officer in the Korean Conflict. He further

concedes that he ceased his efforts to remedy

the suspected error after being threatened with

court martial and did not inquire further until

1987.

°For purposes of establishing whether a

suit is time barred, a lawsuit contesting the

actions of the Board is different than one

contesting the initial failure to promote. See,

&.9., Smith v. Marsh, 787 F.2d 510, 511 (10th

Car. 1986).

11

2 OHA cates TI, Site ae SEE Ivey SS.

O28 tae Svniit ey lly ome

Administrative Record at p.23.

The Board declined to consider Bridges’

application stating as follows:

1. The application was not filed

within three years after the alleged

error or injustice was discovered, or

reasonably could have been

discovered, as required by 10 U.S.c.

1552 and Air Force Regulation 31-3.

Aithough the applicant asserts a date

of discovery which would, if correct,

make the application timely, the

essential facts which gave rise to

the application were known to

Applicant long before the asserted

date of discovery. Knowledge of

those facts constituted the date of

discovery and the beginning of the

three year period for filing. Thus

the application is untimely.

2. 10 U.S.C. 1552(b) permits us, in

our discretion, to excuse untimely

filing in the interest of justice.

We have carefully reviewed

applicant’s submission and the entire

record, and we do not find a

sufficient basis to excuse the

untimely filing of this application.

The applicant has not shown a

plausible reason for delay in filing,

and we are not persuaded that the

record raises issues of error in

injustice which required resolution

on the merits at this time.

Accordingly, we conclude that it

would not be in the interest of

justice to excuse the untimely filing

of this application.

Bridges simply failed to act within

12

The findings of

the Board were neither arbitrary nor capricious.

the

— ia, eM RDA dessa ~ ..

statutorily established statute of limitations.

AS a result, the Board found that his

application was time barred. Furthermore, the

actions of the Board did not constitute a waiver

of the statute of limitations issue. The Board

did not reach the merits of the case, but

decided it based on the procedural basis of

Bridges’ failure to seek correction in a timely

fashion. Accordingly, the Court grants summary

judgment for the defendants.

THEREFORE, IT IS ORDERED that the Motion to

Dismiss of defendants, the Secretary of the Air

Force and the Air Force Board for Correction of

Military Records, should be, and hereby is,

DENIED.

IT IS FURTHER ORDERED that the Motion for

Summary Judgment of defendants, the Secretary of

the Air Force and the Air Force Board for

Correction of Military Records, should be, and

hereby is, GRANTED.

ey ie

~

UNITED STATES DISTR. © URT

13

APPENDIX A (1)

FILED: February 7, 1992

Robert L. Hoecker, Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CLAUDE J. BRIDGES

Plaintiff-Appellant,

No. 91-2161

(D.C. No. 90-1048-SC)

(D.N.M. )

vs.

THE SECRETARY OF THE

AIR FORCE; THE AIR

FORCE BOARD FOR

CORRECTION OF MILITARY

RECORDS,

ee

Defendants~Appellees. )

ORDER AND JUDGMENT”

Before MOORE, TACHA, and BRORBY, Circuit Judges.

After examining the briefs and appellate

record, this panel has determined unanimously

that oral argument would not materially assist

the determination of this appeal. See Fed. R.

App. P. 34(a); 10th Cir. R. 34.1.9. The case is

m This order and judgment has_ no

precedential value and shall not be cited, or

used by any court within the Tenth Circuit,

except for purposes of establishing the

doctrines of the law of the case, res judicata,

or collateral estoppel. 10th Cir. R. 36.3.

therefore ordered submitted without oral

argument.

Plaintiff-appellant Claude J. Bridges

appeals the district court’s order granting

summary judgment on behalf of Defendants, the

Secretary of the Air Force and the Air Force

Board for the Correction of Military Records

(the Board). On appeal, Bridges argues that the

district court erred by entering summary

judgment prior to discovery and by holding that

the Board had not waived the 10 U.S.C. § 1552

time limitation. We exercise jurisdiction under

28 U.S.C. § 1291 and affirn.

Bridges alleges that in 1987 he requested

that the Board correct his military personnel

records to recognize promotions that were

wrongfully denied him between 1945 and 1953.

The Board denied his request on November 27,

1989 and denied his request for reconsideration

on May 31, 1990. On October 30, 1990, Bridges

filed suit against Defendants, alleged that the

Board had waived any right to raise the three-

year time limitation of 10 U.S.c. § 1552 by

addressing the merits of the case, asked the

district court to direct Defendants to correct

his record, and requested attorneys’ fees. The

district court granted Defendants’ motion for

summary judgment, held that the Board’s findings

~- that Bridges’ application for correction of

his military records was untimely -- were not

arbitrary and capricious, and held that the

Board did not waive the three-year time

limitation contained in 10 U.S.c. § 1552.

We first address the issue of this court’s

jurisdiction. Bridges claims that federal

jurisdiction in this case is pursuant to 28

U.S.C. § 1331 and 5 U.S.c. § 702, in which case

this court has appellate jurisdiction under 28

U.S.C. 1291, and not pursuant in whole or in

part to 28 U.S.C. § 1346(a)(2), in which case

exclusive appellate jurisdiction would vest in

the United States Court of Appeals for the

Federal Circuit under 28 U.S.c. § 1295(a)(2).

For jurisdiction in the district court to arise

en maa see ily Malik Shed pee

under 28 U.S.C. § 1346(a)(2) -- known as the

Little Tucker Act -- a plaintiff must assert a

claim seeking money not exceeding $10,000 from

the United States, and that claim must be

founded either upon a contract or upon the

Constitution or a federal statute that grants a

substantive right to compensation by the federal

government. Van Drasek v. Lehman, 762 F.2d 1065

(D.C. Cir. 1966). Bridges contends’ that

jurisdiction under § 1346(a)(2) is not

appropriate because of resolution of this case

in his favor would not result in monetary

damages, but only in a reversal of the Board’s

determination that his claim is time barred by

10 U.S.C. § 1552. The Board has only considered

the § 1552 time limitation issue and would not

consider the merits of his corrections request -

- which potentially could result in monetary

damages -- until after a decision in Bridges’

favor. Because a decision in Bridges’ favor in

this case at most would entitle Bridges to have

the merits of his corrections request considered

by the Board, he has not asserted a claim based

on a statute that provides a substantive right

to compensation at this stage of the case. See

Guercio v. Brody, 884 F.2d 1372 (Fed. Cir. 1989)

(jurisdiction under Little Tucker Act is

appropriate only if plaintiff identifies a

substantive statutory provision entitling her to

money damages). Therefore, we hold that federal

court jurisdiction arose in this case under 28

U.S.C. § 1331 and 5 U.S.C. § 702; consequently,

this court has jurisdiction under 28 U.S.C.

§ 1291.

Bridges also contends that the district

court erred by granting summary judgment in

favor of Defendants before he had an adequate

opportunity to complete discovery. Bridges

included with his Response a Rule 56(f)

affidavit which stated that he needed to

discovery the relevant regulations and policies

-- some of which were may contained in

Washington, D.C. offices -- in order to make his

case that the Board had acted in an arbitrary

and capricious manner. Despite Bridges’

requests for additional discovery, the district

court granted Defendants’ motion for summary

judgment. We review a district court’s decision

whether to grant additional time for discovery

under an abuse of discretion standard. See Sil-

a a, 9A7 F.2G 1507, 1514

(10th Cir. 1990); United States v. Little Al,

7i2 F.2@ 133, 135 (Sth Cir. 19863).

The Board’s decision to deny Bridges’

application as untimely is based on 10 U.S.C.

§ 1552(b):

No correction may be made .. .

unless the claimant .. . files a

request for the correction within

three years after he discovers the

error or injustice. However, [the]

board . . . may excuse a failure to

file within three years after

discovery if it finds it to be in the

interest of justice.

Section 865.9(b) of title 32 of the Code of

Federal Regulations provides the Board with

additional guidance on when it may deny an

application for correction as untimely:

The Board may deny an application if

it determines that. ‘ - the

applicant did not file his or her

application within 3 years after he

or she discovered or reasonably could

have discovered the alleged error in

injustice and insufficient evidence

has been presented to warrant a

indi that it ia) ; 6]

int t f . ti t

failure to file within the prescribed

3 years.

(Emphasis added.) In its Findings’ and

Conclusions, the Board stated that "the

applicant has not shown a plausible reason for

delay in filing." Likewise, in its order

granting defendants’ motion for summary

judgment, the district court stated that

"(tjhere has not been even a scintilla of

evidence presented to the Court to support the

proposition that the actions of the Board were

arbitrary or capricious." After carefully

reviewing the Board’s order, the district court

continued, "The findings of the Board were

neither arbitrary nor capricious. Bridges

Simply failed to act within the statutorily

established statute of limitations."

On appeal, Bridges argues that the Board

waived the three-year time limit for filing

7

dipiinls ae ee ae

applications because it addressed the merits of

his clain. After reviewing the Findings,

Conclusions, and Decision of the Board, we

conclude that Bridges’ argument is meritless

because the Board addressed only the timeliness

of his application.

Accordingly, we REVERSE the district court

with respect to the jurisdiction basis of this

case, take jurisdiction under 28 U.S.C. § 1291,

and AFFIRM the district court in all other

respects. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Deanell Reece Tacha

Circuit Judge

APPENDIX B

PUBLISHER'S NOTE:

j ’ ORIGINAL PAGINATION IS NOT CONTINUOUS.

CIRCULAR ) WAR DEPARTMENT

No. 310 ) WASHINGTON 25, D.C., 6 October 1945

Effective until 6 April 1947 unless sooner

rescinded or superseded

ENLISTMENTS AND REENLISTMENTS IN THE

REGULAR ARMY

Section

+. - se « 6¢ ©» @ © © © © © © 86 @ I

APPOINTMENT AND DUTIES OF POST,

AND UNIT RECRUITING OFFICERS ...... II

PERIODS OF ENLISTMENT .......... III

QUALIFICATIONS FOR ENLISTMENT ....... IV

GRAD ;

FROM SEVENTH TO SIXTH GRADE. ...... V

= ee ce ce ee el et CE

FINANCIAL ASPECTS ........... +. VIIY

ee kk ct tk te ww VERT

REENLISTMENT FURLOUGHS .......... IX?

FREE MAIL; VETERANS’ BENEFITS ....... XW

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Beeereerome . ww wt ttt tht tht wl «CE

I. GENERAL. 1. The purpose of this circular

is to prescribe procedures to be followed in

accepting enlistments and reenlistments in the

' Regular Army, pursuant to the Act of 1 June 1945

(Public Law 72--79th Congress), as amended by

the Armed Forces Voluntary Recruitment Act of

1945 (Act of 6 October 1945).

; 2. a. Except as indicated in paragraphs 7,

8, and 9, every enlisted man who is serving

honorably and faithfully and who has to enlisted

or reenlisted in the Regular Army since 1 June

Cir 310 10

6, 7, and 8, will be accepted Only in cases

Specifically authorized by The Adjutant General.

> V. GRADE IN WHICH ENLISTED; PROMOTION FROM (1

SEVENTH TO SIXTH GRADE. 10. a. Men enlistea 2

prior to 1 February 1946 will be enlisted in the

grades specified below:

enlisted in the grade held at the time of

discharge, permanent or temporary, whichever is

higher, provided enlistment is effected prior to

21 November 1945.

(3) Men enlisted in the categories

described in @ (1) and (2) above will be given

the same date Of rank as that held at time of

discharge. Pending revision of TM 12-230,

appropriate entry will be made in the new

Service record under "Remarks-Administrative" to

indicate date Of rank.

(4) Men honorably discharged from the

grade of private, who have had active service in

the Army of at least 6 months, and who enlist

within 20 days after the date of discharge, will

be enlisted in grade six (private first Class).

(5) Men honorably discharged from the

grade of private on or after 12 May 1945, and

before 1 November 1945, who have had active

service in the Army of at least 6 months, will

be enlisted in grade six (private first Class),

Cir 310 11

provided enlistment is effected prior to 21

November 1945.

(6) Men who have enlisted or reenlisted in

the Regular Army on or after 1 June 1945, in

grades which do not correspond to the provisions

Of {i}, (2), (31, (4), and (5) above will be

promoted accordingly and appropriate notations

will be entered in their service records.

(7) All other applicants, except as

indicated in b or ¢ below will be enlisted in

the grade of private.

* Be Applicants for enlistment, whose last

period of active service in the Army of the

United States was in the status of commissioned

officer, warrant officer, or flight officer,

will be enlisted in the first grade, provided

such enlistment is effected within 20 days of

the date of release from such active service.

S. The provisions of this paragraph do

not preclude the Statutory right to reenlist in

grade of former Regular Army enlisted men who

were discharged to enter upon active duty as

“War Dept. Memo - 8 Nov 1945, reserve

officers enlisting under sect v par b in the

first grade are not required to resign their

reserve commissions they will be serving in the

duel status and maintain. their reserve

commissions. Edward F. Witsell, Major Gen. The

Adjutant General.

Cir 310 44

interview, will enter in the service record

under "Remarks--Administrative" a notation

"Provisions of WD Circular 310, 1945, explained

to EM." This notation will be signed by the

enlisted man.

S. The provisions of this circular will

be read and explained by a commissioned officer

to all other enlisted men.

| XII. RESCISSIONS. 28. Pending the printing

of changes in AR 600-750, 30 September 1942,

paragraph 5a of those regulations is rescinded.

29. WD Circular 249, 1945; section IV, WD

Circular 259, 1945; section X, WD Circular 277,

1945; section III, wp Circular 259, 1945;

section II, WD Circular 304, 1945, are

rescinded.

(AG 342.06 (5 Oct 45))

BY ORDER OF THE SECRETARY OF WAR:

OFFICIAL:

EDWARD F. WITSELL G. C. MARSHALL

Major General Chief of Staff

Acting The Adjutant General

APPENDIX C

CIRCULAR ) WAR DEPARTMENT

No. 10 ) WASHINGTON 25, D.C., 11 January 1946

Effective until 11 July 1947 unless sooner

rescinded or superseded.

PROMOTION OF OFFICERS ON RELIEF FROM ACTIVE DUTY

1. GENERAL. a. The following instructions

Supplement TWx messages, TAGO, SPXPO-P, AG

210.2, 31 October 1945 and 13 December 1945, and

when in conflict with interpretations of

directives contained in those messages, the

instructions published herein govern.

b. Promotions djscussed herein apply only

in the cases of officers below the grade of

colonel, and not members of the Regular Army,

coincident with processing for separation from

active duty. Current instructions regarding

promotions of officers remaining on active duty

are not affected by this directive.

2. OFFICERS WHO HAVE NOT BEEN PROMOTED

WHILE ON ACTIVE DUTY. a. Any officer who has

had active service of more than 2 years

subsequent to 16 September 1940, and who has an

efficiency index of 35 or more, and who has not

Cir 10 2

been promoted coincident with his relief from

active duty.

b. An officer who entered on active duty

while holding a certificate of Capacity for a

higher grade, and who is Subsequently promoted

in the Officers’ Reserve Corps, is considered as

having been promoted after entry on active duty

and is not eligible for further promotion under

this paragraph. -

Je OFFICERS WITH SPECIFIED PERIODS IN

GRADE. Officers who have served time-in-grade °

as specified below and have attained a minimum

efficiency index of 40 are eligible for one-

grade promotion, coincident with relief from

active duty --

eee _—

a. AS 2d or lst lieutenant, for promotion

to ist lieutenant or captain --- 18 months.

b. AS captain or major, for promotion to

major or lieutenant colonel --- 24 months.

Sc. As lieutenant colonel, for promotion

to colonel --- 30 months. In computing length

of service, add 50 percent for service oversees.

Cir 10 11

Women’s Army Corps who were promoted from 3d

officer to 2d officer in the original Women’s

Army Auxiliary Corps, are considered as having

received promotion while on active duty.

12. EFFECT OF RECLASSIFICATION OR

DEMOTION. a. Officers whose peparation is

caused by reclassification procedures, or by

action to avoid such procedures, are ineligible

for promotion under this authority.

b. An officer promoted since entry on

active duty, and Subsequently demoted, is not

eligible for promotion under paragraph 2 (TWX 31

Oct 1945), but may qualify for promotion under

paragraph 3 (TWX 13 Dec 1945).

13. PROMOTIONS IN AUS-AC. Officers

originally promoted to a certain grade in AUS

(Air Corps) (Public Law 455--77th Cong.; sec. I,

WD Bul. 8, 1942) ana Subsequently promoted to

the same grade in the Army of the United States

will use the earlier date of rank as the

beginning of the prescribed period of service.

BY ORDER OF THE SECRETARY OF WAR:

OFFICIAL: DWIGHT D. EISENHOWER

EDWARD F. WITSELL Chief of Staff

Major General

Acting The Adjutant General