O'Connell v. Days

Opinion

WHITE, P. J. Virginia Days, Director of the Department of Veterans Affairs, appeals from the judgment granting peremptory writ of mandate. The sole question of law before us is whether petitioner O’Connell’s service as a midshipman at the United States Naval Academy between June 30, 1952, and June 1, 1956, qualifies as “active duty” within the meaning of California Military and Veterans Code section 9801 so as to qualify petitioner for a Cal-Vet home loan. Appellant contends that it does not.

The trial court entered extensive findings of fact and conclusions of law. Finding of fact No. 22 states; “Construing the language of Military and Veteran’s [sic] Code Sections 980 and 980(f) in light of the usual meaning of the language and in harmony with Military and Veteran’s [sic] Code Section 100[2] confirms the conclusion that service as a cadet or midshipman at a United States military academy is not short or temporary solely for training.” Finding of fact No. 23 states: “Appointment of a person as a cadet or midshipman to one of the military [468]service academies is not a ‘temporary’ appointment for the sole purpose of training duty, processing or physical examination but rather, consistent with the language of relevant provisions of the Federal Code, is unqualified active duty and active military service.” From its extensive findings, the court concluded, inter alia: “29. The administrative interpretation of the ... Director of Veteran’s [sic] Affairs of Military and Veteran’s [sic] Code §980(f) which denies Cal Vet loans to veterans who were residents of the State of California at the time of entry into the Armed Service and who entered during a qualifying period as specified in Military and Veteran’s [sic] Code §980 but whose entire service during that qualifying period was as a cadet or midshipman in a Military Academy is patently in conflict with the legislative mandate enunciated in Military and Veterans Code §100 and §980, 980(f) and is void.”

We turn first to an examination of the term “active duty” in the federal context. Title 38, United States Code, deals with veterans’ benefits. Under general provisions contained in section 101 thereof, we find definitions. That section differentiates between the term “active duty” (subd. (21)) and “active duty for training” (subd. (22)). “Active duty” is defined to include: “(21) . .. (D) service as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy; ...” (Pub.L. No. 85-857, 72 Stat. 1106 (Sept. 2, 1958).) For purposes of servicemen’s group life insurance, “active duty” and “active duty for training” are again defined in section 765 of title 38. “Active duty” includes: “(1) ... (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.” (Added Pub.L. No. 89-214, § 1(a), 79 Stat. 880 (Sept. 29, 1965).)