896 F2d 546 Etheridge v. L Ball III

896 F.2d 546
Unpublished Disposition

David A. ETHERIDGE, Plaintiff-Appellant,
v.
William L. BALL, III, Secretary of the Navy, Defendant-Appellee.

No. 89-1789.

United States Court of Appeals, Fourth Circuit.

Submitted: Nov. 30, 1989.
Decided: Jan. 29, 1990.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

David A. Etheridge, appellant pro se.

Henry Edward Hudson, United States Attorney; J. Phillip Krajewski, Assistant United States Attorney; Brian David Robertson, Delora Lynnette Kennebrew, United States Department of the Navy, for appellee.

Before DONALD RUSSELL, MURNAGHAN and SPROUSE, Circuit Judges.

PER CURIAM:

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1

David A. Etheridge appeals from the district court's order denying relief on his claim for correction of his military records to reflect a medical discharge, which could make him eligible for medical disability benefits. The court found that exclusive jurisdiction over the claim lay in the Claims Court under the Tucker Act, 28 U.S.C. Sec. 1491, but declined to transfer the claim because it is barred by the applicable statute of limitations.

2

Under Bowen v. Massachusetts, 56 U.S.L.W. 4878 (U.S. June 29, 1988) (Nos. 87-712, 87-929), and Ulmet v. United States, --- F.2d ----, No. 88-2593 (4th Cir. Oct. 31, 1989), Etheridge's challenge to the final decision of the Board for Correction of Naval Records, refusing to alter his discharge status, may be brought in the district court under 28 U.S.C. Sec. 1331 and the Administrative Procedure Act (5 U.S.C. Sec. 702). While we thus disagree with the district court's jurisdictional ruling, we nevertheless affirm its dismissal of the action on the basis that the claim is time barred under 28 U.S.C. Sec. 2401. See Doughtery v. United States Navy Bd. for Correction of Naval Records, 784 F.2d 499 (3d Cir.1986).

3

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. The Secretary's motion for transfer to the United States Court of Appeals for the Federal Circuit is denied.

4

AFFIRMED.