MILITARY UPDATE
Did judges' lack of military service affect ruling?

Military Update focuses on issues affecting pay, benefits and lifestyle of active and retired servicepeople. Its author, Tom Philpott, is a Virginia-based syndicated columnist and freelance writer. He has covered military issues for almost 25 years, including six years as editor of Navy Times. For 17 years he worked as a writer and senior editor for Army Times Publishing Co. Philpott, 50, enlisted in the U.S. Coast Guard in 1973 and served as an information officer from 1974-77.

By Tom Philpott

Lawyer and war hero Col. George "Bud" Day was confident of victory last March following oral arguments on behalf of elderly military retirees before the U.S. Court of Appeals in Washington, D.C.

From their questions and remarks, a majority of judges seemed as angry as Day that 1.5 million retirees, many of them World War II and Korea War veterans, had seen the government renege on promises of free lifetime medical care.

But the court that sounded so sympathetic months ago delivered a resounding blow to retirees Nov. 18. In a 9-4 decision, the judges affirmed a 1998 district court ruling that recruiter promises of free lifetime healthcare were not backed by statute and therefore were not binding.

Day said he was "outraged" by the decision against clients William Schism and Robert Reinlie, Air Force retirees who began their careers in World War II. More than 20,000 other retirees, age 65 and older, have made cash donations to the lawsuit, hoping that Day has a chance to turn it into a class action if his two named clients win on appeal.

"After having won it at oral argument," Day said, "I'm astounded to find that it went south." He promised an appeal to the Supreme Court.

The lengthy majority opinion, by Judge Paul R. Michel, acknowledged the "moral claims" of the plaintiffs but rejected every legal argument on their behalf, arguments that a three-judge panel of the same court had embraced last year. On petition from the government, the appeals court had ordered its earlier decision set aside and heard new arguments before the full court.

The new ruling concludes that no law or service regulation ever authorized free, unconditional lifetime medical care for retirees. If recruiters promised such benefits, even at the direction of service leaders, the promises are invalid because they were not backed by statute.

Day argued that even if no law spelled out a retiree's right to free lifetime care, recruiters made that promise, the services encouraged them to do so, and Congress appropriated the money over several decades. That was a contract. It wasn't until June 7, 1956, that Congress linked retiree medical care to the availability of space in service hospitals. Those who entered service before that date, and completed full careers, had an "implied" contract with the government for lifetime care, Day argued.

But the appeals court has ruled that whatever recruiters promised in the way of pay and benefits was not binding unless supported by statute.

"Congress — and only Congress — can authorize the benefits that a retired federal employee is entitled to receive," Michel wrote. And Congress never authorized free lifetime care, he said.

Dissenting from the majority were the same three judges who ruled unanimously in favor of retirees in February 2001. Two had military backgrounds. The original trio was joined by a fourth judge who once worked as an Air Force civilian patent attorney.

Writing the dissent was Chief Judge H. Robert Mayer, a West Point graduate and Vietnam combat veteran.

The military had promised lifetime medical care for more than 50 years, he wrote. Congress knew it and appropriated the money to provide that care. Yet the court majority, Mayer said, now "countenances the government's breach of the implied contracts and its taking of the rights vested in these retired servicemen."

The majority opinion noted that passage of TRICARE-for-Life two years ago reinforced the argument that Congress had not passed a law before providing retirees with lifetime care. But Mayer countered that statements made by lawmakers during the debate over TFL confirm that promises of lifetime care had been made and broken.

"The government has deprived the retirees of their vested rights," Mayer concluded, "and they are entitled to recover."

Judge S. Jay Plager, a Korean War veteran, joined in Mayer's dissent but filed comments of his own, too. "Perhaps the problem," he wrote, "is that, with the demise of compulsory military service, too few of our citizens today have the experience of knowing firsthand what the military is about."

Is that a swipe at the court majority, with eight of nine judges having no military background? Day, a Medal of Honor recipient, believes that it is.

"He's saying, 'You bunch of dumb *****. If you had been in the military, you'd have had a clue what went on,'" Day surmised.

If military experience decides this issue, an appeal to the Supreme Court might not fare well either. Only three of nine justices are service veterans.

Questions, comments and suggestions are welcome. Write to Military Update, P.O. Box 231111, Centreville, VA 20120-1111, or send e-mail to: milupdate@aol.com.