B-120868, MAY 4, 1955

B-120868: May 4, 1955

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UNITED STATES CIVIL SERVICE COMMISSION: REFERENCE IS MADE TO YOUR LETTER OF JULY 26. REQUESTING A DECISION WHETHER COMMISSIONED OFFICERS OF THE ARMED SERVICES WHOSE RETIREMENT IS FOR DISABILITY INCURRED IN COMBAT IN THE KOREAN CONFLICT OR WHOSE RETIREMENT IS FOR DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR DURING THE PERIOD OF THE KOREAN CONFLICT ARE INCLUDED WITHIN THE EXCEPTION CONTAINED IN SECTION 212(B) OF THE ACT OF JUNE 30. IS AS FOLLOWS: "*** PROVIDED. ADVICE HAS BEEN RECEIVED INFORMALLY TO THE EFFECT THAT NEITHER THE JUDGE ADVOCATE GENERAL OF THE ARMY NOR THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE HAS RENDERED AN OPINION AS TO WHETHER AN INJURY SUSTAINED DURING AN ENGAGEMENT IN KOREA WAS "INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES" WITHIN THE MEANING OF THE FIRST EXCEPTION CONTAINED IN SECTION 212(B) OF THE ACT.

B-120868, MAY 4, 1955

PRECIS-UNAVAILABLE

PHILIP YOUNG, UNITED STATES CIVIL SERVICE COMMISSION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1954, REQUESTING A DECISION WHETHER COMMISSIONED OFFICERS OF THE ARMED SERVICES WHOSE RETIREMENT IS FOR DISABILITY INCURRED IN COMBAT IN THE KOREAN CONFLICT OR WHOSE RETIREMENT IS FOR DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR DURING THE PERIOD OF THE KOREAN CONFLICT ARE INCLUDED WITHIN THE EXCEPTION CONTAINED IN SECTION 212(B) OF THE ACT OF JUNE 30, 1932, 5 U.S.C. 59A, AS AMENDED BY THE ACT OF FEBRUARY 20, 1954, PUBLIC LAW 300, 68 STAT. 18.

THE EXCEPTION CONTAINED IN SECTION 212(B), AS AMENDED, IS AS FOLLOWS:

"*** PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY REGULAR OR EMERGENCY COMMISSIONED OFFICER RETIRED FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1(A), PART I, PARAGRAPH I."

ADVICE HAS BEEN RECEIVED INFORMALLY TO THE EFFECT THAT NEITHER THE JUDGE ADVOCATE GENERAL OF THE ARMY NOR THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE HAS RENDERED AN OPINION AS TO WHETHER AN INJURY SUSTAINED DURING AN ENGAGEMENT IN KOREA WAS "INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES" WITHIN THE MEANING OF THE FIRST EXCEPTION CONTAINED IN SECTION 212(B) OF THE ACT. HOWEVER, THE JUDGE ADVOCATE GENERAL OF THE NAVY, IN AN OPINION DATED NOVEMBER 14, 1951, TO THE COMMANDANT, MARINE CORPS, INVOLVING AN OFFICER INJURED IN THE KOREAN ACTION, STATED:

"6. THE EXCEPTION TO THE GENERAL RESTRICTIONS CONTAINED IN THE SO CALLED 'DUAL COMPENSATION' ACT (SECTION 212 OF THE ACT OF JUNE 30, 1932), IN THE CASE OF OFFICERS DISABLED AS A RESULT OF COMBAT WITH AN ENEMY OF THE UNITED STATES, IS A BENEFICIAL PROVISION FOR THE RECOGNITION OF SERVICE UNDER HAZARDOUS CONDITIONS AND AS SUCH SHOULD BE LIBERALLY CONSTRUED. THE PRESENT CASE EFFECT MUST BE GIVEN TO THE REALITIES OF THE SITUATION PREVAILING AT THE TIME AND PLACE OF THE INCURRENCE OF THE DISABLING WOUNDS BY REASON OF WHICH THE BENEFITS ARE SOUGHT. BATTLE REPORTS AND CASUALTY LISTS ARE THE BEST EVIDENCE OF THE TRUE CHARACTER OF THE ARMED CONFLICT IN PROGRESS IN KOREA AT THE TIME SUBJECT OFFICER WAS WOUNDED AND OF THE OPPOSING FORCES THERE.

THERE APPEARS TO BE AMPLE EVIDENCE FOR CONCLUDING THAT SUBJECT OFFICER'S DISABLING WOUNDS WERE INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.

"7. SECTION 212 OF THE ECONOMY ACT OF 1932 (47 STAT. 406), SUPRA, WAS AMENDED BY THE ACT OF JULY 15, 1940 (54 STAT. 761), WHICH PROVIDED AN ADDITIONAL EXCEPTION TO THE 1932 ACT IN THE CASE OF OFFICERS RETIRED 'FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1(A), PART I, PARAGRAPH I.' THE TIME LIMITATIONS PROVIDED BY REFERENCE TO THE VETERANS REGULATION NAMED ARE APPLICABLE ONLY TO THE TYPE OF DISABILITIES MENTIONED IN THE QUOTED PROVISION, THAT IS, TO DISABILITIES RESULTING FROM EXPLOSION OF INSTRUMENTALITIES OF WAR, AND ARE NOT APPLICABLE TO DISABILITIES INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, THE SINGLE EXCEPTION PROVIDED FOR IN THE 1932 ACT AS FIRST ENACTED.

"8. IN VIEW OF THE FOREGOING, IT IS THE OPINION OF THIS OFFICE THAT THE DISABILITY FOR WHICH SUBJECT OFFICER WAS RETIRED WAS 'INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES' WITHIN THE MEANING OF THE ECONOMY ACT OF 1932, AS AMENDED, ***"

THE APPROACH TO THE QUESTION TAKEN BY THE JUDGE ADVOCATE GENERAL OF THE NAVY IS CONSIDERED TO BE PRACTICAL, REALISTIC, AND SOUND. WHILE NO DECISION OF THIS OFFICE OR THE COURTS HAS BEEN FOUND UPON THE SPECIFIC QUESTION AS TO WHETHER A DISABILITY INCURRED IN COMBAT IN THE KOREAN CONFLICT IS A DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES WITHIN THE MEANING OF SECTION 212(B), THERE ARE SEVERAL COURT CASES INVOLVING THE QUESTION AS TO WHETHER DEATH DUE TO INJURIES SUSTAINED IN COMBAT IN KOREA RESULTED FROM MILITARY OR NAVAL SERVICE IN TIME OF WAR SO AS TO EXEMPT SUCH CASES FROM THE DOUBLE INDEMNITY PROVISIONS IN INSURANCE CONTRACTS. THE COURTS ARE NOT IN FULL ACCORD ON THE SUBJECT. THE CASE OF BELEY V. PENNSYLVANIA MUT. LIFE INS. COMPANY, 95 A. 2D 202, DECIDED BY THE SUPREME COURT OF THE STATE OF PENNSYLVANIA, FEBRUARY 14, 1953, IS REPRESENTATIVE OF THE VIEW THAT A STATE OF WAR MAY EXIST ONLY IF AND WHEN A FORMAL DECLARATION OF WAR IS MADE BY THE APPROPRIATE BRANCH OF THE GOVERNMENT, AND SINCE SUCH A DECLARATION HAS NOT BEEN MADE IN CONNECTION WITH THE KOREAN CONFLICT, NO STATE OF WAR EXISTED, AND FULL RECOVERY WAS ALLOWED UNDER THE POLICY. THERE HAS BEEN FOUND NO OTHER CASE BY A COURT OF 1ST RESORT HOLDING THAT THE KOREAN CONFLICT DID NOT CONSTITUTE "WAR." ON THE OTHER HAND, AN OPPOSITE CONCLUSION WAS REACHED BY THE SUPREME COURT OF IOWA IN THE CASE OF LANGLAS ET AL. V. IOWA LIFE INS. CO., 63 N.W. 2D 885; BY THE SUPREME COURT OF TEXAS IN THE CASE OF WESTERN RESERVE INS. CO. V. MEADOWE, 261 S.W. 2D 554, AND BY THE SUPREME JUDICIAL COURT OF MASSACHUSETTS IN THE CASE OF GUDEW' CZ V. JOHN HANCOCK MUTUAL LIFE INS. CO., DECIDED DECEMBER 1, 1954, 23 L.W. 2296. THE SAME VIEW HAS BEEN TAKEN BY A SUPERIOR COURT OF NEW JERSEY IN THE CASE OF STANBERRY V. AETNA LIFE INS. CO., 98 A. 2D 134, AND BY THE UNITED STATES COURT OF THE SOUTHERN DISTRICT OF CALIFORNIA IN THE CASE OF WEISSMAN V. METROPOLITAN LIFE INS. CO., 112 F. SUPP. 420.

IN THE CASE OF WESTERN RESERVE LIFE INS. CO. V. MEADOWS, AT PAGE 557, IT WAS STATED THAT:

"*** AN EARLY OPINION BY THE SUPREME COURT OF MAINE CONTAINS THE FOLLOWING:

"'BUT EVERY FORCIBLE CONTEST BETWEEN TWO GOVERNMENTS, DE FACTO, OR DE JURE, IS WAR. WAR IS AN EXISTING FACT, AND NOT A LEGISLATIVE DECREE. CONGRESS ALONE MAY HAVE POWER TO "DECLARE" IT BEFOREHAND, AND THUS CAUSE OR COMMENCE IT. BUT IT MAY BE INITIATED BY OTHER NATIONS, OR BY TRAITORS; AND THEN IT EXISTS, WHETHER THERE IS ANY DECLARATION OF IT OR NOT. IT MAY BE PROSECUTED WITHOUT ANY DECLARATION; OR CONGRESS MAY, AS IN THE MEXICAN WAR, DECLARE ITS PREVIOUS EXISTENCE. IN EITHER CASE IT IS THE FACT THAT MAKES "ENEMIES", AND NOT ANY LEGISLATIVE ACT.' DOLE V. MERCHANTS' MUTUAL MARINE INS. CO., 51 ME. 465, 470."

IT IS THE VIEW OF THIS OFFICE THAT THE SAME REALISTIC APPROACH SHOULD BE ADOPTED IN DECIDING THE QUESTION WHETHER A COMMISSIONED OFFICER RETIRED FOR DISABILITY INCURRED IN COMBAT IN KOREA RECEIVED SUCH DISABILITY IN COMBAT WITH AN ENEMY OF THE UNITED STATES WITHIN THE MEANING OF SECTION 212(B). IT CANNOT BE DISPUTED THAT THOUSANDS OF LIVES WERE LOST ON BOTH SIDES IN THE KOREAN CONFLICT, AND THAT MANY MORE PERSONS WERE INJURED; THAT THE CONGRESS APPROPRIATED MILLIONS OF DOLLARS FOR THE SUCCESSFUL PROSECUTION OF THE ACTION IN KOREA; AND THAT IN MANY RESPECTS THE SAME BENEFITS AND PRIVILEGES HAVE BEEN CONFERRED BY THE CONGRESS UPON MEMBERS OF THE ARMED FORCES SERVING DURING THE KOREAN ACTION THAT PREVIOUSLY HAD BEEN GRANTED PERSONNEL SERVING IN THE ARMED FORCES IN WORLD WAR II. ACCORDINGLY, IN ANSWER TO THE FIRST PART OF THE QUESTION PRESENTED, YOU ARE ADVISED THAT IN CASES WHERE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT AN OFFICER'S DISABILITY RESULTING FROM ACTION IN THE KOREAN CONFLICT WAS INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, SUCH DETERMINATION WILL NOT BE QUESTIONED BY THIS OFFICE IN APPLYING SECTION 212(B) AS AMENDED.

WITH REFERENCE TO THE SECOND PART OF YOUR QUESTION, A COMMISSIONED OFFICER RETIRED FOR OTHER THAN A COMBAT INCURRED DISABILITY COMES WITHIN THE EXCEPTION CONTAINED IN SECTION 212(B) ONLY IF SUCH DISABILITY WAS CAUSED BY AN INSTRUMENTALITY OF WAR AND WAS INCURRED IN LINE OF DUTY DURING ONE OF THE PERIODS ENUMERATED IN VETERANS REGULATION NO. 1(A), PART I, PARAGRAPH 1. THE PERIODS ENEMERATED IN THAT REGULATION ARE THE SPANISH -AMERICAN WAR, THE BOXER REBELLION, THE PHILLIPPINE INSURRECTION, WORLD WAR I, AND WORLD WAR II. IN YOUR LETTER YOU REFER TO PUBLIC LAW 28 OF THE 82D CONGRESS, APPROVED MAY 11, 1951, AS POSSIBLY BEING TANTAMOUNT TO AN AMENDMENT OF THE VETERANS REGULATION TO INCLUDE THE KOREAN ACTION. THAT LAW IS AS FOLLOWS:

"THAT ANY PERSON WHO SHALL HAVE SERVED IN THE ACTIVE SERVICE IN THE ARMED FORCES OF THE UNITED STATES ON OR AFTER JUNE 27, 1950, AND PRIOR TO SUCH DATE AS SHALL THEREAFTER BE DETERMINED BY PRESIDENTIAL PROCLAMATION OR CONCURRENT RESOLUTION OF THE CONGRESS, SHALL, SUBJECT TO OTHER PROVISIONS OF LAW AND VETERANS REGULATIONS ADMINISTERED BY THE VETERANS' ADMINISTRATION, BE ENTITLED TO BENEFITS OF MEDICAL, HOSPITAL, AND DOMICILIARY CARE, BURIAL BENEFITS, AND THEY AND THEIR DEPENDENTS SHALL BE ENTITLED TO COMPENSATION OR PENSION PROVIDED BY LAW FOR PERSONS WHO SERVED DURING THE PERIOD OF WORLD WAR II."

WHILE PUBLIC LAW 28 DOES NOT EXPRESSLY AMEND VETERANS REGULATION NO. 1(A), PART I, PARAGRAPH 1, IT CONSTITUTES STATUTORY RECOGNITION OF THE FACT THAT THE ACTION IN KOREA CONSTITUTES WAR IN FACT AND EXPRESSLY ENTITLES PERSONS SERVING IN THE ARMED FORCES AFTER JUNE 27, 1950, AND THEIR DEPENDENTS TO COMPENSATION, PENSION AND OTHER BENEFITS PROVIDED BY LAW FOR PERSONS WHO SERVED DURING THE PERIOD OF WORLD WAR II. VETERANS REGULATION NO. 1(A), PART I, PARAGRAPH 1, SERVES ONLY ONE PURPOSE IN CONNECTION WITH THE SECOND EXEMPTION IN SECTION 212(B) OF THE ECONOMY ACT. THAT PURPOSE IS TO DEFINE THE PERIOD OF TIME WITHIN WHICH AN OFFICER MUST HAVE BEEN INJURED IN ORDER TO QUALIFY FOR THE EXEMPTION. EXTENDING TO PERSONNEL WHO SERVED DURING THE PERIOD OF THE KOREAN CONFLICT THE BENEFITS WHICH HAD BEEN GRANTED TO PERSONNEL SERVING IN WORLD WAR II, PUBLIC LAW 28 ENLARGED, BY IMPLICATION, THE PERIOD OF TIME SPECIFIED IN VETERANS REGULATION NO. 1(A), PART I, PARAGRAPH 1, TO INCLUDE THE PERIOD OF THE KOREAN CONFLICT. ITS EFFECT APPEARS TO BE AS COMPLETE AND UNAVOIDABLE AS IF THE LAW HAD EXPRESSLY CHANGED THE WORDING OF THE REGULATION ITSELF.

THEREFORE, SINCE PUBLIC LAW 28 IS CONSTRUED AS ADDING THE PERIOD OF THE KOREAN CONFLICT TO THE PERIODS SPECIFICALLY ENUMERATED IN VETERANS REGULATION NO. 1(A), PART I, PARAGRAPH 1, IT FOLLOWS THAT COMMISSIONED OFFICERS WHO ARE OR MAY BE RETIRED FOR PHYSICAL DISABILITY CAUSED BY INSTRUMENTALITIES OF WAR DURING THE PERIOD OF THE KOREAN ACTION LIKEWISE ARE INCLUDED WITHIN THE EXEMPTION CONTAINED IN SECTION 212(B) OF THE ACT OF JUNE 30, 1932, AS AMENDED.