USMA cadet drops out in less than two years.....court denies Vet status

[AROTC-dad]

Interesting case.

http://taskandpurpose.com/guy-attended-west-point-months-90s-insists-hes-army-veteran/

 

[LineInTheSand]

Sounds good to me.

 

[LongAgoPlebe]

This makes me cringe a little. I separated after a year, as most know (in good standing). I have been offered a veteran advantage and never taken it because I did not serve in any warfighting capacity, either directly or in support; and other than that second who had it in for me, my life was never at any greater risk than any other college students' lives were. I know what 38 USC says, but for the purposes of advantages, I am not a veteran. I would push it if (for example) I had been injured and become disabled during plebe year, but that seems different to me. DH and I have had this discussion a few times.

 

[Classof83]

Interesting case given mids and cadets, per federal statute, are active duty. Veteran status, however, at least since Sep. 1980, is somewhat more exclusive:

https://www.law.cornell.edu/cfr/text/38/3.12a

The above doesn't seem to include the reason why the court, according to the article, denied his petition.

 

[MemberLG]

Interesting case given mids and cadets, per federal statute, are active duty. Veteran status, however, at least since Sep. 1980, is somewhat more exclusive:

https://www.law.cornell.edu/cfr/text/38/3.12a

The above doesn't seem to include the reason why the court, according to the article, denied his petition.

My reading is not having 24 months of "active duty" disqualified Mr. Blake. According to the article, he left after about 18 months.

 

[Classof83]

My reading is not having 24 months of "active duty" disqualified Mr. Blake. According to the article, he left after about 18 months.

I would agree but the explanation given by Justice Donohue doesn't seem to use that as a basis:

"We conclude that the General Assembly did not intend to bestow a veteran’s preference to someone who was a cadet at a military academy, but never obligated himself to perform, or otherwise undertook, any subsequent military service...Blake went to college. He did not serve in the armed forces of the United States and thus he is not a ‘solider’. He is not entitled to receive a veterans’ preference when applying for civil service jobs in this commonwealth.”

Seems like it would have been easier to just show he didn't have the 24 months.

 

[MemberLG]

My reading is not having 24 months of "active duty" disqualified Mr. Blake. According to the article, he left after about 18 months.

I would agree but the explanation given by Justice Donohue doesn't seem to use that as a basis:

"We conclude that the General Assembly did not intend to bestow a veteran’s preference to someone who was a cadet at a military academy, but never obligated himself to perform, or otherwise undertook, any subsequent military service...Blake went to college. He did not serve in the armed forces of the United States and thus he is not a ‘solider’. He is not entitled to receive a veterans’ preference when applying for civil service jobs in this commonwealth.”

Seems like it would have been easier to just show he didn't have the 24 months.

Perhaps the state law didn't define what makes someone a veteran. Regardless, I think the judge made the righ decision. Although Mr. Blake did more than an average American, but we have to draw a line somewhere as to what makes a veteran.

 

[LineInTheSand]

There's also a provision for service during Desert Storm.

I know a guy who got veterans preference after only two years (or slightly less) at CGA in the 1990s. All because of a war he didn't take part in... at all.

 

[conrack]

Keep in mind service academy cadets are in a special category of their own, they are "cadets" and not "service members". I agree with the decision and there is certainly a big difference between those of us who served in the real military and deployed to combat zones and those who spent some time on a college campus going to class.

 

[Classof83]

Let's be clear - active duty status is not a matter of opinion (or whether one served in a combat zone, etc.). Per Federal Code 38 USC 1965:

The term “active duty” means—

(A)

full-time duty in the Armed Forces, other than active duty for training;

(B)

full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service;

(C)

full-time duty as a commissioned officer of the National Oceanic and Atmospheric Administration; and

(D)

full-time duty as a cadet or midshipman at the United States Military Academy, United States Naval Academy, United States Air Force Academy, or the United States Coast Guard Academy.

Cadets, Mids, etc., at a U.S Service Academy are active duty service members. This, does not give them veterans status (i.e. see previous post).

 

[Capt MJ]

Good post above by @Classof83. The VA can define veteran status, and veteran benefits eligibility, which is their prerogative. Each state has its own veterans affairs, veterans department, or veterans agency, which also defines veteran status and associated benefits for their state residents They can and do differ from Fed DVA. Many states are less strict.

Enlisted personnel categorized as active duty and entry-level status, and I believe the period is 180 days (I have not recently checked a primary source), encounter the same lack of veteran eligibility, though they are most definitely active duty, subject to the UCMJ, orders, etc.

Someone can be on active duty in training status, or duty under instruction, during that critical entry period, but that does not necessarily mean they will be eligible for full or partial DVA benefits if they separate before the end of the designated period. Much depends on type/reason for separation. There are reams of instructions on this.

Budget issues and precedent play a large role. Providing lifelong benefits to someone who was AD for less than X - it's a utilitarian decision to draw a line somewhere.

 

[Cerberi]

It's interesting and conflicting because (1) this is a State Court decision vs a Federal Court Decision (2) seems contradictory to precedents set in the federal court system regarding Cadets/Mids as well as federal law which defines 'active duty'. I would wager that should he appeal - he has a fairly good chance of getting the lower court to decision reversed.

The judge appears to be 'making law' vs ruling on the law and simply didn't like what the law actually said. And though I personally 'like' the decision, it scares me a little when judges make up their own laws. If the people of Pennsylvania don't like the law, they should have their elected officials change it.

I wonder if we had more empathy for Mr Blake (I have none) we wouldn't be all making a stronger argument in defense of his position.

There was Congressional testimony being provided a few years ago and the questioner is the Congressman from Illinois who lost at least one leg while conducting operations in Iraq. She had the same disability rating as the individual being questioned who connected his ankle disability rating to playing flag football in college while on an ROTC scholarship. And while she made an excellent point, the VA certainly didn't change her or his rating because of the exchange.

Just curious - is there a difference between being a 'service member' vs a 'cadet' as stated earlier? I was always told that though I was never in 'harm's way' at USAFA that if the DoD felt my services were required elsewhere that at any moment I was deployable - the classic example was always wild fires out west and the POTUS had the authority to send cadets to help fight them - never happened, may not have been true, but it was always at least a rumor.

 

[Classof83]

I felt the same way that the judge was basing the ruling on interpretation and not statute.

My understanding is that cadets/mids are active duty/non-deployable.

 

[jl123]

My understanding is also that cadets/mids are categorized as active duty/non-deployable.

But non-deployable is relative. During times of war both USMA and USNA graduated classes early, so it is a technicality that they were non-deployable. Also, I believe that USMMA has a battle streamer for deployment and then returning to finish their education at USMMA.

 

[Capt MJ]

"Non-deployable..." - I had a boss who used to say if a regulation or policy "wasn't carved on a stone tablet and tucked under Moses' arm," it could be changed.

 

[MidwestDad]

USMA has graduated classes in mere months during prior times of wartime need. Doubt it will happen again but if the Army needs platoon leaders it is always an option.

 

[flieger83]

"Non-deployable..." - I had a boss who used to say if a regulation or policy "wasn't carved on a stone tablet and tucked under Moses' arm," it could be changed.

I was told similar when I was a GO's aide: "Captain...regulations did not come engraved on a tablet and carried by "General" Moses. They are for the GUIDANCE of the commander, not Holy writ!"

When I became a commander, I truly understood what he meant.

Steve
USAFA ALO
USAFA '83