Greeley v. Civil Service Commission

306 N.E.2d 449, 1 Mass. App. Ct. 746, 1974 Mass. App. LEXIS 587
CourtMassachusetts Appeals Court
DecidedFebruary 8, 1974
StatusPublished
Cited by3 cases

This text of 306 N.E.2d 449 (Greeley v. Civil Service Commission) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greeley v. Civil Service Commission, 306 N.E.2d 449, 1 Mass. App. Ct. 746, 1974 Mass. App. LEXIS 587 (Mass. Ct. App. 1974).

Opinion

Armstrong, J.

The petitioner appeals from an order of the Superior Court dismissing his petition for a writ of certiorari directed to the Civil Service Commission, the Acting Director of Civil Service and the chief of the fire department of the city of Newton. While the meager record before us omits the pleadings and does not otherwise disclose the exact nature of the ultimate relief sought, we infer that the petitioner seeks to establish his right to preference as a “veteran” on an eligibility list for promotion in the fire department pursuant to G. L. c. 31, §§ 21-25, and to overturn the decision of the Director of Civil Service and the Civil Service Commission that he is not a “veteran” within the meaning of those statutes. We assume, without deciding, that certiorari is available for this purpose. See Reidy v. Acting Director of Civil Service, 354 Mass. 760 (1968).

The facts are undisputed. The petitioner enlisted in the army national guard on January 12,1961, and was on active duty therein from March 12 to September 11 of that year. His only national guard service thereafter consisted of attending annual two-week training programs until 1965. On January 11, 1965, he transferred to the army reserve, and commenced active duty therein by attending a two-week training program on July 17 of that year. During that two-week period he contracted myelitis and was confined [748]*748at the Chelsea Naval Hospital by reason thereof until February 23, 1966. On December 6, 1966, he was retired from the army reserve with a service-connected disability.

Whether this military service makes the petitioner a “veteran” for the purposes of the veterans’ preference law turns on the definition of that term in G. L. c. 31, §21 (as amended through St. 1972, c. 98), which (with exceptions not here material) provides that the word “veteran” as used in G. L. c. 31 shall mean “any citizen who ... is a veteran as defined in clause Forty-third of [G. L. c. 4, § 7] ....” Clause Forty-third of G. L. c. 4, § 7, (as amended through St. 1968, c. 5311) contains twelve paragraphs, but only the first, [749]*749second, eighth and last of those paragraphs are pertinent to the petitioner’s claim.

The first paragraph of clause Forty-third, insofar as material, defines a “veteran” as “any person ... (a) whose last discharge or release from his wartime service, as defined herein, was under honorable conditions and who (b) served in the army ... of the United States for not less than ninety days active service, at least one day of which was for wartime service, provided that any person who so served in wartime and was awarded a service-connected disability .. . shall be deemed to be a veteran notwithstanding his failure to complete ninety days of active service.”

[750]*750The second paragraph of clause Forty-third defines “wartime service” as service performed by veterans of specified wars or by a member of the “WAAC”. The eighth paragraph, which is one of a series of paragraphs defining veterans of the wars specified in the definition of “wartime service” (see n. 1), gives a two-part definition of the term “Vietnam veteran”: “(1) any person who performed such wartime service during the period commencing August [5, 1964] ... and ending on a date to be determined by presidential proclamation and concurrent resolution of the congress of the United States or (2) any person who served at least one hundred and eighty days of active service in the armed forces of the United States during the period between February [1,1955] ... and August [4,1964] ....”

The last paragraph of clause Forty-third provides: “ ‘Active service in the armed forces’, as used in this clause shall not include active duty for training in the army national guard or air national guard or active duty for training as a reservist in the armed forces of the United States.”

No question has been raised as to whether the petitioner was discharged “under honorable conditions,” as required by subparagraph (a) of the first paragraph of clause Forty-third. Nor can it be doubted that he performed military duty during wartime, as required by subparagraph (b) of that paragraph, for his military duty as an army reservist in 1965 fell within the time period set forth in subparagraph (1) of the paragraph defining “Vietnam veteran.”2 While there is some question whether the duties he performed in 1965 constitute “service” (see Dunn v. Commissioner of Civil Service, 281 Mass. 376 [1933]; Weiner v. Boston, 342 Mass. 67 [1961]), we assume, without deciding, that the petitioner satisfied the requirement of “at least one [751]*751day ... [of] wartime service” contained in subparagraph (b) of the first paragraph. The sole issue, then, is whether the petitioner’s military history brings him within the provisions of subparagraph (6) relating to “active service.”

1. The petitioner first contends that his seven months’ confinement in the Chelsea Naval Hospital satisfied the requirement in subparagraph (b) of the first paragraph of “not less than ninety days active service.” We disagree. The last paragraph of clause Forty-third provides that “active duty for training as a reservist in the armed forces of the United States” does not constitute “active service in the armed forces.” At the time the petitioner contracted the illness which resulted in his hospitalization, he was engaged in an annual two-week program “for training as a reservist” and was therefore not performing “active service in the armed forces.” His ensuing hospitalization was at most a prolongation of that training program, and no more constituted “active service” than the training program which caused it.

The petitioner attempts to avoid this conclusion by arguing that the paragraph which restricts the meaning of “active service in the armed forces” applies only to that term as used in the paragraph defining “Vietnam veteran” — where it appears only in subparagraph (2), which is admittedly inapplicable to the petitioner. This argument is apparently based on the fact that the applicable version of the paragraph defining “Vietnam veteran” and the one defining “active service in the armed forces” were both inserted in clause Forty-third by St. 1968, c. 531. The latter paragraph, however, is expressly made applicable to “this clause,” and an examination of the act whereby § 7, Forty-third, was originally inserted (St. 1954, c. 627, § 1), the subsequent acts amending it (St. 1955, c. 403, § 1; St. 1957, c. 164, § 1; St. 1960, c. 299; St. 1960, c. 544, § 1; St. 1965, c. 875; St. 1966, c. 716; St. 1967, c. 437; St. 1968, c. 531) and other provisions in the General Laws referring to it (including the provision of G. L. c. 31, § 21, involved in the present case) discloses a consistent legislative practice of [752]*752using the word “clause” to embrace § 7, Forty-third, in its entirety. Actually, until the 1968 amendments the substance of the paragraph defining “active service in the armed forces” was a part of the paragraph defining “Vietnam veteran” (see St. 1967, c. 437). The fact that it was removed from that paragraph and placed in a separate paragraph at the end of clause Forty-third by St. 1968, c. 531, is further evidence of a legislative intention to broaden its application.

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Bluebook (online)
306 N.E.2d 449, 1 Mass. App. Ct. 746, 1974 Mass. App. LEXIS 587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greeley-v-civil-service-commission-massappct-1974.