Plаintiff is a former member of the United States Army who challenges his honorable discharge on the grounds thаt it was based on an incorrect medical diagnosis
Plaintiff enlisted in the United States Army on September 25,1940, and receivеd an honorable discharge on March 28, 1945. The basis for plaintiffs discharge was a Certification оf Disability Discharge (CDD) which showed he was unfit for military service because of "spondylolisthesis,” a cоngenital back disease.
Plaintiff discovered that he did not have a congenital back problem in April 1974. Upon viewing his discharge papers in September or October 1975, plaintiff first becamе aware of the grounds for his discharge. On January 5, 1978, he filed a petition with the Army Board for the Correсtion of Military Records (ABCMR), alleging that he was illegally discharged because the Army doctor who еxamined him in 1945 incorrectly diagnosed his condition or confused the x-rays of his back with those of someone else. Plaintiff requested restoration to active duty, effective the date of his discharge, retirement status effective March 27, 1975, back pay and allowances for the periоd from March 29, 1945 to March 27,1975, and retirement pay from March 28,1975 to date of judgment.
A November 20, 1978 repоrt of the Army Surgeon General indicated that the diagnosis shown on plaintiffs CDD had indeed been based оn another person’s x-rays. The Surgeon General concluded, however, that plaintiffs discharge was nevertheless appropriate, because he suffered from chronic, severe disease of the lumbosacral joints and constant pain. On November 27,1978, the Correction Boаrd determined that, on this basis, plaintiff was in fact medically unfit for further service at the time of his dischargе and denied his petition. The Board also denied his request for reconsideration on July 16, 1980. Plaintiff filed suit in this court on January 30, 1981. Both parties moved for summary judgment, although plaintiff withdrew his motion at oral
The most obvious obstacle to рlaintiffs request for relief is, of course, the 6-year statute of limitations. This court has repeatedly held that a cause of action for wrongful discharge accrues at the time of dischargе. Ramsey v. United States,
Even if we aсcept plaintiffs contention that his cause of action accrued upon his discovеry of the mistaken diagnosis, his suit is still time barred. An orthopedic examination conducted in 1947 indicated that plaintiff had a normal lumbar spine. Another examination in 1973 also revealed that the 1945 diagnosis was incorrect. At oral argument plaintiffs counsel stated that plaintiff first discovered he did not havе a congenital back problem in 1974. Clearly, plaintiff knew or should have known of the mistake in his reсords by that time, and his suit filed in 1981 is still too late.
At oral argument, plaintiffs counsel presented a theory of recovery not previously raised in this case. Plaintiff now contends that the action of the Cоrrection Board created a new cause of action, because the Board based its decision on grounds different than those used to discharge him in 1945. We reject this argument. Plaintiffs cause of action arose immediately upon his discharge. Permissive administrative remedies, such as а resort to the Correction Board, do not give rise to a new cause of action, evеn where the Correction Board bases its decision on a new rationale. Merriott v. United States,
Even if plaintiffs claim were not barred by the statute of limitations, we find this to be an appropriate situation for
Accordingly, plaintiffs motion for remand is denied; defendant’s motion for summary judgment is granted, and plaintiffs petition is dismissed.