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Goodman v. New Jersey Department of Military and Veterans Affairs

June 5, 2008


On appeal from the State of New Jersey Department of Military and Veterans Affairs.

Per curiam.


Submitted April 21, 2008

Before Judges Graves and Alvarez.

Kenneth B. Goodman appeals pro se from the New Jersey Department of Military and Veterans Affairs's (DMVA) refusal to designate him a veteran for purposes of the New Jersey Public Employee Retirement System (PERS). Because the letter from which this appeal is taken is not final agency action, and did not notify appellant of the appeals process, we remand the matter for the DMVA to appoint an appeals board pursuant to N.J.A.C. 5A:9-1.7(c) in order to reconsider the claim.

Appellant was honorably discharged in 1996 after having served in the United States Air Force since 1988. According to the civil service preference certificate which was included in appellant's appendix, issued on December 2, 2002, by the United States Department of Veterans Affairs, he is at least ten percent, but less than thirty percent, disabled due to a service-connected injury. The certificate verifying his honorable discharge, also included in the appendix, states, "'Served 22 Nov 88 to 30 Sep 96 in Support of Operation Desert Shield/Storm.'" Appellant contends that he is therefore entitled to be included in the PERS definition of veteran because his service-related injury was incurred while he was serving "'in support of Operation Desert Shield/Storm'" pursuant to N.J.S.A. 43:15A-6(p)(17) and N.J.A.C. 5A:9 AppendiX A.

The DMVA in its May 1, 2007 letter, declined to designate appellant as a veteran for PERS, as in their view he was required to have actually served in the Desert Storm theatre of operations. The letter advised him that he had "the right [to] appeal . . . this 'non-veteran' determination" by submitting "[a]n appeal . . . to[] Patricia Richter, Chief of Veterans Benefits Bureau."

On May 14, 2007, appellant took the next step and wrote the Chief of Veterans Benefits and said, "I hereby appeal this initial decision." On May 30, 2007, the Chief of Veterans Benefits Bureau confirmed the denial of the preference status and encouraged appellant "to work with your local representative" in order to change the criteria. The letter "re-affirmed the decision in our previous letter." It was silent as to the procedure appellant should follow in order to pursue the claim further. Believing the letter was final agency action, appellant filed this appeal.

The Adjutant General (AG) is designated as the individual responsible for making final determinations as to veterans' preference status. N.J.A.C. 5A:9-1.7. The May 30, 2007, letter, although written on DMVA stationary, was not a final decision by the AG. A lay person's reading of it, however, would be that it constituted final agency action.

Appeal from denial of veteran's status determinations is taken via the administrative process outlined in N.J.A.C. 5:9-1.7. Once an appeal is taken, the AG must appoint an appeals board to consider the matter. N.J.A.C. 5A:9-1.7(b),(c). After consideration, the board makes recommendations to the AG, who in turn renders a final decision which is binding upon New Jersey's Department of Personnel and Division of Pensions. N.J.A.C. 5A:9-1.7(c).

Unfortunately for appellant, the doctrine of exhaustion of administrative remedies bars appellate review at this stage. Abbott v. Burke, 100 N.J. 269, 297-98 (1985). The necessity for the doctrine is illuminated by the difficulties were we to now consider the appeal. No factual record was developed, a prerequisite for meaningful review. Adams v. Delmonte, 309 N.J. Super. 572, 579 (App. Div. 1998). Moreover, the AG has not had an opportunity to exercise the final decision making authority granted to him by statute. Ibid.

We are concerned, however, that the May 30 letter did not advise appellant of the next step in the administrative process. Therefore, instead of accepting the State's suggestion that we merely dismiss the matter without prejudice, we remand it to the agency for the AG to convene an appeals board to consider appellant's request pursuant to N.J.A.C. 5A:9-1.7(c). Either the appeals board or the AG is to notify the appellant of any further steps which may be necessary in order for him to perfect his appeal.

Remanded for completion of ...

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