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Engler v. Adjutant General of Ohio

Court of Appeals of Ohio, Tenth District

June 12, 2018

Thomas L. Engler, Plaintiff-Appellant,
v.
Adjutant General of Ohio, Defendant-Appellee.

          APPEAL from the Court of Claims of Ohio No. 2017-00610

          On brief: Vesper C. Williams, II, for appellant. Argued: Vesper C. Williams, II.

          On brief: Michael DeWine, Attorney General, Peter E. DeMarco, and Timothy M. Miller, for appellee. Argued: Timothy M. Miller.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Plaintiff-appellant, Thomas L. Engler, appeals from a judgment of the Court of Claims of Ohio dismissing his complaint against defendant-appellee, Adjutant General of Ohio ("Adjutant General"). For the following reasons, we affirm.

         I. Facts and Procedural History

         {¶ 2} In July 2017, Engler filed suit against the Adjutant General alleging claims for breach of contract and violation of 10 U.S.C. 1176. These claims arose from the cessation of Engler's military service with the Ohio Army National Guard. Engler's complaint alleges that he was wrongfully separated from military service in 2004, and that, as a result, he is not eligible for military retirement benefits. The complaint alleges that Engler has 18 years, 7 months, and 23 days of military service, but that he needs 20 years of military service to be eligible for military retirement benefits. Thus, Engler contends that the wrongful termination of his military service before he obtained 20 years of service precludes his eligibility for military retirement benefits. In August 2017, the Adjutant General moved to dismiss the action. In October 2017, the Court of Claims dismissed Engler's complaint based on its finding that his claims are barred by the applicable statute of limitations.

         {¶ 3} Engler timely appeals.

         II. Assignment of Error

         {¶ 4} Engler assigns the following error for our review:

Appellant states that the Court of Claims abused its discretion by applying the statute of limitations set out in R.C. 2743 which states in part "…civil actions against the state…shall be commenced no later than two years after the date of accrual of the cause of action…" for breach of his enlistment contract AND violation of 10 U.S.C. 1176 regarding his discharge and his service credits to make him eligible for his retirement all stated in the ENTRY OF DISMISSAL appealed in the second and fourth paragraphs on page numbered -2-.

(Sic passim.)

         III. Discussion

         {¶ 5} In his sole assignment of error, Engler alleges the Court of Claims erred in dismissing his claims based on its finding that they are time-barred pursuant to the applicable ...


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