NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-5142 DOUGLAS S. McGLOHON, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

__________________________ DECIDED: January 19, 2005

__________________________ Before MICHEL, Chief Judge , NEWMAN, and PROST, Circuit Judges

. PER CURIAM. Plaintiff-Appellant, Douglas S. McGl ohon (“McGlohon”), appeals the decision of the United States Court of F ederal Claims dismissing his complaint as barred by a sixyear statute of limitations. McGlohon v. United States , No. 04-50C (Fed. Cl. June 17, 2004) (“ McGlohon I ”); No. 04-50C (Fed. Cl. August 4, 2004) (“ McGlohon II ”). McGlohon asserts that he is entitled to compensation for wrongful discharge fr om the Army on July 11, 1977, or in the alternat ive, that he is entitled to disability pay from the 1977 discharge. The United States counters that the statute of limitations bars his claims, which accrued on the date of the 1977 discharge. We agree with the government that the claims accrued on July 11, 1977, and thus, that the United States Court of FederalClaims properly dismissed McGlohon’s claim as barred under the statut e of limitations. We affirm

. BACKGROUND On June 7, 1977, McGlohon began service as a private in the United States Army. Before entering duty, McGlohon underw ent and passed a physical examination. About a month after starting active duty, physicians at Reynolds Hospital diagnosed McGlohon as disabled. On July 11, 1977, as a result of a military medical board decision, McGlohon was honorably discharged from the Army. The reason given for his discharge was a “condition which was neither incurred nor aggravated during any period of service.” McGlohon further claims full awar eness of his condition at the time of his discharge in 1977. On January 6, 2004, McGlohon f iled suit in the United States Court of Federal Claims. First, McGlohon alleged various tort claims of negligence for the medical treatment received while in the Army. Second, McGlohon alleged that the Army wrongfully discharged him. Third, McGlohon alleged that, in the alternative, any disability occurred during his time in the Army, which the court construed as two separate claims: (1) a tort cl aim for his injury and (2) a cl aim for retirement disability pay. McGlohon contended that these violations resulted in lost wages. The United States Court of Federal Claim s ultimately dismissed all of McGlohon’s claims either for lack of subject matter ju risdiction or as barr ed by the statute of limitations. In its decisi on on June 17, 2004, the court f ound that McGlohon’s claims of negligence on the part of the Army physicians “a re plainly tortious in nature,” for which the court lacks subject matter jurisdiction under the Federal Torts Claim Act. The court

04-5142 2similarly found that the alte rnative claim that McGlohon’s disability occurred during his time in the Army was also tortious in nat ure and, further, that the court lacked subject matter to decide a claim for “injuries that we re incidental to service.” The court then found that the wrongful discharge claim was barred by the six-y ear statute of limitations under 28 U.S.C. § 2501, but or dered further briefing on the question of whether the statute of limitations similarly ba rred the claim for disability pay. In its decision on August 4, 2004, the C ourt of Federal Cla ims found that the statute of limitations barred McGlohon’s cl aim for disability pay, as well. McGlohon alleged that his discharge was a result of a military medical board decision, and furthermore, that he was aware of his condition at the time of his di scharge. Therefore, by McGlohon’s own admission, he was on notic e of his disability and of the discharge as of the date of discharge. The court found that McGlohon f iled his claims for wrongful discharge and disability pay twenty years after t he six-year required st atute of limitations had started, and thus that they must be dism issed as barred under 28 U.S.C. § 2501. We have jurisdiction to hear appeals from the United States Court of Federal Claims pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION McGlohon appeals the United Stat es Court of Federal Claims’ dismissal of his claim of military disability pay for want of jurisdiction. Specifically, he appeals the dismissal of his claim as barred under the six-year statut e of limitations. We conclude that the United States Cour t of Federal Claims properly dismissed McGlohon’s claim for military disability pay. The six-year statute of limitations set forth in 28 U.S.C. § 2501 bars any claim that is filed six years after the claim accrues. This

04-5142 3court has noted, “The generally a ccepted rule is that claims of entitlement to disability retirement pay do not accrue until the appropr iate board either finally denies such a claim or refuses to hear it.” Real v. United States , 906 F.2d 1557, 1560 (Fed. Cir. 1990). See also Friedman v. United States , 310 F.2d 381, 389 (Ct. Cl. 1962) (“The court has consistently held t hat Congress has entrusted the military boards with the task of determining whether a serviceman should be retired for disability and therefore that no cause of action arises (and the statute of limitations does not run) until a proper board has acted or declined to act.”). We have further noted, “[T]here are circumstances under which the service me mber’s failure to request a hearing board prior to discharge has been held to have the same effect as a refusal by the service to provide board review.” Real 906 F.2d at 1560. When a veteran is aware of his disability at the time of discharge, does not request or receive a board hearing, and has knowledge that the disability is permanent, serv ice-connected, and not the result of his own misconduct, the statute of limitations period starts at the time of discharge. Id. at 1561-63. That is the case here. Although it is unclear whether McGl ohon sought a board review, McGlohon was discharged from the Army on July 11, 1977 as the result of a military medical board decision. Consequently, the st atute of limitations began r unning at the time of his discharge in 1977. Furthermore, by his ow n admission, he was fully aware of his condition when discharged, so that his clai m accrued at the date of discharge. McGlohon filed suit in the United States C ourt of Federal Claims on January 6, 2004, almost twenty-seven years after the stat ute of limitations began running and well in

04-5142 4excess of the six-year statute of limitations period. Ther efore, McGlohon’s claim for military disability benefits wa s properly dismissed. McGlohon appears to argue on appeal that t he decision by the United States Court of Federal Claims in McGlohon I granted him disability retirement pay. McGlohon asks this court to “affirm” the Court of Federal Claims’ decision, despite the dismissal by the Court of Federal Claims of all of McGlohon’s claims. In addition, McGlohon highlights two lines in the Court of Federal Cla ims’ opinion: (1) “Pla intiff’s complaint sets forth the necessary facts to resolve this matter,” id. at 1; and (2) “According to the complaint, defendant is li able under both claims,” id. at 2. Although the Court of Federal Claims did acknowledge that McGlohon had a potentially valid claim in its June 17, 2004 order, id. at 4, it subsequently found in its A ugust 4, 2004 order that McGlohon’s claim was barred by the six-year statute of limitations set forth in 28 U.S.C. § 2501, McGlohon II at 7. McGlohon’s reference to the June 17, 2004 order is mistaken since that order did not reach the merits of the claims but merely asked for further briefing. The order of the United States Cour t of Federal Claims is affirmed.

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