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FOGEL v. DEPARTMENT OF DEFENSE

October 29, 2001

MANDEL FOGEL, PRO SE, PLAINTIFF,
V.
DEPARTMENT OF DEFENSE, SEC'Y AIR FORCE AND CHAIRMAN OF CIVILIAN MILITARY REVIEW BOARD, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District Judge.

  MEMORANDUM OF DECISION AND ORDER

This case marks another chapter in the recurring vestiges of World War II, an event recently referred to as "the defining event of the modern era" (David M. Kennedy, It's Been Dark Before, N.Y. Times, Oct. 28, 2001, at 14 (Week in Review)).

Mandel Fogel ("Fogel" or the "plaintiff"), a pro se plaintiff, commenced this action on May 22, 2001. In an order dated June 7, 2001, the Court sua sponte dismissed the complaint without prejudice, because it consisted of only two conclusory sentences that failed to provide the defendants with sufficient notice of the claims asserted against them. The Court granted Fogel leave to file an amended complaint, which he did on July 5, 2001.

The amended complaint seeks a declaratory judgment stating that Fogel is a veteran for the purpose receiving a military burial in a national cemetery and etching the image of the American flag on his gravestone. Fogel claims that he is entitled to this relief based on his service in the United States Merchant Marine ("Merchant Marine") and the United States Maritime Service ("Maritime Service") during World War II ("WWII"). In particular, Fogel argues that: (1) the defendants' denial of the request by the Military Service Training Organization for veteran status was arbitrary and capricious; (2) the District Court for the District of Columbia has found that the Secretary of the Air Force abused his discretion in denying veteran status to two groups of men within the Merchant Marine, see Schumacher v. Aldridge, 665 F. Supp. 41 (D.C. 1987); and (3) the Selective Service System issued an opinion stating that service in the Merchant Marine or the Maritime Service is "tantamount to military service".

Aware that Fogel's application could be time sensitive, the Court held a conference on July 13, 2001 in regard to the issues presented by the amended complaint. During that conference, several questions arose that could not be answered by Fogel or the Government. Therefore, the Court directed the Government to submit a brief to assist the Court in answering the following questions: (1) what is the difference between the Merchant Marine and the Maritime Service; (2) of which entity was Fogel a member; (3) to whom does one apply for veteran status; (4) did Fogel apply for veteran status and, if so, to whom; and (5) what is the administrative history, if any, of this case. The Court also directed Fogel to submit opposition papers. The Court has received and reviewed briefs submitted by both parties. In addition, on October 19, 2001, the Court heard oral argument in regard to the issues raised in the briefs. This memorandum of decision and order addresses the issues presented by the parties in their papers and during oral argument.

I. BACKGROUND

A. The Maritime Service

The Maritime Service was established by the Merchant Marine Act of 1936, 46 U.S.C § 1126, "as a voluntary organization for the training of citizens of the United States to serve as licensed and unlicensed personnel on American merchant vessels." 46 U.S.C. § 1126(a); see A.R. 35, 129-30. It was a "governmental agency composed of uniformed volunteers and created to bring the personnel of the Merchant Marine to a high point of professional efficiency" (A.R.35, 131).

To that end, the Maritime Service operated five types of training schools where personnel were trained in "every activity carried on aboard the merchant vessel" (A.R.35, 130):(1) Maritime Service Training Stations; (2) Maritime Service Officers' Schools; (3) Maritime Service Radio Training Stations; (4) Maritime Service Upgrade Schools; and (5) special training courses for ship's carpenters, assistant purser-hospital corpsmen, communications, and convoy procedures as well as barrage balloon schools, and turbo-electric schools. The Maritime Service Training Stations included three "shore training stations where new men [were] trained for positions as unlicensed seamen in the deck, engine, or stewards departments" (A.R. 133). It appears from the Administrative Record that the Maritime Service Training Organization was the Maritime Service subgroup responsible for operating the various training schools. The plaintiff was a member of the Maritime Service Training Organization who was stationed at the United States Maritime Service Training Station, Sheepshead Bay, New York, from 1944 to 1945.

During the War, the Maritime Service Training Organization was placed under the jurisdiction of the War Shipping Administration ("WSA"). In turn, the WSA was a civilian federal agency that reported to the President and that was responsible for overseeing the merchant fleet and ensuring that military cargo, including military and civilian personnel and supplies, were safely transported to their war zone destinations overseas during World War II.

The courses offered by training stations, such as the one at Sheepshead Bay, were generally of a non-military character. The instructors taught traditional merchant marine skills such as general seamanship, lifeboat and life raft equipment, practical steering, practical boat training, practical steaming, masts and rigging, anchors and fittings, boiler fitting and cleaning, and the use of hand tools and electricity. However, a few courses, such as ones in radio procedures and barrage balloon operations were applicable to the military requirements of World War II.

Members of the Maritime Service, including the plaintiff, were sworn into the service under military oath, wore uniforms similar to those of the United States Coast Guard and the United States Navy, and had pay scales identical to those of the Coast Guard. Maritime Service personnel engaged in military drill formations and exercises. However, notwithstanding this military visage, members of the Maritime Service training organization, such as the plaintiff, remained civilian volunteers who could resign upon their request. At oral argument on October 19, 2001, the plaintiff stated that anyone who resigned received a dishonorable discharge. However, this allegation is contradicted by the materials in the Administrative Record.

In his amended complaint, Fogel states that he enrolled in the Maritime Service in response to solicitations for such service from the United States military. He asserts that he served as a merchant seaman and achieved the rank of pharmacist's mate, second class. He explains that he wore a uniform similar to that worn by members of the Navy; was paid according to the Navy's pay scale; was required to conform to the disciplinary rules of the Navy; and worked under the supervision of Naval officers. Fogel also states that he fired Navy rifles; spent 36-hour periods of time awake and on-duty; and attended to the medical needs of Navy personnel. Fogel was awarded the World War II Victory Medal and was "honorably discharged" from the Merchant Marine.

B. Veteran Status is Accorded to Certain Civilian Groups

The GI Improvement Act of 1977, Pub.L. No. 95-202, 91 Stat. 1433 (codified as amended in scattered sections of 38 U.S.C.), accorded veteran status to members of the Women's Air Forces Service Pilots ("WASPS"), which was a group of federal civilian employees attached to the United States Army Air Force during World War II. 38 U.S.C. § 106(a). The Act also provided the Secretary of Defense with the authority to grant veteran status to "any person in any other similarly situated group the members of which rendered service to the Armed Forces of the United States." 38 U.S.C. § 106, note (a)(1). To determine whether a group was similarly situated to the WASPs, and whether its members rendered service to the Armed Forces, the Secretary must have reviewed the historical records and other evidence pertaining to the civilian group in question and determined "on the basis of judicial and other appropriate precedent, that the service of such group constituted active military service." Id. In making this determination, the Secretary 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.

Id. note (a)(2)(A)-(E).

The Secretary of the Department of Defense promulgated regulations implementing section 106 at 32 C.F.R. Part 47 (1980). The regulations delegated to the Secretary of the Air Force the "authority to determine if the service of a group constituted active military service." 32 C.F.R. § 47.4(a). The regulations also established the Department of Defense Civilian/Military Service Review Board (the "C/MSRB") and Advisory Panel. 32 C.F.R. § 47.4, 47.6. The C/MSRB's purpose was to review applications of civilian groups seeking veteran status and make written recommendations to the Secretary of the Air Force as to whether the civilian groups were similarly situated to the WASPs and thus, were entitled to active military service status. 32 C.F.R. § 47.5, 47.6, 47.7. The C/MSRB's review was limited to the written submissions of the applicant on behalf of a group, a written report prepared by the appropriate member or members of the Advisory Panel, other relevant information, and the criteria established by law. 32 C.F.R. § 47.7(a). The regulations did not include an explanation or definition of the five criteria set forth in the statute. See 32 C.F.R. Part 47.

Upon completion of its review, the C/MSRB transmitted its recommendation to the Secretary of the Air Force. 32 C.F.R. § 47.7(b). Although the Secretary of the Air Force rendered the ultimate decision regarding whether the service of a civilian group be considered active military service in one of Armed Forces, "[t]he Board's recommendations and accompanying rationale have been adopted by the Secretary without fail." Schumacher, 665 F. Supp. at 44.

If a civilian group is found to have rendered service comparable to that of active military service, its members may submit an application for discharge to the appropriate military department. 32 C.F.R. § 47.7(d). Furthermore, group members become veterans "for purposes of all laws administered by the Veterans Administration," and are entitled to a military burial with an American flag draping the casket of the deceased. 38 U.S.C. § 106, note (a)(1); 38 U.S.C. § 2301. If the Secretary of the Air Force determines that the service of the civilian group is not "active military service" in the Armed Forces, the members of the group are not "discharged" from the Armed Forces and are not eligible for veterans' benefits or a military burial.

C. The Application of the Maritime Service Training Organization and the Decision of the Civilian/Military Service Review Board

On October 30, 1980, the Maritime Service Training Organization (the "Training Organization") filed an application with the C/MSRB entitled, "Application for Group Determination that the United States Maritime Service Training Organization of WWII Was an Active Military Service." On January 5, 1982, the C/MSRB rejected the contentions of the Training Organization and recommended that its members be denied active military service status. In making this determination, the C/MSRB considered the application materials of the Training Organization as well as a report it had asked the United States Naval Historical Center to prepare.

The C/MSRB described the Training Organization as "a uniformed, para-military service comparable to the peacetime Coast Guard or the Public Health Service" (A.R.8). It noted that the organization's primary task was training merchant marine personnel, who generally served on board U.S. merchant ships after the completion of their training (A.R.8). The C/MSRB also found that although the Maritime Service was under the jurisdiction of the War Shipping ...


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