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preme Court doesn't have any power to condition or to partially repeal legislation passed by Congress that is not unconstitutional.

Second, the subject matter of Feres is lawsuits by members of the military, and the Supreme Court says that the doctrine exists We have heard it justified today, on grounds of preventing threats to military decisionmaking and discipline. But it isn't the Supreme Court under the Constitution and it isn't the executive branch that gets to determine that.

Under the Constitution, Article I, section 8, clause 14, it is the Congress that has the power to govern the ground and naval forces, and the Court has no business second-guessing Congress on judgments made in this area. The fact that the Court did so in Feres, based on the request of the executive branch as a party in a lawsuit, makes it all the more important for Congress to act to restore the appropriate constitutional balance.

Finally, the Federal Tort Claims Act, of course, was a larger waiver of the sovereign immunity of the United States, and the Supreme Court has held many times, except in the Feres case itself, that it is only the Congress that gets to determine how large or how small a waiver of sovereign immunity should be.

A second extremely important point is that the Feres doctrine was not necessary. Congress did the job of crafting the Act to take account of the particular problems that might be raised by extending that Act to military activities, and there are some very important exceptions in the statute itself that show that.

Under Section 2680(j) of Title 28, there can't be any liability for combatant activities of the military in time of war. This represents Congress making a balance that the Court has not respected. It extended the ban far further than that. In addition, there can't be any liability for a cause of action arising in a foreign country. Again, that is a congressional balance that Congress struck that the Court has ignored.

Finally, and perhaps most importantly, as has been referred to, Congress said that there can't be any liability under the Federal Tort Claims Act based on performance or non-performance of a discretionary function, whether or not the discretion is abused. Thus, the examples that we have been told about this morning, such as choices on how much security to supply in a military context or training exercises that have gone awry, would all be covered under the discretionary function exception that Congress imposed without the unnecessary additional breadth of the Feres doctrine.

Now, one point I would like to make that I was kind of surprised to hear-I have heard repeatedly about the Veterans Benefits Act and this compensation system. The O'Neills did not receive any benefits at all under that system, which only applies to service people themselves and their dependents. If you are young and you are not married, as Kerryn O'Neill was not, you are not likely to have dependents. Thus, there is a tremendous difference between worker's compensation laws and the Veterans Benefits Act, and in many cases there are no benefits that are available.

The other point that I just wanted to mention briefly here that is mentioned at length in the statement that I have filed is that it is possible for civilians to sue in many of the same contexts in which military are barred from suing. The best example is a case

called Sheridan that involved at the Bethesda Naval Hospital a soldier who apparently at least was disorderly, who fired a rifle into the street there and hit a civilian passing in a car. The civilian successfully filed suit.

If that person had been in the Army or a member of the military, suit would have been barred. But a suit by a civilian is permitted, and that is irrational if the purpose is to bar possible potential interference with military matters.

So in our view, the Feres doctrine is both over-broad and doesn't cover things that purportedly arise out of the same concern. That is the reason why it needs comprehensive attention from the Congress.

Thank you.

[The prepared statement of Mr. Joseph appears as a submission for the record.]

Senator SPECTER. Thank you, Mr. Joseph.

We now turn to Ms. Bonnie O'Neill, from Kingston, Pennsylvania. Ms. O'Neill's daughter, Ensign Kerryn O'Neill, was the victim of the case which we have been talking about.

We know this is a difficult situation for you, Ms. O'Neill, but we appreciate your being here to tell us your views on this matter. Chairman LEAHY. If I might, Mr. Chairman

Senator SPECTER. Senator Leahy, let me welcome you to the hearing.

Chairman LEAHY. Thank you. I just want to thank you for taking on this hearing. I am in another hearing when I am not here, but I did also want to come over and thank Ms. O'Neill for being here. I can only imagine how difficult this must be for you being here. I appreciate you taking the time and it is very good of you to do that.

Senator SPECTER. Thank you.

Ms. O'Neill, we look forward to your testimony. The floor is yours.

STATEMENT OF BONNIE O'NEILL, KINGSTON, PENNSYLVANIA Ms. O'NEILL. My following statements may seem like a plea for help, but how as a mother can I address you otherwise? I am overwhelmed to be here and my aim is one I have had in mind for 9 years.

I would like to thank you, Senator Specter and Senator Leahy, for doing all the work to hold this hearing. The issue is important to me and my family, and also to other members of the military and their families.

I was notified of my daughter Kerry's death in work December 1, 1993, an occurrence not imaginable previously even in my most horrible nightmares. Kerry was the youngest of my three children, with a brother, Ed, and a sister, Kristen, who is just 1 year older than Kerry.

Since our family had no military background, I found Kerry's desire to apply to the United States Naval Academy surprising. Her final selection possibilities included some extremely prestigious colleges. Kerry decided to combine some suspense with humor by waiting until May 1, the deadline for admission to the Naval Acad

emy, to make her announcement of college selection to us. We were all on edge.

She designed a selection form with a box in front of each college, and on the morning of May 1 this form was hanging on my bedroom door with the United States Naval Academy checked. Kerry told me she had made her choice because she wanted the combination of academics with the opportunity of serving her country.

Although I had always let Kerry know I would accept any decision she made, internally I was quite apprehensive. I realized, as she did, her future would be very difficult and demanding. I knew I had to trust the military with Kerry's life. Her next 4 years constantly challenged her and yet she responded to all of the challenges, excelling in every aspect of her naval career. We were all so very proud of her accomplishments.

Kerry graduated in the top 5 percent of her class. In addition, she excelled in sports, receiving 12 varsity letters in 4 years. Although she was a walk-on at the track, she was the first female Division II All-American in women's cross-country and the first female athlete to qualify for NCAA Division I championships at the Academy.

She set Academy records in cross-country and other track events, and she was honored in her senior year by receiving the award of the top honor for a female athlete, the Vice Admiral William P. Lawrence Award. Kerry was selected to serve as a representative of the United States Naval Academy in the Australian Navy during her final summer at the Academy. But most important, Kerry was a kind, sincere, and loving woman with high aspirations. People whose lives she touched will always remember her.

Upon graduation from the Academy, Kerry received an appointment in the Civil Engineering Corps. After training in California, she was stationed at Coronado Naval Base and received the position of leader on a reconstruction project at the base. She loved the Navy and the naval base. She once said to me, I wake up with the sun in the morning and run with the sun going down at night, and I love my freedom.

I am presenting this background to you to emphasize the possibilities Kerry's life held. Then came December 1, 1993, and her life was abruptly ended by her ex-fiance, George Smith, who also graduated from the United States Naval Academy. They were serving at different naval installations, working in entirely different jobs near San Diego, California.

Smith seemed unable to deal with the ending of the engagement. As the time got closer to his serving his first tour of duty on a submarine, Smith's erratic behavior got more pronounced. He followed Kerry around and he appeared uninvited where she was socializing with other people. While this was disturbing, it did not seem all that unusual to people, considering Smith's situation.

But 2 days before Smith was to start his first submarine tour, Kerry was obviously concerned and asked a friend, John Dye, at the office at which she worked to visit her that evening. Unfortunately, he could not. Then, while working out at the gym, Kerry met Lieutenant Alton Grizzard, another friend from the Academy who was well known as having been the quarterback on the Acad

emy's football team, and she asked for help. Grizzard agreed and paid her a visit, during which they watched a movie.

George Smith appeared uninvited and he and Kerry had a heated discussion in the lobby of the bachelor officer's quarters where she lived at the Coronado Naval Base. Smith went back to his apartment and, in fact, telephoned me at midnight, California time, which is 3 a.m. in Pennsylvania, as I was sitting up with a sick friend, to tell me that Kerry was dating another man asked what he could do. I told him to give her time to make up her mind. She is only 21. I have had to live with the memory of that phone call ever since.

George did not listen to me. He returned to Kerry's BOQ carrying two loaded handguns past the guard to her room. He fired seven shots, killing Kerry, Alton Grizzard, and Smith then killed himself. A great emptiness grew in the lives of our family, friends, and associates.

As the months went on, our family requested the Navy's results of the investigation into these murders. The Navy supplied that information and this is what we discovered. Kerry had been killed a day before he was to report for submarine duty. The Navy also found that Smith was psychologically unfit for submarine duty. He had a serious personality disorder, was extremely aggressive, and could not control his behavior under stress.

In addition, he could not deal with the months of isolation from friends and family and the lack of apparent control of his personal situation that submarine duty involves. The Navy was made aware of this because 2 months earlier it had required Smith, like all candidates for submarine duty, to take a psychological screening test. The results of the screening under normal procedure would have dictated whether further psychological testing would be necessary. Smith's results were so unusual and departed so far from the norm that in its later investigation the Navy concluded that in Smith's case no further psychological testing would have been necessary to immediately disqualify him from submarine service.

These results showed Smith to be more than four standard deviations above normal, above the 99.99 percentile in aggressive and destructive behavior, and more than two standard deviations above norm in six other categories, including low situational control, impulsive behavior, and negative motivation. These are obviously not impressive traits for a future nuclear engineer scheduled to report to duty on a nuclear submarine. George responded to test questions with answers such as "I know how to make people uneasy when I want to. I can get away with anything I want."

With the screening test abnormal results so pronounced, why didn't Smith's obvious mental unsuitability for submarines disqualify him for that duty? Why was screening performed if normal procedures wouldn't be followed for United States Naval Academy graduates?

If Smith were disqualified, he would not have been under severe pressure that caused him to kill Kerry, himself, and Alton Grizzard. If these deaths had not occurred that December 1, could numerous military lives aboard a submarine have been sacrificed in the future when Smith suffered acute stress?

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