In conclusion, I would like to thank our witnesses for coming here today. In particular, I would like to recognize Bonnie O'Neill, whose daughter Kerry was murdered by a fellow Naval officer. Kerry O'Neill was a woman of remarkable talents and an obvious dedication to her nation. I know that it must be difficult for you to testify today, but I assure you that your perspective - and the views of all our witnesses - will be given great weight by this Committee. ##### STATEMENT OF MAJOR GENERAL NOLAN SKLUTE UNITED STATES AIR FORCE (RETIRED) FORMER AIR FORCE JUDGE ADVOCATE GENERAL BEFORE COMMITTEE ON THE JUDICIARY CONCERNING THE FERES DOCTRINE PRESENTED ON OCTOBER 8, 2002 I am privileged to appear here today to address the Feres doctrine and its importance to the military mission. I do so as a retired member of the Air Force, having served on active duty as a Judge Advocate for 30 years. Prior to my retirement in 1996, I served as The Judge Advocate General of the Air Force, having been assigned to that position in August 1993. 1 The Committee has before it an issue that carries significant implications for the Armed Forces of our Nation-whether the Federal Tort Claims Act should be amended to reverse the 1950 Supreme Court case of Feres v. United, 340 U.S. 135 (1950), and a host of decisions that affirmed and expanded the doctrine enunciated in Feres.' This issue, boiled down to it basics, is whether persons should be allowed to sue the United States for injuries sustained by military members serving on active duty, when such injuries result from the negligence of another military member or Federal Government employee.2 While there are several factors that underlie the rationale of what has become known as the "Feres Doctrine”, I will limit my statement to the doctrine's importance for continued military discipline and morale in the Armed Forces, in its broadest sense. Our soldiers, sailors, marines and airmen perform a service that has no counterpart in civilian As this committee has before it a plethora of materials discussing such cases, case citations have been omitted. 2 Also embraced in this issue are deaths of military members resulting from such injuries. 3 The Court in United States v. Johnson, 481 U.S. 681, 684 (1987), in citing Stencel Aero Engineering. Corp. v. United States, 431 U.S. 666 (1977), identified three factors: (1) The character of the relationship between the Government and members of the armed forces is distinctively Federal; therefore, “it would make little sense to have the Government's liability to members of the Armed Services dependent on the fortuity of where the soldier happened to be stated at the time of the injury." This result would come about because of the provision in the Federal Tort Claim Act under which service-incident claims would be determined by local law. (2) There exists a statutory [no fault] compensation scheme under the Veterans' Benefits Act, which serves as a substitute for tort liability and provides compensation to injured military members, "without regard to any negligence attributable to the Government.” (3) The unique relationship between a members of the Armed Forces and their superiors, "the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty...." Stencel Aero life. Theirs is not an eight to five job; rather, it is a way of life. They are called upon to make great sacrifices in performing their assigned duties and missions-often the ultimate sacrifice. The special trust placed in members of our Armed Forces, is so clearly demonstrated by missions they are called upon to perform and the lethality of the weapons systems committed to their use. The relationship among members of the Armed Forces, and between such members and their superiors, is indeed special and unique. There are certain absolutes in this regard, such as-- strict obedience to orders; total loyalty to one's organization, one's service and our Nation; total loyalty up and down the chain of command; complete trust among and between members of one's organization; and discipline. Indeed, unit cohesiveness, essential to success on the battlefield, requires such attributes. The courts, in dealing with issues surrounding the Feres doctrine, have recognized it is the lawsuits themselves, brought by military members for service-related injuries, and not the potential recovery, which would undermine the attributes described above. Commanders make decisions and issue orders each and every day that affect the personal lives of their subordinates. They relate to matters such as daily duties, assignments, travel, disciplinary matters, medical requirements, and a wide array of matters essential to the mission and the welfare of the unit and its members. Many also directly impact the lives of the families of such members. It is not difficult to imagine the adverse impact on unit cohesiveness that would result from subjecting these decisions to judicial scrutiny. Commanders and other military members would, in many instances, be deposed and summoned into court to Engineering Corp. v. United States, 431 U.S. at 671-672 (citations omitted). justify their decisions. It may also engender the belief among the force that no order or decision is final until the courts have issued a ruling. Trust, one of the essential ingredients for unit cohesiveness, would be undermined--trust not only among individual service members, but also between the members and their organization. To allow service members to sue their government for damages related to military service implies that the military has failed its own and that only by taking the "boss" to court can justice be attained. Fostering such an attitude within a community that demands uncompromising trust and teamwork has dire implications. While the list of examples that could be used to illustrate this point is virtually endless, the following should suffice: 1. An airman who is denied a security clearance (based upon a mental health diagnosis) challenges his commander's decision in court, in an effort to obtain an adverse ruling that undermines the commander's decision. 2. A pilot removed from flying status, because of a medical diagnosis, seeks judicial relief challenging that diagnosis. 3. An airman injured in a training accident seeks damages for such injuries claiming they resulted from his commander's negligence in planning and executing the training scenario. 4. An F-16 maintenance crew chief who bails out of an F-16 aircraft that flames out during an incentive flight, files a claim for his resulting injuries, alleging that the flame out was caused by the negligence of a maintenance squadron commander and the F-16 pilot. 4 |