How Clearly, the existing compensation system, which safeguards all military members and their families, provides a more equitable response. Allowing lawsuits to proceed for some, but not others, as would inevitably occur with any alteration to the Feres doctrine, would simply create a more inequitable arrangement. How does a commanding officer explain the inequities that would arise to the people he must lead? does he justify it? How does he deal with the natural resentment that such unfair treatment will engender within his organization? These are all very real problems for a commander who must sustain a cohesive unit of motivated military members willing to endure the dangers and sacrifices of military service. Clearly, such disparities cannot encourage the esprit de corps and uniformity necessary for an effective fight force. In sum, the three purposes of tort litigation, punishment, accountability and compensation, are already adequately addressed through the existing scheme. First, Congress, by refusing to allow punitive damages under the FTCA has eliminated punishment as a purpose of litigation against the United States. Second, accountability for deaths and injuries is addressed under the existing military system of investigations and inspections. Finally, while it may be that a remedy under the FTCA is necessary to ensure adequate compensation of civilians killed or injured by the military, active duty members already are compensated under the Congressionally established scheme that guarantees no-fault uniformity and fairness. It is imperative that military members have the security of knowing that whatever happens, however it happens, the military will take care of them or their families. This is a critical component of personal readiness, which ultimately leads to operational and combat readiness. SUBMISSIONS FOR THE RECORD STATEMENT OF JOHN D. ALTENBURG MAJOR GENERAL (RETIRED) FORMERLY, THE ASSISTANT JUDGE ADVOCATE GENERAL, U.S. ARMY BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE CONCERNING THE FERES DOCTRINE PRESENTED ON OCTOBER 8, 2002 STATEMENT OF JOHN D. ALTENBURG MAJOR GENERAL (RETIRED) FORMERLY, THE ASSISTANT JUDGE ADVOCATE GENERAL, U.S. ARMY I am pleased to appear before the Committee today to present my views on the Feres Doctrine and its importance to the good order and discipline of the United States military. Others have discussed several reasons to support the Feres doctrine. It is my purpose to discuss only one of the commonly cited bases for this doctrine that prevents service members from suing the federal government, other service members, or other government employees for tortious injuries suffered incident to military service. I will discuss the good order and discipline of the Armed Forces and its relationship to the Feres doctrine There are many elements of our national power - including the rule of law, industrial and mobilization capacity, the national will of our citizens, and the readiness and capability of our armed forces. But it is our armed forces that are fundamentally based upon our greatest national resource: the individual fighting man and woman. Our individual soldiers, sailors, airmen, and marines are cohesive and integral parts of the whole who are trained that operational success in the defense of this nation is predicated upon their individual initiative and capability tempered by their realization that success is accomplished most efficiently and effectively by teams, not individuals. Military good order and discipline is the glue that binds this team together. Congress recognized this need and has used the Uniform Code of Military Justice and its forerunners (Articles of War and Articles for the Government of the Navy) to criminalize acts which could be prejudicial to the good order and discipline. Failure to follow orders, disrespect to superiors, and conduct unbecoming an officer are some of the obvious examples of the Congressional recognition of the unique requirements of an effective military and the need for good order and discipline. In 1946, after decades of debate, Congress enacted the Federal Tort Claims Act (FTCA), 28 U.S.C. sections 1346(b), 2671-2680, which with certain exceptions, waived sovereign immunity for common law torts committed by federal employees acting within the scope of their employment. In Feres v. United States, 340 U.S. 135 (1950), the Court did not judicially create a new exception to the FTCA. Rather, it looked at the legislation and concluded that Congress had not intended to waive sovereign immunity for injuries that arise incident to military service. In the over 50 years Feres has been in place, the courts have continuously and properly continued to recognize its viability and importance. It is even stronger today as a result of the reaffirmation of its rationale by the Supreme Court in United States v. Johnson, 481 U.S. 681 (1987), and the Court's decisions in United States v. Stanley, 483 U.S. 669 (1987); United States v. Shearer, 473 U.S. 52 (1985); Chappell v. Wallace, 462 U.S. 296 (1983); and Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, reh'g denied, 434 U.S. 882 (1977). I would like to highlight one fairly recent Supreme Court case. In United States v. Shearer, 473 U.S. 52 (1985), the Supreme Court held that Feres barred suit against the government for the off-base, off-duty murder of one service member by another even if the government knew that the murderer had been convicted of a prior manslaughter overseas. The Court concluded that the plaintiff's allegation of negligent personnel practices relating to the murderer and the military's failure to warn others clearly implicates the concerns expressed in Feres in that such a suit would require the civilian courts to second-guess military decision making. The Court in Shearer did not look to the injured service member's military status or the location of the incident in determining the applicability of the Feres doctrine, rather it rightly focused on whether the courts would have to evaluate military decisions and discipline. The focus of Shearer and its progeny is on the military's dealing with the alleged tortfeasor and challenges to the management of the military and questioning basic choices about discipline, supervision and control of one service member by another. Legislative repeal of the Feres doctrine would embroil the civilian courts in military decision making. More significantly, it could embroil civilian courts at an extremely low level of military decision making. Part of the Supreme Court's rationale in Feres, was concern for the effect upon military order, discipline, and effectiveness if service members were permitted to sue the government or each other for torts which are incident to service. It is the suit, not the recovery, that Feres prohibits. In 1939, Judge Learned Hand noted that public service is not an easy task and that allowing immunity for public officials is necessary to ensure the best good for the public as a whole: "The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to subject all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Gregoire v. Biddle 177 F.2d 579 at 581 (1939). I echo Judge Hand's concern; it is even more pertinent in our increasingly litigious society. Proscribing a soldier from bringing his or her superior or fellow soldiers, into court is necessary to ensure not only that orders are followed, but perhaps more significantly, that orders must be freely given. In my opinion, while Judge Hand's concern seemed to be related to the time, effort, and likely distraction of potential litigation, even greater |