The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5491

May 21, 1979

VETERANS:

Payment of burial benefits by counties

COUNTIES:

Payment of burial benefits for veterans

A county may not award a veteran's burial benefit to persons who did not serve during a period of war, the Vietnam conflict or in a place of emergency when ordered to so serve by the government of the United States.

Whether a veteran has served in an 'area of hazardous duty' in order to be eligible for burial benefits, is determined by whether the veteran served in an area where the Vietnam service medal or the armed forces expeditionary medal was awarded to the veteran.

The Honorable Michael J. Anderegg

Probate Judge

Marquette County

Marquette, Michigan 48955

You have asked the following questions relating to veterans' burial benefits:

1. Is the payment by a county of the veterans' burial benefit provided in MCLA 35.801 limited to veterans who served during a specified period?

2. Is the county prohibited from paying a veteran's burial benefit for the burial of those veterans who do not qualify under MCLA 35.801?

3. What is the definition of area of hazardous duty as set out in MCLA 25.61?

Pursuant to 1911 PA 235, Sec. 1, MCLA 35.801(1) et seq; MSA 4.132(1) et seq, counties are mandated to pay $300 toward the burial expenses of some veterans:

'If an honorably discharged member of the armed forces of the United States who served for a period of not less than 90 days of active service, or who is discharged under honorable conditions after serving less than 90 days of active service because of a service connected disability, during a period of time in which the United States was at way or during the Vietnam conflict, or the wife or widow of a member of the armed forces of the United States, dies not possessed of an estate, both real and personal, exceeding the sum of $25,000.00, over and above all encumbrances and was a resident of the state at the time of death and resident of the state for a period of 6 months before entering the service or for a period of 3 years immediately before death, the county board of commissioners or the board of county auditors, upon application by the executor or administrator of the estate of the deceased person, or by the person who incurred or advanced expenses in connection with the burial of the honorably discharged member of the armed forces, or the spouse of the honorably discharged member of the armed forces, shall pay to the estate of the deceased person, or to the person who incurred or advanced the burial expense, the sum of $300.00. If the investigation provided for in section 2 shows that the deceased did not leave a dependent surviving, but did leave an estate sufficient to meet lawful claims, including burial expenses, then the county board of commissioners or the board of county auditors shall not pay the expenses. The application shall be submitted within 2 years after the date of death of the deceased person.' [Emphasis added]

Thus, 1911 PA 235, Sec. 1, supra, sets forth several criteria to be used in determining whether a burial benefit shall be paid for a deceased veteran, one of those being that the veteran shall have served during a time of war or during the Vietnam conflict.

In addition, 1911 PA 235, supra, Sec. 2 provides:

'As used in this act, 'service' includes persons serving in the armed forces of the United States in a place of emergency when ordered to so serve by the government of the United States, as defined in section 1 of Act No. 190 of the Public Acts of 1965, as amended, being section 35.61 of the Michigan Complied Laws, including the Vietnam conflict.' [Emphasis added]

1965 PA 190, Sec. 1; MCLA 35.61; MSA 4.1488, referred to above, states:

'In order to provide for the uniformity of service dates for veterans, the following dates and terms shall be applicable to all acts of the state relative to veterans:

'(a) 'Veteran' means a person, who served in the active military forces, during a period of war or who received the armed forces expenditionary [sic] or other campaign service medal during an emergency condition and who was discharged or released therefrom under honorable in the active military forces, during a period of war or who received the armed forces expenditionary or other campaign service medal during an emergency condition and who was discharged or released therefrom under honorable conditions. 'Veteran' also includes a person who died in active military forces.

(i) Future dates. The period beginning on the date of any future declaration of war by the congress or the beginning of an emergency condition recognized by the issuance of a presidential proclamation or a presidential executive order and in which the armed forces expeditionary medal or other campaign service medals are awarded according to presidential executive order and ending on a date prescribed by presidential proclamation or concurrent resolution of the congress.

'(j) Veterans of the Korean confict and veterans having served after January 31, 1955, in an area of hazardous duty for which an armed forces expeditionary or Vietnam service medal was received or veterans having served in the Vietnam era which is defined to be that period beginning on August 5, 1964, and ending on May 7, 1975.'

In answer to your first question, therefore, said burial benefit may only be paid for the burial of veterans who served during any of the specific periods defined by the statute.

In your second question you ask whether a county may not pay a veteran's burial benefit to persons who did not serve during a period of war, the Vietnam conflict or in a place of emergency when ordered to so serve by the government of the United States.

The legislature has seen fit to mandate the payment by counties of burial benefits under very specific circumstances. This award of a burial benefit in certain specified instances under specified conditions excludes its being granted under other conditions, absent a legislative enactment.

'. . . we are aided in this case by a cardinal rule of statutory construction: Expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. This rule is discussed at length in Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444, 446-447 (1953): . . .' Valenti Homes v Sterling Heights, 61 Mich App 537, 540; 233 NW2d 72 (1975)

Therefore, a county may not pay a veteran's burial benefit in circumstances other than those set forth in 1911 PA 235, supra.

In your third question you inquire into the definition of 'area of hazardous duty' as set forth in 1965 PA 190, Sec. 1(j), supra, which reads as follows:

'Veterans of the Korean conflict and veterans having served after January 31, 1955, in an area of hazardous duty for which an armed forces expeditionary or Vietnam service medal was received or veterans having served in the Vietnam era which is defined to be that period beginning August 5, 1964, and ending on May 7, 1975.' [Emphasis added]

Clearly, a veteran who served in an area where the Vietnam service medal or the armed forces expeditionary medal was awarded would qualify for veterans' burial benefits if the veteran received the medal. The award of these medals in a specific area during a particular period or emergency situation as defined by 1965 PA 190, Sec. 1, supra, determines which area was an 'area of hazardous duty'.

Frank J. Kelley

Attorney General