The Statute of Limitations: Don't lose your case before it starts

Jason Perry

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I am writing this article to give a starting point for later articles about when you should consider applying to a Board for Correction of Military Records (BCMR) or Physical Disability Board of Review (PDBR) or should consider applying directly to the US Court of Federal Claims (note, that it is also possible in some cases to file suit in a US Federal District Court; for reasons that I will not go into here, I think that the Court of Claims is the better avenue for raising military disability claims). Though there are several cases on this subject, one of the most comprehensive cases is Friedman v. United States (you can read the whole case here: http://www.pebforum.com/downloads.php?do=file&id=94 )

This article is about one of the most important issues in the field of military disability law, the statue of limitations. As a starting point regarding this subject, you have to understand the concept of “jurisdiction.” For purposes of this discussion, jurisdiction is the power of a court or tribunal to rule on a case. Without jurisdiction, a claim, even if valid, cannot be heard or decided by a court. Stated another way, even if you are correct regarding the facts and the law in your case, if you can’t have your case heard by a court because it has no jurisdiction, you will not be able to win your case (or even have the court issue a ruling on the validity of your claim). You will lose.

There are other jurisdictional requirements (i.e., that your claims is based on a money mandating statute), but the most common hurdle military disability claimants face is the six year time limit for asserting claims. If you meet the six year time limit, the US Court of Federal Claims can decide your case; six years and one day after your claim accrues, the court does not have the power to hear your case (this is because Congress has only granted the court jurisdiction for cases arising within six years of claim accrual). I can’t stress enough this point. You can have a “winning” case, but if you wait too long, you will lose (forever).
This is an overview of the law regarding the statute of limitations in disability retirement cases as applied by the US Court of Federal Claims. This is not exhaustive (i.e., the facts of a particular case may change the analysis and in order to assess the law, one should consult with a qualified and experienced attorney); that said, the law regarding when the six year statute of limitations, as explained in the Friedman case, starts to run as follows:

“(a). The judicial claim for disability retirement pay does not accrue on release from active duty but rather on final action of a board competent to pass upon eligibility for disability retirement (or upon refusal of a request for such a board).

(b). Normally, the Retiring Board is the proper board, but where the claimant has not had or sought a Retiring Board, his claim does not accrue until final action by the Correction Board (which in that instance stands in the place of the Retiring Board as the proper tribunal to determine eligibility for disability retirement).” Friedman v. United States, 159 Ct. Cl. 1, at 24 (Ct. Cl. 1962)

The above sections basically mean that if you have had a PEB hearing, your six year clock will start upon discharge (the language used is somewhat confusing, but the claim does in fact start to run the clock on discharge when the member has had a PEB). If you do not have a PEB before discharge, your clock starts upon final action of a BCMR or PDBR decision (or refusal to hear your case).

However, in some rare cases, the BCMR/PDBR decision (or refusal to hear the case) may not be final, and thus does not start the clock.

“(c). A board's action (or failure to act) is not final if (i) the claimant has been misled, (ii) the board's decision is tentative and invites reopening, (iii) the armed service itself reopens the case, or (iv) there are other circumstances depriving the action or non-action of finality.” Id. at 24.

If you have not had a PEB, and you have a non-final BCMR/PDBR decision, you may be able to count the clock as starting from a later point in time. This is an exceedingly rare occurrence. Don’t count on it.

If you are discharged without a PEB and you apply to the BCMR/PDBR, later applications to the other boards generally will not “re-start” your clock:
“(d). Once a final decision is had, the claim accrues, the limitations period begins to run, and there is no tolling of the statute by reason of further applications to other boards or agencies (including the Correction Board).” Id. at 24.
“ (e). Once a final decision is had, adverse determinations by other boards, including the Correction Board, do not give rise to a new cause of action.” Id at 25.
One idea that sometimes confuses people is the idea of a “continuing claim.” An example of a continuing claim would be where you wait seven years and assert that, while the six years have past for the first six years of money due, you are still due the money in the seventh year and should be able to sue for that money. This is generally not the case in military disability law claims. Once you are past the six years, the court can’t hear the claim at all, so the seventh (and later years) do not give rise to a new “jurisdictional clock”:

“(f). A claim for entitlement to disability retirement status and pay -- of the type requiring discretionary action by a board and the Secretary -- is not a "continuing claim" but accrues as a whole (once it accrues). However, other types of pay claims not dependent on a board finding -- including claims for increased retirement pay because of new legislation, etc. -- are "continuing" claims.” Id. at 25.
The above section almost certainly will not apply to your military disability case. In the exceedingly rare instances where it might apply (most likely with a retroactive law), you should not count on this applying until you have the advice of a qualified attorney. I mention this section for completeness, but you should not consider it as a basis for extending your claim for military disability pay except in incredibly rare cases (for all intensive purposes, in these cases, it is a “unicorn;” I can't say it doesn't exist, but I have never seen one. Basically, I would think of it as not existing as a basis for extending past the six years from either discharge or action by the BCMR/PDBR. Again, consult an attorney for questions about this).

The main point of this article is that you must pay close attention to when your clock starts for filing suit to avoid being in the unfortunate position of having a valid claim that cannot be decided in your favor because you waited too long. Remember, while you file in the BCMR or PDBR, your clock is still ticking. In some cases, it makes more sense to appeal directly to the Court of Claims rather than wasting time by using one of the administrative boards. If, after careful consideration, it is advisable to still file an appeal with the BCMR/PDBR and the time is an issue, it may make sense to file a simultaneous claims in court and request a stay of the case while the administrative claims is decided.

To beat the proverbial dead horse, don’t wait six years to file a valid claim in court.
 

Obiwan

PEB Forum Regular Member
Registered Member
Jason,

First thanks for all your work on this site and others. I need help. Here is very abridged version of my case...1. PEB Decision 2004 - 10% then Seperation. 2. PDBR decision August 2012 - recommended 30% disability retirement. 3. November 2012 Secretary of Army - Denial of the PDBR. So if I understand your writing above the Federal Court would not have any basis for jurisdiction because it has been more than 6 years since my PEB.
 

Jason Perry

Benevolent Leader
Site Founder
Staff Member
PEB Forum Veteran
Registered Member
Jason,

First thanks for all your work on this site and others. I need help. Here is very abridged version of my case...1. PEB Decision 2004 - 10% then Seperation. 2. PDBR decision August 2012 - recommended 30% disability retirement. 3. November 2012 Secretary of Army - Denial of the PDBR. So if I understand your writing above the Federal Court would not have any basis for jurisdiction because it has been more than 6 years since my PEB.
The answer is not clear. There is a recent court case that suggests to me that because the scope of review of the PDBR is different than the BCMR, the same rules will not apply- and there might be a basis to count the statute of limitations from the decision of the PDBR. No court has addressed this issue as of yet (at least as of my last look into this issue a few months ago). So, the answer is maybe. Almost certainly the government would argue that the statute of limitations has expired and the claim is barred. However, I can see a persuasive argument that the PDBR decision and denial may have reset the clock- I had a case where the original PEB was in 1996, the BCNR looked at the issue in 2003 but reopened the case and denied the claim again in 2006. Filed in court in 2009 and the court ultimately found that the military decision lacked finality when it denied the claim and therefore the court did have jurisdiction.
 

Obiwan

PEB Forum Regular Member
Registered Member
Where can I find a good attorney? Assuming you are not interested or available?
 

Ed Mercanti

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
As a matter of information, the ABCMR considers every case on its merits, regardless of time that has elapsed. Now if the case is heard in Federal Court, TJAG will probably defend the ABCMR action based on the statute of limitations. Its easier. The 6-year limit on paying a just debt doesn't apply in ABCMR cases. The statute of limitations begins to toll on the date of the ABCMR decision. So technically a disability ordered by the ABCMR can be paid back to the Korean War (after the Career Compensation Act of 1949).

The comings and goings of the courts are beyond my pay grade ;-)
 

ECS

Well-Known Member
Registered Member
I am still looking for the answer to my question? Does the PEB still have jurisdiction once a person has been discharged from the military service sixth years later?
 
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