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April 4, 1985

HARRY N. WALTERS, Administrator of the Veterans Administration; and the VETERANS ADMINISTRATION, Defendants

The opinion of the court was delivered by: COOPER


Plaintiff seeks a declaratory judgment providing that the refusal of the Veterans Administration ("VA") to consider rehabilitated alcoholics for extensions of veterans' educational benefits pursuant to 38 U.S.C. §§ 1651-1662, violates the nondiscrimination provisions of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701-794, and the fifth amendment. Plaintiff also seeks individual and injunctive relief. Defendant moves to dismiss plaintiff's action on the ground of lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, for summary judgment in accordance with Fed. R. Civ. P. 56. Plaintiff cross-moves for summary judgment.


 Plaintiff is a 43 year old veteran of the United States Army who suffered from alcoholism until 1974. It is not known exactly how or why this condition developed, but plaintiff's deposition testimony reveals that both his father and brother imbibed to excess and that plaintiff himself first drank to the point of intoxication when he was between eight and ten years old. (D. 36-37; F.3) *fn1" During the time he was in high school, 1955-60, plaintiff consumed alcohol regularly on weekends and occasionally on weeknights. (D. 37-39; F. 3) Beginning in 1960, he began drinking more heavily and frequently. Sometime after 1964, plaintiff developed a pattern of daily absorption to the point of intoxication; he had grown to be dependent upon alcohol. (D. 11-17, 47; F. 3)

 Due to the effect of the alcohol on him, plaintiff's employment record is sporadic. In October 1963, plaintiff enlisted in the Army National Guard and served a six month period of active duty, during which time he completed basic training, from January through June 1964. (D. 9-10, 43; Ex. B-8 at 2; F. 2)

 In December 1964, he was hired to work nights as a maintenance mechanic by Lincoln Center for the Performing Arts in New York City. (D. 10-11; F. 2) However, he drank liquor during work hours, frequently leaving the site altogether to go to nearby bars. As a result, he was transferred to the day shift where he could be more closely supervised, but he was discharged in late 1967 for intoxication on the job and for job performance problems caused by his alcoholism. (D. 11-18, 46-47; F. 3)

 After he lost that position plaintiff was called back to active duty in the Army. He served from February 27, 1968 through August 27, 1969 (18 calendar months), primarily in West Germany. Unfortunately, plaintiff's drinking habit continued while he served on active duty; this brought on suffering from seizures; sixty-five days were deducted from his active duty period due to alcohol-related rule violations. Plaintiff was honorably discharged with the rank of private effective August 27, 1969. (D. 23; Ex. C-1; F. 2)

 Following his discharge, plaintiff returned to Queens, New York where he lived with his family. In the next four and one half years his alcoholism became progressively more severe. During this period he maintained a pattern of daily drinking, resulting in frequent seizures, loss of consciousness, delirium tremors, blackouts and gastrointestinal bleeding. Indeed, he was hospitalized five times in these four and one half years for treatment for saturated alcoholic disorders. *fn2"

 Although at an early age plaintiff was aware that he drank more than other people, it made him feel "more stable . . . and more normal." (D. 47-48, 53-54) His family and treating physicians told him he had a drinking problem, but he denied identifying himself as an alcoholic and persisted in believing that he was able to control or alter his drinking pattern. (D. 47-49, 54-55; F. 5-6)

 In February 1974, after his last hospital stay, one of plaintiff's neighbors invited him to attend an Alcoholics Anonymous ("AA") meeting. Plaintiff maintains that within two weeks of his first AA meeting he was able to recognize his drinking problem and his inability to control it. He became a member of AA and continued attending meetings daily (and on occasion in the evening) for more than a year. Astonishingly and commendably, plaintiff has not had a drink since February, 1974; he still continued to be an active participant in AA. (D. 26-29, 54; Ex. B-8 at 3, B-2 at 21; F. 6)

 Shortly thereafter plaintiff began seeking employment. He worked in two temporary seasonal jobs before he obtained a permanent job as a maintenance mechanic with a photography concern in New York City in January 1976. He has been employed there full time since then and has been promoted to his present position as Supervisor of Maintenance. (D. 31-34; B-8 at 3-4; F. 6)

 In the fall of 1977, plaintiff applied for admission to and was accepted by City College of New York ("CCNY") in its bachelor's degree program in mechanical engineering. In January 1978, plaintiff commenced his studies at CCNY attending school at night and working full time during the day.

 Upon his admission to college, plaintiff applied for veterans' educational assistance benefits pursuant to 38 U.S.C. § 1651 et seq. Defendants determined that he was entitled to receive the benefits made eligible by virtue of his service on active duty in the Army and his receipt of an honorable discharge. Based on the number of months plaintiff had served on active duty, the VA calculated that he was entitled to receive 24 months of educational assistance benefits.

 However, as plaintiff knew, these benefits had to be absorbed before August 28, 1979 in order to satisfy 38 U.S.C. § 1662(a)(1), which provides:

No educational assistance shall be afforded an eligible veteran under this chapter beyond the date 10 years after the veteran's last discharge or release from active duty . . .; except that, in the case of any eligible veteran who was prevented from initiating or completing such veteran's chosen program of education within such time period because of a physical or mental disability which was not the result of such veteran's own willful misconduct, such veteran shall, upon application . . . be granted an extension of the applicable delimiting period for such length of time as the Administrator determines, from the evidence, that such veteran was so prevented from initiating or completing such program of education.

 Pursuant to the statute, plaintiff was entitled to receive educational benefits from the date of his discharge, August 27, 1969, until August 28, 1979, ten years later. However, by August 1979, plaintiff would have received only nine and one half of the 24 months of educational assistance benefits to which he was entitled. Consequently, in May 1979, plaintiff applied to the VA for an extension of his delimiting date (pursuant to 38 U.S.C. § 1662(a)(1)) on the ground that his history of, and gradual recovery from, alcoholism had prevented him from initiating or pursuing his education until he first applied to CCNY. *fn3" Plaintiff filed his claim in defendants' regional office in New York City. (D. 63; Ex. B-1)

 On August 9, 1979, defendants issued a "Rating Decision" denying plaintiff's claim for a delimiting date extension; it stated in part that plaintiff's "periods of hospitalization because of alcoholism are not for consideration, since they are the result of the veteran's own willful misconduct." (Ex. B-3)

 Plaintiff appealed the rating decision to the Board of Veterans Appeals. (Ex. B-7) In his statement on appeal, plaintiff quoted the American Medical Association's Manual on Alcoholism in support of his argument that alcoholism is universally recognized by the medical community as an illness capable of treatment. He contended further that the VA's characterization of alcoholism as willful misconduct was "wrong in fact and in law," and contradicted other federal agencies and statutes which recognize alcoholism as a disease. (Ex. B-7) A hearing was held in defendants' regional office in New York City where plaintiff was represented by counsel and witnesses called to testify in his behalf. In its findings and decision on plaintiff's appeal, the Board of Veterans Appeals upheld the original rating decision, stating:

We accept the premise that he may have been precluded from engaging in a program of education during the time he was an active alcoholic. We note that the simple drinking of alcoholic beverage is not of itself willful misconduct. However, the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. While the medical community may view alcoholism as an illness for treatment purposes, it is our view that resort to alcohol, as shown in this case, is a willful misconduct condition. Therefore, the veteran may not be granted an extension of his delimiting period because of physical or mental disability brought about by his alcoholism, resulting from his own willful misconduct.

 (Ex. B-9 at 4)

 Plaintiff subsequently requested a reconsideration of the decision by the Board of Veterans Appeals on the ground that the Board had erred as a matter of fact and law. (Ex. B-10) His request was granted and, on June 19, 1981, a hearing was held before an enlarged panel of the Board of Veterans Appeals in Washington, D.C. Its "Findings and Decision (Reconsideration)" was issued on November 9, 1981 and affirmed the original decision on appeal. (Ex. B-12)

 Having exhausted his administrative remedies, plaintiff filed this action seeking declaratory, injunctive and individual relief. Defendants oppose the claims and argue that this Court has no subject matter jurisdiction over this action.



 Defendants move to dismiss plaintiff's action on the ground that this Court lacks subject matter jurisdiction. Defendants rely on 38 U.S.C. § ...

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