                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 4 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WILLIAM W. HALLE, IV,

                Plaintiff-Appellant,

    v.                                                   No. 96-8081
                                                    (D.C. No. 95-CV-214-J)
    UNITED STATES OF AMERICA;                              (D. Wyo.)
    ARMY BOARD FOR CORRECTION
    OF MILITARY RECORDS, UNITED
    STATES ARMY,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before ANDERSON, LOGAN, and EBEL, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellant William W. Halle sued the United States Army Board for

Correction of Military Records (Board) in federal district court, seeking

injunctive and declaratory relief requiring the Board to correct his military

records. Mr. Halle sought the correction to reflect that he received a disability

discharge, rather than an honorable discharge, from active duty in the Army on

January 16, 1978. The district court granted summary judgment for the Board,

concluding that Mr. Halle’s action was barred by the statute of limitations.

Alternatively, the district court determined that the Board’s decision not to

modify Mr. Halle’s records was not arbitrary and capricious and was supported by

substantial evidence.

      We must consider, as a threshold matter, whether the district court had

subject matter jurisdiction over Mr. Halle’s claim. The United States Court of

Federal Claims has exclusive jurisdiction over claims for $10,000 or more against

the United States founded upon the Constitution, Acts of Congress, executive

regulations, or contracts. See 28 U.S.C. §§ 1346, 1491 (the “Tucker Act”). If

Mr. Halle’s “prime objective” or “essential purpose” in filing the complaint was

to obtain a retroactive award of retirement or disability benefits in excess of

$10,000, the Tucker Act requires that his complaint be filed with the Court of

Federal Claims. Burkins v. United States, 112 F.3d 444, 449 (10th Cir. 1997).




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This is true even though he requested only declaratory or equitable relief. See id.

However, if Mr. Halle’s complaint sought nonmonetary relief which has

“significant prospective effect” or “considerable value” apart from the claim for

monetary relief, district court jurisdiction was proper. Id.

      Mr. Halle’s complaint alleges that a change in his medical records will

affect his future relationship with the Army, by determining his eligibility for

future benefits. We must ask whether this prospective benefit is “significant,” or

has “considerable” value. See id. The determination of “significance” generally

is made by comparing the magnitude of the prospective relief sought against the

value of the retroactive monetary award. See Minnesota ex rel. Noot v. Heckler,

718 F.2d 852, 859 (8th Cir. 1983).

      If successful, Mr. Halle stands to receive nearly twenty years’ worth of

retroactive disability retirement benefits. 1 However, the resolution of his

complaint will also affect his future disability status, most likely for years to

come. Mr. Halle is only forty-six years old. Although his medical conditions

allegedly are disabling, it is not argued that they will produce a radically

shortened life span. Under these circumstances, we believe that Mr. Halle has

articulated a “significant prospective effect” if declaratory judgment is granted,


1
       Defendants estimate that eighteen years’ worth of retirement benefits, at
Mr. Halle’s grade and rate of pay, would amount to $92,048.40. See Appellees’
Br. at 21 n.11.

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entitling him to pursue his action in district court rather than the Court of Federal

Claims. See Burkins, 112 F.3d at 449.

      Having properly assumed jurisdiction over the complaint, the district court

concluded that Mr. Halle’s complaint was barred by the statute of limitations.

Mr. Halle filed this action on September 25, 1995, over seventeen years after his

date of discharge. Actions against the United States must be filed within six

years after the right of action first accrues. See 28 U.S.C. § 2401(a). The district

court concluded that Mr. Halle’s right of action accrued at the time of his

discharge, and was therefore untimely.

      Mr. Halle’s complaint, however, challenged the Board’s refusal to correct

his military records, rather than the discharge decision itself. A challenge to the

decision of the Board to deny correction of military records accrues at the time of

the decision, not at the time of the original discharge. See Smith v. Marsh, 787

F.2d 510, 512 (10th Cir. 1986). The Board reached its decision against Mr. Halle

on June 14, 1995, and he filed his complaint just over three months later. Thus,

his district court complaint was timely.

      A separate timeliness issue, however, exists with regard to the date Mr.

Halle filed his application with the Board. Applications for correction of military

records must be filed within three years after the veteran discovers the error or

injustice. See 10 U.S.C. § 1552(b). The Board is empowered to excuse an


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untimely filing, if it finds it to be in the interest of justice to do so. See id. The

Board found Mr. Halle’s petition untimely, and refused to excuse the untimely

filing. We review these decisions to determine whether they were “‘arbitrary,

capricious, an abuse of discretion or otherwise not in accordance with law.’”

Dickson v. Secretary of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995) (quoting

5 U.S.C. § 706). In making our determination, we accord no particular deference

to the district court’s decision on initial review. See Santa Fe Energy Prods. Co.

v. McCutcheon, 90 F.3d 409, 413 (10th Cir. 1996).

      The Board determined that Mr. Halle discovered, or should have discovered

with reasonable diligence, the error he alleges, at the time of his separation from

military service. Thus, he should have applied to the Board for relief no later

than January 16, 1981. The record reveals that Mr. Halle was aware of his

allegedly disabling conditions at the time of his discharge. He filed an

application for Veterans Administration disability benefits in 1978. The Board’s

conclusion that his application is untimely was not arbitrary and capricious.

      The Board’s decision not to excuse the untimely filing is also not arbitrary

and capricious. The Board considered the evidence of record, and concluded that

Mr. Halle’s medical condition at the time of separation did not provide a basis for

medical retirement. Clearly, in the Board’s view, Mr. Halle’s argument on the

merits was weak. Moreover, the Board noted that Mr. Halle had provided no


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good reason (such as a mental disability which prevented him from filing) why it

would be in the interest of justice to excuse his untimely filing. These

conclusions are supported by the evidence.

      Mr. Halle argues that the Board violated his right to due process by

informing him that it would hold a hearing which he could attend, and then by

holding that hearing without notice to him, and in his absence. The regulations

governing procedure before the Board specifically provide that the Board may

deny an application without a hearing. 32 C.F.R. § 581.3(c)(5). Although the

Board met to decide Mr. Halle’s application, no adversarial or trial-type “hearing”

took place; rather, the Board simply deliberated before deciding to deny the

application. Mr. Halle cites no authority which would allow or require him to be

present during Board deliberations.

      A case examiner was present for the deliberations. He presented a

Memorandum of Consideration (essentially proposed findings with an order) to

the Board, which it approved. Mr. Halle contends that the case examiner was “an

employee or agent engaged in the performance of investigative or prosecuting

functions” who improperly “participated or advised” in the Board’s decision.

5 U.S.C. § 554(d). As defendants explain, however, a case examiner is a staff

member of the Board who assists the Board in its adjudicative functions, much

like a law clerk or staff attorney assists a judge. Such staff examiners clearly are


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permitted to assist the Board in its consideration of the application. See Koster v.

United States, 685 F.2d 407, 414 (Ct. Cl. 1982). Mr. Halle’s arguments lack

merit.

         Finally, Mr. Halle contends that the Board made insufficient findings to

support its conclusion that waiver of the statute of limitations would not be in the

interests of justice. See Dickson, 68 F.3d at 1405. In Dickson, the Board’s

findings on the “interests of justice” issue did not allow the court to determine,

for purposes of review, whether the Board had relied exclusively on its evaluation

of the legitimacy of the applicants’ reasons for delay, or whether it had also

considered the underlying merits of their claims. Id. Moreover, the Board did not

explain how it reached its conclusion about when the injustice should have been

discovered. Id. Here, the Board’s decision contains a statement of purpose which

identifies the issues of timeliness and waiver, a discussion of the evidence of

record in light of these issues, a series of conclusions concerning both the merits

of Mr. Halle’s claim and the date on which the error or injustice should have been

discovered, and an ultimate conclusion that the application was untimely and that

its untimeliness should not be excused. While the Board could have more

explicitly tied its findings to its ultimate conclusion, the findings are sufficient to

support the Board’s conclusion.




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     The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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