Petition for Writ of Certiorari — Burkett v. Goodwin

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(1) 0212 43 JAN 2 62003

No. & ae OF

In The

Supreme Court of the Anited States

BILL BURKETT,

Petitioner,

WILLIAM W. GOODWIN, JACKIE TALIAFERRO,

and ARCHIE M. MEADOR,

Respondents.

On Petition For Writ Of Certiorari

To The Texas Court Of Appeals,

Third District, At Austin

PETITION FOR WRIT OF CERTIORARI

DAVID VAN OS

Counsel of Record

LISA SMITH

VAN Os & ASSOCIATES

1606 N. Alamo Street

San Antonio, Texas 78215

(210) 225-1955

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

dance, pans Aan ie

QUESTION PRESENTED

Did the lower court err by broadly misapplying the Feres

doctrine to deny subject matter jurisdiction in civil courts

for common law claims against fellow servicemen when

the tortious actions were not incident to service, thereby

depriving Petitioner of equitable remedies set forth in

federal case law that has carved out exceptions to Feres v.

U.S., 340 U.S. 135 (1950) in extreme and outrageous

circumstances such as those that Petitioner has suffered?

LIST OF INTERESTED PARTIES

The following listed persons, associates, military

agencies and government agencies and their counsel have

an interest in the outcome of this litigation:

10.

11.

William Burkett is a resident of Baird, Callahan

County Texas and a Petitioner.

William W. Goodwin is a resident of Austin, Travis

County Texas and a Respondent.

Jackie Taliaferro is a resident of Austin, Travis

County Texas and a Respondent.

Archie W. Meador is a resident of Austin, Travis

County Texas and a Respondent.

David Van Os is the counsel of record for the Petitioner.

David Van Os & Associates, P.C. is Mr. Van Os’ law

firm and a professional corporation.

Greg Abbott is the Attorney General for the Texas Attor-

ney General's office, which is representing Respondents.

Andy Taylor is the First Assistant Attorney General

for the Texas Attorney General’s office, which is repre-

senting Respondents.

Linda S. Eads is the Assistant Attorney General for

Litigation for the Texas Attorney General’s office,

which is representing Respondents.

Nelly R. Herrera is the Chief, Tort Litigation Division

of the Texas Attorney General’s office, which is repre-

senting Respondents.

Kamilla L. Stokes is the Assistant Attorney General

who represented Respondents before the Texas Court

of Appeals, Third District, at Austin and the Texas

Supreme Court.

iii

TABLE OF CONTENTS

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Statement of the Basis for Jurisdiction ....................

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TABLE OF AUTHORITIES

Page

CASES

Brown v. U.S., 739 F.2d 362 (8th Cir.1984)........... 10, 11, 16

Chappell v. Wallace, 462 U.S. 296 (1983)...............cececeeeeeee 9

Day v. Massachusetts Air National Guard, 167 F.3d

Re Ee Ie ate ticetitcnvrscineantatinicsnitiows 10, 11, 14, 16

Feres v. U.S., 340 U.S. 135 (1950) .............ccccssssssseeees passim

Lutz v. Secretary of the Air Force, 944 F.2d 1477

a GE es thsthisa viciniikanttesicaniacibicinnncntisiginaitadieniads 11, 16

Newth v. Adjutant General’s Dept. of Texas, 883

S.W.2d 256 (Tex.App. — Austin, 1994, writ denied)....... 13

Texas Adjutant General’s Dept. v. Amos, 54 S.W.3d

714 CTR. ADD. — AmGtit, BOOT) ...00cccccscereversevevsssvoovccescesoecess 4

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STATUTES

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MISCELLANEOUS.

National Guard Regulation 40-3, “Medical Care for

Army National Guard Members”....................csssseeeeeeeeee 5

OPINIONS BELOW

The Texas Court of Appeals, Third District, at Austin’s

opinion (by Justices Aboussie, B.A. Smith and Puryear)

affirming the decision of the 126th District Court of Travis

County (by the Honorable Scott H. Jenkins, Judge Presid-

ing), is cited as 2002 WL 1804915, No Publication,

Tex.App. — Austin, Aug. 8, 2002, and is reproduced at App.

The 126th District Court of Travis County, Judge

Scott H. Jenkin’s Order granting Respondent’s Motion for

Summary Judgment is published as No. GN000159, and is

reproduced at App. 10.

The Texas Supreme Court’s denial of rehearing is

reproduced at App. 11.

STATEMENT OF THE BASIS FOR JURISDICTION

This -petition presents a federal question of the proper

applica:ion and/or continued utility of Feres v. U.S., 340

U.S. 135 (1950). Petitioner William Burkett was a member

of the Texas Army National Guard (TARNG). Respondents

were also members of the Guard and served as Petitioner’s

superiors. Respondents Meador and Goodwin were Plain-

tiff’s immediate supervisors and had the obligation to

authorize Petitioner to receive medical attention. Respon-

dent Taliaferro was the Director of Personnel, who proc-

essed medical claims and incapacitation requests for the

TARNG. Petitioner sued Respondents for damages arising

from his personal injuries that were proximately caused by

Respondents’ tortious behavior. Petitioner claims Respon-

dents are personally liable for his injuries that stemmed

from Respondents’ administrative decisions that deliber-

ately delayed Petitioner from receiving necessary medical

care.

In the 126th Judicial District Court, Travis County,

Texas the Petitioner had clear standing to sue Respon-

dents personally for the intentional infliction of emotional

distress, interference with contract, and intentional

interference with property rights. Petitioner’s case for

recovery is predicated on common law, state grounds for

the intentional acts of the Respondents. The medical care

that Petitioner received subsequent to Respondents’

actions has not remedied their violations, nor should the

State be accountable for them. The sole parties responsible

for these malicious and intentional acts are Respondents.

Respondents filed a Motion for Summary Judgment

and the Honorable Scott Jenkins, Presiding Judge, 126th

Judicial District Court, Travis County Texas granted

Respondents’ Motion for Summary Judgment on April 23,

2001. Petitioner appealed to the Texas Court of Appeals,

Third District, at Austin, which affirmed the district

court’s judgment on August 8, 2002 in a decision before

Justices Aboussie, B.A. Smith and Puryear, and which was

written by Puryear. Petitioner appealed to the Texas

Supreme Court which denied Petitioner’s petition for

discretionary review on October 31, 2002. See App. 11.

The federal question sought to be reviewed by the

Supreme Court of the United States was timely raised in

the court of first instance and in the appellate courts,

pursuant to Rule 14(1)(g)(i) of this Court. In Respondents’

Motion for Summary Judgment in the 126th Judicial

District of Travis County, the Texas Attorney General

raised intra-military immunity under Feres and its prog-

eny. The Petitioner’s Response distinguished these cases

and argued for subject matter jurisdiction. The trial court

granted Respondents’ motion. See App. 10. On appeal, the

Texas Court of Appeals, Third District, at Austin ad-

dressed intra-military immunity, upholding the lower

court. See App. 1. The appellate court concluded that the

Respondents’ “alleged wrongdoing was within the course of

activity incident to military service,” holding that “Burkett

failed to allege an adequate basis for civilian court juris-

diction and his claims are not justiciable in a civilian

court.” See App. 1. Therefore, the federal question has

been correctly raised so that the Supreme Court of the

United States has jurisdiction to review the judgment on a

Petition for Writ of Certiorari.

This Petition for Writ of Certiorari has been filed

within 90 days after entry of the order denying discretion-

ary review by the Texas Supreme Court, and is therefore

timely under Rule 13.3 of this Court. See App. 11.

Petitioner now seeks a Writ of Certiorari from the

Supreme Court of the United States pursuant to 28 U.S.C.

§ 1257. 28 U.S.C. § 1257 states in relevant part:

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court

by writ of certiorari where the validity of a treaty

or statute of the United States is drawn in ques-

tion or where the validity of a statute of any

State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or

laws of the United States, or where any title,

right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or

statutes of, or any commission held or authority

exercised under, the United States.

Petitioner requests that. the Supreme Court of the

United States grant his Petition for Certiorari because the

Texas Court of Appeals, Third District, Austin, Texas has

decided an important question of federal law that has not

been, but should be, settled by this Court. Petitioner’s

request for Writ of Certiorari presents a compelling issue

with respect to clarification of the exceptions to the appli-

cation of the Feres doctrine, which confers immunity upon

service personnel who have been sued personally by

subordinates who alleged wrongdoing.

In Feres, the United States Supreme Court initiated

the policy of deferring to military judgment and held that

a soldier may not recover under the Federal Tort Claims

Act for injuries that “arise out of or are in the course of

activity incident to service.” The holding was based upon

concern for the “peculiar and special relationship of the

soldier to his superiors, the effects of the maintenance of

such suits on discipline, and the extreme results that

might obtain if suits under the Torts Claims Act were

allowed for negligent orders given or negligent acts com-

mitted in the course of military duty.” Texas Adjutant

General’s Dept. v. Amos, 54 S.W.3d 74, 77 (Tex.App. —

Austin, 2001), citing U.S. v. Brown, 348 U.S. 110 (1954).

The 126th District Court erred when it granted

Respondents’ Motion for Summary Judgment, which,

despite notable exceptions to the Feres doctrine, incor-

rectly applied the Feres doctrine to bar Petitioner’s com-

mon law tort claims for Respondents’ conduct, which was

so outrageous as to be wholly outside of any military

duties for the Texas Air National Guard.

Petitioner requests that the Supreme Court grant his

Petition for Writ of Certiorari because this case presents a

compelling question of law affecting military personnel,

who have suffered serious intentional torts inflicted by

other service personnel, whose claims have been barred by

Feres and its progeny, thus effectively denying them a civil

remedy against a tortfeasor whose actions were outside

the scope of military service.

Petitioner requests that the Supreme Court grant his

Petition for Writ of Certiorari because this case presents a

compelling question, of servicemen’s rights to equitable

relief in military matters, that has not been, but should be,

settled by the Supreme Court of the United States. With-

out Supreme Court intervention, the basic rights protected

by law for military personnel shall be completely nullified

because Feres and its progeny may be used as a formal

immunity insulating wrongdoers from state law claims for

conduct thinly veiled as “incident to service,” even when

the conduct is unauthorized and so egregious that it would

be actionable in civilian courts.

STATUTES AND RULES INVOLVED

National Guard Regulation (NGR) 40-3, “Medical Care

for Army National Guard Members,” provides for the

procedures by which members of the Army National Guard

obtain medical care. Due to its length, NGR 40-3 is repro-

duced in its entirety at App. 12.

STATEMENT OF THE CASE

At the procedural juncture of this case, all of the

Petitioner’s allegations must be taken as true. Petitioner

was an active member of the Texas National Guard before

being medically retired as a result of a disease contracted

while in Panama on active duty (R. 70). Petitioner sought

emergency medical treatment from a military facility, as

was his right. However, Respondents, through administra-

tive means, deliberately and maliciously deprived him of

medical care until a Congressman intervened and assisted

Petitioner. Petitioner filed personal injury suit in state

district court, suing Respondents individually for common

law tort claims. The district court judge granted Respon-

dents’ Motion for Summary Judgment, broadly applying

Feres and its progeny to provide Respondents’ with mili-

tary immunity from private suit. See App. 10. The Texas

Court of Appeals, Third District, upheld the lower court’s

conclusion, and the Texas Supreme Court denied rehear-

ing. See App. 1.

As of January 17, 1998, Petitioner was_ serving on

active duty in the Texas National Guard (R. 70). Although

he had been on a duty assignment in Panama under

federal travel orders, he was performing duty orders for

the Texas National Guard. On January 17, 1998, he

returned to Abilene, Texas from his assignment in Panama

when he became ill and collapsed at the Abilene Regional

Airport in the baggage claim area (R. 70).

Initially, Petitioner believed he suffered from fatigue

and the flu, but his health concerns became more grave

with time. He attempted to notify his supervisor, Respon-

dent Meador, about his illness on January 20, 1998. After

being unable to contact Meador, Petitioner notified Colonel

John Wells, Respondent Meador’s second in command,

describing his ill health (R. 70). Colonel Wells told Petitioner

to seek treatment at Dyess Air Force Base near Abilene, and

Colonel Wells notified Respondents. See App. 48-50.

Petitioner’s health deteriorated. He suffered from

severe and constant fever, nausea, dizziness, and seizures.

Petitioner related these facts to Colonel Wells and Peti-

tioner sought admittance to Dyess base hospital on Janu-

ary 26, 1998. See App. 48-50. There, he was told that he

needed a commander’s authorization to be granted health

care.

Petitioner attempted to access the proper chain of

command and obtain necessary authorization from Re-

spondents who denied him their assistance and forced him

to undergo a line of duty investigation, delaying his

admission to the military hospital. Petitioner ultimately

received medical care but only due to the intervention of

U.S. Congressman Charles Stenholm (R. 71). Today, Peti-

tioner continues to suffer from debilitating headaches,

seizures, nausea, and mobility impairments that a neuro-

logical specialist concluded that Petitioner suffered inci-

dent to a febrile illness, such as meningoencephalitis,

which Petitioner may have contracted on his return from

Panama in 1998 (R. 71).

Not only was Petitioner’s health deteriorating, but he

could not afford private medical care. Petitioner’s farm

had been negatively impacted by drought conditions and

Petitioner was in the process of losing the farm and being

forced into bankruptcy proceedings.

Respondents knew of Petitioner’s health crisis and

deliberately withheld authorization for medical care. They

did so by refusing to provide Dyess Air Force Base with

confirmation that Petitioner was on active duty. Peti-

tioner’s duty status was well known; however, Respon-

dents forced Petitioner to undergo a_line-of-duty

investigation that delayed his medical treatment. By doing

so, Respondents acted outside of their military capacity

because their duty to authorize medical care is a non-

discretionary, ministerial task. The right to medical

treatment is an entitlement, not subject to discretionary

review by anyone in the injured person’s unit, or the

command structure above that. See App. 43. If anyone

hinders such medical treatment, they are operating

outside the legitimate purview of the relevant military

regulations and without authority (R. 90).

As a result of Respondents’ refusal to provide clear-

ance and confirmation of Petitioner’s active duty status, he

suffered a lengthy delay before obtaining a medical diag-

nosis and military medical care. By the time Petitioner

received military health care, due to the intervention of

his Congressman, the disease had taken its toll, leaving

him disabled and unable to return to military duty or

civilian employment. Petitioner claims that as a direct and

proximate result of Respondents’ tortious conduct, he

suffered various personal injuries. Petitioner argues that

Respondents are amenable to suit for common law torts

committed while on active duty because Respondents’

actions were so outrageous as to take them out of the

scope of their employment, excluding them from intra-

military immunity afforded by the Feres doctrine.

ARGUMENT

I. The appellate court erred when it denied

subject matter jurisdiction because significant

exceptions to the Feres doctrine apply to the

instant case thereby making it amenable to

suit in a civilian court of law.

Respondents are members of the Texas Air National

Guard, and, as such, serve in a branch of the federal

military service. Therefore decisions addressing regular

military service are appropriate to review in determining

the justiciability of claims brought by Guard members. In

Feres v. U.S., 340 U.S. 135 (1950), the United States

Supreme Court held that claims brought by military

personnel for injuries arising from or in the course of

activity incident to military service are nonjusticiable.

Feres at 136. The Supreme Court reasoned in later cases

that “Civilian courts must, at the very least, hesitate long

before entertaining a suit which asks the court to tamper

with the established relationship between enlisted mili-

tary personnel and their superior officers; that relation-

ship is at the heart of the necessarily unique structure of

the Military Establishment.” Chappell v. Wallace, 462 U.S.

296, 300 (1983).

Feres and its progeny teach that the state or federal

government cannot be sued for the negligence of mili-

tary personnel carrying out military orders. Feres

holds that military personnel may not recover under the

Federal Tort Claims Act for injuries incident to military

service. This conclusion is premised upon three conten-

tions. First, the Court sought to limit intrusion by civilian

courts into the uniquely federal nature of the relationship

between the federal government and members of the

armed forces. Second, the Court tacitly encouraged the use

of alternative forms of compensating injured military

personnel through the Veterans’ Benefit Act. Third, the

Court noted the harm that would come to military order

and discipline if subordinates could sue for negligent acts

of omissions that arose incident to service.

Despite the Feres court’s protectivist stance generally

immunizing military personnel from suit, the Circuit

Courts of Appeals have carved out broad exceptions to

Feres and its progeny, restricting their application and

liberally construing justiciability in circumstances where

the misconduct alleged is egregious and barring admission

to a civilian court would work an injustice. In Brown v.

U.S., 739 F.2d 362 (8th Cir. 1984), the Court permitted a

plaintiff to pursue a civil rights action against fellow

soldiers who participated in a mock lynching. In so doing,

the Brown court observed that allowing the Feres doctrine

to bar the Brown suit “would insulate from liability the

very breakdown of military discipline.” Brown at 369.

Other courts also have created exceptions to an

otherwise mechanical application of the Feres rule, so that

suits sounding in tort may be adjudicated in a civilian

forum. In Day v. Massachusetts Air National Guard, 167

F.3d 678 (1st Cir.1999), the court permitted a plaintiff to

recover against individuals who subjected the plaintiff to a

severe form of hazing. The Day court reasoned that bar-

ring the suit under Feres would deprive service personnel,

who were victims of intentional wrongdoing, from recovery

against perpetrators acting beyond the scope of military

authority and attempting to shield themselves with claims

of immunity.

Likewise, the Ninth Circuit Court of Appeals permit-

ted a plaintiff to sue fellow military personnel for breaking

into an office in order to obtain material that would

damage the plaintiff’s career. See Lutz v. Secretary of the

Air Force, 944 F.2d 1477 (9th Cir.1999). Recognizing the

seriousness of the conduct and the injustice that would be

worked if the courts failed to hear such claims in civilian

courts, the Brown, Day and Lutz courts found the issues to

be justiciable.

The Brown, Day and Lutz exceptions to the Feres

doctrine apply to the instant case. The Petitioner is suing

Respondents personally in tort for common law, state

claims. The Petitioner is not alleging negligence. Instead,

he is claiming that deliberate, willful and knowing cruelty

motivated his superiors at the Texas National Guard when

they obstructed his access to medical care. Without access

to civilian courts, Petitioner will be deprived of a forum in

which to litigate his case and will suffer an injustice

beyond the ones that he has already endured.

II. The courts below erred when they failed to

correctly apply exceptions to the Feres doc-

trine in the case at bar despite the fact that

Respondents’ actions were not within the scope

of their employment.

Petitioner’s case is distinguishable from most Feres

cases in that Petitioner seeks to recover against individu-

als for their intentional torts rather than against the

government for the negligence of military officers. The

concern of Feres and its progeny for the integrity of mili-

tary command structure and military discipline is not

implicated by this case. Here, Respondents failed to

discharge a mandatory, non-discretionary duty clearly set

forth in National Guard regulations. In his deposition,

George “onn, formerly Chief Warrant officer of the Texas

Air National Guard, stated that

“The right to medical treatment in this situation

is an entitlement, not subject to discretionary re-

view by anyone in the injured person’s unit, or

the command structure above that. If anyone

hinders such medical treatment, they are operat-

ing outside legitimate purview of the relevant

military regulations and without authority.” See

App. 48.

Respondents were under an obligation to check

Petitioner’s status so that the health care facility could

immediately administer medical treatment. The Respon-

dents were under a mandatory duty, which afforded them

absolutely no opportunity to exercise their discretion, and

they knowingly, willfully, and deliberately failed to

discharge that non-discretionary duty. They required

Petitioner to undergo an unnecessary line of duty investi-

gation prior to receiving medical care.

The Respondents’ conduct was so completely beyond

and outside any military authority or discretion as to have

been outside the scope of military duty, outside any mili-

tary duty, outside any military capacity, and not incident

to military duty. Instead, the Respondents acted purely as

individuals, not as military officers, albeit cloaking their

activities with military authority and-abusing their offices

through pretense in order to deliberately and cruelly

wreak havoc upon Petitioner’s life. For these reasons, the

exceptions to Feres should have been applied, enabling

Petitioner to sue Respondents personally in civil court for

common law claims.

While the Plaintiff’s injury was “incident to military

service,” the Respondents’ misconduct was not. The Peti-

tioner’s injury is viewed as “incident to military service”

because he was on active duty, was subject to the authority

of superior officers, and was denied access to mandatory

health care by his officers’ deliberate refusal to fulfill a

non-discretionary task. The Respondents’ misconduct was

so patently unconnected to their official duties as to fall

outside the scope of employment. Respondents had a duty

to fulfill and knew the regulations requiring them to fulfill

that duty. Instead, they deliberately chose to disregard the

regulations.

Feres’ zone of protection is limited to immunizing

actions and decisions involving military authority from

scrutiny by civilian courts, and Feres was not intended to

protect the personal actions of individuals whose acts in no

way implicate the function or authority of the military.

Feres’ progeny has held that civilian courts may not

second-guess the judgment of military authorities in

personnel actions such as a claim that a discharge of an

officer was in retaliation under the Whistleblower Act.

Newth v. Adjutant General’s Dept. of Texas, 883 S.W.2d 256

(Tex.App. — Austin 1994, writ denied). However, the Newth

rule is inapplicable to the instant case because the Re-

spondents were not operating in an area of judgment and

there was nothing to “second-guess.” Here, Respondents’

actions did not involve military decision-making or relate

to a military mission. There is no discretion, according to

National Guard regulations, that anyone in the command

structure has to prevent someone who is injured or dis-

eased in the line of duty from receiving emergency medical

care. Therefore, the sanctity of military decision-making

has not been violated by Petitioner’s case and any civilian

court hearing this matter would not be intervening in

military decision-making.

Further, the Respondents’ willful failure to fulfill a

non-discretionary duty takes Respondents’ acts out of the

scope of their employment. Their personal vendetta

against Petitioner was not incident to military service. See

App. 40-41. Military regulations expressly set forth the

procedures by which authorization is provided to service-

men requiring medical care for illnesses arising during

military service. See App. 12-32, 43. Respondents should

be prevented from misidentifying their individual tortious

acts as duties performed incident to military service — they

acted as civilians and deserve to be amenable to suit in a

civilian court. The lower courts erred when they failed to

apply exceptions to Feres in the case at bar. For these

reasons, the Petitioner’s request for Writ of Certiorari

should be granted.

III. Limitations to Feres, created by the various

Circuit Courts of Appeal, are critical to provid-

ing equitable relief for servicemen, and these

exceptions are long overdue for clarification by

the United States Supreme Court so that com-

pelling public policy considerations may be

fully addressed.

Limitations to Feres deserve reexamination by the

United States Supreme Court for several important public

policy reasons. The rationale underlying Feres has become

obsolete and no longer appears as persuasive. Day at 683.

This is especially true as courts have refused to grant

absolute deference to the chain of command and hence

have become more willing to grant equitable relief in

military matters during recent years. Id. Second, nearly

any suit that implicates military judgments and decisions,

no matter how obliquely, runs the risk of colliding with

Feres. If the application of the doctrine is unchecked,

courts will unilaterally expand wrongdoers’ immunity

from the reach of common law. Thus, meritorious cases

will go unheard.

Further, if some courts apply Feres to bar common law

suits against military personnel while other courts permit

exceptions, the decisions will lack uniformity. Uniformity

requires comparable decisions under like circumstances.

Without uniformity, there will be no precedent and no

predictability. There will be no spirit and habit of fairness,

justice and right dealing upon which the public may rely.

Lastly, clarifying the limitations of Feres would be in

the interests of judicial economy, enabling plaintiffs to

determine whether and under what circumstances com-

mon law suits may be heard and thus make the best use of

judicial resources. Judicial economy implicates the con-

cerns of accessibility to the courts, efficiency, timeliness of

adjudication, and fairness. Feres has not yet evolved into

an immunity for all individuals facing state law claims.

However, a broad application of Feres, such as the one

employed by the lower courts’ holding in this case, would

require the deprivation of access to civil remedies for

military service personnel who were victims of serious

intentional torts inflicted by other members of the mili-

tary.

Feres bars negligence claims against the government;

however, it should not be extended and transformed into a

formal immunity baring state law claims against indi-

viduals for conduct, however unauthorized and deliberate,

that causes injury to a plaintiff incident to his or her

military service. By preventing plaintiffs from suing fellow

servicemen in tort for intentional acts beyond the scope of

military duties, the courts would be guilty of complete

indifference to the individual plaintiffs, themselves, for

whom the courts were created to provide equitable reme-

dies. Such a bar would permit military personnel to act

unjustly behind a shield of immunity. If Feres is to be so

broadly applied, the courts should be required to show

evidence that without it the sanctity of the armed forces

will be seriously threatened.

Thus far, there is no consensus in the various Circuit

Courts of Appeal in favor of extending Feres to state law

claims. Day at 684. Several Circuit Courts of Appeal have

clearly articulated and applied exceptions. See Day,

Brown, Lutz, supra. In the recent past, Feres has been

questioned by various Justices on the Supreme Court,

including Scalia, Brennan, Marshall, Stevens’ and

O’Connor.”

CONCLUSION

This petition presents a federal question of the proper

application and/or continued utility of Feres v. U.S., 340

U.S. 135 (1950). The fundamental issue at the heart of

Petitioner’s case is whether the lower courts erred by

broadly misapplying the Feres doctrine to deny subject

* See U.S. v. Stanley, 483 U.S. 669 (1987). Scalia dissented, joined

by Brennan, Marshall and Stevens.

* See U.S. v. Johnson, 481 U.S. 681 (1987). O’Connor concurred in

part and dissented in part.

matter jurisdiction in civil courts for common law claims

against fellow servicemen when the tortious actions were

not incident to service, thereby depriving Petitioner of

equitable remedies set forth in case law that has carved

out exceptions to Feres in extreme and outrageous circum-

stances such as those that Petitioner has suffered. The

Petitioner has been denied access to a civilian court and

equitable remedies by the lower courts’ failure to apply

significant exceptions to the Feres doctrine despite the fact

that Respondents’ actions were not, due to their non-

discretionary nature, incident to service. The Supreme

Court of the United States should reject the lower courts’

application of Feres and reconsider its continued utility in

light of important public policy concerns.

For all the foregoing compelling reasons, the Peti-

tioner respectfully urges the Court to grant his Petition for

Writ of Certiorari.

Respectfully submitted,

DAVID VAN Os & ASSOCIATES, P.C.

DAVID VAN Os

Counsel of Record

LISA SMITH

1606 N. Alamo Street

San Antonio, Texas 78215

Telephone: (210) 225-1955

App. 1

TEXAS COURT OF APPEALS,

THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED AUGUST 8, 2002

NO. 03-01-00302-CV

Bill L. Burkett, Appellant

William W. Goodwin, Jackie L. Taliaferro and

Archie M. Meador, Appellees

APPEAL FROM 126TH DISTRICT COURT OF

TRAVIS COUNTY BEFORE CHIEF JUSTICE

ABOUSSIE, JUSTICES B. A. SMITH AND PURYEAR

AFFIRMED - OPINION BY JUSTICE PURYEAR

THIS CAUSE came on to be heard on the record of the

court below, and the same being considered, because it is

the opinion of this Court that there was no error in the

trial court’s judgment: IT IS THEREFORE considered,

adjudged and ordered that the judgment of the trial court

is in all things affirmed. It is FURTHER ordered that the

appellant pay all costs relating to this appeal, both in this

Court and the court below; and that this decision be

certified below for observance.

App. 2

TEXAS COURT OF APPEALS,

THIRD DISTRICT, AT AUSTIN

NO. 03-01-00302-CV

Bill L. Burkett, Appellant

William W. Goodwin, Jackie L. Taliaferro and

Archie M. Meador, Appellees

FROM THE DISTRICT COURT OF TRAVIS

COUNTY, 126TH JUDICIAL DISTRICT NO.

GN000159, HONORABLE SCOTT H. JENKINS,

JUDGE PRESIDING

Bill Burkett, a retired Lieutenant Colonel in the Texas

Army National Guard, brought a personal injury action

against appellees, William Goodwin, Jackie Taliaferro, and

Archie Meador, all of whom were his superior officers.’

Burkett appeals from the trial court’s order dismissing his

lawsuit. While Burkett sets out his appellate issue as

“whether the court below erred in granting summary

judgment to the defendants-appellees,” he raises the

following contention in the argument portion of his brief:

Because he commenced his claims against the appellees in

* Goodwin was chief of staff for the Adjutant General for the State

of Texas, Taliaferro was director of military personnel responsible to the

Adjutant General for all matters pertaining to the overall management

and supervision of the Directorate of Military Personnel, and Meador,

Burkett’s immediate supervising officer, served as director of plans,

operations and training, and military support.

App. 3

their individual capacities only, (1) his claims were justici-

able in a civilian court and (2) the appellees were not

entitled to statutory immunity under Texas Government

Code section 431.085; therefore, the court erred in dismiss-

ing his lawsuit. See Tex. Govt Code Ann. § 431.085(a)

(West 1998). We will liberally construe Burkett’s brief and

will focus our review on this contention. See Tex. R. App. P.

38.9. We will affirm the trial court’s order of dismissal.

Background

Burkett alleged that on January 17, 1998, he col-

lapsed at the Abilene airport on his return home from an

active duty assignment in Panama with the United States

Army. He alleged that his collapse was caused by a tropi-

cal disease he contracted while on active duty in Panama.

After several days of illness, Burkett went to Dyess Air

Force Base in Abilene seeking medical care. Individuals at

the medical facility's admissions office told Burkett that

they needed clearance or confirmation of Burkett’s active

duty status from the Texas Army National Guard before

he could be admitted for medical care. Burkett alleged

that pursuant to Texas Army National Guard regulation 7-

3, had any of the appellees, who were in command posi-

tions with the Texas Army National Guard, provided the

admissions office at Dyess with clearance or confirmation,

he could have received prompt medical attention at Dyess.

He asserted that based on Guard regulations, it was

Goodwin’s, Taliaferro’s and Meador’s ministerial duty to

provide clearance or confirmation of his active duty status

to Dyess and that they were without discretion or author-

ity to refuse to provide the clearance or confirmation of his

status to Dyess.

App. 4

Burkett alleged that over the next four months Good-

win, Taliaferro and Meador willfully and maliciously

refused to provide Dyess with clearance or confirmation of

his duty status thereby denying him access to military

medical care. Burkett alleged that these three individuals’

conduct was “so completely beyond and outside any mili-

tary authority or discretion as to have been outside the

scope of military duty, outside any military duty, outside

any military capacity, and not incident to military duty.”

Burkett alleged that they “acted purely as individuals, not

as military officers, albeit pretending to have military

authority and abusing their offices through such pretense

in order to willfully and maliciously wreak havoc upon

[Burkett’s] life.” As a result of their refusal to provide

clearance and confirmation of Burkett’s active duty status,

he was unable to obtain a medical diagnosis or military

medical care for his debilitating illness. Burkett finally

received access to military health care due to the interven- -

tion of a United States Congressman. By the time he

received military health care, the disease had ravaged his

body, and left him disabled and unable to return to either

military duty or gainful civilian employment. Burkett

alleged that as a direct and proximate result of Goodwin’s,

Taliaferro’s and Meador’s tortious conduct, he suffered

various personal injuries. Further, he alleged that because

their actions were willful and malicious, he was entitled to

exemplary damages.

Goodwin, Taliaferro and Meador moved to dismiss the

case for want of jurisdiction and moved for summary

judgment. They contended that the trial court was without

subject matter jurisdiction over the case because the

military personnel matter at issue was not justiciable in

civilian courts. See Feres v. United States, 340 U.S. 135,

App. 5

146 (1950); Newth v. Adjutant Gen.’s Dep't, 883 S.W.2d

356, 358 (Tex. App. — Austin 1994, writ denied). Addition-

ally, they moved for summary judgment on the grounds

that they were statutorily immune for their alleged ac-

tions. Tex. Gov't Code Ann. § 431.085 (West 1998). Burkett

responded to the appellees’ motions contending that

indeed the court had subject matter jurisdiction because

he was suing Goodwin, Taliaferro and Meador in their

individual capacities end not as military personnel.

Burkett conterded that due to the appellees’ intentional

failure to discharge a mandatory, non-discretionary duty

under Texas Army National Guard regulation procedure 7-

3 to confirm Burkett’s duty status to the medical facility at

Dyess, he suffered damages for which he could recover at

common law. The trial court dismissed Burkett’s case.

Discussion

We first address whether the trial court erred in

dismissing Burkett’s case on the ground that his claims

were not justiciable in a civilian court.

Standard of Review

In examining whether a dismissal for want of jurisdic-

tion is appropriate, we “construe the pleadings in favor of

the plaintiff and lock to the pleader’s intent.” See Texas

Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446

(Tex. 1993). We are oblised to take as true the allegations

in Burkett’s petition and construe them favorably to his

position. See id. We must reverse the dismissal unless the

petition affirmatively demonstrates that no cause of action

exists or that the plaintiff’s recovery is barred. See Dor-

chester Master Ltd. P’ship v. Dorchester, 914 S.W.2d 696,

App. 6

703 (Tex. App. — Corpus Christi 1996, writ granted w.r.m.);

Ramirez v. Lyford Consol. I.S.D., 900 S.W.2d 902, 906 (Tex.

App. — Corpus Christi 1995, no writ). A court is without

jurisdiction only when the court can determine from the

allegations of a pleading that, even by amendment, no

cause of action can be stated consistent with the facts

alleged. Ramirez, 900 S.W.2d at 906 (citing Bybee v.

Fireman’s Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960)).

Justiciability of National Guard Disputes

Burkett’s petition alleged that the appellees failed to

abide by National Guard regulations, that is, they failed to

confirm Burkett’s duty status to the Dyess military medi-

cal facility, and, as a result, Burkett suffered damages.

Burkett alleged that despite the fact that at all times

appellees were National Guard officers and the act about

which he complains is governed solely by National Guard

regulations, the appellees’ alleged actions or failure to act

regarding particular regulations took them outside their

status as National Guard officers making appellees subject

to the jurisdiction of civilian courts. We disagree.

Because National Guard members serve in a branch of

the federal military service, decisions regarding the

regular military service are relevant in determining the

proper scope of judicial inquiry into claims brought by

Guard members. Holdiness v. Stroud, 808 F.2d 417, 422

(5th Cir. 1987). We are mindful of the well-established

principle announced in Feres v. United States, that claims

brought by military personnel for injuries arising from or

in the course of activity incident to military service are

nonjusticiable. 340 U.S. at 136; see also United States v.

Stanley, 483 U.S. 669, 683-84 (1987); Chappell v. Wallace,

App. 7

462 U.S. 296, 305 (1983); Holdiness, 808 F.2d at 423;

Crawford v. Texas Army Nat'l Guard, 794 F.2d 1034, 1035

(5th Cir. 1986); Texas Adjutant Gen.’s Dep't v. Amos, 54

S.W.3d 74, 79 (Tex. App. — Austin 2001, pet. denied);

Newth, 883 S.W.2d at 357. While the Supreme Court has

not held that military personnel are barred from all

redress in civilian courts for wrongs suffered in the course

of military service, the “special relationships that define

military life have ‘supported the military establishment’s

broad power to deal with its own personnel’” instead of

involving civilian courts in such decisions. Chappell, 462

U.S. at 305. “The permissible range of lawsuits by present

or former servicemen against their superior officers is, at

the very least, narrowly circumscribed.” Crawford, 794

F.2d at 1035. “Civilian courts must, at the very least,

hesitate long before entertaining a suit which asks the

court to tamper with the established relationship between

enlisted military personnel and their superior officers;

that relationship is at the heart of the necessarily unique

structure of the Military Establishment.” Chappell, 462

U.S. at 300.

Burkett contends that these cases do not apply be-

cause here the appellees were not operating in an area

where they could exercise discretion and there was noth-

ing to second-guess. Burkett contends that based upon the

Texas Army National Guard regulation procedure 7-3, the

appellees were under a mandatory duty to confirm his

duty status to the medical facility at Dyess and they

deliberately failed to discharge that nondiscretionary duty.

Burkett suggests that the facts here are analogous to

those in Brown v. United States, 739 F.2d 362 (8th Cir.

1984), Day v. Massachusetts Air National Guard, 167 F.3d

678 (1st Cir. 1999), and Lutz v. Secretary of the Air Force,

App. 8

944 F2d 1477 (9th Cir. 1999). In Brown, the plaintiff

serviceman alleged he suffered injuries from a mock

lynching; in Day, the plaintiff serviceman alleged he

suffered injuries from a hazing incident described by the

trial court as “despicable”; in Lutz, the plaintiff service-

woman alleged she suffered injuries when the defendants

broke into her office, took personal papers and dissemi-

nated them to other military personnel with the intent to

injure her reputation and career. Brown, 739 F.2d at 364;

Day, 167 F.3d at 680; Lutz, 944 F.2d at 1478. In these

three cases, the courts reviewed the plaintiffs’ allegations

under Feres and concluded that the plaintiffs’ claims for

injuries arose from situations that were not within the

course of activity incident to military service. Due to the

“extreme nature of the alleged conduct and its total

antipathy to any conceivable military purpose,” there was

no relevant relationship among the activity, injury and

military service. Brown, 739 F.2d at 368.

Conversely, here the issue is whether Burkett’s

superior officers properly followed a Texas Army National

Guard regulation related to a request for medical care at a

military medical facility. Despite the fact that Burkett

sued appellees in their individual capacities only, his

pleadings complain about his superior officers’ conduct in

relation to a military personnel action pursuant to mili- |

tary regulations which can only arise when Texas Army

National Guard officers are on active duty. Burkett’s

pleadings alleged wrongdoing that was within the course

of activity incident to military service. We hold that

Burkett failed to allege an adequate basis for civilian court

jurisdiction and his claims are not justiciable in a civilian

court.

App. 9

Conclusion

We overrule Burkett’s contention and affirm the trial

court’s order of dismissal.”

David Puryear, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and

Puryear

Affirmed

Filed: August 8, 2002

Do Not Publish

App. 10

NO. GN-000159

BILL L. BURKETT, §

nae § IN THE DISTRICT

Plaintiff, § COURT OF

vs. $ -PRAVIS COUNTY,

WILLIAM W. GOODWIN, ; TEXAS

JACKIE L. TALIAFERRO

> § 126TH JUDICIAL

and ARCHIE M. MEADOR, & wicca to te

Defendants §

FINAL ORDER GRANTING DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT AND

MOTION TO DISMISS FOR LACK

OF JURISDICTION

(Filed Apr. 26, 2001)

On this the 23rd day of April, 2001, came on to be

heard Defendant’s Motion for Summary Judgment and

Motion to Dismiss for Lack of Jurisdiction. The Court,

after considering said motion, hearing arguments from

counsel, and reviewing the pleadings on file, is of the

opinion the motion should be GRANTED.

IT IS THEREFORE, ORDERED, ADJUDGED AND

DECREED Plaintiffs cause of action is hereby dismissed.

SIGNED on this the 23rd day of April, 2001.

/s/ Scott Jenkins

JUDGE PRESIDING

IG PAN TAP CU 9

4 ak aiid eee |

IG Rabiph oesok Ge : A

PS REPOS, ea

App. 11

[SEAL] THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711 (512) 463-1312

October 31, 2002

Ms. Lisa Smith

David Van Os & Associates, P.C.

1606 N. Alamo Street

San Antonio, TX 78215

Ms. Kamilla Lane Stokes.

Assistant Attorney General

P.O. Box 12548

Austin, TX 78711-2548

RE: Case Number 02-0880

Court of Appeals Number: 03-01-00302-CV

Trial Court Number: GN-000159

Style: BILL BURKETT

WILLIAM W. GOODWIN, JACKIE L. TALIAF-

ERRO AND ARCHIE M. MEADOR

Dear Counsel:

Today, the Supreme Court of Texas denied the peti-

tion for review in the above styled case.

Sincerely,

Andrew Weber Clerk

by /s/ Jessica L. Vlasac

Jessica L. Vlasac, Deputy

cc: Ms. Diane O’Neal, Clerk

Ms. Amalia Rodriguez-Mendoza

App. 12

HEADQUARTERS

DEPARTMENT OF THE ARMY

Washington, DC, 15 December 1978

National Guard Regulation )

)

No. 40-3 )

Medical Services

MEDICAL CARE FOR

ARMY NATIONAL GUARD MEMBERS

This is a complete revision of NGR 40-3 and con-

tains changes throughout. Authority has been

added to include care for National Guard mem-

bers on FTTD for more than 30 days under Sec-

tion 502f, Title 10, U.S. Code. Whenever the

word “he” is used in this regulation, it is in-

tended to include both the masculine and femi-

nine genders unless otherwise indicated.

Paragraph Page

Goernerall....:..ccccssscsssscorsescscnsncccvesevvecsensesseees 1 1

AUthority........ccccrcrrscorccccccscrorssceessvereresecenes 2

POLICIOG......0000seseererecresesccccvescscvsvcsssecsccsssses 3 1

State Responsibilities................cecseeesees 4 1

Medical Care............cecssssscsrerreseeesssseseees 5 2

Authorization for Care..............:ssssseseeeees 6 3

Medical Care Benefits...............sssssseeeeeeees 7 4

* This regulation supersedes NGR 40-3, 31 May 1972.

App. 13

Procedure for Obtaining Medical Care... 8 4

Status While Undergoing

RE a NE COO 9 6

Disposition of Hospitalized Cases........... 10 6

Payment for Medical Care................00000. 11 7

Pay and Allowances...............ccccccccsseeseeeee 12 8

Requirement for Immunizations............. 13 8

DD Form 689 (Individual Sick Slip)....... 14 8

APPENDIX Notification of Injury.............. 9

1. General. This regulation outlines the medical care to

which Army National Guard (ARNG) personnel not on

active Federal service are entitled. It prescribes the

policies and procedures for obtaining such care and estab-

lishes the responsibilities for the provisions of care. AR 40-

3 applies to the ARNG except as modified herein.

2. Authority. Sections 318-320 of Title 32, U.S.C. and

sections 502-505 of Title 32, U.S.C.

3. Policies. a Members of the ARNG are entitled to

medical care for treatment of disease or injury only under

the circumstances outlined in paragraph 6. Unit com-

manders should exercise extreme care when authorizing

medical attention for ARNG personnel in order that funds

will not be committed for unauthorized expenditures.

6. Army National Guard technicians who are injured

in the scope of their ARNG civilian employment are not

authorized medical care under this regulation, but are

entitled to medical care under the Federal Employees

Compensation Act chap 15 of title 5, U.S.C. administered.

by the Office of Workers’ Compensation Programs.

App. 14

c. Army National Guard members are entitled to

medical care when ordered to perform duty under section

502, title 32, U.S.C., under the following circumstances:

(1) For a period of more than 30 days and they

are disabled in line of duty from disease while so em-

ployed.

(2) For any period of time and they are disabled

in line of duty from injury while so employed.

(3) In the instances outlined in (1) and (2) above,

medical care and medical care benefits are authorized

under paragraph 6.

4. State Responsibilities. a. Prior to the opening of

annual training camps, the State military authorities are

responsible for the arrangements for appropriate medical

services. These arrangements will consist of medical care

deemed necessary but not limited 6 to that provided by the

post, camp, or station.

b. Medical treatment facilities will be used in the

following priority:

(1) National Guard

(2) Army, Navy, Air Force

(3) Other Federal facilities (Veterans’ Admini-

stration hospitals, etc.)

(4) Civilians

5. Medical Care. a. General. The definitions of medical

care; policies outlining the manner, conditions, procedures,

and eligibility for care; and the sources from which medi-

cal care is obtained are enumerated in AR 40-3.

App. 15

b. Qualifications.

(1) Professional personnel. Qualifications of

civilian personnel to furnish medical care are prescribed in

AR 40-3.

(2) Treatment facilities. The exclusion of certain

civilian facilities to provide medical care, and reasons

therefore, are outlined in AR 40-3.

c. Payment of accounts. Statements of charges for

payment of services rendered by civilian sources will be

vouchered in accordance with instructions in AR 40-3 and

will be forwarded as outlined in paragraph 11 of this

regulation.

d. Elective care. Elective care in civilian medical

treatment facilities or by civilian medical and dental

personnel is not authorized. The medical care authorized

by this regulation is limited to that necessary for the

treatment of the disease or injury incurred under the

conditions outlined herein.

e. Prosthetic devices, prosthetic dental appliances,

hearing aids, spectacles, orthopedic footwear, and orthope-

dic appliances. These items will be furnished —

(1) By Army medical facilities —

(a) When required in the course of treatment

of a disease or injury contracted or incurred in line of duty.

(6) When required to replace items that have

been lost, damaged, or destroyed while engaged in training

under sections 502-505 of title 32, U.S.C., not the result of

negligence or misconduct of the individual concerned.

App. 16

(2) By civilian sources —

(a) Under the circumstances enumerated in

(1)(a) above, after approval of the USPFO’s of the respec-

tive States.

(6) Under the circumstances enumerated in

(1)(6) above in the case of prosthetic devices, prosthetic

dental appliances, hearing aids, orthopedic footwear, and

orthopedic appliances when the unit commander deter-

mines that

1. Member is far removed from a Federal

medical treatment facility.

2. Lack of such device would interfere with

the individual’s performance of duty as a member of the

ARNG.

3. Approval must be obtained from the

USPFOs of the respective States prior to replacement.

(1)(6) above in the case of spectacles under a determina-

tion by the unit commander that

1. The member is far removed from military

medical treatment facility.

2. The member has no other serviceable

spectacles.

3. Lack of a suitable pair of spectacles

would interfere with the member’s performance of duty as

a member of the ARNG.

4. Charges for replacement of spectacles will

not exceed the rates stated in AR 40-330. Charges for

App. 17

replacement or repair by civilian sources over and above

the allowable rates will be paid from the individual’s

personal funds.

5. In cases covered by (2)(b) and (c) above,

the unit commander will furnish a statement to support

the voucher as follows:

STATEMENT

Nae tank ~~ SSN

; , while en-

gaged in training under section (502) “(503) “(504) (505) of

title 32, United States Code sustained the ‘(loss) ‘(damage)

(destruction) of his spectacles

description

of loss, damage or destruction (type of lens and frames)

not the result of misconduct or negligence on his part. The

(repair) (replacement) by civilian sources was required

since the member was removed from military medical

treatment facility and the lack of (repair) ‘(replacement)

would interfere with his performance of duty as a member

of the Army National Guard.

Date Signature of unit commander

6. Approval must be obtained from the

USPFO of the respective State prior to repair or replace-

ment of spectacles.

* Indicate applicable portions.

App. 18

(3) Loss of or damage to prosthetic devices is

neither disease nor injury. Claims and vouchers pertain-

ing to these devices will be adjudicated by the USPFO.

6. Authorization for Care. a. Medical care is author-

ized for members of the ARNG as outlined in b and c

below. Emergency medical treatment may be obtained, as

deemed appropriate by the unit commander, during

training under sections 503-505 and for Guardmembers on

orders for over 30 days performing duty under section 502,

title 32, U.S.C., without regard to the line of duty deter-

mination. However, subsequent medical care, other

entitlements, and responsibilities for payment of charges

for care must ultimately be decided by the final line of

duty determination.

b. In line of duty. Medical care is authorized for

members who incur a disease or injury in line of duty

under the following circumstances:

(1) When a disease is contracted or injury is

incurred while enroute to, from, or during any type of

training or duty under sections 503, 504, 505, and for

Guardmembers on orders for over 30 days performing duty

under section 502f of title 32, U.S.C. Such training in-

cludes, but is not limited to, annual training, maneuvers

and field exercises, service schools, small arms meets, and

FTTD under aforementioned sections.

(2) When an injury is incurred while engaged in

any type of training under section 502 of title 32, U.S.C.

Such training includes but is not limited to unit training

assembly, multiple unit training assembly, and training in

aerial flight, other than FTTD under 502f.

App. 19

(3) While not on duty and while voluntarily

participating in aerial flights in Government-owned

aircraft under proper authority and incident to training,

Guardmembers are authorized medical and dental care

required as the result of an injury incurred in line of duty.

(4) Medical care is not authorized by army

expense for members who incur an injury while enroute to

or from any type of training under section 502, except for

Guardmembers ordered to perform duty for over 30 days

under section 502f of title 32, U.S.C.

Line of duty investigations and authorization for any

medical treatment for conditions incurred while the

members were performing REP 63 training in a Federal

status, or training under title 10, U.S.C. are the responsi-

bility of the Army Area commander under whose jurisdic-

tion the member was training even though the individual

may have returned to his National Guard status.

c. Not in line of duty. Members who incur an injury

or contract a disease during any type of training or duty

under sections 502f, 503, 504, or 505 of title 32, U.S.C.,

when it is determined to be not in line of duty, may be

furnished medical care at Army expense during the period

of training.

d. Members who incur an injury while in an armory

drill status under section 502 of title 32, U.S.C., when it is

determined to be not in line of duty, may not be furnished

medical care at Army expense.

7. Medical Care Benefits a. Medical care benefits are

provided as follows:

(1) A member of the ARNG who incurs a disease

or injury under the conditions enumerated herein is

App. 20

entitled to medical care, in a hospital or at his home,

appropriate for the treatment of his disease or injury until

the resulting disability cannot be materially improved by

further medical care.

(2) Any disease or injury incurred by a member

of the ARNG while receiving authorized medical care for a

disease or injury incurred during the training period for

which benefits are claimed will be investigated; and, if

determined to be appropriate, a report will be submitted

under NGR 600-3. If it is determined that the disease or

injury was directly related to authorized activities sur-

rounding the care of the original disease or injury, medical

care may be continued in the same manner as if it had

occurred during the training period.

b. When members who incur a disease or an injury

during a period of training or duty under title 32, U.S.C.

503, 504, 505, or 502f are admitted to an Army medical

treatment facility, and it appears that a finding of “not in

line of duty” may be appropriate, a formal line of duty

investigation should be promptly conducted, and a copy of

the report furnished the treatment facility. If tiese find-

ings result in a “not in line of duty” determination prior to

the date the training is terminated, every effort should be

made to assist the hospital concerned in disposing of the

patient from the hospital by the date the training is

terminated or as soon thereafter as he becomes transport-

able. Medical care furnished such member after the

termination of the period of training is not authorized at

Army expense unless the “not in line of duty” determina-

tion is ultimately reversed. The Individual may be fur-

nished medical care at Army expense from the date the

training is terminated to the date the member received

notification of this action. Medical care received subsequent

App. 21

to the member’s receipt of such notification is not author-

ized at Army expense. In the event a line of duty investi-

gation has not been made by the date the training is

terminated, every effort will be made to arrive at a deter-

mination as soon thereafter as possible.

8. Procedures for Obtaining Medical Care. a.

Individual responsibility.

(1) When a member of the ARNG incurs a

disease or an injury, while performing training duty under

sections 502-505 of title 32, U.S.C., he will, without delay,

report the fact to his unit commander. Each member will

be informed that it is his responsibility to comply with

these instructions, and that failure to promptly report the

occurrence of a disease or injury may result in the loss of

medical benefits.

(2) In those cases where the disease or injury

does not manifest itself until after the termination of the

training period, the individual will consult his unit com-

mander regarding the procedure necessary to determine

his eligibility for medical care. Commanders will be guided

by this regulation and NGR 600-2.

b. Authorization for care in civilian facility.

(1) An individual who desires medical or dental

care in civilian medical treatment facilities at Federal

expense is not authorized such care without written or

verbal authorization by the Chief, National Guard Bureau

or his designee, except in an emergency

(2) When medical care is obtained without prior

authorization, the details will be submitted to NGB-ARS

as soon as practicable. The notification of medical care will

App. 22

be made following the format in the appendix. The notifi-

cation will be reviewed by NGB-ARS and replied to as

deemed appropriate.

c. Action by unit commander

(1) Medical care. Whenever an_ individual

requests medical attention, the unit commander should

take action to insure that the member receives medical

care under the following conditions:

(a) Procedures for obtaining medical care.

: 1. The unit commander will refer individu-

als requiring medical care to a medical officer if available.

In those cases where the medical officer recommends

hospitalization or treatment, and in all emergency cases

where the need for hospitalization or treatment is appar-

ent, the unit commander may authorize medical treatment

in a facility in the priority shown in paragraph 4b.

2. If the urgency of the situation indicates

the necessity for immediate hospitalization and a Federal

facility is not available, a civilian facility may be used;

however, the patient will be moved to a Government

hospital as soon as such movement can be accomplished

without detriment to his health or recovery. In those cases

where the medical officer recommends treatment by a

civilian physicians or dentist, and in instances where

there is no medical officer present, the unit commander

may authorize the services of a local civilian physician or

dentist.

(6) Written authorization. Prior to admission

to or treatment of the ARNG member at a DOD medical

treatment facility, the unit commander will furnish the

App. 23

treatment facility a signed letter of authorization as soon

as practicable. Authorization will include the following:

1. Full name, SSAN, grade, and organiza-

tion of the patient.

2. Statement that patient is a member of

the ARNG (designation of unit of assignment, station, and

State).

3. Location of training site where disease or

injury occurred.

4. Type of duty being performed.

5. Inclusive dates of training.

6. Statement that patient is authorized

medical care under the provisions of paragraph 6.

7. Statement as to the line of duty status, if

determined; otherwise, a statement “Line of duty status

undetermined — being investigated.”

8. Date of occurrence of disease or injury

and diagnosis.

9. Brief and complete summary of events

leading up to and surrounding the incurrence of injury or

disease.

10. For non-DOD medical treatment facili-

ties, the commander will furnish the facility commander

with DA Form 4159 (Request for Medical Care in a Fed-

eral Medical Treatment Facility Outside Department of

defense) in accordance with paragraph 15-3, AR 40-3.

(2) Notification. The unit commander will notify

the State Adjutant General and NGB-ARS of all members

App. 24

hospitalized beyond the end of the training period (format

in the appendix).

d. Authority for further hospitalization or treatment.

No member who has a disease or injury will be placed in a

hospital or otherwise treated at Federal expense after

termination of the training period, except in case of emer-

gency, unless such treatment is authorized by the Chief,

National Guard Bureau. A member of the ARNG already

under medical treatment at the expiration of the training

_ period may continue to receive the necessary treatment at

Federal expense in accordance with paragraph 7. If treat-

ment is discontinued, an authorization (the same as for an

initial period) will be required before reviewing treatment

for the same condition. Request for such medical care will

be submitted to NGB-ARS and may be either written or

verbal, depending upon the urgency of the situation.

e. Medical care for REP trainee personnel who

incurred an injury or disease in line of duty while on their

initial tour of ACDUTRA and who have since completed

their ACDUTRA and have been returned to the ARNG is

the responsibility of the Army Area commander of the

major command under whose jurisdiction the ACDUTRA

was performed. Requests for such care should be submit-

ted to the appropriate Army Area commander, since the

individual was in a Federal status at the time of the

incident.

f. Unit commanders should authorize emergency

medical care for individuals injured while in an authorized

duty status. Written approval from the Chief, National

Guard Bureau is not necessary, unless there is some

question as to the line of duty status, or unless more than

minor care will be required after the training period ends.

App. 25

However, notification of the injury will be forwarded to

NGB-ARS. Format shown in the appendix will be used for

this notification. A Federal medical facility should be used

whenever possible.

g. Inthe event an individual refuses to be moved to a

Federal medical facility, he, or a responsible individual in

his behalf, should be informed that by such refusal his

entitlement to Federal benefits may and probably would

be jeopardized.

9. Status While Undergoing Hospitalization. a.

General. The ARNG status of an individual is not affected

by virtue of his hospitalization. The provisions of AR 135-

200 will apply. Determination of requirement for contin-

ued hospitalization will be made by the MTF commander.

Paragraph 10 will apply when a final not in line of duty

determination has been made. Under no condition will an

individual be assigned to the medical holding unit of a

hospital.

b. Separation while undergoing hospitalization in a

military facility. Ordinarily a member will not be sepa-

rated from the ARNG while undergoing hospitalization for

treatment of a disease or injury incurred in line of duty.

Any such member whose period of service will expire

during the period of his hospitalization may, with his

consent, be retained in the ARNG beyond the expiration of

term of service (ETS) until the case is completed. No

member may be held in the service beyond the normal

ETS without his consent solely to effect his hospitaliza-

tion. Whenever it appears that the term of service of a

member of the ARNG will expire while he is hospitalized

under the provisions of this regulation, the State Adjutant

General will so inform the hospital commander concerned

App. 26

with giving the date of the ETS. This notification should

be forwarded at least 2 weeks in advance of the ETS.

Individuals who do not consent to further hospitalization

will be required to accomplish an affidavit to the effect

that they do not desire retention in the service for contin-

ued hospitalization and possible separation or retirement

for physical disability. If the individual refuses to accom-

plish the affidavit, a written report of such refusal will be

made by the hospital commander and will be placed with

the individual’s records. The hospital commander will then

inform the State Adjutant General of the desires of the

individual. In those cases where the individual does not

desire to continue hospitalization beyond his ETS, and in

all cases where the individual refuses to sign an affidavit,

hospitalization will be terminated on his ETS date. The

State Adjutant General will then initiate action to accom-

plish discharge by reason of ETS under NGR 635-200.

c. Separation under other conditions. In all cases of

individuals undergoing hospitalization in other Federal

medical treatment facilities, civilian hospitals, or where it

appears that an individual not in a hospital status is

disqualified for further military service as a result of an

injury incurred in line of duty, the State Adjutant General

will request from Chief, National Guard Bureau, authority

for hospitalization or transfer of the individual to an Army

medical treatment facility for the purpose of appearing

before a medical board and a physical evaluation board, if

indicated, as provided in AR 635-40.

d. Conduct while undergoing hospitalization. Indi-

viduals who are undergoing hospitalization under this

regulation will abide by the rules and regulations promul-

gated by the medical treatment facility and the instruc-

tions issued by the hospital authorities. Violations will be

App. 27

reported to the State Adjutant General concerned, who

will take necessary action.

10. Disposition of Hospitalized Cases. a. Return to

duty. When it is determined that a hospitalized ARNG

member has obtained the maximum benefits from hospi-

talization and there is no disability remaining from the

condition from which hospitalized, he will be returned to

his duty station or, if none, to his home of record at the

time of entry into the hospital.

b. Retirement or separation. Retirement or separa-

tion for physical disability with or without severance pay,

as provided by chapter 61 of title 10, U.S.C., is effected or

authorized by the Department of the Army as a result of

the action of any Army Physical Evaluation Board estab-

lished under AR 635-40. Eligibility is limited to individu-

als disabled as a result of an injury incurred while

performing any authorized training or duty, or as a result

of a disease contracted while performing full-time training

duty (other than duty for training under 10, U.S.C. 270(b))

under a call or order that does not specify a period of 30

days or less. Upon Department of the Army notification

that an individual is to be placed on the Temporary

Disability Retired List of the Army, retired for disability,

or separated with or without severance pay, the following

action will be taken:

(1) If an individual is to be retired for physical

disability, the State Adjutant General will issue an order

separating the individual from the Army National Guard.

The effective date of the separation will coincide with the

effective date of retirement. The separation order issued will

specify the cause of retirement and will cite as authority the

Department of the Army order affecting the retirement.

App. 28

(2) If an individual is to have his name placed on

the Temporary Disability Retired List of the Army, the

State Adjutant General will issue an order separating the

individual from the ARNG. The effective date of the State

order will coincide with the effective date of the Depart-

ment of the Army order.

(3) In the event an individual is to be separated

from the military service with or without severance pay,

the Adjutant General of the State concerned. will be

furnished appropriate information by the Department of

the Army in order that he can effect the separation of the

individual from the ARNG. The separation order issued

will include the cause of discharge and will cite the De-

partment of the Army authority that authorized the

action. y

c. Transportation. ARNG personnel who are fur-

nished medical care under these regulations are entitled to

transportation and travel allowances incident to such

medical care, including transportation to the duty station

or place of residence upon termination of treatment. When

necessary, the State Adjutant General will furnish orders

for such movement. Whenever State orders are used to

effect medical care or to admit an individual to a hospital,

the orders should include provisions for the return upon

completion of hospitalization or treatment.

11. Payment for Medical Care. Payment for medical

care obtained in accordance with this regulation will be

accomplished as follows:

a. In military medical facilities, medical care is

provided without charge except that officer patients must

pay for their subsistence. The facility concerned will collect

from the patient.

App. 29

b. In Government medical facilities other than those

stated in a above, the following procedures are applicable:

(1) Subsistence charges:

(a) Subsistence charges for officers hospital-

ized in Public Health Services (PHS) facilities will be

collected from the officers by the PHS facility concerned.

(6) Subsistence charges for officers hospital-

ized in other Federal medical facilities will be collected

from officers by Commander, US Army Health Service

Command, ATTN: HSCM, Fort Sam Houston, TX 78234.

are an element of the per diem inpatient reimbursement

rate and no separate collection action is required.

(2) Medical care (inpatient and outpatient)

charges: Standard Form 1080 vouchers covering charges

for medical care will be prepared by the Federal medical

facility concerned and forwarded directly to the Com-

mander, US Army Health Services Command, ATTN: HS-

CM-A, Fort Sam Houston, TX 78234, for settlement. The

vouchers will be substantiated by the signed request for

treatment by the unit commander. (Vouchers for medical

examinations performed for members and prospective

members of the Army National Guard will be forwarded to

the State concerned for payment.)

c. In civilian hospitals or by civilian agencies, physi-

cians, or dentists.

(1) Charges for civilian care are not properly

payable from Federal funds for treatment of disease

manifested during inactive duty training (32 U.S.C. 502),

except for individuals ordered to perform duty for periods

App. 30

of more than 30 days under 502f, and other exceptions

outlined in paragraph 4-2a(3), AR 40-3.

(2) Itemized DA Form 3928 (Public Voucher for

Medical Service) Should be prepared in accordance with

chapter 17, AR 40-3, and forwarded to NGB-ARS for

approval, except as shown in (3) below. A completed copy

of both the DA Form 2173 and the line of duty status will

be attached to the voucher.

(3) The USPFO’s are designated to approve

vouchers for civilian medical care subject to the following

limitations and provisions:

‘(a) The treatment must have been rendered at

a charge of $2,500.00 or less.

(6) The voucher is supported by a certificate

signed by the member’s unit commander, as provided in

paragraph 8, when appropriate.

of duty by the final approving authority, or

(d) Regardless of the line of duty status of the

injury or disease, when all of the medical care covered by

the voucher was furnished during a training period au-

thorized by sections 503, 504, or 505 of title 32, U.S.C., or

(e) For cases where.an administrative deter-

mination has been made, when the total cost of further

treatment is $100.00 or less.

d. Reimbursement for payment.

(1) Reimbursement to insurance agencies is not

authorized.

App. 31

(2) Itemized SF Forms 1034 (Public Voucher for

Purchase and Services Other than Personal) (chap 15, AR

40-3) should be prepared and forwarded to Chief, National

Guard Bureau (NGB-ARS-MS) for authority to reimburse

individuals who have paid for civilian medical treatment

only when amount exceeds $200.00. The USPFOs are

designated to authorize reimbursement in amounts of

$200.00 or less.

12. Pay and Allowances. See NGR 37-104-2.

13. Requirements for Immunization. a. Immuniza-

tion and reimmunizations will be administered in accor-

dance with AR 40-562.

b. Record of immunizations and reimmunizations

will be recorded on SF 601.

c. Maintaining a PHS 731 is not required unless so

designated by the State Adjutant General, except that

PHS 731 will be completed for all personnel prior to

mobilization.

14. DD Form 689 (Individual Sick Slip). The DD

Form 689 will be prepared whenever a member of the

ARNG on full-time training duty or inactive duty training

has requested or received medical attention. AR 600-6 will

be used as a guide in the preparation of the form. The

diagnosis will be entered under “Remarks” by the medical

officer whenever appropriate, The form serves as an

authorization by the unit commander for the individual to

report for sick call and is used as a medium of interchange

of information between the unit commander and the

medical officer. DD Form 689 will be maintained in the

MPRJ as a permanent record when it is determined that a

App. 32

line of duty and/or administrative determination may be

required.

App. 33

AFFIDAVIT OF BILL BURKETT

THE STATE OF TEXAS

COUNTY OF TAYLOR

“My name is Bill Burkett. I am mentally competent. I

have never been convicted of a crime involving moral

turpitude, I am over 18 years of age, and I have direct

knowledge of the facts that I am setting forth in this

affidavit.

I was a member of the Texas National Guard before

being medically retired as a result of this disease. One of

my duties as an officer in that organization was to conduct

strategic planning and efficiency studies of the Texas

National Guard. These studies threatened the status quo

of the Guard, and earned me the animosity of numerous

members of the upper echelon of the Guard; including

Colonel William Goodwin, Colonel Jackie Taliaferro, and

Colonel Archie Meador. My immediate supervisor (rater)

was COL Archie Meador, and my senior supervisor (senior

rater) was COL William Goodwin.

I was serving on Title 32 active duty in the Texas

National Guard on January 17, 1998. I traveled to Pa-

nama under federal travel orders. I was not under federal

duty work orders with the Texas National Guard at any

time. I was returning to Abilene, Texas that day from an

assignment in Panama when I collapsed at the Abilene

Regional Airport in the baggage claims area. I was uncon-

scious for approximately one minute.

My wife picked me up at the airport and we went

home. I believed at this point that I was suffering from

fatigue and a case of the flu. After attempting to notify my

supervisor Colonel Meador, I notified Colonel John Wells,

App. 34

his second in rank on January 20, 1998, that I was unable

to drive to Austin and resume my duties at Camp Mabry.

Colonel Wells then stated that I should seek treatment at

Dyess Air Force Base outside of Abilene. I responded that

I would do so if my condition did not improve over the next

couple of days.

My condition deteriorated over the course of January

21 and January 22, 1998. I suffered from severe and

constant fever, bouts of nausea, dizziness, and what was

later diagnosed as seizures. I related these facts to Colonel

Wells and he suggested again that I seek treatment at

Dyess Air Force Base. I sought admittance to Dyess base

hospital on January 26, 1998, and I was informed at the

admissions office that I needed a commander’s authoriza-

tion to be admitted.

I contacted Lieutenant Colonel Dennis Adams,

concerning my need for this authorization. Lieutenant

Colonel Adams stated that he would complete all the

necessary paperwork once Colonel William Goodwin and

Colonel Archie Meador approved such action. I passed this

information onto Colonel Wells, who had continued to try

to obtain medical care for me. Colonel Wells later informed

me that Colonel Goodwin and Colonel Jackie Taliaferro

had declined to take such action on my behalf.

My medical condition continued to decline as all these

events transpired. I contacted Chief Warrant Officer

George Conn, an expert on personnel issues, concerning

how I could obtain medical treatment. Warrant Officer

Conn advised me that National Guard regulations and

Texas state law provided such care. Warrant Officer Conn

emailed a response to me concerning my plight that

suggested several routes I could take to obtain the military

App. 35

medical care I was entitled to receive. Warrant Officer

Conn was ultimately the victim of retaliation for his

efforts to assist me. These acts of retaliation forced him to

resign from the guard. Within this timeframe, approxi-

mately April 1, 1998 Colonel Wells told me that he had

been relieved of responsibility regarding my case and that

all contact would now be through Colonel Taliaferro.

I ultimately received military medical care, but not

until United States Congressman Charles Stenholm

intervened on my behalf. I continue to suffer from debili-

tating headaches, seizures, nausea, and mobility impair-

ments. I have difficulty concentrating, which makes

reading difficult for me.

I fully accept workplace animosity as a fact of life. The

petty and vindictive acts of Colonels Goodwin, Meador,

and Taliaferro in this case go above and beyond instances

of such animosity because their actions and inactions

placed my life in jeopardy, and I continue to live with the

effects of those acts to this day.

Everything contained in this Affidavit is true and

correct according to my personal knowledge.

/s/ Bill Burkett

Bill Burkett, Affiant

Before me, the undersigned authority, personally

appeared Bill Burkett, who stated upon his oath that his

above and foregoing testimony is true and correct.

Subscribed and sworn to me on this 14 day of Febru-

ary, 2001.

App. 36

| /s/ Francesca Helm

Notary Public in and for

the State of Texas

My commission expires:

09/07/04

[SEAL] FRANCESCA HELM

Notary Public,

State of Texas

My Commission

Exp 09-07-04

App. 37

AFFIDAVIT OF GEORGE O. CONN

THE STATE OF TEXAS §

COUNTY OF Dallas §

BEFORE ME, the undersigned authority, personally

appeared George O. Conn, who, being by me duly sworn,

deposed as follows:

My name is George O. Conn. I am currently on active

duty with the United States Army, assigned in Germany.

My address as of the date of the preparation of this affida-

vit is CW3, George O. Conn; lst PERSCON, TAPOD; Unit

29058; APO AE 09081; my permanent address is P.O. Box

891, Cedar Hill, Texas 78106-0891. I am of sound mind,

capable of making this affidavit, and personally ac-

quainted with the facts herein stated, which are true. This

affidavit is given freely and voluntarily. I have never been

convicted of a felony. My date of birth is 4/9/42.

I am personally acquainted with LtC Bill Burkett, and

I have personal knowledge of the following facts.

I first met LtC Bill Burkett about 1994 or 1995 when

we were on Active Duty Special Work (ADSW), Texas

Army National Guard, Austin, Camp Mabry, Texas. We

were cubicle mates, his desk being just across from where

I worked. We both worked there until about January of

1998 when he got sick.

My rank is Chief Warrant Officer 3 (CW3). A “warrant

officer” is an officer who is considered a subject matter

expert within their assigned technical field, while a non-

warrant commissioned “officer” has more typical “leader-

ship” responsibilities. A warrant officer can certainly lead

combat units, but that function is more typically assigned

; App. 38

to commissioned officers who generally have training in

combat functions. My MOS (Military Occupational Spe-

cialty) is 420A, an Administrative Technician warrant

officer, i.e. a personnel expert. Other examples of warrant

officers are food service, logistics, maintenance, military

intelligence, and aviation.

My experience and training that qualify me in my

current rank include the completion of Officer Candidate

School in 1968, various administrative assignments in the

National Guard over a 15-year period as a full time Tech-

nician (commissioned and as an enlisted man), and the

completion of the warrant officer technical and tactical

certification course about 1992.

I am also aware of and experienced with Army Regu-

lations dealing with medical care including AR 40-3, AR

135-381, both due to my assignment as Command Admin-

istrative Officer and as a Warrant Officer within the

technical field of administration over the last 28 years of

my military service.

I am what could be called a senior military technician,

based on my training and past experience and years

service. I served in proximity to LtC Bill Burkett over a

period of about three years, and I have known COL Wil-

liam W. Goodwin, COL Jackie L. Talliaferro [sic], and COL

Archie M. Meador (Jr.) for a number of years (all have O-6

rank designations, thé pay grade just below a one star

general). I understand that William W. Goodwin, Jackie L.

_ Talliaferro, and Archie M. Meador (Jr.) are Defendants in

a suit that has been filed against them by LtC Bill

Burkett, specifically a suit in the 126th Judicial District

Court, Travis County, Texas, Cause No. GN-000159.

App. 39

My professional relationships with some of the Defen-

dants goes back over 30 years. COL Taliaferro and I were

together in the same class at OCS in 1968, and since then

I have worked under him for several years in military

support to civil authorities activities or events. COL

Meador and COL Goodwin and I have crossed paths

during our careers with the Texas Army National Guard

prior to my service at Camp Mabry when I reenlisted in

1989. LtC Bill Burkett started at Camp Mabry sometime

about 1995. COL Goodwin was the Chief of Staff, subordi-

nate only to the Adjutant General, who was General

James. COL Taliaferro was the Personnel Director, COL

Meador headed up the Plans, Operations and Training

Directorate. About the time that LtC Bill Burkett came to

Camp Mabry, I was working in the chain of command

under COL Meador.

My work station was in direct contact with LtC Bill

Burkett’s (within ten feet of each other in the next aisle,

such that we would be able to chat from our chairs on a

regular basis during work) which allowed me to have

regular visual contact, access and knowledge of many

events regarding LtC Bill Burkett that I might otherwise

not have witnessed. Additionally, as a smoker, I was

sought out regularly by COL Meador on smoke breaks

almost every day when we would typically make small

talk. On occasion, COL Meador would make comments

about work events, including at times occurrences about

the activities of LtC Bill Burkett. COL Taliaferro was a

civil service technician who usually did what he was

instructed to do by the Chief of Staff. It is my opinion that,

based on my experience and observations, that what

happened to LtC Bill Burkett was directed by COL Good-

win, with assistance by his protégée COL Meador. COL

App. 40

Meador was technically LtC Bill Burkett’s supervisor.

During this time my cubicle was in the same building as

the three defendants. I have already discussed the regular

informal contacts that I had with COL Meador, and, in

addition to being LtC Bill Burkett’s immediate supervisor,

he was my senior rater. I had a continuing professional

relationship during this time with COL Taliaferro, par-

tially based on my previous work relationship under him.

COL Goodwin, as the Chief of Staff, was a person that I

did not meet with unless I had to, but I saw him fre-

quently in the building and regularly interacted with him

in the context of reports that I made, and instructions I

received, through the chain of command.

LtC Bill Burkett’s job evolved into a position where, as

an administrative management “efficiency” expert, he

conducted a management study of the Texas National

Guard. He ended up pinned between two management

systems, the more “political” chain of command lead by AG

James (which wanted the efficiency study) and the chain

of command headed by the Chief of Staff, COL Goodwin

(which might have construed the management study as a

treat to the status quo). It is a little misleading to under-

stand the National Guard chain of command as a unitary

structure leading from the lowest ranking soldier through

the Chief of Staff to the Adjutant General. In fact, the

Adjutant General, as a part time political appointee, was

more under the authority of the state government, while

the Chief of Staff, as a full time soldier, had more author-

ity under the federal/army chain of command structure.

I remember at least one smoke bread [sic] that I took

with COL Meador before LtC. Burkett went to Panama,

but after he completed his management study, COL

Meador informed me that it would not be in my best

App. 41

interest to do anything that could be construed as assist-

ing LtC Burkett. The indication was that it would not be

“career enhancing” and he may even have used those

words. I viewed it as a threat against me, and a promise

that more adverse action was to come against LtC

Burkett. It was my experience that COL Meador would

not have said anything like that unless COL Goodwin had

discussed the issue with him as his point of view.

My technical duty assignment during this time within

the Texas National Guard was based on and because of

my qualifications as an administrative/personnel expert.

Indeed COL Meador and COL Taliaferro used my exper-

tise and advice in these areas on a regular basis.

In my opinion, LtC Bill Burkett may have been one of

the most energetic people and thinkers that I have ever

been around. I found him to be extremely honest, and his

analytic ability regarding any organizational process was

the best I had ever seen. His work habits and activities

were always of the highest professional standards.

I was aware that LtC Bill Burkett was assigned to

temporary duty about late 1997 of short duration for a

management study in Panama. He came back to the

United States in early 1998 and returned to his hometown

in Abilene, Texas. I heard about his illness when he called

me and told me that he had passed out at the airport in

Abilene, within a few days after that event occurred. Then

a few days after that he called and told me that he was

still unable to receive medical care. I don’t remember

exactly the reason at that time, but it had to do with the

procedural difficulty in getting written authorization from

his unit that he was in service and was therefore author-

ized to get medical treatment. At that time I told him that

App. 42

he was clearly authorized to receive such medical treat-

ment because any member of the military force who is

injured, contracts a disease, the whole nine yards, i.e. any

training status, is authorized for medical treatment. If

there is any question, the medical treatment should be

given, subject to a subsequent investigation and/or deter-

mination as to what line of duty the person was in at the

time of the injury. After the initial information about his

illness, I eventually became aware that his illness was

growing worse, by way of direct communications with LtC

Burkett, both on the phone and via email, and through

third parties who reported to me about his detiriating [sic]

condition.

I knew about the financial condition of LtC Burkett

during the time of the onset of his illness. It was general

knowledge among the full time work force chief of com-

mand during this time that they were aware both of his

financial status and that he was in need of medical care.

LtC Burkett and his wife had a ranching or farming

operation near his hometown of Abilene and, due to

drought conditions, they were in the process of losing their

ranch and were on the verge of being forced into bank-

ruptcy. As a result, he had no funds for any private medi-

cal care, as COL [sic] Burkett and I discussed at the time.

I mentioned this status to COL Wells, i.e. that LtC

Burkett was looking at bankruptcy issues. When I talked

to COL Wells about my opinion regarding the blocks that

were placed in the way of LtC Burkett receiving medical

care, COL Wells gave me no specific response to my

observation. It was also well known that Dyess Air Force

Base Hospital was the closest medical facility to LtC

Burkett’s home.

App. 43

I also informed LtC Burkett at the time of his initial

injury that army regulations for the National Guard

authorized retaining a person in an ADSW (Active Duty

Special Work) status when that soldier had incurred an

illness or disease while in on-duty status, as was the case

with LtC Burkett. It may be that the soldier might be

placed in another type of pay status, but the point is that

he would continue in the service while he received medical

treatment for the on-duty injury. This regulation could

only be superceded if the soldier waived his right to such

continued service and treatment in writing. I believe the

regulation is covered in the AR 135 series, I think AR 135-

381. I also told LtC Burkett that he could get relevant

publications from the closest unit to him, the Abilene

Armory.

The right to medical treatment in this situation is an

entitlement, not subject to discretionary review by anyone

in the injured person’s unit, or the command structure

above that. If anyone hinders such medical treatment,

they are operating outside legitimate purview of the

_ relevant military regulations and without authority.

AR 40-3 and AR 135-381 governs the entitlement

and/or authorization of such military personnel for medi-

cal treatment or medical care, either for private medical

care or military facility medical care. There are form and

instruction materials distributed to Texas National Guard

units, that the defendants are well aware of, that show

that such medical care is mandatory. The above regula-

tions are essentially standing orders for such medical care.

After the second telephone call from LTC Bill Burkett,

I talked with COL John Wells, and stated my opinion that

medical care was authorized in this case. I believe at that

App. 44

time he had been designated as the point of contact in our

directorate for such matters. I also told the same to COL

Meador. I usually did not expect an immediate response to

such unsolicited opinions, and do not remember getting

any. A line of duty investigating officer was appointed, but

I do not remember the outcome of any such investigation.

About that time, COL Taliaferro became the point of

contact for any matter concerning LTC Burkett. I am sure

that I spoke to him about LtC Burkett’s medical condition,

but I do not remember when or the specifics. It was usu-

ally the case that the point of contact in such cases is the

unit commander, i.e. in this case, MAJ Lisa Hines. I do not

know why she was not utilized in this case. Another option

might have been CW4 Dewaine Brautigan, the senior full

time personnel technician in COL [sic] Burkett’s unit of

assignment. I do not know why he was not utilized in this

case. Based on my experience, this non-routine selection of

the point of contact indicated that LTC Burkett was being

singled out for special negative treatment and to take any

action that would indicate any association with him would

be detrimental to one’s quality of life in the service, both in

the present and future.

When I was assigned to a battalion as the Command

Administrative Assistant, i.e. in the First Battalion, 143rd

Infantry, for about seven years until about 1979, I was the

senior technician for making decisions for soldiers that

were injured or diseased in the line of duty or while

performing duty. In my experience and expertise, there is

no discretion, according to Army and National Guard

regulations, that anyone in the command structure has to

prevent someone who is injured or diseased in the line of

duty, as was LtC Burkett, from receiving emergency

App. 45

medical care. I was probably involved in hundreds of line

of duty (LOD) determinations during that period of time.

I was working in San Antonio on a demobilization

issue in early to mid-1998. In the evening while at the

hotel I was staying at I emailed a note to LtC Burkett

about his general situation. I used a National Guard

computer to send the email. I do not remember what I sent

to LtC Burkett, but evidently later someone (I think the

information was routed through LtC Haddox), was looking

on that laptop computer’s C-drive, and found the email.

The message was evidently construed to be negative

towards the AG and/or Governor Bush. I did not think

anything of it at the time. The first thing I knew about it’s

[sic] possible negative consequences was that I was called

to a meeting at the office of Chief of Staff Goodwin on June

7, 1998 (it was a Sunday). I was totally surprised to find

that I had been called to a formal meeting with a tape

recorder, the Chief of Staff, a JAG officer, and COL

Meador. I do not recall the exact sequence of events but

the meeting was between five and ten minutes, a short

meeting. COL Goodwin informed me that I was being

released from my ADSW status effective immediately, I

was informed that I had the right to an attorney, and COL

Hajl, the Senior JAG officer at Camp Mabry, showed me a

piece of paper and asked me if I recognized the AOL

message. I said “Yes, Sir.” It was an AOL message from

me to LtC Burkett that I had sent from the San Antonio

hotel. I think it was the Chief of Staff that had told me

that the message was negative to the AG or Governor

Bush. I did not ask any questions.

After the initial meeting, I met for about 15 minutes

with the attorney that was assigned to me, a Major whose

App. 46

name I do not remember, and I told him that I had noth-

ing to say. My attorney did not know anything about why I

was being dismissed. My attorney and I returned to the

conference room, and I said that I had no comment, and

the meeting was adjourned.

I worked that next Monday morning and left Camp

Mabry that afternoon. I was on active duty with leave

through the latter part of June, about June 23, 1998. I

resigned from the National Guard then and was appointed

to the U.S. Army Reserve, and took up a new assignment

on July 24, 1998.

Because of my experience, education, and training, I

believe that I was dismissed because of my support for LtC

Burkett.

Everything contained in the Affidavit is true and

correct according to my personnel [sic] knowledge.

/s/ George O. Conn

Affiant

I witnessed the signature of the affiant and the

initialing of each page attached to this affidavit. SIGNED

under oath before me on June 7, 2000

[SEAL] CAROLYN J. GREEN |/s/ Carolyn J. Green

Notary Public, Notary Public,

State of Texas State of Texas

My Comm. Expires My Commission

Aug. 6, 2003 expires: 8-6-2003

App. 47

Ken Owen & Associates

Certified Shorthand Reporters

NO. GN-000159

BILL BURKETT IN THE

Plaintiff, ) DISTRICT COURT

v. ) 126TH JUDICIAL

WILLIAM W. GOODWIN, _ ) DISTRICT

JACKIE L. TALIAFERRO ) OF TRAVIS

AND ARCHIE M.MEADOR ) COUNTY, TEXAS

Defendants. )

KAKKKKKK KK KK KK KK KK KK KK KK KK KK KK KK OK OK

ORAL DEPOSITION OF

COLONEL JOHN WELLS

FEBRUARY 9, 2001

KHKEKKKKKKKHKAKKKKK KK KK KKK KK KKK HK KK KK

ORAL DEPOSITION of COLONEL JOHN WELLS,

produced as a witness at the instance of the PLAINTIFF,

and duly sworn, was taken in the above-styled and num-

bered cause on the 9TH day of FEBRUARY, 2000, from

2:01 p.m. to 3:13 p.m., before Suzanne T. Lane, RPR, CSR

in and for the State of Texas, reported by machine short-

hand, at the Law Offices of Ken Owen & Associates,

Certified Court Reporters, 801 West Avenue, Austin,

Texas, pursuant to the Texas Rules of Civil Procedure and

the provisions stated on the record or attached herein.

801 West Avenue

Austin, Texas 78701-2169

(512) 472-0880

Fax 472-6030

Dallas

App. 48

[7] to remember

Q Sure.

A In that position, my line was a direct line in from

the outside.

Q Do you recall what he told you?

A. The best I can remember that particular day is he

said he had just gotten back from Panama, and while he

was trying to collect his luggage at the airport — I do not

know which airport he was talking about — that he had

collapsed, that he was having dizzy spells, and he would

not be in.

Q Do you recall what you teld him?

A I told him that I would inform Colonel Meador. I

do not remember any more to the conversation. I assumed,

you know, that he would go to the doctor.

Q And you said previously that you did inform

Colonel Meador: Is that correct?

A Yes. Every time Bill called in, I informed Colonel

Meador.

Q On that date, January 20th, you went to Colonel

Meador?

A Yes.

Q Do you recall what Colonel Meador told you?

* * *

[10] I believe I questioned him and said, well, have

you seen a doctor. And then that’s when he told me of the

App. 49

financial strain that he was in; that he was about to lose

everything; that he could not afford to see a doctor.

Q So you asked him, had he seen a private doctor?

A Yes.

Q Did you ask him if he was entitled to a doctor from

the National Guard?

A No, I didn’t.

Q Were you aware of his duty status, Mr. Burkett’s

duty status?

A_ Iwas aware of the type status he was in, which is

12b mandate, which is a temporary, usually time-

sensitive, special project. It is not considered full-time

employment.

Q But it’s considered active duty?

A Yes.

Q Are you aware if he was entitled to medical care

provided by the National Guard?

A He should have been if he was on active duty. But

here again, I did not question what source he was going to

see.

Q But you did mention his financial status,

* * *

(31] Bill Burkett ask you for medical care — for you to

approve his medical care?

App. 50

A Here again, I do not believe Bill asked me in that

form to approve his medical care, because I did not have

approval authority.

Q_ Did he tell you —

A I did assist him in getting medical care through

that whole process, though, through this time period.

Q_ Did he tell you he needed medical care?

A Yes, he did, and that’s when I started getting

involved in the process to try and get him in to see a

doctor.

Q And do you recall that date? Was that before the

LOD?

A_ It would have been before the LOD, but it was — it

would have been after he informed me that Dyees wouldn’t

see him, which was probably that last week in January.

Q Did you tell Colonel Meador that Bill Burkett was

requesting medical care?

A Ido not recall if I did or not. I may have, but I do

not recall where I could say yes or no.

Q Did you tell Colonel Meador everything

7 *x* *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.