Newton

Military pay; retired pay (disability); limitation of actions. — Plaintiff who was released from active duty effective November 10,1957, not by reason of physical disability, sues to recover disability retired pay which he claims was arbitrarily denied him by action of the Army Board for Correction of Military Records in 1964. Defendant has moved to dismiss plaintiff’s petition filed in 1965 on the ground that the claim is barred by the six-year statute of limitations, 28 U.S.C. § 2501, since the petition was filed more than six years from the time plaintiff was denied a retiring board in 1957. Plaintiff’s response indicates that the record does not show a written request for or denial of a retiring board in 1957. Defendant relies on an exhibit indicating a verbal request by plaintiff to a doctor at Walter Reid Army Hospital and his verbal statement that plaintiff’s records did not warrant an appearance before a retiring board. Upon consideration of defendant’s motion and plaintiff’s opposition, the court concluded on the basis of Friedman v. United States, 159 Ct. Cl. 1, 24, 310 F. 2d 381 (1962), cert. denied sub nom. Lipp v. United States, 373 U.S. 932 1288 (1963) and Cayce v. United States, 170 Ct. Cl. 402 (1965), that plaintiff’s alleged claim is barred by the statute of limitations, 28 U.S.C. § 2501, and on March 14, 1966, it ordered that the petition be dismissed.