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SCHUMACHER v. ALDRIDGE

July 15, 1987

Ed Schumacher, et al., Plaintiffs,
v.
Edward C. Aldridge, Jr., Secretary of the Air Force, Defendant



The opinion of the court was delivered by: OBERDORFER

LOUIS F. OBERDORFER, United States District Judge

 MEMORANDUM AND ORDER

 Plaintiffs are three persons who served as merchant seamen in World War II, and the American Federation of Labor, Congress of Industrial Organizations (AFL-CIO). Defendant is Edward C. Aldridge, who is sued in his capacity as Secretary of the Air Force. Title IV of P.L. 95-202, 91 Stat. 1449 (1977) (codified at 38 U.S.C. § 106 note) authorizes the Secretary to recognize the "active military service" of certain groups of individuals who engaged in activities related to World War II. Plaintiffs seek judicial review of the Secretary's decisions denying such recognition to (1) American merchant seamen who rendered service to the U.S. Armed Forces while in oceangoing service from December 7, 1941 to December 31, 1946 ("Oceangoing Group") and (2) American merchant seamen who participated in WW II military invasions ("Invasion Group"). Plaintiffs claim that the denials were arbitrary and capricious, an abuse of discretion, and contrary to law. 5 U.S.C. § 706(2)(A) & (B).

 As relief, plaintiffs pray at a minimum for an order directing the Secretary to determine that the service of the Invasion Group was active military service for purposes of benefits under Title IV, *fn1" and for an order directing the Secretary to reconsider the application filed on behalf of the Oceangoing Group.

 I.

 Section 401(a) of Title IV of the G.I. Bill Improvement Act of 1977, 38 U.S.C. § 106 note, provides that:

 
(A) after a full review of the historical records and all other available evidence pertaining to the service of any such group, determines, on the basis of judicial and other appropriate precedent, that the service of such group constituted active military service, and
 
(B) [the person is entitled to an honorable discharge].
 
(2) In making a determination under clause (A) . . . the Secretary of Defense may take into consideration the extent to which --
 
(A) such group received military training and acquired a military capability or the service performed by such group was critical to the success of a military mission,
 
(B) the members of such group were subject to military justice, discipline, and control,
 
(C) the members of such group were permitted to resign,
 
(D) the members of such group were susceptible to assignment for duty in a combat zone, and
 
(E) the members of such group had reasonable expectations that their service would be considered to be active military service.

 The original draft of section 401 was submitted to the Senate on October 19, 1977 by Senator Barry Goldwater as an amendment to the G.I. Bill Improvement Act of 1977, and made benefits available only to the Women's Air Forces Service Pilots (WASPs). 123 Cong. Rec. 34373-74 (1977). Members of this organization flew military aircraft during World War II within the continental United States and Canada. Senator Alan Cranston, chairman of the Senate Veterans Affairs Committee, opposed the amendment on the ground that other civilians, including members of the Merchant Marine, were also "subject to hazards and dangers while rendering valuable services in support of the Nation's defense." 123 Cong. Rec. 34376 (1977). Referring to the large number of "merchant marine personnel still living who served aboard ships under Navy regulations during World War II in hazardous areas," Senator Cranston cautioned against creating a precedent entitling persons classified as civilians to veterans' benefits. Id. at 34377. Instead of defeating the amendment, however, Senator Cranston's remarks led to its expansion. On November 3, 1977, Congressman Olin Teague, a member of the House Committee on Veterans' Affairs, proposed that the section be expanded beyond the WASPs to cover all groups "similarly situated." With this alteration, section 401 was enacted into law.

 In 1979, as contemplated by 401(a)(1), the Secretary of Defense adopted regulations implementing that section. 44 Fed. Reg. 11,223 (1979), 32 C.F.R. Part 47 (1980). The current regulations, adopted in 1983, provide in part:

 § 47.4 Policy

 
(a) It is DoD policy to determine whether the civilian employment or contractual services of a civilian or contractual group shall be considered active military service for the purposes of laws administered by the Veterans Administration by considering judicial and other appropriate precedents, including the extent to which the members of such a group:
 
(1) Received military training and acquired a military capability, or the service performed by such group was critical to the success of a military mission.
 
(3) Were permitted to resign.
 
(4) Were susceptible to assignment for duty in a combat zone.
 
(5) Had reasonable expectations that their service would be considered to be active military service (see Pub. L. 95-202).

 48 Fed. Reg. 38816 (1983), 32 C.F.R. Part 47 (1986).

 The regulations further provide for the establishment of the Department of Defense Civilian/Military Service Review Board and Advisory Panel. That Board consists of a chairman, who votes only in the event of a tie, and a representative of the Secretary of Defense and of each of the Military Departments. The Board reviews each application and issues a written recommendation to the Secretary as to whether the service of the applicant group should be considered active military service for purposes of Title IV. Under section 47.6 of the regulations, the Board's review is limited to the written submissions filed by the applicant in support of its application, a written report prepared by the appropriate member or members of the Advisory Panel, and any other relevant information available to the Board and the criteria established by law. The Board then transmits its recommendation to the Secretary of the Air Force, to whom the responsibility for making a final decision has been delegated. The Board's recommendations and accompanying rationale have been adopted by the Secretary without fail.

 Since 1977, 64 groups have applied for "active military service" status under section 401. Of these applicants, fourteen groups have been approved. *fn2"

 The first group approved, not surprisingly, was the Women's Airforces Service Pilots (WASPs). Complaint, Exhibit A. That organization consisted of women pilots, responsible primarily for ferrying military aircraft within the continental United States and Canada. In support of its recommendation that this service be considered active military service, the Board concluded that the WASPs' functions "were essentially identical to any military pilot assigned to the Ferrying Division, Air Transport Command." Id. at 1. The Board also concluded that the WASP organization was integrated into a military command and control system, although it did not explain the features of that integration. Of all the factors, however, the Board placed greatest emphasis on the expectations of military officials, concluding that "the military leaders of the day would appear to have had no doubt the WASP service was military . . . ." Id. at 2.

 Another successful applicant group was the Signal Corps Female Telephone Operators Unit. Complaint, Exhibit B. Women in this Unit operated telephone switchboards in 75 cities in France and England during World War I. In an opinion slightly more than one page long, the Board recommended that their service be deemed active military service. In full, the Board reasoned:

 
The female telephone operators were recruited for their unique skills which were deemed necessary to improve the operating efficiency of the military telephone system of the [American Expeditionary Forces].
 
With the exception of those in training or en route at the time the group was deactivated, they served overseas with the Army. Availability of the female operators theoretically released soldiers for combat or telephone operators for service at more dangerous locations.
 
Female telephone operators were hired as civilian employees of the Signal Corps. Since no legal means existed at the time to enlist or commission women into the Army, it was the only means to acquire their services. The Board concludes that without the statutory restrictions prohibiting women in the Army, the Female Signal Corps Telephone Operators Unit could have been and probably would have been regularly enlisted into the Army.

 Id. at 1-2.

 The Secretary also approved the application filed on behalf of the World War I Quartermaster Corps Female Clerical Employees Serving With the American Expeditionary Forces. Complaint, Exhibit F. These women were contract employees hired for clerical positions "because of a continuing shortage of qualified stenographers/typists" during World War I. Id. at 1. The Board recommended that their service be considered active military service, explaining that:

 
Those who volunteered to serve with the AEF did not know in advance where, overseas, they would be assigned. Although none was assigned to duties in a combat zone, nothing barred such an assignment, and they did all serve in a war theater. They . . . contribute[d] to the success of the military mission [by relieving enlisted men for duty at the front]. The AEF female clerical employees wore uniforms and, because they were serving in a war theater, were subject to military laws and regulations. . . . Although in theory these women could resign prior to the expiration of the terms of their contracts, a heavy [financial] penalty would have been imposed for such breaches . . . . Finally, there is evidence that these women considered that their service would be recognized as active military service. . . . Had there not been statutory restrictions prohibiting women in the Army, the female clerical employees serving with the AEF probably would have been enlisted into the Army.

 Id. at 2.

 II.

 To understand the focus of the present dispute, it is helpful to review the history of the Merchant Marine in World War II, as established by the record in this case.

 Before the start of the war, merchant ships were privately owned and controlled by shipping companies for the transport of commercial cargo. Seamen signed shipping articles, normally for a period of not more than twelve months, setting forth with particularity the destination and nature of the voyage. The requirement of particularity in shipping articles was designed "to protect seamen . . . and to assure against harsh application of the iron law of the sea." NLRB v. Waterman S.S. Corp., 309 U.S. 206, 212, 84 L. Ed. 704, 60 S. Ct. 493 (1940); see generally, The Quoque, 261 F. 414, 415 (E.D. Va. 1919) ("The manifest intent and purpose of the statute was to protect seamen, and advise them, as far as possible, of the general nature and description of the voyage, in advance of starting upon the same, of the foreign port they were to go to, together with the length of time of the service, and when the same would terminate."), affd. sub nom. United States v. Westwood, 266 F. 696 (4th Cir. 1920). Accordingly, courts construed shipping articles narrowly, see, e.g., The Thomas Tracy, 24 F.2d 372, 374 (2d Cir. 1928), and often voided the articles for lack of particularity. See, e.g., United States v. Westwood, 266 F. 696, 697 (4th Cir. 1920); The Occidental, 101 F. 997, 998 (D. Wash. 1900).

 With the advent of World War II, the peacetime requirements and procedures changed. More than a year before the attack on Pearl Harbor, the Coast Guard began training merchant seamen in gunnery and other military subjects. The Naval Reserve also trained merchant seamen in military subjects. By September 1941, gunnery training of merchant crews had been authorized on 83 Panamanian flag vessels.

 In October 1941, President Roosevelt asked Congress to lift the ban on arming merchant ships which had theretofore been in effect. President Roosevelt explained that it was not just to deny merchant seamen the means of defending their lives and their ships while they were "sailing the seas on missions connected with the defense of the United States." AR-16. One month later, in November 1941, Congress complied with the President's request and authorized merchant ships to be armed. AR-16. Thereafter, merchant seamen received additional military training in gunnery, handling barrage balloons, wartime communications, gas warfare, swimming through burning oil, and enemy ship spotting at night. AR-17-20, 84-86, 102-05, 110-70, 813-14, 1242, 1266-84, 1294-95; Statement of Points and Authorities in Support of Plaintiffs' Motion for Summary Judgment at 27 (hereinafter "Plaintiffs' Motion").

 The normal peacetime requirements for specificity in shipping articles also changed. By order of the Secretary of the Navy, the statutory provision requiring shipping articles to contain particulars as to the nature of the intended voyage and engagement was waived. 7 Fed. Reg. 2477 (1942); AR-312-13; see also AR-327 (WSA Security Order stating that "Articles should be drawn so as not to disclose the nature, duration, or area of the intended voyage.") (Emphasis added.) These measures were taken to preserve wartime secrecy. Farrell v. United States, 336 U.S. 511, 520, 93 L. Ed. 850, 69 S. Ct. 707 (1949); see also Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 799, ...


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