maybe reinstatement of the draft would be a salutary thing for a variety of social and national reasons, but there is no immediate prospect of that change being made.

Therefore, people of the age bracket that we look to for enlistments, for accession of new personnel, have to have the feeling that they are going to be basically treated fairly when they are in the military. That means the military justice system has to operate in a fair manner.

It also means that the basic terms and conditions under which people are asked to put their lives on the line have to be essentially fair. If that is there, then people will continue to do the patriotic thing and step forward and help defend the country and our entire way of life. If it is not there, then we have placed an impediment in the path of national defense.

While no one can say that this, that, or the other thing is going to make or break the military's ability to defend the country, every factor that bears on the conviction that our military personnel have that they are being treated fairly has to be viewed as a precious and significant matter.

When you have military personnel and their families-who play a potent role in the entire system-when you have those constituencies, if you will, having a shade of doubt, having an erosion of their confidence in the essential fairness of the arrangements under which they or their loved ones serve the country, then I think you have paid a penalty, not a measurable one, but a penalty nonetheless. That is, I think, what is involved here.

Senator SPECTER. Mr. Sprague, you heard General Sklute's suggestion for criminal prosecution to redress the wrong. You have had a lot of experience in the criminal law. Can you see any way that a criminal sanction would lie or be bringable under any of the cases we have talked about, the medical malpractice or the automobile case or any of the examples that we have seen, as an alternative to repealing the Feres doctrine?

Mr. SPRAGUE. Ñone whatsoever, Senator. I think that response was typical of the in-bred feeling by the military that this judgemade law which they conceded, the Feres doctrine, they want to keep. They want to keep it for a great number of reasons, which I think basically are that they don't want to have the civilian supervision. I don't think they want to have the investigation referred to by Ms. O'Neill.

Liability and paying of damages isn't just paying people money. The people that have to pay then learn from that process and they learn to improve their own system. I have been in the military, I have been in the submarine service in World War II. Obviously, the military wants to keep everything within itself and exclude the civilian supervision to the extent it can.

I would like to point out, Senator Specter, to show this judgemade law that we are talking about, Feres, and its horribleness, had the person who was with Ms. O'Neill's daughter not also been a naval personnel, same facts-had that person been a civilian, he could have sued. This judge-made law discriminates, in fact, against people in the service.

If the courts recognize that Congress does something that is unconstitutional, the courts have no reluctance in ruling on that con

stitutional issue. This time, it is the reverse. The Congress passed a very specific exception which you have read-combatant, time of war. It is time for the Congress to assert itself and keep that exception as the Congress intended it to be, not this judge-made law. It operates in a discriminatory fashion.

One of the officers referred to it as a compensation system. Did they not hear Ms. O'Neill and did they not hear her counsel say there was no compensation? I could go into case after case where the benefits that one may get has nothing to do with the compensation that one should get for the negligence by Government.

Thank you.

Senator SPECTER. Can you see any basis at all-the same question I asked the Generals-for this sort of a rule to come out of the Federal Tort Claims Act?

Mr. SPRAGUE. None whatsoever.

Senator SPECTER. What would you think, Mr. Sprague, of trying to restructure the Feres doctrine so that we made an exclusion for items like order and discipline or training programs or matters which were broader, say, than being a combatant and not limited to time of war, because you have a lot of training and you have a lot of military matters in peacetime-I am going to ask the same questions of the other witnesses-but to try to structure it in a way which accommodates the core rationale that the military has used so that you don't have this blanket rule which bars all sorts of cases totally unrelated to the military?

Mr. SPRAGUE. Well, as I said, you have in there present the exemption for discretionary functions. I happen to think that covers the kinds of situations that they were dredging up here.

Senator SPECTER. I don't believe it will help the judicial interpretation, but who can tell?

Mr. SPRAGUE. Who can tell? I think the proposed bill that you submitted, Senator, would make it clear that service people are entitled to the protection of the Federal

Senator SPECTER. I have seldom seen you prompted in the courtroom, Mr. Sprague. You are at a hearing. Let the record show that Tom Sprague handed you a book.

Mr. SPRAGUE. Servicemen should be entitled to the coverage of the Federal Tort Claims Act, except in the situations that Congress intended in the first place. The amendment that you proposed really says exactly that. You are now stating that servicemen shall be entitled to the coverage of the Federal Tort Claims Act, except for the limitation that you initially spelled out.

If you are willing to hear a suggestion, however, you use the words "military personnel" in your proposed bill. I think, to be consistent with other parts of the Act, it should be "uniform services" and would suggest that correction.

I would also suggest that you talk about-you have "military or naval forces of the United States." I would make it "uniform services of the United States or employees of the Federal Government." Last, I would make a proposal that your amendment state that the amendment shall apply to all claims that have not been finally adjudicated as of the effective date of the Act, and final adjudication to mean a claim in which the trial court has entered a final order

for which there is no outstanding motion for reconsideration, appeal, or petition for writ of certiorari.

Those would be what I would suggest as some corrections to your bill, but I think your bill would correct this problem.

Senator SPECTER. Well, thank you for the suggestions. We will take a close look at them.

General Altenburg, what would you think of leaving you some latitude for the considerations you raised, order and discipline, but allow suits, say, in matters like Ms. O'Neill's?

Mr. ALTENBURG. Senator Specter, we haven't talked much about the medical corps and the medical business of the military, and there is probably not time here to do that. But one of the reasons that I would be opposed to any modification in the Feres doctrine is because the medical business of the military is directly linked to command and to good order and discipline. It is not a medical care system, simply.

Senator SPECTER. Well, suppose you left medical out, too?

Mr. ALTENBURG. I am not sure what would be left, Senator. Senator SPECTER. Well, you would have auto accident cases. You would have the murder of Ms. O'Neill's daughter.

We have gone longer than anticipated. What I would like you to do, General Altenburg, and also General Sklute and Mr. Fidell and Mr. Joseph-Mr. Sprague, you have already answered the question-give some thought to the way you might structure a bill which would accommodate the core considerations that have been raised here with respect to unit cohesiveness, the issues of order and discipline, et cetera.

If you would provide that to the committee, I think that Senator Leahy's agreement with the bill is significant. He controls the docket, he puts it on the docket, and you have got two votes; you only need eight more to have it reported out. And although we are close to adjournment on this session and nothing will happen, this hearing will be on the books and will carry forward for the next Congress.

Mr. Sprague?

Mr. SPRAGUE. Senator Specter, let me just read to you the language of the discretionary function that is in there now because I think it covers what you are asking. The exception is any claim— and it is 2680(a)—any claim based upon an act or omission of an employee of the Government exercising due care in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved be abused.

I suggest to you that covers everything you are talking about. Senator SPECTER. Well, perhaps it does. When you give me your suggestions, gentlemen, give me a comment on that point as well. We will leave the record open for 14 days, which is the customary time.

Ms. O'Neill, we are not giving you any more assignments. We are just going to thank you for coming.

Thank you all. That concludes the hearing.

[Whereupon, at 3:42 p.m., the committee was adjourned.]

[Questions and answers and submissions for the record follow.] [Additional material is being retained in the Committee files.]

QUESTIONS AND ANSWERS

Written Questions from Senator Patrick Leahy for General Altenburg

Q1. You testified in general terms about the need for the Feres Doctrine. I would like to ask you about the specific case of Kerryn O'Neill.

As you know, she and a fellow officer were murdered by a third officer, who then killed himself. As I understand it, the actor whose negligence was at issue in the litigation was a civilian employee. (A) Could you explain why - in that specific case - it would harm military morale and cohesion to allow her estate to bring a lawsuit? (B) Why must we have a blanket rule preventing all lawsuits by members of the Armed Forces, rather than allowing case-by-case determinations?

A1A. I do not have the benefit of the investigative file nor the court record in the O'Neill case, but I can comment as follows. Judge Becker's dissenting opinion states that the O'Neill lawsuit alleges the Navy was negligent in following up on the results of fitness for duty tests and failed to appropriately treat, transfer, or otherwise prevent Ensign Smith from murdering O'Neill at her on post quarters. Mrs. O'Neill's testimony highlighted that Ensign Smith went into the government quarters armed with two guns past the guard. Litigation in this case would have involved not only the one civilian doctor. The entrance of an armed visitor past the guard to the quarters is clearly an issue related to the proximate cause of Ensign O'Neill's death. If this case had gone into discovery, the entire chain of command could have been called in and questioned at depositions and second guessed about what they did and did not do in establishing procedures; who was selected for guard duty, what were their qualifications, training, and level of supervision, what they considered and how much weight they gave it; who they consulted and chose not to consult, and more. This could easily generate a situation in which superiors are blaming subordinates and vice versa and the medical community and the operational chain of command would be accusing each other of responsibility. This will undermine soldiers' confidence in the command structure, unweave unit cohesion and distract from the unit's focus on the mission. Moreover, lawsuits take years from start to finish. Once a suit commences, it would be the unusual case where a soldier will not have been transferred after two or three years on station. Increased litigation would impose an extraordinary burden on the military of periodically pulling a soldier out of his or her new unit and sending them (potentially) all the way around the other side of the world to handle discovery or trial issues. Significantly, court calendars and unit training calendars or operational missions never seem to mesh nicely. Pulling a soldier out of his or her new unit for such circumstances will, unquestionably, not just impact that individual soldier's proficiency but also the combat effectiveness of his or her new unit.

A1B. Mr. Chairman, I respectfully submit that the system we have does in fact allow for case-by-case determinations. The FTCA and the Feres doctrine empower federal District Courts to focus on individual cases and decide whether relief is available through the "incident to service" test.

Q1. (A) Would you agree that our tort system is designed not only to compensate victims but also to deter and prevent negligent behavior? (B) Do you believe that