http://www.nytimes.com/2003/06/02/national/02CND-ETS.html?ei=5070&en=e64be1db5fd79adc&ex=1055476800&pagewanted=print&position=

Justices Rebuff Vets' Quest for Free Lifetime Health Care

By DAVID STOUT

ASHINGTON, June 2 — The Supreme Court declined today to hear a case that sought free lifetime medical care that was promised — but not delivered — to some veterans of World War II and the Korean War.

Without comment, the justices refused to review a November ruling by the United States Court of Appeals for the Federal Circuit. That court held that promises of lifetime health care made decades ago by recruiters to entice men to serve in the military for at least 20 years were not valid, since the recruiters had lacked the authority to make them.

"While we are sympathetic to the plaintiffs' position and acknowledge the likelihood that plaintiffs believed these promises and relied on them, the government is not legally bound to abide by them," the circuit court ruled, 9 to 4, in an opinion written by Judge Paul R. Michel.

Rightly or wrongly, grand promises by recruiters have been part of military lore for generations, like foul-mouthed top sergeants and breakfasts of creamed chipped beef on toast. But the two plaintiffs in this case, William O. Schism and Robert L. Reinlie, both veterans of more than 20 years' military service, seemed to have been victimized more by a huge and shifting bureaucracy than by fast-talking salesmen.

Both men were represented by George E. Day, a lawyer in Fort Walton Beach, Fla., who has been trying to get his clients' case certified as a class action, or one affecting many others in a similar situation. Mr. Day has estimated that up to three million people (half of them elderly veterans, with the remainder their spouses) may be affected, raising the government's potential liability to billions of dollars.

"I'm terribly disappointed," Mr. Day said today in a telephone interview from Salt Lake City. He said the Supreme Court had taken "the easy way out," and that he would push his cause in Congress. Mr. Day is a retired Air Force colonel who was a prisoner of war in Vietnam for several years.

The circuit court said it was clear that recruiters had long made promises of free medical care and had been encouraged to do so by their superiors. "Unfortunately for plaintiffs, however, Congress has never authorized these promises," the circuit court said last fall.

Until 1956, when Congress established a uniform system of health care for military people and their dependents, medical care for service retirees was fragmentary, the court noted. Under a law passed in 1966, retired members of the armed forces and their dependents had to rely on benefits provided through Medicare, which charges monthly premiums and generally does not cover prescription drugs outside hospitals.

In 1996, Mr. Schism and Mr. Reinlie, both of Fort Walton Beach, filed suit in Federal District Court in Florida, accusing the government of breaking its contract with them. The plaintiffs asked the court to order the government to reimburse them for the medical expenses they had incurred since they retired.

The district court rejected the men's claims, but a panel of the circuit court ruled in early 2001 that they should be upheld. But the ruling against the plaintiffs by the full Court of Appeals for the Federal Circuit, and the Supreme Court's refusal today to review the case, may signal that Congress will be the next arena.

Indeed, in its ruling last autumn the circuit court said it could do "no more than hope Congress will make good on the promises recruiters made in good faith to plaintiffs."

Mr. Schism served as an enlisted man in the Navy from 1943 to 1946, then intermittently in the Navy and Army between 1947 and 1951. In 1951, he became an Air Force officer, alternating from active to inactive duty for several years. He was on active duty from 1956 to 1979, when he retired as a lieutenant colonel. He died several months ago..

Mr. Reinlie was an enlisted man in the Army from 1942 to 1945. He entered the Air Force in 1951, became an officer in 1953 and served continuously until retiring as a lieutenant colonel in 1967.

Chief Judge Haldane Robert Mayer was even more sympathetic to the plaintiffs and other veterans. In an angry dissent joined by three colleagues, he rejected as "pure sophistry" the notion that Congress did not know what recruiters were promising.

"If Congress can appropriate billions for this aspect of national defense and not know how it is accounted for, then God Save the Republic," Judge Mayer wrote.