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KISER v. JOHNSON

May 30, 1975

PAUL ERVIN KISER
v.
DONALD E. JOHNSON, Admin. of Veterans Affairs, United States of America



The opinion of the court was delivered by: NEALON

 Plaintiff is a World War II (WW II) veteran who in 1945 received a bad conduct discharge following his trial to a general court-martial on a charge of being absent without leave. The complaint alleges that he is in need of medical care as a result of rheumatoid arthritis, a condition which he either contracted or aggravated while on active duty during WW II, and which has caused him to lose the use of both arms and legs; that the Veterans Administration (VA) has denied him all medical benefits because of the type of court-martial to which he was tried (a general, as opposed to a special, court-martial); *fn1" that this action of the VA is pursuant to 38 U.S.C. § 3103 (1970), which provides in pertinent part, "The discharge or dismissal by reason of the sentence of a general court-martial of any person from the Armed Forces . . . shall bar all rights of such person under laws administered by the Veterans' Administration based upon the period of service from which discharged or dismissed"; *fn2" and that such a classification, based upon the nature of the court-martial which ordered the plaintiff's discharge, violates the Fifth Amendment's guarantee of equal protection. *fn3" Plaintiff seeks a declaration that Section 3103 is unconstitutional, and an order in the nature of mandamus compelling defendant to pay him $10,000 in benefits which he alleges were wrongfully and improperly withheld since 1949. *fn4" Presently pending are the defendant's motion to dismiss and cross motions for summary judgment.

 A fairly substantial record has already been compiled by virtue of the parties' submission of documents and affidavits in support of their motions, and, on the basis of that record, the following facts appear. Plaintiff served on active duty in the United States Navy for a period of almost one and one-half years during WW II, during which time he pleaded guilty on three occasions to a charge of being absent without leave. On the first occasion, he was tried before a deck court-martial, and on the second before a summary court-martial. The third occasion was on April 24, 1945, when he pleaded before a general court-martial. *fn5" On this last occasion he was sentenced to reduction to Apprentice Seaman, confinement for a period of three and one-half years and discharge with a bad conduct discharge. On April 26, 1945, however, the convening authority reduced his period of imprisonment to eighteen months and authorized the suspension of his bad conduct discharge if he successfully completed eleven months of confinement.

 Subsequently, according to a psychiatric report dated October 31, 1945, plaintiff was found participating in homosexual acts at his place of confinement and, as a result, his good time was revoked and he was referred to the United States Navy Disciplinary Barracks at Hart's Island, New York, New York. There a psychiatric examiner recommended that because of his homosexual tendencies, plaintiff be separated from military service by the most expedient means at hand. Plaintiff not having successfully completed the period of confinement, the discharge portion of the general court-martial's sentence of April 24, 1945 was executed and he was given a bad conduct discharge on January 4, 1946.

 Thereafter, in April, 1949, plaintiff filed a claim with the VA for disability benefits and also applied for hospitalization benefits. In May, 1949, he received notice that both applications had been denied because of the character of his discharge from military service. A VA intra-office memorandum dated May 3, 1949 indicated that the determination of plaintiff's ineligibility to receive veterans' benefits was made pursuant to a VA regulation which provided that a person discharged because of homosexual acts or tendencies was generally considered to be ineligible for veterans' benefits. *fn6"

 The record discloses that the next action taken by plaintiff was in March, 1974, when his attorney wrote the VA in an effort to secure benefits for him. When that effort proved futile, this suit was filed on August 6, 1974.

 Defendant asserts four grounds in support of his motions. The first two stem from the factual contention that plaintiff was not denied benefits pursuant to 38 U.S.C. § 3103, the statute under attack here, but instead pursuant to 38 U.S.C. § 101(2). As a result, defendant argues, (1) this Court is without jurisdiction, by virtue of 38 U.S.C. § 211(a), *fn7" to review the decision to deny plaintiff benefits, and (2) plaintiff lacks standing to challenge the constitutionality of Section 3103. In addition, defendant contends (3) that this suit should be barred by the doctrine of laches, and (4) that plaintiff has failed to state a claim upon which relief can be granted. The arguments will be addressed seriatim.

 1. Section 211(a)

 Defendant argues that 38 U.S.C. § 211(a) divests this Court of jurisdiction to review his 1949 decision denying plaintiff benefits, and that, therefore, this suit must be dismissed. The Supreme Court has recently had occasion to construe Section 211(a). See Johnson v. Robison, 415 U.S. 361, 39 L. Ed. 2d 389, 94 S. Ct. 1160 (1974). That case was a suit by a conscientious objector challenging the constitutionality of veterans' benefits legislation limiting eligibility for veterans' educational benefits to persons who had served in the Armed Forces. In the course of rejecting defendant's contention that Section 211(a) precluded federal jurisdiction of the suit, the Court stated:

 
"Plainly, no explicit provision of § 211(a) bars judicial consideration of appellee's constitutional claims. That section provides that 'the decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans . . . shall be final and conclusive and no . . . court of the United States shall have power or jurisdiction to review any such decision . . .' (Emphasis added.) The prohibitions would appear to be aimed at review only of those decisions of law or fact that arise in the administration by the Veterans' Administration of a statute providing benefits for veterans. A decision of law or fact 'under' a statute is made by the Administrator in the interpretation or application of a particular provision of the statute to a particular set of facts. Appellee's constitutional challenge is not to any such decision of the Administrator, but rather to a decision of Congress to create a statutory class entitled to benefits that does not include I-O conscientious objectors who performed alternative civilian service. Thus, as the District Court stated: 'The questions of law presented in these proceedings arise under the Constitution, not under the statute whose validity is challenged.' 352 F. Supp. at 853."

 415 U.S., at 367.

 Applying the Supreme Court's construction of Section 211(a) to the instant case, it seems clear that the 1949 decision of the Veterans' Administrator is within the purview of that statute. That decision was that the defendant's discharge because of homosexuality was "dishonorable" for the purposes of 38 U.S.C. § 101(2), the statute which provides generally that the class of former servicepeople who will be eligible for veterans' benefits are those who have been discharged "under conditions other than dishonorable." *fn8" It was, thus, a decision "under" Section 101(2) in which the Veterans' Administrator, through his own regulation, applied the statutory term "dishonorable" to the particular set of facts raised by defendant's case, and decided that the defendant's discharge was dishonorable for the purposes of Section 101(2). As such, it is precluded from federal judicial review by Section 211(a), and this Court has no jurisdiction to question the 1949 decision to deny plaintiff benefits. Accordingly, Section 211(a) requires that the portion of the complaint seeking damages and an order of mandamus be dismissed.

 Section 211(a), however, does not apply to the portion of the complaint challenging 38 U.S.C. § 3103 and seeking a declaration that that statute is unconstitutional. Section 3103 expressly provides that the "discharge or dismissal by reason of the sentence of a general court-martial of any person from the Armed Forces . . . shall bar all rights of such person under laws administered by the Veterans' Administration . . ." It is thus a decision of Congress, not the Veterans' Administrator, to create a statutory class of persons not entitled to veterans' benefits. Like the Congressional decision in Johnson v. Robison, supra, to create a class of persons entitled to benefits that does not include ...


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