The opinion
JULIAN, Senior District Judge
(dissenting):
I disagree with the majority’s conclusion that M.G.L. c. 4, § 7(43), is unconstitutional. The holding that the Massachusetts statute cuts at cross purposes with the federal law rests, in part at least, on the premise that administrative discharges for conscientious objectors are allowed because, in the military’s judgment, conscientious objectors are unqualified or unsuitable for military service. I find no justification for this premise. The plaintiff does not claim that he became unqualified or unfit for military service because of his conscientious objection; nor is there any indication in the record that he did. There has been no finding, ruling or declaration by the Defense Department or any other governmental agency that conscientious objectors are unqualified or unsuitable for military service. No judicial decision has been found holding that conscientious objection renders a person unqualified or unsuitable for military service.
On the contrary, the Defense Department has provided by regulation that a conscientious objector may continue to serve in the armed forces in a noncombatant capacity, see 32 C.F.R. § 75.7 (b), and it is commonly known that conscientious objectors have served well in such capacities. Furthermore, conscientious objectors are not included in the enumeration of “unsuitable” servicemen in the regulations. 32 C.F.R. § 41.7 (g).
The majority also rests its ruling that M.G.L. c. 4, § 7(43) is at cross purposes with federal law on the fact that in-service 1-0 conscientious objectors are eligible for federal veterans’ benefits but not for state veterans’ benefits. It does not follow that there is a conflict between state law and federal law. Neither the discharge of conscientious objectors ( 32 C.F.R. § 75.7 (a)) nor the granting to them of federal veterans' benefits is in any way frustrated or impeded by enforcement of M.G.L. c. 4, § 7(43). There is no obligation on Massachusetts to supplement the benefits conferred by federal law on 1-0 conscientious objectors. Cf. Maher v. Roe, 432 U.S. 464 , 97 S.Ct. 2376 , 53 L.Ed.2d 484 (1977).
A state which chooses to make voluntary payments to its citizen-veterans is free to give or withhold benefits provided that it does not violate the Equal Protection Clause. In my view, M.G.L. c. 4, § 7(43), does not violate the Equal Protection Clause of the Fourteenth Amendment. Since there is neither a fundamental interest nor a suspect classification implicated by M.G.L. c. 4, § 7(43), the correct standard by which to analyze the constitutionality of this statute is the traditional rational basis test. Johnson v. Robison, 415 U.S. 361, 375, n. 14 , 94 S.Ct. 1160 , 39 L.Ed.2d 389 (1973). Under this test, the challenged statute which embodies a state legislature’s decision of how best to dispense monetary bene *656 fits “is entitled to a strong presumption of constitutionality.” 1 Mathews v. DeCastro, 429 U.S. 181, 185 , 97 S.Ct. 431, 434 , 50 L.Ed.2d 389 (1976).
The conscientious objector who seeks a 1-0 discharge (total separation from the military) is not similarly situated with those who fail to complete their tour of duty because they have become unsuitable for military service ( 32 C.F.R. § 41.7 (g)), or suffer from drug abuse ( 32 C.F.R. § 41.7 (f)), or are granted hardship discharges ( 32 C.F.R. § 41.7 (c)). The 1-0 conscientious objector is not unqualified for military service. He also initiates his own discharge. He is not discharged on the initiative of the government. Furthermore, those in-service conscientious objectors who seek a 1-A-O reclassification ( 32 C.F.R. § 75.3 (a)(2)) (a transfer to noncombatant duty) are eligible for state veterans’ benefits since their discharge papers do not bear the notation “conscientious objector” even if the government elects to discharge rather than transfer them. Thus, only those conscientious objectors who seek a total divorce from the military are excluded from state veterans’ benefits.
The legislature that enacted the challenged statute could reasonably have regarded 1-0 conscientious objectors as members of a unique class having characteristics substantially different from the classes of servicemen discharged for “unsuitability” under 32 C.F.R. § 41.7 (g).
The eligibility of 1-A-O conscientious objectors for benefits under the state statute undermines the plaintiff’s contention that the only reason for the exclusion of 1-0 conscientious objectors is the legislature’s desire to “punish” them for their unpopular beliefs.
By granting a member of the military forces a 1-0 discharge, the government confers upon him an exceptional and enormous benefit, namely, a total discharge from all military service, combatant and noncombatant, in time of war or national emergency — the exemption from a service that constitutes the most onerous burden that can be imposed by the country upon any citizen. 2 I can conceive of no legitimate reason for compelling Massachusetts against its will to confer upon him the additional benefits it provides for veterans who did not seek and obtain a total discharge from military service on grounds of conscientious objection. No public purpose is served by the state’s expenditure of public funds for the payment of such benefits to those who were granted 1-0 conscientious objector discharges. Granting the irreproachable character of the plaintiff’s motives for seeking and obtaining such a discharge, the fact remains that he thereby not only failed to complete his tour of duty, but also eliminated himself totally and permanently from future service in the armed forces, whether combatant or noncombatant.
*657 In my opinion, the legislature, in excluding 1-0 conscientious objectors from the state’s veterans’ benefits under M.G.L. c. 4, § 7(43), while at the same time granting them to servicemen who were discharged because found unsuitable for military service, acted within the scope of its constitutional powers. I would grant the motion to dismiss the complaint and order judgment for the defendants.
. The full passage reads as follows:
“The basic principle that must govern an assessment of any constitutional challenge to a law providing for governmental payments of monetary benefits is well established. Governmental decisions to spend money to improve the general public welfare in one way and not another are ‘not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.’ . In enacting legislation of this kind a government does not deny equal protection ‘merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” ’ .
“To be sure, the standard by which legislation such as this must be judged ‘is not a toothless one’ .... But the challenged statute is entitled to a strong presumption of constitutionality. ’ ’
429 U.S. at 185 , 97 S.Ct. at 434.
. In Welsh v. United States (1970), 398 U.S. 333 at page 356, 90 S.Ct. 1792 at page 1805, 26 L.Ed.2d 308 , Harlan, J., in his concurring opinion stated: “Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors.” (Emphasis in the original.) See also, to the same effect, Hamilton v. Regents, 293 U.S. 245 , 55 S.Ct. 197 , 79 L.Ed. 343 (1934).