OFFICIAL OPINION No. 35

OFFICIAL OPINION No. 35 Veterans' preferences-Honorable discharge as condition precedent to-Analysis of types of dUicharge. Any person who served in the armed forces of the United States, -0r in a recog- nized women's organization connected therewith, during any war or armed con- flict in which the United States engaged, and who has a certificate of separation given under honorable conditions, which would include but not be limited to OPINIONS OF THE ATTORNEY GENERAL 155 honorable discharge, general discharge, good discharge, satisfactory discharge, indifferent discharge or special order discharge is a "soldier" within the meaning of the Act of May 22, 1945, P. L. 837, and would be entitled to veteran's benefits under the act. A person awarded a dishonorable discharge, bad conduct discharge, undesirable discharge, a dismissal, or any other type of separation certificate given under conditions other than honorable would not be entitled to such benefits. Harrisburg, Pa., December 2, 1957. Mr. Ralph D. Tive, Executive Director, Civil Service Commission, Harrisburg, Pennsylvania. Sir: You have requested an interpretation by this department of the various separation certificates awarded by the military services to persons at the conclusion of their periods of active duty. You state that you have been receiving for consideration the following types of discharges: 1. Discharge under honorable conditions. 2. General discharge (under honorable conditions). 3. Good discharge (under honorable conditions). 4. Satisfactory discharge (under honorable conditions). 5. Indifferent discharge (under honorable conditions). 6. Special order discharge (Navy). In addition, you inquire about status of Air Force officers who are separated from the service under "honorable discharge" conditions. The Act of May 22, 1945, P. L. 837, as amended, 51 P. S. §§ 492.1- 492.8, gives "soldiers" preference in receiving appointments to and re- tention of public positions. Throughout the act the various aspects of these preferences are given to "soldiers." Section 1 of this act, 51 P. S. § 492.1, defines the word "soldier" as: "* * * a person who served in the armed forces of the United States, or in any women's organization officially connected therewith, during any war or armed conflict in which the United States engaged, and who has an honorable discharge from such service." (Emphasis supplied) The question thus becomes, assuming wartime service in the armed forces of the United States, whether the veteran seeking the benefits of the act is entitled to them only when his separation certificate bears the title "Honorable Discharge," or whether the words . "honorable discharge" as used in the act have a broader meaning. 156 OPINIONS OF THE ATTORNEY GENERAL The Judge Advocates General of the Army, Navy and Air Force have informed us that all the services issued dishonorable and bad conduct discharges1 pursuant to conviction of courts-martial. A veteran awarded such a separation certificate would be ineligible for veteran's preference2• All other separation certificates are awarded on an administrative rather than punitive basis. The Air Force issues the following forms of administrative separa- tion certificates: 1. Honorable discharge. 2. General discharge. 3. Undesirable discharge. The regulations of the Air Force list the .first two of these as being given under honorable conditions. Air Force Regulation, No. 39-10, dated October 27, 1953, paragraph 8 (a) states: "a. Effects of Honorable or General Discharge. The effects of- an honorable or a general discharge are identical with re- spect to veterans' benefits, and normally entitled an airman so discharged to full rights and benefits. A general discharge may be a disadvantage to an airman seeking civilian employ- ment. A general discharge received by a female airman pre- cludes her reenlistment." The same regulations list the undesirable discharge as being given under conditions other than honorable. Paragraph 8 (b) of Air Force Regulation, No. 39-10, states: "b. Effects of a Discharge Under Conditions Other Than Honorable. The undesirable discharge and the bad conduct discharge may or may not deprive an airman of veterans' benefits, and a determination is made by the Veterans' Ad- ministration in each individual instance to fix the airman's rights. It does render an airman ineligible to reenlist." The Army issues the same administrative discharges. The causes for issuance are the same and the effect of each is the same as those in the Air Force. In addition, the Army issues to officers a discharge under other than honorable conditions. This is in all respects similar to an undesirable discharge. 1 Officers could receive a dismissal in instances where enlisted men receive a dishonorable or bad conduct discharge. 2 Under the Federal statutes awarding veteran's benefits, an officer's resignation for the good of the service in lieu of court-martial is given the same effect as an enlisted man's bad conduct discharge. OPINIONS OF THE ATTORNEY GENERAL 157 The Navy, at the present time, issues the three administrative dis- charges described above. The reason for issuance and the effect of issuance is the same as in the other services. In the communication we received from The Judge Advocate General of the Navy we were informed that the Navy has, in the past, issued numerous variations in the exact form of discharge certificates. These have included the "ordinary," "indifferent," "good," and "special order discharges." These types were given in situations which today would call for the issuance of a general discharge. All these named certificates contain the characterization "under honorable conditions.'' In determining how we should construe the Veterans' Preference Act of 1945, supra, we have looked to the following authorities. In the case of Dierkes v. City of Los Angeles, 25 Cal. 2d 938, 156 P. 2d 741 (1945), the facts indicated that the plaintiff was a member of the Los Angeles police department and was at the same time on a retired status in the United States Navy. Immediately prior to the outbreak of World War II he was recalled to active duty with the Navy and continued in such service until November of 1942, at which time he was returned to an inactive status. Under the pertinent provisions of the Charter of the City of Los Angeles, any member of the police department who left the department to enter the military service of the United States and thereafter returned, having been honorably discharged from such service, was to receive certain veteran's preferences. The City of Los Angeles claimed that the plaintiff's transfer from active duty to an inactive status in the Na val Reserve after honorable service therein did not bring him within the provisions of the charter whereby he was re- quired to have been honorably discharged. The Court cited with favor the case of Gibson v. City of San Diego, 25 Cal. 2d 930, 156 P. 2d 737 (1945), wherein it was held that veterans' pension provisions should be liberally construed in favor of the ap- plicant. The Court in the Dierkes case, supra, went on to state at pp. 744-745: "* * * Likewise here it is our duty to avoid, if reasonably possible, a result which would upon a purely arbitrary basis (the fact that the particular employe-veteran was given an 'honorable discharge' instead of being transferred without discharge to inactive status in a reserve corps) confer credit benefits upon some city employe-veterans who had served the 158 OPINIONS OF THE ATTORNEY GENERAL nation honorably in the armed forces (and had been 'dis- charged') while denying such benefits absolutely to other city employe-veterans who had served equally honorably in the armed forces (but who had been transferred to inactive status in the reserve corps or retired instead of being discharged). "We are satisfied that the words 'honorably discharged from such service' must be construed to mean, in a proper case, honorably relieved, released, transferred, or retired from ac- tive duty status, * * *" (Court's emphasis) Similarly, in the case of Quam v. City of Fargo, 77 N. D. 333, 43 N. W. 2d 292 (1950), where the plaintiff was retired from military service because of ,a service connected disability with a certificate attesting honorable service in the Army of the United States, it was held by the Court that he was entitled to veteran's benefits notwith- standing the fact that he did not have an "honorable discharge" certificate from such service as was required by the act. The Court pointed out that it is not so much the form of certificate that is con- trolling but rather the character of service which the certificate repre- sents. In this respect, the Court cited with approval the definition of the words "honorably discharged" as given in the Dierkes case, supra. The Court also cited with approval the case of Gibson v. City of San Diego, supra, for the proposition that (p. 295): "* * * 'Laws protecting the civil rights of public employees who enter the armed forces in time of war or emergency are favored. National, state, and municipal legislative bodies, and the people themselves by direct vote, have been alert to meet the need for special protective and encouraging measures. In a like progressive spirit both federal and state courts "have kept pace and have evinced a firm intention to take a liberal view" of these enactments "in order that their protective purposes may be fulfilled without undue imposition of con- stitutional limitations or hindrance through narrow judicial construction." * * * We are bound by accepted rules of con- struction to consider the obvious purposes and objects sought to be attained by their adoption and to construe the language used, insofar as it reasonably permits, to the end of giving it vitality and efficacy in the accomplishment of such purposes and objects and fairness in its applications.' * * *" We are mindful of our own rule of statutory construction that: "The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the Legislature. * * *" (Act of May 28, 1937, P . L. 1019, Article IV, § 51, 46 P. S. § 551) OPINIONS OF THE ATTORNEY GENERAL 159 It is, therefore, our opinion and you are accordingly advised that any person who served in the armed forces of the United States, or in a recognized women's organization connected therewith, during any war or armed conflict in which the United States engaged, and who has a certificate of separation given under honorable conditions, which would include but not be limited to honorable discharge, general discharge, good discharge, satisfactory discharge, indifferent· discharge or special order discharge is a "soldier" within the meaning of the Act of May 22, 1945, supra, and would be entitled to veteran's benefits under the act. A person awarded a dishonorable discharge, bad conduct_ dis- charge, undesirable discharge, a dismissal, or any other type of separa- tion certificate given under conditions other than honorable would not be entitled to such benefits. Very truly yours, DEPARTMENT OF JUSTICE, JEROME H. GERBER, Deputy Attorney General. THOMAS D. McBRIDE, Attorney General.