                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0438p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                 X
                                                  -
 EUGENE DAVIS,
                                                  -
                             Plaintiff-Appellant,
                                                  -
                                                  -
                                                      No. 09-5187
          v.
                                                  ,
                                                   >
                                                  -
                         Defendant-Appellee. -
 UNITED STATES OF AMERICA,
                                                  -
                                                 N
                    Appeal from the United States District Court
                 for the Western District of Tennessee at Memphis.
             No. 06-02087—Jon Phipps McCalla, Chief District Judge.
                             Submitted: November 17, 2009
                        Decided and Filed: December 29, 2009
             Before: MERRITT, CLAY, and McKEAGUE, Circuit Judges.

                                  _________________

                                       COUNSEL
ON BRIEF: Phillip Leon Davidson, Nashville, Tennessee, for Appellant. Monica M.
DeGraffenreaid, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for
Appellee.
                                  _________________

                                       OPINION
                                  _________________

       MERRITT, Circuit Judge. Eugene Davis, an Army veteran, claims that he was
eligible for early retirement and extra pay in accordance with the Temporary Early
Retirement Authority. See 10 U.S.C. § 1186 and § 1293. He appeals the District Court’s
dismissal of his claim as time-barred under the applicable six-year statute of limitations.
Davis v. United States, No. 06-02087, slip op. at 9 (W.D. Tenn. Jan. 30, 2009). He contends
that the Army Board for the Correction of Military Records (“Board”) erroneously refused
to correct his military record, a condition necessary for a valid application for early



                                            1
No. 09-5187             Davis v. United States                                                        Page 2


retirement. The issue before us is whether the accrual date for the statute of limitations is
the date the Board first denied his application or its denial after he filed a request for
reconsideration a year and a half later. We hold that a late-filed request for reconsideration
does not toll the accrual date and affirm the District Court.

                                                I. FACTS

        The District Court adopted the following relevant facts:

        Plaintiff was commissioned from the Army’s Reserve Officer Training
        Program on May 15, 1977. Plaintiff served active duty from November 13,
        1977, to January 14, 1985. On June 22, 1981, Plaintiff attained the rank of
        Captain. Plaintiff subsequently left active duty and was transferred to the
        Army’s Reserve Control Group. On April 14, 1989, Plaintiff was promoted
        to the rank of Major. On April 15, 1989, Plaintiff was transferred to the
        Army’s Selective Service System. On December 12, 1991, Plaintiff was
        informed that due to a reduction in major positions, he would not be retained
        in the [Selective Service System]. On March 18, 1993, Plaintiff was
        released from the [Selective Service System] and returned to the [Reserve
        Control Group]. At this time, Plaintiff had more than fifteen years of
        qualifying service. Plaintiff was issued a statement by the Army stating that
        he completed fifteen years of qualifying service for retirement pay as of May
        14, 1992.

Davis, slip op. at 2 (internal citations omitted).

        Davis applied to the Board for the correction of his military records on June 16,
1997. Id. at 3. The Board denied his request on June 3, 1999. Id. Regulations require the
                                                                                                           1
filing of any request for reconsideration within one year of the Board’s action.
Approximately a year and a half later, on November 27, 2000, Davis applied for

        1
            32 C.F.R. § 581.3(g)(4)(i)-(ii) states:
        Reconsideration of [Board] decision. An applicant may request the [Board] to reconsider
        a Board decision under the following circumstances: (i) if the [Board] receives the
        request within 1 year of the [Board]’s original decision and if the [Board] has not
        previously reconsidered the matter, the [Board] staff will review the request to
        determine if it contains evidence (including, but not limited to, any facts or arguments
        as to why relief should be granted) that was not in the record at the time of the [Board]’s
        prior consideration. If new evidence has been submitted, the request will be submitted
        to the [Board] for its determination of whether the new evidence is sufficient to
        demonstrate material error or injustice. If no new evidence is found, the [Board] staff
        will return the application to the applicant without action. (ii) If the [Board] receives
        a request for reconsideration more than 1 year after the [Board]’s original decision or
        after the [Board] has already considered one request for reconsideration, then the case
        will be returned without action and the applicant will be advised the next remedy is
        appeal to a court of appropriate jurisdiction.
No. 09-5187         Davis v. United States                                           Page 3


reconsideration of the Board’s decision. (Br. for Appellant at 5.) The Board denied
Davis’ request for reconsideration on April 9, 2001, citing a lack of new evidence.
Davis, slip op. at 7. Davis subsequently brought this suit in the District Court for the
Western District of Tennessee on February 9, 2006. Id. at 9. The District Court found
that Davis’ suit was time-barred because more than six years had elapsed since the Board
reached its original decision. Id.

        In this case the Government expressly waived oral argument, and Davis did not
request oral argument in his brief. Therefore, we decide this case on the briefs alone.

                                     II. ANALYSIS

        A claim against the United States can only be brought “six years after the right
of action first accrues.” 28 U.S.C. §2401(a). When did Davis’ claim accrue for
purposes of the six-year statute of limitations? Accrual of the claim turns on whether
Davis should have exhausted his military administrative remedies prior to bringing a
claim in federal court, and, if so, at what point is the military administrative process
exhausted.

                         A. EXHAUSTION OF REMEDIES

        First, we must determine whether Davis must exhaust his administrative
remedies. The District Court framed this question by asking whether a claim accrues at
the date of discharge or at the date when a veteran exhausts his or her military remedies.
Davis, slip op. at 6. Noting there is a split of authority on this issue, the District Court
held that even under the most liberal standard, Davis’ claim would be time-barred. Id.
at 6.

        The District Court correctly noted that some courts, including the Federal Circuit,
have held, depending on the nature of the cause of action, that the accrual date is the date
of discharge or separation. Boswell v. United States, 83 F. App’x 313 (Fed. Cir. 2003).
But the majority of courts, either explicitly or implicitly, have rejected the notion that
the accrual date is the date of discharge and have required exhaustion of remedies before
the Board. See Green v. White, 319 F.3d 560 (3d Cir. 2003); Soble v. Army Bd. of Corr.
No. 09-5187        Davis v. United States                                           Page 4


of Military Records, 151 F.3d 1033 (7th Cir. 1998); Smith v. Marsh, 787 F.2d 510, 512
(10th Cir. 1986); Geyen v. Marsh, 775 F.2d 1303, 1309 (5th Cir. 1985); Nivisher v.
White, 211 F.Supp. 2d 125, 129 (D.D.C. 2002); Smalls v. United States, 87 F. Supp. 2d
1055 (D. Haw. 2000).

       Additionally, in this Circuit, there appears to be some confusion among federal
courts as to the effect of a military administrative review process on the six-year statute
of limitations. Compare Seepe v. Dep’t of the Navy, 518 F. 2d 760, 762 (6th Cir. 1975)
(holding that statute of limitations was tolled until the veteran exhausted his military
administrative remedies) and Upsher v. United States, No. 97CV75738, 1998 U.S. Dist.
LEXIS 17156 (E.D. Mich. Sept. 25, 1998) (holding action to modify records does not
accrue until final board decision) with McDonald v. Resor, No. 94CV5039, 1994 U.S.
App. LEXIS 21597 (6th Cir. Aug. 10, 1994) (accrual date is date of discharge) and
Gibbs v. Dep’t. of the Army, No. 07 CV124-R, 2008 U.S. Dist. LEXIS 34673 (W.D. Ky.
Apr. 28, 2008) (accrual date is date of discharge). We will attempt to clear up some of
this confusion.

       The claim in this case concerns both Davis’ right to early retirement and the
refusal of the Board to correct Davis’ military record permitting him to receive this
retirement. It appears from the record that Davis cannot be awarded early retirement
benefits absent a correction of his military records. The Board denied Davis’ request for
correction of his military records on June 3, 1999. His claim first accrued on that date.
However, consistent with the majority view, we hold that the running of the six-year
period of limitations was tolled during the pendency of any legitimate exhaustion efforts.

                     B. FINAL ADMINISTRATIVE ACTION

       The next issue is when the claim is considered exhausted. The key inquiry is
what constitutes final administrative action in this context. Davis argues that the Board’s
decision was not exhausted and, therefore, not final until the request for reconsideration
was denied. Courts are split on this issue, and the decisions have varied widely.
No. 09-5187           Davis v. United States                                            Page 5


           Some courts have found that the statute of limitations is tolled only if the
application for reconsideration is filed with the Board within six years. Nivisher, supra,
211 F. Supp. 2d at 129. This approach incorporates the six-year statute of limitations
into the administrative process. But, as mentioned above, the regulations which govern
the Board only provide a one-year window to petition the Board for reconsideration. See
32 C.F.R. § 581.3(g)(4)(i)-(ii). Adopting an approach that validates a suit so long as the
request for reconsideration was filed within six years undermines the plain language of
the regulations and would leave the issue up-in-the-air too long. Further, it is unclear
what happens if the veteran waits five years and 364 days to file for reconsideration.
Does he then only have one day to file a suit in district court if he receives an adverse
decision? This is not a good approach.

           Other courts have held that the statute begins running at the time of the original
Board decision, and an application for reconsideration has no effect on the six-year
statute of limitations. Soble, supra, 151 F.3d 1033. This approach fails to consider that
the regulations explicitly allow for a veteran to file for reconsideration with the Board.

           The Third Circuit has held that a request for reconsideration could toll the statute
of limitations only if the veteran claimed that new facts were the basis for the request.
Green, supra, 319 F.3d 560. This approach could lead to unpredictability for the veteran
who must risk running afoul of the statute when submitting a request for reconsideration.
Further, the regulations speak directly to requests that only contain evidence that was
previously in the record. 32 C.F.R. § 581.3(g)(4)(i)-(ii). The regulations direct the
Board to return these requests, without opinion, and instruct the veteran to appeal to the
court with appropriate jurisdiction. Id. Whether a request contains new facts or law may
be a complex question for the Board to decide and does not serve as a clear criterion for
tolling.

           None of the above decisions take into account the regulations outlining the
structure and purpose of the Board’s review. As mentioned above, the regulations allow
for a veteran to apply for reconsideration within one year of the original Board decision.
Id. This means that so long as a veteran petitions the Board for rehearing within one
No. 09-5187         Davis v. United States                                           Page 6


year of the date of a prior adverse decision, the veteran is still legitimately pursuing
administrative remedies. For this reason, we hold that the statute of limitations is tolled
during the processing of a timely request for reconsideration, but we note that this
holding does not require a veteran to request reconsideration of the original Board
decision in order for his or her claimto be considered exhausted. A claim will be
considered exhausted either after the Board’s original decision, if there is no request for
reconsideration, or after a denial of a timely request for reconsideration. This choice is
in the hands of the veteran, because the regulations allow him both avenues for appeal.

        Drawing an analogy to habeas corpus review, the time that a prisoner properly
spends appealing his conviction in state post-conviction review or any other collateral
review does not count toward the one-year statute of limitations for habeas review. We
have held that an inmate’s timely motion for rehearing in state court tolls the statute of
limitations for habeas review. Sherwood v. Prelesnik, 579 F.3d 581, 587 (6th Cir. 2009)
(requiring that the motion be timely in accordance with state rules). We see no reason
to apply a different rule here.

        In sum, so long as a party is properly and in a timely fashion pursuing exhaustion
of administrative remedies, the statute of limitations is tolled. The regulations, and
consequently this Court, do not require the veteran to request reconsideration. When a
veteran chooses to forego reconsideration, the statute runs from the date of the original
Board decision. But if the veteran chooses to exercise the regulatory right to bring a
timely administrative appeal, then the statute is tolled during that period.

        Applying the articulated rule to the facts of this case, we hold that Davis’ claim
is time-barred. The key fact is that Davis did not apply for reconsideration within the
one year required by the regulations. Because Davis did not raise his petition for
rehearing to the Board until after the time allotted by the regulations, he was not
legitimately still pursuing military administrative remedies. Consequently, the Board
reached its final decision on Davis’ appeal on June 3, 1999 – the day that it denied his
request to correct his military record. By waiting until February 9, 2006, to institute this
No. 09-5187         Davis v. United States                                           Page 7


action, Davis failed to bring suit within the six-year statute of limitations required by 28
U.S.C. § 2401(a).

        Because Davis’ claim is time-barred, we pretermit other issues.

        Accordingly, the judgment of the District Court is AFFIRMED.
