William J. Foley, Plaintiff-appellant, v. Secretary of the Army, Defendant-appellee, 846 F.2d 77 (Fed. Cir. 1988)

DECISION

The decision of the United States District Court for the District of New Jersey, No. 86-1627(GEB), dismissing William J. Foley's (Foley's) action as barred by the statute of limitations, is affirmed.

OPINION

Foley's suit in district court, 10 years after he was separated from service, and eight years after the ADRB first denied his petition to upgrade his discharge, was barred by the six-year statute of limitations mandated by 28 U.S.C. § 2401 (1987). See Williams v. Secretary of Navy, 787 F.2d 552, 562 n. 15 (Fed. Cir. 1986); Hurick v. Lehman, 782 F.2d 984, 986 (Fed. Cir. 1986) (statute of limitations barred claim based on alleged unlawful discharge). The statute was neither tolled nor renewed, and the case was not reopened, by the ADRB's correction of a clerical error in Foley's discharge certificate. That correction in no way granted Foley any relief he requested. Thus Foley's reliance on Homcy v. United States, 536 F.2d 360 (Ct. Cl.), cert. denied, 429 U.S. 984 (1976), and Friedman v. United States, 310 F.2d 381 (Ct. Cl. 1962), cert. denied, 373 U.S. 932 (1963), is misplaced. The district court correctly dismissed Foley's complaint and we affirm on the basis of the district court's opinion.

Foley's claims of failure to receive a hearing and wrongful discharge cannot be heard by this court. See 28 U.S.C. § 2401.