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

MIKE COX, ATTORNEY GENERAL

COUNTY CLERKS:

VETERANS RECORDS:

Duties of county clerks regarding military discharge records

A county clerk must enter upon the county's record book all military service discharges presented for recording to the county clerk, including discharges presented by a veteran's service officer to aid the veteran, surviving spouse, or dependent in applying for benefits available to the veteran, surviving spouse, or dependent.

If requested by the veteran, a person with the veteran's permission, or the surviving heirs of the veteran, a county clerk is required to provide for the viewing and reproduction of a military service discharge record that has been entered upon the county's record book.

If requested by the persons designated by MCL 35.32(2)(b)(iv) and if access to the document is necessary to aid the veteran, surviving spouse, or dependent in applying for benefits available to the veteran, a county clerk is required to provide for the viewing and reproduction of a military service discharge record that has been entered upon the county's record book.

A county clerk must provide a certified copy of a military discharge record on file with the county clerk at the request of a person designated in MCL 35.32(2)(b)(i)-(iv).

Opinion No. 7159

June 29, 2004

Honorable Patricia L. Birkholz
State Senator
The Capitol
Lansing, MI 48909

You have asked two questions about the duties of county clerks regarding military discharge records under 1867 PA 83, MCL 35.31 et seq (the Act).

You first ask:

Must a county clerk record a military service discharge record that may be presented by a veteran's service officer if recording the document is necessary to aid the veteran, or surviving spouse or dependent, in applying for benefits available to the veteran, surviving spouse or dependent?

Section 2(1) of the Act provides in relevant part:

A county clerk shall enter upon the record book all discharges of soldiers, sailors, marines, nurses, and members of women's auxiliaries that may be presented to the clerk for recording. [MCL 35.32(1).]

Under the rules of statutory construction, where the language of the statute is clear, no interpretation is necessary; the statute must be enforced as written according to its plain meaning. Piper v Pettibone Corp, 450 Mich 565, 571-572; 542 NW2d 269 (1995).

Section 2 of the Act clearly states that all military discharges1 that are presented to the clerk for recording are to be recorded by the county clerk in the county's military discharge record book. The statute does not limit the class of persons who may present these discharges for recording or the purpose for which the recording is intended.

It is my opinion, therefore, in answer to your first question, that a county clerk must enter upon the county's record book all military service discharges presented for recording to the county clerk, including discharges presented by a veteran's service officer to aid the veteran, surviving spouse, or dependent in applying for benefits available to the veteran, surviving spouse, or dependent.

Your second question asks:

Must a county clerk provide for the viewing or reproduction of a certified copy of a military service discharge record previously recorded if the document is necessary to aid the veteran, or surviving spouse or dependent, in applying for benefits available to the veteran, surviving spouse or dependent?

Section 2(1) of the Act states that "[t]he military service discharge record [in the record book of the county clerk] of a person is confidential and may be viewed or copied only pursuant to subsection (2)." MCL 35.32(1).

Section 2(2) of the Act provides:

Each county clerk may do 1 or more of the following:

(a) Make available to the general public information in a record described in subsection (1) that is not less than 70 years old and that includes only the name, rank, unit of military service, dates of military service, and medals and awards conferred upon each individual identified in that record.

(b) Pursuant to the records media act, 1992 PA 116, MCL 24.401 to 24.403,[2] provide for the viewing or reproduction of a military service discharge record of a veteran by any of the following:

(i) The veteran.

(ii) A person with the veteran's permission.

(iii) The surviving heirs of the veteran.

(iv) A veteran's service officer, the Michigan veterans trust fund, or a person employed by the county department of veterans' affairs who provides counseling for veterans, if access to that record is necessary to aid the veteran, or the surviving spouse or a dependent of the veteran in applying for benefits available to the veteran.

(c) Charge members of the public for discharge records of veterans discharged 70 or more years ago. However, a person described in subdivision (b) shall not be charged for the discharge records of that veteran. [MCL 35.32(2)(a), (b), and (c).]

The answer to your second question turns on whether the language stating that the clerk "may" make these records available to certain classes of people listed in section 2(2) should be read in this context as meaning "shall" or "must." In DeBeaussaert v Shelby Twp, 122 Mich App 128, 131-132; 333 NW2d 22 (1982), the Court concluded that "may" meant "shall" in reviewing a statute that provided that a civil service commission "may" reject applicants who did not meet the physical requirements for service as a fire fighter:

Plaintiff argues that the use of the word "may" gives the commission discretion. However, "may" does not always grant such discretion; it is often interpreted to mean "shall". In Kment v Detroit, 109 Mich App 48, 61-62; 311 NW2d 306, 311 (1981), this Court stated:

"Ordinarily, use of the word 'shall' indicates that the doing of a particular thing is mandatory while use of the word 'may' grants discretion. * * * This is not always the case, however, and it has often been held in the context of particular statutes that the term 'shall' is not mandatory and that the term 'may' is. * * * 'Although the form of the verb used in a statute, i.e., whether it says something "may" or "shall" or "must" be done, is the single most important textual consideration bearing on whether a statute is mandatory or directory, it is not the sole determinant and what it usually connotes can be overcome by other considerations.' 2A Sutherland, Statutory Construction (4th ed), § 57.03, p 415. Chief among such 'other considerations' is, of course, the intent of the Legislature. * * * In determining the intent of the Legislature, certain generalities may be adduced concerning specific types of statutes and it has been said as a general rule that 'the permissive word "may" is interpreted as mandatory when the duty is imposed upon a public official and his act is for the benefit of a private individual'. 1A Sutherland, Statutory Construction (4th ed), § 25.04, p 301."

Smith v City Comm of Grand Rapids, 281 Mich 235, 242-243; 274 NW 776 (1937), further supports the word "may" being interpreted as mandatory:

"'Statutes which confer upon a public body or officer power to act for the sake of justice, or which clothe a public body or officer with power to perform acts which concern the public interests or the rights of individuals, are generally regarded as mandatory, although the language is permissive merely, since they are construed as imposing duties rather than conferring privileges.' 59 CJ, pp 1076, 1077."

The Act clearly imposes duties upon county clerks for the benefit of veterans. Black’s Law Dictionary, Revised 4th Edition (1968), p 1131, in its definition of "may," notes that "courts not infrequently construe 'may' as 'shall' or 'must' to the end that justice may not be the slave of grammar." Therefore, the term "may" used to describe the clerk's role in making military discharge records available for viewing and reproduction must be read in this context as meaning "shall."

Finally, section 5 of the Act provides that certified copies of discharge records "shall be received as evidence of the contents of the original discharge, in all cases where such evidence may be required." MCL 35.35. Section 2129(1) of the Revised Judicature Act of 1961 describes the duties of the officer holding certain records as follows:

Whenever a certified copy of any affidavit, record, document or paper, is declared by law to be evidence, such copy shall be certified by the clerk or officer in whose custody the same is by law required to be, to have been compared by him with the original, and to be a correct transcript therefrom, and of the whole of such original; and if such officer have any official seal by law, such certificate shall be attested by such seal; and if such certificate be given by the clerk of any county, in his official character as such clerk, it shall be attested by the seal of the court of which he is clerk. [MCL 600.2129(1).]

Accordingly, the veteran, a person with the veteran's permission, and the surviving heirs of the veteran are entitled, upon request, to receive a certified copy of the veteran's military service discharge records entered upon the record of the county clerk. The veterans' officials designated in MCL 35.32(2)(b)(iv)3 are also entitled, upon request, to receive a certified copy of the veteran's military service discharge records entered upon the record book, with or without the permission of the veteran,4 if the copy is needed to aid the veteran, surviving spouse, or dependent in applying for benefits available to the veteran.

It is my opinion, therefore, in answer to your second question, that if requested by the veteran, a person with the veteran's permission, or the surviving heirs of the veteran, a county clerk is required to provide for the viewing and reproduction of a military service discharge record that has been entered upon the county's record book. If requested by the persons designated by MCL 35.32(2)(b)(iv) and if access to the document is necessary to aid the veteran, surviving spouse, or dependent in applying for benefits available to the veteran, a county clerk is required to provide for the viewing and reproduction of a military service discharge record that has been entered upon the county's record book. A county clerk must provide a certified copy of a military service discharge record on file with the county clerk at the request of a person designated in MCL 35.32(2)(b)(i)-(iv).

MIKE COX
Attorney General

1OAG, 1975-1976, No 4829, p 76 (May 2, 1975), determined that the "discharges" referred to in MCL 35.32 include reports of separation and military service records.  The opinion noted that this construction assured that the vital information needed in supporting documentation to secure veterans' claims and benefits would be available as intended by the Legislature.

2
These sections specify the media, such as a photocopy, that certain government officials or entities may use to create reproductions of records.

3Benefits are afforded to veterans under both state and federal law.  For the requirements imposed by federal law regarding who may act as an agent for the preparation, presentation, or prosecution of any claim for benefits, see 38 USC 5901 and 38 USC 5902(a)(1) and (b).  See also 38 USC 5903.

4The access afforded to the veterans' officials designated by MCL 35.32(2)(b)(iv) is not conditioned on a showing that it be sought with the permission of the veteran.  The applicable rules of statutory construction do not permit adding a requirement into the statute that the Legislature has not seen fit to include.  See Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 421; 565 NW2d 844 (1997).