MILITARY RETIREES AND FREE LIFETIME HEALTHCARE

Thomas F. Mazza, Department Commander

We were gratified to learn a federal court ruled that the federal government broke its promise of free lifetime healthcare to military retirees.

The U.S. Circuit Court of Appeals for the Federal Circuit ruled in Washington D.C., that two retired Air Force officers from Fort Walton Beach, Sam Schism and Robert Reinlie, are entitled to damages because of that broken promise. A three-judge panel of the appellate court unanimously reversed a 1998 decision by U.S. District Judge Roger Vinson in Pensacola and sent the case back to determine damages owed to Schism and Reinlie. The appellate court ruled the government breached an "implied-in-fact contract," for free lifetime care when it required the retirees to join the Medicare program.

The appeals court reversed Vinson's ruling that retirees failed to prove they had such a contract in return for serving at least 20 years. "The military has used promises of free, lifetime health care to recruit and retain personnel to perform hazardous duties, often for less pay than they could have received in the civilian sector," wrote Chief Judge Haldane Mayer in the appellate opinion. "In fact, the record shows that the Army made these promises in its recruiting brochures as recently as the 1990s."

The appeals court rejected a government argument that the promise is unenforceable because Congress never authorized it. The judges held that the military regulations were sufficient.

The retiree's lawyer, retired Air Force Col. George "Bud" Day, plans to seek a class-action status that would apply the decision to about three million retirees who joined the military before June 7, 1956. The group formed when Day filed the lawsuit in 1996 to permanently restore military medical care to all retired veterans and their dependents.

A Congressional act in 1956 ended military health-care benefits for retired veterans when they reached age 65. Congress last year extended the military health care program called Tricare to also include retirees who had been on Medicare. That will give them much of the relief sought in the suit, but still falls short of the free care promised, Day said.

Retirees are finding it harder to obtain free care in military hospitals and clinics due to spending reductions and base closures. The military also has been forcing retirees into the Medicare program when they turn 65. The Group is seeking reimbursement for Medicare fees deducted from their pension checks and the expense of supplemental insurance. Those costs for a retiree and spouse typically run in excess of $4,000 a year. It is expected federal government will appeal to the U.S. Supreme Court.

If the class action lawsuit is a winner, it could end up costing the government billions of dollars. Maybe it's to early to say, but if I were the government, I'd settle.

* * * * *

After we wrote the article above, we were informed on April 9th, that the Bush Administration is requesting a rehearing of the case before the full 11 Judge US Court of Appeals for the Federal Circuit.

The government's request appears to be based upon the argument that the three judge panel committed errors that could "gravely disrupt" Congress's recent compromise that would allow TRICARE to become the second-payee after Medicare for retired military personnel over age 65. Even more ominous, is the implied intention of the government to appeal to the U.S. Supreme Court if its' request for the rehearing is denied. A scary eventuality when considered in the light of the Supreme Court's recent politically tainted, decisions.

As we often say "they can get us in a thousand different ways". Stay tuned.

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