Opinion
Record No. 2182-93-1
Decided: March 14, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, Norman Olitsky, Judge
M. Jefferson Euchler (Neil C. Bonney Associates, on brief), for appellant.
Cheryl A. Wilkerson, Assistant Attorney General (James S. Gilmore, III, Attorney General; Lisa J. Rowley, Assistant Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Troy E. Evans, appellant, appeals a final order of the Circuit Court of the City of Portsmouth affirming the decision of the Virginia Employment Commission denying him unemployment compensation benefits for ex-military servicemen pursuant to 5 U.S.C. § 8521, et seq. and 20 CFR Sec. 614.1, et seq. We find no error and affirm the judgment of the trial court.
5 U.S.C. § 8521(a) (1) provides for unemployment compensation for ex-servicemen if:
(A) the individual was discharged or released under honorable conditions . . .; and (B) (i) the individual was discharged or released after completing his first full term of active service . . . or (ii) the individual was discharged or released before completing such term of active service — (I) for the convenience of the Government . . . , (II) because of medical disqualification . . . , (III) because of hardship, or (IV) because of personality disorders or inaptitude . . . .
On December 8, 1992, Evans was honorably discharged from the Navy. His Certificate of Release or Discharge From Active Duty stated the reason for his discharge as "homosexuality — stated he or she is a homosexual or bisexual." Evans contends that the Navy views homosexuality as a condition that prevents his being an acceptable member. Thus, he argues that his homosexuality, which renders him unsuitable to serve in the Navy, should be deemed inaptitude and should entitle him to unemployment compensation benefits. We disagree.
In reviewing an unemployment appeal this Court must view the evidence in the light most favorable to the Commission. Virginia Employment Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va. App. 621, 626, 359 S.E.2d 552, 554-56 (1987). "The findings of the commission as to facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of the court shall be confined to questions of law." Unemployment Compensation Comm'n of Virginia and Jones v. Dan River Mills, Inc., 197 Va. 816, 817, 91 S.E.2d 642, 643 (1956); Bell Atlantic Network Servs. v. Virginia Employment Comm'n, 16 Va. App. 741, 745, 433 S.E.2d 30, 32 (1993).
Evans bore the burden of proving his entitlement to benefits. He offered no evidence to show that he met any of the 5 U.S.C. § 8521 criteria. A state agency may not question the information contained in a military document, because that information is exclusively a federal matter. See Missouri Div. of Employment Sec. v. Galpine, 712 S.W.2d 67, 68 (Mo.Ct.App. 1986).
The Commission found that the Navy had not designated Evans as inapt. It had made no finding that he was incapable of performing duties in the Navy. The Navy simply discharged him for his stated sexual preference without making a designation that brought him within the scope of 5 U.S.C. § 8521(a) (1). The record supports that determination.
The judgment of the trial court is affirmed.
Affirmed.