concurring in part and dissenting in part.
I disagree that the Legislature intends that a soldier in the New Jersey militia may maintain a cause of action in negligence against a fellow soldier for injuries suffered in the line of duty. The Court’s holding is contrary to prevailing federal military law with which our military compensation is to be equated and contrary to the intent of our Legislature.
In Feres v. United, States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159, 95 L.Ed. at 161. By definition here we deal with a “line of duty” accident. The rationale of Feres was “best explained” by
[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty * * *. [United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139, 143 (1954).]
Accord Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665, 670 (1977). Thus, even though the Federal Tort Claims Act exposed the United States to liability “in the same manner and to the same extent as a private individual under like circumstances,” *25528 U.S.C. § 2674, the Feres Court found the United States immune.
This rationale has been applied as well to bar suits between fellow members of the service, Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981), cert. den. 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982), and to bar claims for indemnity by contractors such as FMC Corporation seeks to maintain here. Stencel Aero Engineering Corp., supra, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665.
If claims for injuries sustained by members of the armed forces in the execution of military orders were subjected to the scrutiny of courts of justice, then the civil courts would be required to examine and pass upon the propriety of military decisions. The security and common defense of the country would quickly disintegrate under such meddling. [Jaffee, supra, 663 F.2d at 1232.]
We need not disagree with the part of Judge Gibbons’ dissent in Jaffee concerning personal immunity for governmental officials “engaging in intentional misconduct,” 663 F.2d at 1253, by exposing soldiers to the hazards of radiation through atomic bomb testing. That issue, “ ‘where authority is intentionally abused for the purpose of injustice or oppression,’ ” id. at 1268 (Gibbons, J., dissenting) (quoting Dawkins v. Lord Paulet, [1869] 5 Q.B. 94, 107-09), is not raised by the pleadings in this case. If it were, we would face it in the context of the limitation on the immunity when the fellow employee’s act is intentional. See N.J.S.A. 34:15-8.
In addition to upholding military discipline, Feres relied on an evaluation of the probable intent of Congress in creating its military compensation scheme. The Feres Court concluded that Congress would not have intended a dual system of liability under the Veterans Benefit Act and the Tort Claims Act.
I agree with the trial court that our Legislature would have the same intent with respect to the provisions of our Military and Veterans Act. N.J.S.A. 38A:13-1. The majority would view the Legislature’s incorporation of Chapter “15 of Title 34” as a wooden act petrified as of the original 1937 enactment without the current provision for immunity of the fellow-serv*256ant. N.J.S.A. 34:15-8. I believe that the Legislature intended an organic incorporation of the broader outlines of our Workers’ Compensation Act except insofar as the acts conflict. Cf. Doerr v. State, 129 N.J.Super. 150 (App.Div.1974) (the Military Act construed in the same way as the Workers’ Compensation Act). Moreover, aside from the uncertainty of the majority’s viewpoint on probable legislative intent, there is the reality that the military compensation law of 1937, L.1937, c. 49, Art. XV, §§ 1-11, was substantially re-enacted in 1963 as the Military and Veterans Law. L.1963, c. 109. At that time the Workers’ Compensation Act had already been amended to include the provision that barred suits against a fellow employee. L. 1961, c. 2.
The majority’s reliance upon the repealer in the Tort Claims Act, N.J.S.A. 59:12-2, of the militia's public immunity expressed under N.J.S.A. 38A:4-9 to establish the right of one member of the military to sue another is unpersuasive. I respectfully submit that amendment has nothing to do with inter-service torts. It must be remembered that N.J.S.A. 38A:4-9 was an expression of sovereign immunity. It provided that “[m]embers of the organized militia ordered into active service of the State by proper authority shall not be liable civilly or criminally for any acts done by them while engaged in the performance of their duty.” Id.
The only significance of the repeal of N.J.S.A. 38A:4-9 is that under the New Jersey Tort Claims Act, if a member of the militia, while on duty, injures a member of the public, the member of the public may maintain a cause of action under the act. Related provisions in the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, have never been construed to affect suits between servicemen. See Feres, supra, 340 U.S. at 145, 71 S. Ct. at 158, 95 L.Ed. at 160; Stencel, supra, 431 U.S. at 673, 97 S.Ct. at 2058, 52 L.Ed.2d at 671.
The majority recognizes that its result is “somewhat anomalous.” Ante at 250. I prefer to believe that the Legislature *257does not intend anomalous results or circuity of proceedings. Modern courts in such circumstances have undertaken “the reinterpretation and fresh application of relevant statutory law-in order to avoid the inadvertent and unintended creation of a statutory anomaly or hiatus and to preserve for such legislation a sensible place in the contemporary scene.” Renz v. Penn Central Corp., 87 N.J. 437, 458 (1981).
The introductory statement to the 1963 revisions of N.J.S.A. 38A:1-1 to 38A:20-3 states that “the purpose of the act is to consolidate and modernize the provisions of Title 38 and to bring the law into closer uniformity with Federal military law.” (Emphasis added).
Giving a sensible place to the military compensation law in the modern setting leads me to harmonize that law with both our Workers’ Compensation Act and federal precedent. I would affirm the judgment below insofar as it held the compensation remedy to be exclusive and would therefore bar the plaintiff’s claim against fellow service members and the indemnity claims of FMC Corporation. I agree that the matter should be remanded to the Chief of Staff instead of being dismissed. See Estelle v. Board of Educ. of Red Bank, 14 N.J. 256 (1954) (Compensation Court should re-open case after adjudication at law that accident was work-related). The application of the Administrative Procedure Act was not raised below. The Attorney General has requested oral argument on his contention that the redefinition of “agency” in L.1981, c. 27 extends only to rulemaking, not decisionmaking. I would not pass upon that issue.
For affirmance in part, reversal in part — Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, HANDLER, POLLOCK and GARIBALDI-6.
Concurring in part, dissenting in part — Justice O’HERN-1.