June 7, 1989 Number 6

June 7, 1989 Number 6 L. Edward Lashman, Secretary Executive Office of Administration & Finance State House, Room 373 Boston, Massachusetts 02133 Dear Secretary Lashman: The Commissioner of the Division of Public Employee Retirement Administration and the Commissioner of Veterans Services have requested my opinion regarding the interpretation of the definition of "veteran" in Massachusetts General Laws c. 4, § 7, cl. 43 in light of recent federal action declaring certain individuals to be veterans for the purposes of federal Veterans Administration benefits. The question presented is: Whether recent federal legislation conferring veteran status on certain members of the American Merchant Marine for the purpose of all laws administered by the Veteran's Administration, results in Massachusetts recognizing these certain individuals as well, for purposes of the Commonwealth's Veterans Benefits Program? For the reasons which follow, I conclude that, as a result of this federal action, certain former merchant marines may be considered veterans for the purposes of the Commonwealth's Veterans Benefits Program. G.L. c. 32 provides certain benefits for veterans that are greater than those provided for other members of contributory retirement systems. See, e.g., G.L. c. 32 §§5(2)(b), 6(1), 56-60. G.L. c. 32, § 1 defines "veteran" in part by reference to G.L. c. 4, § 7, cl. 43. 1 This section provides in pertinent part that a "veteran" shall mean "any person... (a) whose last discharge or release from wartime service, as defined herein, was under honorable conditions and who (b) served in the army, navy, marine corps, coast guard or air force of the United States..." (Emphasis supplied.) It is apparent that clause 43 does not expressly include the merchant marines. However, pursuant to recent changes in federal law,2 certain former merchant marines are being issued honorable discharges from the United States Coast Guard, Army, and Navy. A number of these individuals have applied for veterans' benefits through contributory retirement systems. The question is, thus, whether these honorable discharges are sufficient to bring a former merchant marine within the Commonwealth's definition of veteran. Pursuant to the G.I. Improvement Act, Pub. L. No. 95-202, § 401, 91 Stat. 1449 (1977), the Secretary of Defense has vested authority to make 1 G.L. c. 1 15 §1 which establishes the Commonwealth's Veteran's Benefits Program similarly defines "veteran" by reference to cl. 43. 2 See discussion^ infra at 2-4. P.D. 12 141 determinations as to whether civilian employment or contractual service rendered by groups to the Armed Forces of the United States shall be considered "active military service" for purposes of all laws administered by the Veteran's Administration. Id. at § 401(a)(1). Consistent with authority so provided, the Deputy Secretary of Defense issued a Directive on January 24, 1979 which delegated authority to the Secretary of the Air Force to determine if the service of any such group constituted "active military service." The Directive also authorized the Secretary of the Air Force to establish the "Department of Defense Civilian/Military Service Review Board." The Review Board is charged with researching the involvement of groups who request "active duty" status. The Secretary of the Air Force considers all recommendations from the Review Board and makes a final determination as to whether the service rendered by a group shall be considered "active military service" for purposes of all laws administered by the Veterans Administration.3 On January 19, 1988, the Secretary of the Air Force declared members of the U.S. Merchant Marines who served in active oceangoing service from December 7, 1941 to August 15, 1945, to be veterans, eligible to receive federal Veterans Administration benefits.4 This recognition was based on merchant marines' significant record of service delivering cargo to American Armed Forces throughout the world during the Second World War. Six thousand U.S. merchant seamen died and 733 ships were lost as a result of German U-boat attacks. This is a rate that proportionately 3 In making such determinations, consideration will be granted to judicial and other appropriate precedent and "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." G.I. Improvement Act, Pub. L. No. 95-202 §401(a)(l)(A). 4 The group of members of the Merchant Marine granted approved "active duty" status is comprised of crew members who served satisfactorily during the period of armed conflict, December 7, 1941 and August 15, 1945, as (1) merchant seamen documented by the U.S. Coast Guard or Department of Commerce aboard vessels operated by the Warshipping Administration or the Office of Defense Transportation or their agents in oceangoing service of the United States on foreign, near foreign, intercoastal or coastwide voyages, or as (2) Civil Service crew members of the United States Army Transportation Service in oceangoing service or foreign waters. 142 P.D. 12 exceeded all branches of our armed services, with the single exception of the U.S. Marine Corps. 5 Merchant marines contracted with three departments within the military during this specific wartime period - the U.S. Coast Guard, Army and Navy respectively. In order to be considered for active duty status, each interested member of the Merchant Marine must make application to one of the above military departments. Upon verification of creditable service, an Honorable Service Certificate/Report of Casualty is provided to each qualifying member of the Merchant Marine. 6 These discharges are issued by the U.S. Coast Guard, Army or Navy, which are among those branches of the armed services specifically enumerated in clause 43 of G.L. c. 4, § 7. For this reason, this special group of former merchant marines should be viewed as coming within the Commonwealth's definition of "veteran." In order to obtain any veterans benefits available under state law, a merchant marine who has received the Honorable Service/Report of Casualty and accompanying Form DD 214 must document that he has met the further criteria set forth in Clause 43 in the same manner as do other veterans.7 In summary, members of the American Merchant Marine who served in armed conflict between December 7, 1941 and August 15, 1945, and who have received honorable discharges from the U.S. Coast Guard, Army, or Navy, are entitled to legitimate veteran status and are eligible to demonstrate their entitlement to any veterans benefits provided by state law. Very truly yours, JAMES M. SHANNON ATTORNEY GENERAL 5 President of the United States, 1988 National Maritime Day Proclamation as cited in letter from John Gaughan, Maritime Administrator, U.S. Department of Transportation, Maritime Administration to Merchant Marine Veterans. 6 The Merchant Marine veteran is also issued a Form DD 214 at the time the Honorable Service Certificate/Report of Casualty is issued. Inclusive dates of each creditable voyage are reflected on this Form. The total "active duty" service shall be the summation of each foreign, near foreign intercoastal or coastwise voyage within the period of armed conflict during World War II. Upon receiving a service certificate, the veteran, in order to obtain any federal benefits, must submit the Form to the Veterans Administration. 7 Clause 43 requires, for example, that the recipient of an honorable discharge from wartime service show that he or she served for "not less than ninety days active service at least one day of which was for wartime service" or met other enumerated conditions. P.D. 12 143 TOPICS