On Appeal From the United States District Court For the District of New Jersey (D.C. No. 01-cv-02180) District Judge: Honorable Anne E. Thompson
Before: Becker, Chief Judge, McKEE and HILL,*fn2
The opinion of the court was delivered by: Becker, Chief Judge
This is an action by plaintiff Johnnie E. Green against Army Secretary Thomas E. White ("the Secretary") seeking correction of Green's military records. Because the District Court erred in finding that Green's suit is time-barred, we reverse the order of the District Court dismissing the suit and remand for further proceedings.
The case stems from Green's 1950 discharge from the United States Army. Green entered Army service in January 1949 and was honorably discharged in December of the same year. He re-enlisted and served from December 1949 to July 1950. On July 7, 1950 Green was reported absent without official leave ("AWOL") as of the previous day. He returned to duty on July 8th. As a result of his going AWOL, the Army dropped Green in rank and, on July 31, 1950, gave him an undesirable discharge.
Green asserts that his discharge "hearing" was perfunctory. He met with his First Sergeant and a Second Lieutenant. The Sergeant told Green he had "too many delinquent reports," and asked him how he pleaded. Green responded that he pleaded "guilty with an explanation," and he was then told to wait outside for a decision. When Green was called back in ten minutes later, the Sergeant told him that he had "pleaded guilty to being a delinquent person. And it is the decision of this Board that you be discharged, as an Undesirable Person." The Army duly gave Green a "blue" discharge, which is a less-than-honorable discharge that deprives Green of most veterans' rights.
Thirty-one years later, in 1981, Green applied to the Army Discharge Review Board ("ADRB") for review of his discharge and requested that his "Undesirable Discharge" be upgraded to "Honorable." The Review Board rejected Green's application and he then applied to the Army Board for Correction of Military Records ("ABCMR") for review of this decision. In 1982 the ABCMR upheld the ADRB's decision. Green filed petitions for reconsideration of the ABCMR's ruling in 1983 and 1986 and was rejected on both occasions for a failure to submit new evidence.
In May 1999, Green again filed a petition with the ABCMR to re-open his discharge review case. This application for reconsideration was based on the administrative record and an affidavit in which Green, who is African-American, asserted that his discharge had been to some extent racially motivated. In his affidavit Green stated that he "believe[d] that my First Sergeant singled me out for special treatment on account of my race. I had never been punished for any military offense up to 31 July 1950, and had only one day's time lost due to my AWOL." Initially, the ABCMR refused to re-open Green's case on the grounds that "no new evidence had been presented that the ABCMR had not previously considered" and that his records could not be found because they likely had been destroyed in a 1973 fire at the National Military Personnel Records Center. At this point, Green appealed to the Secretary, who sent Green's case back to the ABCMR for consideration. The ABCMR then decided to "consider[ ] the new evidence," appeared to re-open the proceedings, and denied Green's application on the merits.
Green contends that he raised the issue of racism for the first time in his 1999 application for reconsideration. The Secretary disagrees, and asserts that Green had raised the racism issue in his 1982 petition to the ABMCR. It appears that the Secretary has the better of this argument as Green's own 1999 ABMCR petition stated that "[h]e based his first  petition on issues relating to racial discrimination." Still, as discussed below, in its October 19, 2000 decision, the ABCMR appeared to consider Green's affidavit and other supporting materials as "new evidence."
Green next filed suit in the District Court for the District of New Jersey, asserting that the ABCMR had acted "arbitrarily and capriciously" in denying his claim. He brought this claim under, inter alia, 5 U.S.C. S701 (the Administrative Procedure Act), 28 U.S.C. S1651 (the All Writs Act), and 28 U.S.C. S1346 (the Tucker Act). The Army moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) and Green moved for summary judgment under Federal Rule of Civil Procedure 56. The District Court denied Green's motion and granted the Army's motion to dismiss. The court reasoned that the six-year statute of limitations for civil actions against the government mandated by 28 U.S.C. S 2401(a) had begun to run in 1982 when the ABCMR first rejected Green's application, and that therefore Green's action was time- barred.*fn3 Green appealed.*fn4
28 U.S.C. S 2401(a) provides for a six-year statute of limitations on civil actions against the United States, measured from the date that "the right of action first accrues." Under this court's decision in Dougherty v. U.S. Navy Board for Correction of Naval Records, 784 F.2d 499, 501 (3rd Cir. 1986), in an action for correction of military records, the claim first accrues when the BCMR "issue[s] its final decision," not when the service person is discharged. The central question here is when did Green's claim accrue, or, put another way, what counts as a final administrative determination in this context? The Secretary asserts that Green's claim accrued in 1982 when the BCMR first ...