Decision  Cowen, Joseph E. v. Dept. of Veterans’ Services (VS-18-0359)

Date: 12/12/2018
Organization: Division of Administrative Law Appeals
Docket Number: VS-18-0359
  • Appellant: Joseph E. Cowen
  • Respondent: Department of Veterans’ Services
  • Appearance for Petitioner: Joseph E. Cowen
  • Appearance for Respondent: Stuart Ivimey, Esquire
  • Administrative Magistrate: Judithann Burke

Table of Contents

Summary of Decision

Summary Decision is appropriate when there are no issues of material fact.  In this case, the Petitioner is ineligible for benefits pursuant to G.L. c. 115 because he does not meet the definition of “veteran” as he was not discharged under “honorable conditions.”

Ruling on Motion for Summary Decision

The Petitioner, Joseph E. Cowen, appealed from the decision of the Department of Veterans’ Services (DVS) Hearing Officer dated May 31, 2018, which upheld the March 1, 2018 decision of the Department of Veterans’ Services Director of Annuities to deny his application for the Commonwealth of Massachusetts annuity.  [Attachment A, Exhibit A(1)].  The Hearing Officer found that the Petitioner’s discharge from active service in the United States Army was not under honorable conditions, and therefore, that he was is ineligible for the regular annuity benefit provided pursuant to 108 CMR 9.01(1)(b).  The Petitioner’s timely appeal was received on June 6, 2018.  [Attachment A, Exhibits A and A(3).] 

A pre-hearing tele-conference was held on July 13, 2018.  It was agreed that the matter would be submitted on documents.  The record was left open for the filing by the Respondent of a Motion for Summary Decision.  The Motion was received on August 10, 2018.  (Attachment A.)  The record was left open for an additional thirty (30) days for the filing of a response by the Petitioner.  The Petitioner did not file an Opposition to the Respondent’s Motion for Summary Decision.  The record closed on September 10, 2018.    


Based upon the documents submitted with the Respondent’s Motion for Summary Decision and the Petitioner’s acknowledgements at the DVS hearing and during the pre-hearing conference, I hereby render the following agreed Findings of Fact:

  1. The Petitioner’s first active duty service in the United Sates Army was from August 21, 1991 through December 16, 199   He was discharged from this service a single day before his graduation from Advanced Individual Training due to being diagnosed with the service-connected disability, asthma.  [Attachment A, Exhibit A(8).]
  2.  The Petitioner’s DD-214 reflects that he received an “uncharacterized” discharge.    [Attachment A, Exhibit A(3).]


Summary Decision in administrative proceedings is the functional equivalent of summary judgment in civil proceedings.  See Jack King and National Refrigeration, Inc. v. Office of the Attorney General, Fair Labor Division, LB-12-367 and LB-12-407 (Division of Administrative Law Appeals January 29, 2014) citing Caitlin v. Board of Registration of Architects, 414 Mass. 1, 7 (1992) (citing Mass. R. Civ. P. 56 for summary decision in administrative cases), Calnan v. Cambridge Retirement Board, CR-08-589 (Division of Administrative Law Appeals 2012) and Steriti v. Revere Retirement Board, CR-07-683 (Division of Administrative Law Appeals 2009).  Summary decision is appropriate when there are no genuine issues of material fact and the case may be decided as a matter of law.  King, supra, citing Caitlin, supra at p. 7, 801 CMR 1.01(7)(h) and Mass. R. Civ. P. 56.  A fact is “material”only if it might affect the outcome of the case.  King, supra, citing Lockridge v. The Univ. of Maine System, 597 F 3d 464, 469 n. 3 (1rst Cir. 2010) citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242 248 (1986).  An issue of material fact is “genuine” only if a fact-finder could reasonably resolve the dispute in favor of either party.  Id. (citing Santoni v. Potter, 369 F.3d 594, 598 (1rst Cir. 2004). 

The moving party must demonstrate the absence of any genuine issues of material fact.  801 CMR 1.01(7)(h), see also Mass. R. Civ. P. 56, Flesner v. Technical Communications Corp., 410 Mass. 805, 808 (1991).  King, supra, citing Beatty v. NP Corp, 31 Mass. App. Ct. 606, 607 (1991) (evidence “may be in the form of affidavits, depositions, interrogatories, admission and sworn pleadings”).  Inferences from these materials must be drawn in the light most favorable to the opposing party.  Beatty, supra at p. 607.  However, a magistrate does not make credibility determinations at the summary decision stage.  Id.  Therefore, if the moving party’s evidence establishes a material fact, the opposing party must in turn “set forth specific facts showing that there is a genuine issue for trial.”  Mass. R, Civ. P. 56(e) (“mere allegations or denials” are not sufficient).  Absent such “countervailing materials” from the opposing party, summary decision may properly be granted on the basis of the moving party’s undisputed evidence.  King, supra, citing Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 715 (1991). 

In order to be eligible to receive Chapter 115 benefits and 108 CMR 9.01(1)(b) annuities, a veteran must meet the Commonwealth of Massachusetts definition of “veteran.”  G.L. c. 115, § 1 acknowledges that the definition of “veteran” is set forth in G.L. c. 4, § 7, cl. 43rd, which  provides that:

“Veteran” shall mean …(3) any person (a) whose last discharge from active service was under honorable conditions, and, who (b) served in the….or Army of the United States for not less than 180 days active service…(Emphasis added.)

The plain language of this statute defines a veteran as a person whose discharge was under honorable conditions.  The Petitioner does not meet that criteria notwithstanding his eligibility for federal veterans’ benefits for his asthma.   The Department of Veterans’ Services is entitled to summary decision. 

The Motion for Summary Decision is ALLOWED.  The decisions of the Respondent, Department of Veterans’ Services and the Department of Veterans’ Services Annuity Appeals are upheld.

Division of Administrative Law Appeals,


Judithann Burke,
Administrative Magistrate   


DATED:  December 12, 2018

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