Air Reserve Techicians + Uniforms = Active Duty Service
October 3, 2009
By William R. Fletcher, III
Mr.
Montgomery, AL
Frasure v. Principi, 18 Vet. App. 379
Regardless whether § 3.7(x)(15) is valid, the appellant must meet DoD's certification criteria under Public Law 95-202 § 401. Section 401 provides in pertinent part:
HN11 (a)(1) Notwithstanding any other provision of law, the service of any person as a member of the Women's Air Forces Service Pilots (a [**30] group of Federal civilian employees attached to the United States Army Air Force during World War II), or the service of any person in any other similarly situated group the members of which rendered service to the Armed Forces of the United States in a capacity considered civilian employment or contractual service at the time such service was rendered, shall be considered active duty for the purposes of all laws administered by the Secretary of Veterans Affairs if the Secretary of Defense, pursuant to regulations which the Secretary shall prescribe -
(A) after a full review of the historical records and all other available evidence pertaining to the service of any such group, determines, on the basis of judicial and other appropriate precedent, that the service of such group constituted active military service, and
(B) in the case of any such group with respect to which such Secretary has made an affirmative determination that the service of such group constituted active military service, issues to each member of such group a discharge from such service under honorable conditions where the nature and duration of the service of such [**31] member so warrants.
Discharges issued pursuant to the provisions of the first sentence of this paragraph shall designate as the date of discharge that date, as determined by the Secretary of Defense, on which such service by the person concerned was terminated.
Public Law 95-202 § 401(a)(1)(A), (B) (emphasis added). Accordingly, § 401 provides that, notwithstanding any other provision of law, the service of a member of a group designated by the Secretary of Defense "shall be considered active duty for the purposes of all laws administered by the Secretary of Veterans Affairs if the Secretary of Defense . . . shall prescribe" (1) that the service of such group constitutes active duty and (2) that members of that group are to be issued a discharge from "such service under honorable conditions" that shows the date of discharge as determined by the DoD. Public Law 95-202 § 401(a)(1)(A), (B) (emphasis added). Section 401 expressly conditions effective active-duty status for the purpose of VA-administered laws on those two requirements - that the DoD certify a group and issue a discharge. Public Law 95-202 § 401(a)(1)(A), (B); see Chevron and Lee, both [**32] supra.
32 C.F.R. PART 47 — ACTIVE DUTY SERVICE FOR CIVILIAN OR CONTRACTUAL GROUPS
(http://law.justia.com/us/cfr/title32/32cfr47_main_02.html)
________________________________________
Section Contents
§ 47.1 Purpose.
§ 47.2 Applicability and scope.
§ 47.3 Definitions.
§ 47.4 Policy.
§ 47.5 Responsibilities.
§ 47.6 Procedures.
Appendix A to Part 47—Instructions for Submitting Group Applications Under Public Law 95–202 Appendix B to Part 47—The DoD Civilian/Military Service Review Board and the Advisory Panel
Authority: 38 U.S.C. 106 note. Source: 54 FR 39993, Sept. 29, 1989, unless otherwise noted.
§ 47.1 Purpose.
This document:
(a) Revises 32 CFR part 47 and implements Public Law 95–202.
(b) Directs the Secretary of the Air Force to determine if an established group of civilian employees or contract workers provided service to the U.S. Armed Forces in a manner considered active military service for Department of Veterans Affairs (VA).
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