A Conflict in Benefits Available to Veterans Injured in Service to the State
| Publication year | 2023 |
| Pages | 36 |
By Douglas J. Rosinski.
Few would disagree that "South Carolina has a long history of being a military-friendly state that takes pride in its veterans."[1] As many men and women in South Carolina have done, "Military Mike"[2] served in both the United States Army and, later, the South Carolina Army National Guard. His four years of service in the Army left him with tinnitus ("ringing in his ears"), for which the U.S. Department of Veteran Affairs ("USDVA") pays him a small monthly benefit. His two decades of service in the South Carolina Army National Guard (the "Guard") left him with a painful joint condition but no benefits from the state.
After his Guard service, Mike tried to support his family in the civilian economy, but his condition made work too painful. Mike applied for USDVA disability benefits, but those claims were denied because Mike's joint disabilities did not result from service in the United States military. Mike was, therefore, relieved to discover that the South Carolina Legislature had long ago enacted a statute which required state payment of "pensions or rewards" "like" those paid by the USDVA. But Mike soon also learned that that he was a state "employee" under the state Workers' Compensation Program and that he was not eligible for any other "like" benefits.
This article discusses the difference between two sections of the South Carolina Code and how Mike - and his family - do not have access to a disability benefits program "like" that administered by the United States, leaving South Carolina's Guard members disabled in state service dependent on worker's compensation benefits substantially unlike those provided by the federal government to its similarly disabled veterans.
Service to the state is not service to the United States.
A key concept for those who serve in a military organization is whether the individual is serving their state under the orders of the governor or the United States under orders of the president. South Carolina has a military department, "that controls or coordinates the activities of the militia, or any part of the militia."[3] The organized "militia" includes the South Carolina Army National Guard and South Carolina Air National Guard.[4] In South Carolina, "state duty" is duty performed by the militia, or any part of the militia, when such duty is ordered by proper state authority.[5]"State status" means the military status of a member of the National Guard when not in the active military service of the United States.[6]So, individuals performing duties assigned or ordered by the "state authority," i.e., the governor through the Military Department, are serving the state of South Carolina.
When an individual is "activated" under Title 10 of the United States Code, however, the president has ordered the activated individual to report for "active duty" in service to the United States. Thus, "active duty" means "full-time duty in the active military service of the United States." [7] A member of the National Guard cannot be on "active duty" and performing "state duty" at the same time.[8]
The USDVA is the federal agency authorized to pay any "veteran" for "disability resulting from personal injury or disease contracted in the line of duty, in the active military, naval, air, air or space service."[9] USDVA benefits are a legal entitlement of a "veteran" meeting eligibility requirements.[10]A "veteran" for USDVA purposes is "a person who served in the active military, naval, air, or space service and who was discharged or released there from under conditions other than dishonorable."[11] Importantly, USDVA cannot pay compensation to National Guard members injured or disabled while in service to the state, because such service is not "in the active military, naval, air, or space service" of the United States.[12]
Following his service in the Army, Mike was awarded USDVA benefits for hearing loss, because that disability was incurred while on active duty. Mike had also expected to receive USDVA-like benefits for his state-related disability under a state program enacted in 1922.
Every member of the National Guard of South Carolina who shall be wounded or disabled while on duty in the service of the State or while reasonably proceeding to or returning from such duty shall be taken care of and provided for at the expense of the State, and, if permanently disabled, shall receive the like pensions or rewards that persons under similar circumstances in the military service of the United States receive from the United States . . . Before the name of any person is placed on the pension roll under this section proof shall be made, under such regulations as the Governor may from time to time prescribe, that the applicant is entitled to such pension.[13]
Yet, Mike discovered that no such "Section 25-1-100" program existed.
Further, Mike learned that the South Carolina Department of Veterans Affairs (SCdVa), unlike the federal USDVA, does not process South Carolina veterans' disability claims. The authorizing legislation for the SCDVA states:
The Department of Veterans' Affairs is created within the executive branch of the state government for the purpose of assisting former, present, and future members of the armed forces of the United States in securing the benefits to which they are entitled under the provisions of federal legislation and under the terms of insurance policies issued by the federal government for their benefit.... The department shall administer this chapter and shall have the authority and responsibility to apply for and administer any federal programs and develop and coordinate such state programs as may be beneficial to the particular interests of the veterans of this State.[14]
The SCDVA is charged to "develop" and "coordinate" state programs that "may be beneficial to veterans of the State," but yet only has "authority and responsibility to apply for and administer" federal programs that may...
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