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.
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
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
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
(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.
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
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
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 ...