question" before this Court is "whether plaintiff's decedent, Vernon Shearer, was engaged in activity 'incident to his military service' at the time of his fatal injury." Plaintiff asserts that her claim is not barred by the Feres doctrine because decedent was on authorized leave from his military base at the time of his death and, therefore, his death was not incident to military service.
This Court is not persuaded by plaintiff's argument. The ultimate question is not whether decedent was engaged in activity incident to military service when he incurred his injuries. Rather, the "focus . . . is upon when and how the negligent act occurs " and whether the negligent act was a part of activity incident to service. Henning v. United States, 446 F.2d 774, 777 (3d Cir.1971) (emphasis added), cert. denied, 404 U.S. 1016, 92 S. Ct. 676, 30 L. Ed. 2d 664 (1972).
Upon application of the Henning analysis, this Court finds that plaintiff's action is barred by the Feres doctrine. The negligence alleged by plaintiff relates to activity of the United States Army incident to military service. Plaintiff alleges that the Army was negligent in failing to exert reasonable control over decedent's assailant, Private Heard, despite the fact that it had knowledge of Heard's dangerous propensities. We find that these allegations relate directly to decisions of military personnel made in the course of the performance of their military duty and, therefore, are barred by Feres and Henning.3 See Johnson v. United States, 631 F.2d 34 (5th Cir.1980), cert. denied, 451 U.S. 1018, 101 S. Ct. 3007, 69 L. Ed. 2d 389 (1981).
Furthermore, the Court notes that its finding herein that Feres is a bar to plaintiff's claim does not leave plaintiff without remedy. A second basis of Feres is the existence of a no fault compensation scheme pursuant to the Veteran's Benefit Act. Jaffee v. United States, 663 F.2d 1226, 1235-38 (3d Cir.1981), cert. denied, 456 U.S. 972, 102 S. Ct. 2234, 72 L. Ed. 2d 845 (1982). The compensation scheme provided for in the Veteran's Benefit Act is the sole remedy for "service connected injuries." Id. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673, 97 S. Ct. 2054, 2058, 52 L. Ed. 2d 665 (1977), in which the Court held as follows:
A compensation scheme such as the Veterans' Benefits Act serves a dual purpose: it not only provides a swift, efficient remedy for the injured serviceman, but it also clothes the Government in the "protective mantle of the Act's limitation-of-liability provisions." See Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106, 115 [94 S. Ct. 2174, 2179, 40 L. Ed. 2d 694] (1974). Given the broad exposure of the Government, and the great variability in the potentially applicable tort law, see Feres, 340 U.S., at 142-143 [71 S. Ct., at 157], the military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries. To permit petitioner's claim would circumvent this limitation, thereby frustrating one of the essential features of the Veterans' Benefit Act. As we stated in a somewhat different context concerning the Tort Claims Act: "To permit [petitioner] to proceed . . . here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe that the [Federal Tort Claims] Act permits such a result." Laird v. Nelms, 406 U.S. 797, 802 [92 S. Ct. 1899, 1902, 32 L. Ed. 2d 499] (1972).