- The Washington Times - Monday, February 3, 2003

Retired World War II and Korean War veterans have turned to the Supreme Court for help in collecting a huge debt they call long overdue: free lifetime medical care that was promised but not delivered.
Until the mid-1950s, recruits were enticed to join the Army, Navy, Marines and Air Force by recruiters' pitches that included oral and written promises of free lifetime medical care promises that turned out to lack congressional approval. Government lawyers say repaying just out-of-pocket payments for the retirees would cost $15 billion.
Lower courts heard that and turned down the pleas, but said it was hard to reject aging officers laden with medals for valor, and represented by a national hero who wore his Medal of Honor while arguing that retirees deserved free military-hospital care.
"We cannot readily imagine more sympathetic plaintiffs than the retired officers of the World War II and Korean War era involved in this case. They served their country for at least 20 years with the understanding that when they retired they and their dependents would receive full free health care for life," said the Federal Circuit Court of Appeals in ruling against them.
The trial court and the Federal Circuit both decided that Congress cannot be forced to pay for the military recruiting incentive it had not authorized in advance. Judges noted that the military did provide medical care for many years despite the absence of a law but cut back when military hospitals closed and resources grew tight. A three-judge panel of the Federal Circuit early last year ruled unanimously for the veterans but the full court overturned that decision Nov. 18.
"The government concedes such promises were made in good faith and relied upon," the Federal Circuit noted in an 8-4 refusal to order the back payments Solicitor General Theodore B. Olson estimated at $15 billion.
Not all 1.9 million current military retirees would be covered if the Supreme Court ordered the government to make good on the promise. By one theory, it would apply solely to the 23,435 now living who retired before 1956, when Congress clamped a "space available" caveat on military health care. More than 500,000 other current retirees joined the services before the limit was imposed and were among those included in the Justice Department estimate of up to 1.5 million.
"However, because no authority existed to make such promises in the first place … we have no alternative but to uphold the judgment against the retirees' breach-of-contract claim," said the opinion now on appeal to the court of last resort.
Both the Clinton and Bush administrations have opposed the lawsuit begun in 1956 by retired Air Force Lt. Cols. William Schism and Robert Reinlie.
Retiree benefits are paid by Pentagon military budgets while benefits to other veterans come through the Department of Veterans Affairs.
The appeals court advised retirees to seek help from Congress, a recommendation seconded by major veterans organizations, which predict the courts won't fix the problem. As updated in 2002, federal law provides retirees a combined plan called Tricare, with an emphasis on Medicare. Retirees in the court case consider that less than equal to military hospital care.
"We don't believe there's any answer in courts. If there is to be any further relief it would have to come from Congress because that's where the real checks get written," said a veterans organization lobbyist who asked not to be named.
One who still does hold hope is retired Air Force Col. George "Bud" Day, 77, who shared a "Hanoi Hilton" cell with Navy pilot John McCain, now a Republican senator from Arizona, after both were shot down in Vietnam. Col. Day was awarded the Medal of Honor for bravery, credited with saving other American lives after his 1967 capture by the Viet Cong.
"The catch with the latest system is we have to pay $60 a month for ourselves and $60 for our wives, for a million and a half guys," Col. Day said. "I want Congress to give us a free lifetime medical care bill. I want Congress to refund the premiums we have paid to Medicare B. And from the court I want an order that says the government breached our contract so we can sue them for insurance premiums we have paid."
He said: "Military care is not achievable any more, but we're seeking instead the same health benefits given to retired federal workers, which include Blue Cross and Blue Shield at no expense."
It is not known if the Supreme Court will review what has come to be known as "the Day case," but in the meantime Col. Day and his nationwide troop will take to the streets and to three colorful billboards recently posted in the Maryland suburbs.
They plan to demonstrate at the Capitol on Feb. 12, and last week introduced the billboards at 6100 Central Ave. in Capitol Heights, on U.S. Route 1 a mile north of Beltsville, and on Kenilworth Avenue south of U.S. Route 50.
"This battle is not over," Col. Day said. "We were all aware that whichever way the Court of Appeals ruled, that the case would be appealed to the U.S. Supreme Court. Much to my surprise, it is G.I. Joe that is appealing."

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