Decision  Franco, Michael v. Dept. of Veterans’ Services (VS-17-636)

Date: 04/20/2018
Organization: Division of Administrative Law Appeals
Docket Number: VS-17-636
  • Appellant: Michael Franco
  • Respondent: Department of Veterans’ Services
  • Appearance for Petitioner: Michael Franco
  • Appearance for Respondent: Eric T. Donovan, Esquire
  • Administrative Magistrate: Judithann Burke

Table of Contents

Summary of Decision

Summary Decision is appropriate where there are no issues of material fact.  In this case, all of the Petitioner’s active duty service in the United States Air Force was as a reservist who was on active duty for the purpose of training.  Pursuant to 108 CMR 3.02, such reservists are not eligible to receive Chapter 115 benefits.

Ruling on Motion for Summary Decision

The Petitioner, Michael Franco, appealed from the decision of the Department of Veterans’ Services (DVS) Hearing Officer dated July 19, 2017, which upheld the decision of the Veterans’ Service Office (VSO) of the Town of Holyoke to deny his request for state veterans’ benefits under G.L. c. 115.  The Hearing Officer found that the Petitioner’s service as reflected on his DD-214 amounted to active duty service for training as a reservist and applying the plain language of 108 CMR 3.02, concluding that he does not qualify for veterans’ benefits.  The Petitioner’s timely appeal was received on July 26, 2017. 

A pre-hearing conference was held on August 25, 2017.  The Petitioner participated telephonically.  The Holyoke Veteran Service Officer did not participate.  At that time, it was noted that there were no issues of material fact.  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 October 30, 2017.  The record was left open for an additional thirty (30) days for the filing of a response by the Petitioner.  None was forthcoming.  The record closed on November 30, 2017.    


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 Air Force, from  September 22, 1982 through February 18, 1983, was initial active duty service training.  (Exhibit 3.)
  2. Following boot camp, the Petitioner received orders to undergo a munitions systems specialist course.  (Id.)
  3. Following this schooling, the Petitioner was separated from active duty with the Air Force and issued a DD-214.  He returned to the reserves.  (Id.)
  4. The Petitioner was placed on active duty again starting August 3, 1988 through March 27, 1989.  (Exhibit )
  5. According to a second DD-214, he completed his basic military training, flight screening, munitions systems specialist course, leadership school, and academy of military science, all of which was active duty for training.  The DD-214 specifically states “Completion of Active Duty for Training.” (Id.)
  6. The Petitioner served after 1989 until 2010.  However, his service was limited to duties as a reservist.  (Exhibit 5.)


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, a veteran must meet the “Military Service Requirements” set forth in 108 CMR 3.02, which provides:

In order to be eligible for M.G.L. c. 115 veterans’ benefits, the person asserting to be a veteran must meet the eligibility requirements contained in G.L. c. 115, §§ 1 and 6A for active service in the U.S. Army, Marine Corps., Navy, Air Force, or Coast Guard of the United States.  Military service also includes service by members of the Merchant Marines who served in armed conflict between December 7, 1941 and August 15, 1945, and who have received discharges from the U.S. Army, Navy or Coast Guard; it does not include active duty for training purposes in the Army or Air National Guard; or active duty for training as a reservist in any branch of the Armed Forces.  Discharges must have been under honorable conditions.  (Emphasis added.)

The plain and unambiguous language of 108 CMR 3.02 therefore excepts Petitioner from eligibility for Chapter 115 benefits because his only active duty service was for training as a reservist.  He does not qualify for Chapter 115 benefits.

The decisions of the Holyoke Veterans’ Service Officer and the Department of Veterans’ Services are upheld. 

Division of Administrative Law Appeals,



Judithann Burke,

Administrative Magistrate   


DATED:  April 20, 2018

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