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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 820

## Text

\

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
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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
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FINANCIAL ASPECTS ........... +. VIIY
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REENLISTMENT FURLOUGHS .......... IX?
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0692%3A1. Public record. Not legal advice.