Every death or serious disability of a military member, whatever the cause--be it enemy action, friendly fire, an accident, or a crime--is a great tragedy for the affected family. There is no doubt that Mrs. O'Neill and family members and friends of the victims of this horrendous crime are devastated by their loss. As I have expressed in my earlier statement, my testimony at the hearing and herein, allowing monetary compensation through tort litigation is not the answer. WRITTEN QUESTION FROM SENATOR ORRIN G. HATCH Question: Given the testimony provided at the hearing, is there anything further you would like to add to your testimony, or any issues on which you would like to elaborate? Answer: There are two matters I would like to address. First, I want to discuss the question posed by Senator Specter at the hearing as to how the principle of Feres was derived from the FTCA by the Supreme Court. The focus of those who oppose the Feres doctrine is directed towards the exception in the FTCA for claims "arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." So they ask, how could this exception be interpreted to mean service members cannot sue for incident to service injuries? As the Supreme Court indicates, the lack of jurisdiction for incident to service cases does not turn on this exception. If one examines the FTCA, it is clear the combatant activity exception applies to claims by any person, not just by service members. Indeed, the exceptions enumerated in 28 U.S.C. § 2680 of the FTCA are related to the cause of the damage--not to the status of the plaintiff. The Supreme Court, when deciding the Feres case, focused on the nature of the legislation, and the status of other similarly situated personnel. Allowing military members to sue their employer for torts relating to their service would have placed them in a status different from that of civil service workers. It would also have placed military personnel in a status different than their brethren in the National Guards of the various states. At the time of the Feres decision in 1950, most, if not all, of the states had schemes of workers' compensation for those injured on-the-job, having abolished common law tort actions. That same situation holds true today--all of the states have abandoned the common law remedy of workers and replaced it with a scheme of workers' compensation, whereby injured workers are assured an administrative remedy not requiring a finding of fault. The trade-off for that broad coverage for injuries is that the employees are precluded from suing their employers in tort. Rather than carving out an exception from the FTCA that prohibits suits by members of the armed forces, the Supreme Court recognized that jurisdiction never existed in the first place. The Court looked at the entire system of remedies available, and indicated the purpose of the FTCA was to provide a remedy to those without one. Military personnel already had a scheme of compensation available to them for injuries incurred incident to service, just as civil service employees do. In interpreting the FTCA, the Court noted that "...if we misinterpret the Act, at least Congress possesses a ready remedy." Congress has amended the FTCA several times since Feres was decided, but has not passed legislation disagreeing with the Supreme Court's decision. Second, I offer the following comments regarding unit cohesion. In his opening remarks at the hearing on October 8, 2002, Mr. Fidell, in commenting upon a portion of my remarks concerning unit cohesion, stated that the legislation I referred to was passed several years ago and related to the "don't ask-don't tell policy." Mr. Fidell doubted that "Congress had in mind the Feres Doctrine when it enacted its comments concerning unit cohesion." Mr. Fidell is absolutely correct-Congress did not have the Feres doctrine in mind when it enacted the legislation in which it addressed "unit cohesion." However, that is absolutely irrelevant. The legislation enunciates truisms--absolutes--about unit cohesion. They apply across the board, regardless of the subject matter of the legislation in which such language appears. This becomes evident when one reviews pertinent sections of the findings of Congress concerning our Armed Forces, as illustrated by the following: . .(4) The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise. (5) The conduct of military operations requires members of the (6) Success in combat requires military units that are (7) One of the most critical elements in combat capability is (8) Military life is fundamentally different from civilian life (A) the extraordinary responsibilities of the armed forces, (B) the military society is characterized by its own laws, 9) The standards of conduct for members of the armed forces [Emphasis Added] 10 U.S.C. § 864. Considering the foregoing language in the context of the proposed legislation designed to eliminate the Feres doctrine, one is struck by the inconsistency between the two. On the one hand, the criticality of unit cohesion to the success of our Armed Forces is clearly recognized. On the other hand, legislation is being proposed which carries the implicit effect of undermining this critical element. The two cannot stand side by side. Once again, thank you for allowing me to offer comments on this matter. SEN Hatch RADM Weaver Senate Judiciary, 8 Oct 02 Approved by: RADM Weaver Question. Given the testimony presented at the hearing, is there anything further you would like to add to your testimony, or any issues on which you would like to elaborate further? Answer. There was a great deal of discussion at the hearing regarding the O'Neill case. In brief, the O'Neill case arose from the tragic murder of Ensign Kerryn O'Neill by her former fiancé, Ensign George Smith, both Naval Academy graduates, in 1993. Ensign Smith also killed another officer and himself. The O'Neill estate filed a wrongful death action against the United States for $14 million. The complaint alleged that the results of a psychological test taken by Smith to determine his compatibility with submarine duty showed deviations from a normal score that should have triggered a further psychological review and other actions by the Navy that would have prevented the murder of Ensign O'Neill. The conclusions of the Navy investigation were that Smith's actions were not forewarned by his psychological test or anything in his Naval record, that the failure to follow-up on the test results represented "weaknesses" in the testing and review process, but that these weaknesses "did not contribute to the murder/suicide." Although all of us sympathize with the O'Neill family and recognize their great loss, for the reasons discussed below, I do not believe that the Feres doctrine should be repealed. Abolishing all or part of the Feres doctrine would undermine good order and discipline, adversely affect military and operational readiness, and create indefensible inequities among military members depending on where and how they were injured. The underlying issue of good order and discipline is tied to the application of consistent and equitable processes. Thus, while it might be tempting to consider carving out exceptions to the Feres doctrine, such an approach would fail to recognize a basic premise of military structure. The military is a "24 hours a day, 365 days a year" institution. Good order and discipline is the backbone of military service and is a constant that runs up and down the chain of command, whether in combat, in training, or in administrative duties. An inherent aspect of good order and discipline is the ability of superiors or subordinates to premise all aspects of military decision-making on the knowledge that their decisions and actions will not be the subject of litigation. For example, we cannot afford to allow various state tort laws to shape how military commanders lead and train their troops, based on the threat of lawsuit. This would create unacceptable variations in our training. Uniform training is a central component to operational and combat readiness. the This does not mean that military members are free to act in an arbitrary, capricious or negligent manner; only that their professional actions will not be the subject of litigation. The system of checks and balances established by the existence of the military chain of command, Inspector General oversight, military justice system, as well as a myriad of other administrative and regulatory requirements provide numerous avenues for oversight and accountability. These internal processes provide the structured means to efficiently address shortcomings, while balancing fairness with minimal disruption to operational readiness. On the other hand, civil litigation is a personal and inherently contentious and adversarial process. Lawsuits by military members would adversely affect the military's ability to focus assets on its primary mission of military readiness. Congress recognized the burdensome affect of litigation with the passage of the Soldiers and Sailors Civil Relief Act, which put limitations upon the ability to bring personal lawsuits against active duty military members. It is equally, if not more, burdensome for the military to be the defendant. An overseas, combat-training tragedy that results in an active duty loss of life, whether or not negligence is alleged, is no more, nor no less devastating than the loss of the life of Ensign O'Neill or any other member of the armed services. However, it highlights the inequities that could occur should the Feres doctrine be disturbed. Additionally, regardless of the application of the Feres Doctrine, if a case identical to Ensign O'Neill's murder had occurred overseas, the overseas claim would have been barred under FTCA. How unfair it would be for the O'Neills to pursue litigation seeking additional compensation for the death of their daughter, while other grieving families are left with the same entitlements as every other military family who has lost a loved one in service to their country. |