I concur in the result. The plaintiffs seek $14,575,000 from the State of Washington in addition to their federal benefits.
First: If an active member of the armed services of the United States is injured or killed by another active member of the armed services of the United States while both are on duty, recovery for that injury or death is limited by Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950). The Feres doctrine provides that United States Army personnel may recover against the United States for injuries suffered in the service only through the *482federal compensation system defined by statute.
As stated in Feres on page 146:
We conclude 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. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law.
Second: If a member of the Washington State National Guard is injured or killed while on duty by another member of the Washington State National Guard also on duty, the recovery for injury or death is limited by Wark v. Washington Nat'l Guard, 87 Wn.2d 864, 865, 557 P.2d 844 (1976), which held:
RCW 38.40.030 . . . provides the exclusive remedy for militiamen injured in the course of duty. That section provides that any officer or enlisted man of the organized militia, who is wounded or otherwise disabled (or his dependents if he dies) while in active service, shall receive from the State "just and reasonable relief" in an amount to conform as nearly as possible to the general schedule of payments and awards provided under the workmen's compensation law in effect in the state at the time of the disability or death.
This formula for recovery may be expanded by 32 U.S.C. § 318 if federal funds supported the activity. Chapman v. Belden Corp., 414 So. 2d 1283 (La. Ct. App. 1982).
Third: If a member of the Washington State National Guard, while on active or training duty, is injured or killed by an active duty member of the armed services of the United States, recovery for the death or injury is also limited by Wark v. Washington Nat'l Guard, supra; RCW 38.40.030. See also Layne v. United States, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U.S. 990 (1962). Edgar v. State, 92 Wn.2d 217, 595 P.2d 534 (1979), cert. denied, 444 U.S. 1077 (1980), states at page 223:
In Wark, we held that RCW 38.40.010-.030 provides the exclusive remedy for National Guardsmen wounded, killed or disabled in the line of duty. In interpreting our statutes, we noted the similarity of RCW 4.92.090 to the *483federal tort claims procedure act, 28 U.S.C. §§ 2671-2680 (1970), and the fact that the federal government provides a compensation system for members of the military similar to that which is provided in this state for guardsmen. We cited Feres v. United States, supra, wherein the United States Supreme Court had held that it was not the intent of Congress to provide an additional remedy for those whose claims were already expressly provided for in another statute.
The high court in Feres had also said that the military activities of government are so unique that there is no comparable function in the private sector and thus no common-law action in which a private person would be liable under similar circumstances.
(But see 10 U.S.C. § 2733 permitting limited claims against the United States for personal injuries or death caused by a member of the armed services incident to noncombat activities.)
Under the foregoing three illustrations (1) Army injures Army, (2) Guardsman injures Guardsman, and (3) Army injures Guardsman, the general rule is limited recovery under a statutory scheme of compensation.
The narrow opening through which this action is allowed to pass is the absence of statutory directive and the chink in governmental immunity discussed in Evangelical United Brethren Church v. State, 67 Wn.2d 246, 407 P.2d 440 (1965). In that case a 14-year-old boy in the juvenile correctional facility at Green Hill escaped and set fire to a church. The plaintiffs alleged that the State was negligent and that the school had applied only minimal security measures to the boy when it knew, or should have known, that he had a propensity for setting fires. The opinion sets forth the four questions which must be answered in the affirmative if the challenged act is to be classified as a discretionary governmental action for which the State is immune from liability. The opinion states in part:
(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that *484policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?
Evangelical Church, at 255. The opinion found that each of the four questions was to be answered in the affirmative and that there was no State liability.
The decision of the majority holds that the State does not have immunity from suit in the case before us since the act of firing the 155 mm. howitzer did not require the exercise of a basic policy judgment (interrogatory 3 of Evangelical Church), but was merely a negligent operational action by the Guardsmen who fired the piece. See Barnum v. State, 72 Wn.2d 928, 435 P.2d 678 (1967). I acknowledge that the negligent aiming of the artillery and its firing did not involve a high level discretionary act exercised at a truly executive level. Chambers-Castanes v. King Cy., 100 Wn.2d 275, 669 P.2d 451 (1983). I agree that when RCW 4.92.090 opened the door to suits against the State, the State Legislature restricted recovery by the militia as noted, but did not preclude actions for injury to United States military personnel caused by National Guardsmen.
In any event, in the situation before us where members of the armed services of the United States have been injured or killed by the negligence of a member of the Washington State National Guard while on training duty, the limitations do not apply and the State of Washington is held liable under a direct civil suit against the State. There is no logical justification for treating this fourth circumstance, Guardsman injures Army, differently than the injured service person in the other three situations.
The injured Army personnel involved in the case before us have full military death, treatment, disability and dependent benefits available for their injuries through *485Titles 10 and 38 of the United States Code, the statutory military and veterans' administration entitlements which have been and are being provided. There is no question but that the plaintiffs in this action are entitled to compensation as well as sympathy and compassion for their loss. However, the circumstances in this case apparently were not contemplated by the Legislature of the State of Washington or by the Congress of the United States. Where under the three circumstances recited a person injured in the service of his country would be entitled only to a sum set by statute, in this situation, simply by virtue of his status or insignia on his blouse, the State is required to pay, in addition to the federal benefits, as if the injured party had been a civilian. Two compensations will result. Compare Lundeen v. Department of Labor & Indus., 78 Wn.2d 66, 469 P.2d 886 (1970).
A soldier in the field serves his country at great risk. He can never be fully compensated for the risks to life and limb that he undertakes. Nor can his country or state fully compensate him other than by honors and gratitude. The risks a soldier takes in the field are part of the price he must pay for living in a free society.
It would be a perfect world if the plaintiffs in this case could be properly compensated. However, it is not proper to compensate them on a different basis or more generously than others who are serving in a different status would be compensated in a like situation. I concur with the majority because the law does not preclude the recovery it allows and makes this recovery possible. However, it appears that this is a matter which has dropped between the cracks and should be corrected by the Legislature.
Dore, Andersen, and Durham, JJ., concur with Callow, J.
Reconsideration denied October 2, 1986.