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Section 401(a) of Title IV of the G.I. Bill Improvement Act of 1977

 38 U.S.C. § 106 note, provides that: 

(1) Notwithstanding any other provision of law, the service of any person as a member of the Women's Air Forces Service Pilots (a 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 Veterans' Administration 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) [the person is entitled to an honorable discharge].

(2) In making a determination under clause (A) . . . the Secretary of Defense may take into consideration the extent to which —

(A) such group received military training and acquired a military capability, or the service performed by such group was critical to the success of a military mission,

(B) the members of such group were subject to military justice, discipline, and control

(C) the members of such group were permitted to resign,

(D) the members of such group were susceptible to assignment for duty in a combat zone, and

(E) the members of such group had reasonable expectations that their service would be considered to be active military service.

The original draft of section 401 was submitted to the Senate on October 19, 1977 by Senator Barry Goldwater as an amendment to the G.I. Bill Improvement Act of 1977 and made benefits available only to the Women's Air Forces Service Pilots (WASPs). 123 Cong.Rec. 34373-74 (1977).

Members of this organization flew military aircraft during World War II within the continental United States and Canada. Senator Alan Cranston, chairman of the Senate Veterans Affairs Committee, opposed the amendment on the ground that other civilians, including members of the Merchant Marine, were also "subject to hazards and dangers while rendering valuable services in support of the Nation's defense." 123 Cong.Rec. 34376 (1977).

Referring to the large number of "merchant marine personnel still living who served aboard ships under Navy regulations during World War II in hazardous areas," Senator Cranston cautioned against creating a precedent entitling persons classified as civilians to veterans' benefits. Id. at 34377.

Instead of defeating the amendment, however, Senator Cranston's remarks led to its expansion. On November 3, 1977, Congressman Olin Teague, a member of the House Committee on Veterans' Affairs, proposed that the section be expanded beyond the WASPs to cover all groups "similarly situated." With this alteration, section 401 was enacted into law.

In 1979, as contemplated by 401(a)(1), the Secretary of Defense adopted regulations implementing that section. 44 Fed. Reg. 11,223 (1979), 32 C.F.R. Part 47 (1980). The current regulations, adopted in 1983, provide in part:

§ 47.4 Policy

(a) It is DoD policy to determine whether the civilian employment or contractual services of a civilian or contractual group shall be considered active military service for the purposes of laws administered by the Veterans Administration by considering judicial and other appropriate precedents, including the extent to which the members of such a group:

(1) Received military training and acquired a military capability, or the service performed by such group was critical to the success of a military mission.

(2) Were subject to military justice, discipline, and control.

(3) Were permitted to resign.

(4) Were susceptible to assignment for duty in a combat zone.

(5) Had reasonable expectations that their service would be considered to be active military service (see Pub.L. 95-202).

48 Fed.Reg. 38816 (1983), 32 C.F.R. Part 47 (1986).

The regulations further provide for the establishment of the Department of Defense Civilian/Military Service Review Board and Advisory Panel. That Board consists of a chairman, who votes only in the event of a tie, and a representative of the Secretary of Defense and of each of the Military Departments.

The Board reviews each application and issues a written recommendation to the Secretary as to whether the service of the applicant group should be considered active military service for purposes of Title IV. Under section 47.6 of the regulations, the Board's review is limited to the written submissions filed by the applicant in support of its application, a written report prepared by the appropriate member or members of the Advisory Panel, and any other relevant information available to the Board and the criteria established by law.

The Board then transmits its recommendation to the Secretary of the Air Force, to whom the responsibility for making a final decision has been delegated. The Board's recommendations and accompanying rationale have been adopted by the Secretary without fail.

Since 1977, 64 groups have applied for "active military service" status under section 401. Of these applicants, fourteen groups have been approved.

The successful applicants have been:

(1) Women's Airforces Service Pilots (WASPs) (WW II) (3/8/79);

(2) Signal Corps Female Telephone Operators Unit (WW I) (5/15/79);

(3) Engineer Field Clerks (WW I) (8/31/79);

(4) Women's Army Auxiliary Corps (WAAC) (WW II) (3/18/80);

(5) Civilian Employees, Pacific Naval Air Bases, who actively participated in the defense of Wake Island during WW II (1/22/81);

(6) Quartermaster Corps Female Clerical Employees Serving with the American Expeditionary Forces (WW I) (1/22/81);

(7) Reconstruction Aides and Dieticians in WW I (7/6/81);

(8) Male Civilian Ferry Pilots (WW II) (7/17/81);

(9) Wake Island Defenders from Guam (WW II) (4/7/82);

(10) Civilian Personnel Assigned to the Secret Intelligence Element of the OSS (WW II) (12/27/82);

(11) Guam Combat Patrol (WW II) (5/10/83);

(12) Quartermaster Corps Keswick Crew on Corregidor (WW II) (2/7/84);

(13) U.S. Civilian Volunteers who Actively Participated in the Defense of Bataan (WW II) (2/7/84); and

(14) U.S. Merchant Seamen who Served on Blockships in Support of Operation Mulberry in the Normandy Invasion (WW II) (10/18/85).

The decisions setting forth the facts and rationale for the Board's favorable recommendations of these groups are, on average, one to two pages long, single-spaced. See Complaint, Exhibits A-N.

The first group approved, not surprisingly, was the Women's Airforces Service Pilots (WASPs). Complaint, Exhibit A. That organization consisted of women pilots, responsible primarily for ferrying military aircraft within the continental United States and Canada. In support of its recommendation that this service be considered active military service, the Board concluded that the WASPs' functions "were essentially identical to any military pilot assigned to the Ferrying Division, Air Transport Command." Id. at 1.

The Board also concluded that the WASP organization was integrated into a military command and control system, although it did not explain the features of that integration. Of all the factors, however, the Board placed greatest emphasis on the expectations of military officials, concluding that "[t]he military leaders of the day would appear to have had no doubt the WASP service was military. . . ." Id. at 2.

Another successful applicant group was the Signal Corps Female Telephone Operators Unit. Complaint, Exhibit B. Women in this Unit operated telephone switchboards in 75 cities in France and England during World War I. In an opinion slightly more than one page long, the Board recommended that their service be deemed active military service. In full, the Board reasoned:

The female telephone operators were recruited for their unique skills which were deemed necessary to improve the operating efficiency of the military telephone system of the [American Expeditionary Forces].

With the exception of those in training or en route at the time the group was deactivated, they served overseas with the Army.

Availability of the female operators theoretically released soldiers for combat or telephone operators for service at more dangerous locations.

Female telephone operators were hired as civilian employees of the Signal Corps. Since no legal means existed at the time to enlist or commission women into the Army, it was the only means to acquire their services. The Board concludes that without the statutory restrictions prohibiting women in the Army, the Female Signal Corps Telephone Operators Unit could have been and probably would have been regularly enlisted into the Army.

Id. at 1-2.

The Secretary also approved the application filed on behalf of the World War I Quartermaster Corps Female Clerical Employees Serving with the American Expeditionary Forces. Complaint, Exhibit F. These women were contract employees hired for clerical positions "because of a continuing shortage of qualified stenographers/typists" during World War I. Id. at 1. The Board recommended that their service be considered active military service, explaining that:

Those who volunteered to serve with the AEF did not know in advance where, overseas, they would be assigned. Although none was assigned to duties in a combat zone, nothing barred such an assignment, and they did all serve in a war theater. They . . . contribute[d] to the success of the military mission [by relieving enlisted men for duty at the front].

The AEF female clerical employees wore uniforms and, because they were serving in a war theater, were subject to military laws and regulations. . . . Although in theory these women could resign prior to the expiration of the terms of their contracts, a heavy [financial] penalty would have been imposed for such breaches. . . .

Finally, there is evidence that these women considered that their service would be recognized as active military service. . . . [H]ad there not been statutory restrictions prohibiting women in the Army, the female clerical employees serving with the AEF probably would have been enlisted into the Army.

Id. at 2.

In addition to the foregoing, the Secretary has failed to apply established standards for administrative decision making. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43103 S.Ct. 2856, 2877-6777 L.Ed.2d 443 (1983). This failure renders it difficult to evaluate the Secretary's decisions and to determine whether the regulations' criteria have been applied even-handedly.

The Secretary's decision approving the application of the World War I Signal Corps Female Telephone Operators Unit illustrates this point. That decision makes no reference to most of the criteria set out in the regulations. The decision nowhere discusses the nature or extent of the applicants' military training or capability, or the degree to which they were subject to military discipline and control.

The decision does not address whether members of that Unit were permitted to resign, or whether they possessed a reasonable expectation that their service would, sixty years later, be deemed active military service. The only criterion arguably applied was the importance of the operators' service to the success of the military mission, although evidence of this consideration requires a generous reading of both the decision and the scope of the criterion.

Similarly, the decisions approving other applications frequently omit reference to many of the governing criteria. Plaintiff’s report, and defendant does not refute, that:

the military training criterion was not discussed in the Rationale Memoranda explaining decisions to grant active military service status to six groups. The military capability criterion was not discussed in the Rationale Memoranda on six successful groups. The Rationale Memoranda on nine successful groups did not discuss whether the service of those groups was critical to the success of a military mission.

The extent to which the group was subject to military justice was not discussed in the Rationale Memoranda on eleven successful groups. Military discipline was not discussed in Rationale Memoranda on ten successful groups, nor was military control discussed in Rationale Memoranda on six successful groups. Likewise, the resignation criterion was not discussed in Rationale Memoranda on five successful groups.

The assignment to combat zone criterion was not discussed in Rationale Memoranda on three successful groups. Finally, there was no discussion of the reasonable expectation’s criterion in Rationale Memoranda on eleven successful groups.

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