[00:00:38] Speaker 04: Okay, our second case this morning is number 18 days 2101. [00:00:43] Speaker 04: Della Cruz versus Wilkie. [00:00:45] Speaker 04: Mr Watkins. [00:00:57] Speaker 01: Good morning, your honor. [00:01:01] Speaker 02: There is a related case that was argued on December 3rd. [00:01:05] Speaker 02: It's not technically related, but it has an extraordinary overlap in issues. [00:01:09] Speaker 02: It's the Reyes Appeal. [00:01:11] Speaker 02: I assume you're aware of it. [00:01:14] Speaker 02: When that appeal was argued, the central issue seemed to be statutory construction. [00:01:20] Speaker 02: Is Reyes listed as related case in your brief? [00:01:23] Speaker 02: It is. [00:01:24] Speaker 02: It is. [00:01:25] Speaker 02: It was argued before a different panel, clearly. [00:01:28] Speaker 02: And Ms. [00:01:29] Speaker 02: Reyes unfortunately died in December before her appeal could be decided. [00:01:35] Speaker 02: So it was submitted but not decided. [00:01:37] Speaker 02: That panel has not issued a decision yet. [00:01:40] Speaker 02: And there is a motion pending as to whether or not substitution is appropriate. [00:01:46] Speaker 05: Let me ask you something. [00:01:47] Speaker 05: Sure. [00:01:49] Speaker 05: There was some lack of clarity of 122nd what. [00:01:55] Speaker 05: Was it a battalion? [00:01:56] Speaker 05: There was the use of the word battalion and squadron. [00:01:58] Speaker 05: One implies one thing, one implies one's infantry, one something else. [00:02:04] Speaker 02: I'd turn your attention to the appendix, if you would please. [00:02:08] Speaker 02: Appendix pages 116 and 117. [00:02:10] Speaker 02: Yeah. [00:02:12] Speaker 02: And what you'll find here is that in very, very hazy lettering at the top, because the scans from the VA are terrible, on APPX 116, [00:02:24] Speaker 02: The second line says Squadron 122, and on APPX 117 all the way at the top, the second line says 122D Battalion. [00:02:36] Speaker 02: Yeah. [00:02:37] Speaker 02: Both existed. [00:02:40] Speaker 02: So which was he? [00:02:43] Speaker 02: So which was he? [00:03:01] Speaker 02: He's 122nd Battalion LGAF on his Form 23 affidavit. [00:03:07] Speaker 04: So why hasn't your client gone to the board for correction of military records? [00:03:12] Speaker 02: Yeah. [00:03:13] Speaker 02: It's futile. [00:03:15] Speaker 02: Why? [00:03:15] Speaker 04: Have people tried it, and there have been no results? [00:03:20] Speaker 02: The Army Board has had a longstanding policy since just as the war ended that they would not hear any appeals from guerrillas. [00:03:28] Speaker 02: Period. [00:03:29] Speaker 02: End of story. [00:03:31] Speaker 02: Where do we find that shadow? [00:03:34] Speaker 02: That's in the appendix to the briefs. [00:03:37] Speaker 02: We can look, for example, at the appendix to the opening brief. [00:03:42] Speaker 02: That's the blue brief. [00:03:43] Speaker 02: If we look after the CAVC judgment decision, you'll see that there are a series of documents. [00:03:52] Speaker 02: The first one is from the Secretary of the Army. [00:03:55] Speaker 02: So we would be at ADDM001. [00:04:03] Speaker 02: That's the first one from the Secretary of the Army on Philippine recognition. [00:04:08] Speaker 02: There's another one that follows on ADD M002. [00:04:12] Speaker 02: Importantly, ADD M003 is the Army Board's own memo, originally classified as secret. [00:04:20] Speaker 02: which states, in accordance with instructions received from the executive secretary, Army Board on Correction of Military Records effective immediately, applications for correction of military records submitted by Filipino natives to establish service in the Army of the United States during World War II will not be docketed for consideration. [00:04:39] Speaker 02: And then that is followed by a memorandum from the Deputy Secretary of Defense on the next page of the addendum, 004, [00:04:47] Speaker 02: That's a memo for the secretary of the Army from the deputy, again stating, the Filipinos lose. [00:04:55] Speaker 02: They can't go to the Army Board. [00:04:58] Speaker 02: We have another one, a memorandum from the adjutant general. [00:05:02] Speaker 02: This one is Eugene Tarr. [00:05:05] Speaker 02: It also says, the guerrillas lose. [00:05:08] Speaker 02: They can't go to the Army Board to correct anything. [00:05:10] Speaker 05: In the reply bring, [00:05:13] Speaker 05: Mr. Delacruz asserts that he clearly did serve before July 1, 1946. [00:05:19] Speaker 05: And he cites the roster J117. [00:05:23] Speaker 05: J117. [00:05:24] Speaker 05: Yeah. [00:05:24] Speaker 05: That's that list that's hard to read. [00:05:29] Speaker 05: But I really strained on it. [00:05:31] Speaker 05: And I don't see his name. [00:05:33] Speaker 02: His name is not there? [00:05:34] Speaker 02: Yeah. [00:05:35] Speaker 02: That's right. [00:05:36] Speaker 02: So that's the central problem in this case. [00:05:39] Speaker 02: The central problem is that Delacruz. [00:05:41] Speaker 05: But you cited us to it. [00:05:43] Speaker 05: I'm sorry? [00:05:43] Speaker 05: You cited this to that page in support of that proposition. [00:05:48] Speaker 02: In the reply brief, tell me what page again, I'm sorry? [00:05:50] Speaker 05: 24. [00:05:50] Speaker 02: Oh, this is cited simply for the proposition that this document is very handy, this APPX [00:06:11] Speaker 02: 117. [00:06:12] Speaker 02: It's the roster of D Company. [00:06:15] Speaker 02: It was on guerrilla army forces, so it's the LGAF, 122nd Battalion. [00:06:20] Speaker 02: I'm familiar with the history. [00:06:22] Speaker 02: And you can see at the bottom of the document, there are a couple stamps. [00:06:26] Speaker 02: Yeah. [00:06:26] Speaker 02: They're very hard to see. [00:06:28] Speaker 05: Reconstructed by guerrilla affairs? [00:06:30] Speaker 02: Yes. [00:06:31] Speaker 02: Reconstructed by guerrilla affairs. [00:06:32] Speaker 02: And there is another stamp to its left that bears a date, 24 April 1948. [00:06:38] Speaker 02: This is easier to see, Your Honor. [00:06:41] Speaker 02: If we look at the reply brief in the addendum to the reply brief, there is a clean copy that makes it really easy to see. [00:06:51] Speaker 02: ADDM 040 attached to the gray brief. [00:06:58] Speaker 02: So you can see that there are two stamps. [00:07:01] Speaker 02: The point that I was trying to make in the reply brief simply was this. [00:07:07] Speaker 02: If a roster existed that stamped, reconstructed by Guerrilla Affairs Division, and approved in 1948 by headquarters PHILRYCOM. [00:07:17] Speaker 05: Constabulary. [00:07:19] Speaker 05: I'm sorry? [00:07:20] Speaker 05: Constabulary, or RY. [00:07:25] Speaker 02: Oh, I can tell you who that is. [00:07:27] Speaker 02: So PHILRYCOM. [00:07:36] Speaker 02: is the headquarters of the Philippines Ryukus, R-Y-U-K-Y-U-S command. [00:07:44] Speaker 02: That's the U.S. [00:07:45] Speaker 02: Army. [00:07:47] Speaker 02: So if we look at the AGO Form 23 affidavit, at the very top of the affidavit, there is a processing unit that's listed on the very first line. [00:07:59] Speaker 02: You might look at this in the appendix, [00:08:02] Speaker 02: Form 23 affidavit again isn't very clear, but it shows up twice. [00:08:07] Speaker 02: You can look at either one of them, so let's look at the last one because it's easiest. [00:08:11] Speaker 02: That's on page APPX 257, second volume. [00:08:19] Speaker 02: That's where we find one of these copies of the affidavit. [00:08:23] Speaker 02: At the very top, [00:08:26] Speaker 02: The very first line says affidavit for Philippine Army personnel. [00:08:30] Speaker 02: The very next line says affidavit and it says HQ RPD. [00:08:37] Speaker 02: What that means is recovered personnel division. [00:08:40] Speaker 02: That was the RPD. [00:08:42] Speaker 02: And the recovered personnel division was of the adjutant general section of [00:08:50] Speaker 02: the headquarters of the Philippines Ryukas Command, Phil-R-Y-C-O-M. [00:08:57] Speaker 02: That's the Army of the United States. [00:08:58] Speaker 04: What's the point here? [00:09:01] Speaker 02: I was trying to explain why it was important that we looked at that roster page. [00:09:08] Speaker 05: In US Army terms, it tends to mean people who were prisoners of war or invaders. [00:09:17] Speaker 02: In this context, it was used somewhat differently. [00:09:21] Speaker 02: In this context, the recovered personnel division was tasked with figuring out who should be on a roster. [00:09:29] Speaker 02: Of gorillas. [00:09:30] Speaker 02: Of gorillas, that's right. [00:09:32] Speaker 04: Okay, but your problem is that he doesn't appear on one of these rosters, and the question is how can that be addressed? [00:09:41] Speaker 04: Is your contention that [00:09:45] Speaker 04: The Board for Correction of Military Records has not performed its statutory obligation by not addressing these issues in connection with the Corrections Board procedure? [00:09:58] Speaker 04: Yes. [00:10:00] Speaker 04: Since the 1940s. [00:10:01] Speaker 02: What does the statute say about the obligation of the board? [00:10:06] Speaker 02: I believe it's in our brief. [00:10:07] Speaker 02: It says that they're supposed to adjudicate all matters related to military records. [00:10:14] Speaker 02: So I guess if we ordered them to do that, maybe they'd do it, right? [00:10:20] Speaker 02: Maybe yes, maybe no. [00:10:22] Speaker 02: It's the Army Board's policy, longstanding since the 1940s, that they don't touch guerrilla records. [00:10:27] Speaker 02: They are set in stone. [00:10:28] Speaker 04: Yeah, but maybe that's a misreading of the statute. [00:10:31] Speaker 04: I mean, the problem is, [00:10:36] Speaker 04: I understand your argument that the Form 23 is itself a military record. [00:10:39] Speaker 04: I have difficulty with that because it's really just an affidavit from your client saying that he qualified. [00:10:46] Speaker 04: There's nobody from the Army who passed on that or vouched for it or said it was correct. [00:10:52] Speaker 04: So there is evidence that he he serves it seems to me Somebody has to make a determination as to whether in fact he served or not and really only two alternatives here One would be the VA and the other one would be the board for correction of military records There aren't any other alternatives right and the VA says it has to be the board And the board says from what I see is [00:11:20] Speaker 05: We won't do it. [00:11:21] Speaker 05: We won't do it. [00:11:22] Speaker 05: That's right. [00:11:23] Speaker 01: But when they say we won't do it, are they saying we won't do it with respect to Philippine guerrilla soldiers as opposed to a U.S. [00:11:31] Speaker 01: soldier? [00:11:32] Speaker 02: That's right. [00:11:32] Speaker 02: They're the only class of individuals I'm aware of who are excluded. [00:11:35] Speaker 01: So there's a difference in treatment then. [00:11:37] Speaker 01: I'm sorry? [00:11:37] Speaker 01: There's a difference in treatment. [00:11:39] Speaker 05: There sure is. [00:11:40] Speaker 05: How do they deal with people like Ferdig and the Americans who were not military personnel but went around and commissioned themselves and got it? [00:11:50] Speaker 05: later got recognized. [00:11:52] Speaker 05: Did they treat them as military personnel? [00:11:59] Speaker 02: I'm not entirely sure how to answer that question, but what I can tell you is this, that the [00:12:07] Speaker 02: winding down of the war around 1946 was chaotic in the Philippines. [00:12:13] Speaker 02: And what was found at that time was a collection of rosters that consumed two folders in somebody's office. [00:12:21] Speaker 02: It was not a collection of rosters that was complete for all of the guerrillas who'd been serving all over the Philippines fighting against the Japanese with the United States Army. [00:12:33] Speaker 02: And so there's a lot of [00:12:35] Speaker 02: similar names as well. [00:12:38] Speaker 02: There are. [00:12:38] Speaker 02: This is true. [00:12:41] Speaker 02: But what happened was the Army first went through a process [00:12:47] Speaker 02: that started with, and I'd like to dispute the position that Judge Dyke, you articulated, which was that you have a hard time believing that this is an affidavit from the United States government. [00:12:59] Speaker 02: It is an affidavit that was blessed by the United States government for the following reasons. [00:13:03] Speaker 04: It was collected by the United States government. [00:13:06] Speaker 04: What's the evidence that was blessed, that it was vouched for? [00:13:10] Speaker 02: OK, the evidence is attached. [00:13:13] Speaker 02: There's a field artillery officer who was deputized, if they're not. [00:13:17] Speaker 02: And that's not all. [00:13:20] Speaker 02: The way this process worked was you had to be in a recognized guerrilla unit to be processed. [00:13:26] Speaker 02: You were processed as the war was coming to a close. [00:13:31] Speaker 02: And the processing was done to figure out, should we keep you or not? [00:13:35] Speaker 02: And we need to create a record of you, of permanency. [00:13:40] Speaker 02: That processing was done by processing teams that were organized by the Army of the United States. [00:13:47] Speaker 02: They directed them, in fact, an officer. [00:13:49] Speaker 04: I understand what you're saying, but what does the record show about the Army's vouching for the accuracy of these Form 23 affidavits? [00:14:01] Speaker 04: I mean, so far as I can tell from the record, all it shows is that someone who claimed to be a member of a guerrilla unit would come in [00:14:10] Speaker 04: and fill out this form and swear to it. [00:14:15] Speaker 04: I don't see where the Army is vouching for this or saying this is a service record. [00:14:22] Speaker 04: That's my problem. [00:14:23] Speaker 04: Where do I find that? [00:14:25] Speaker 02: Today we have a DD214. [00:14:27] Speaker 02: And it is the Army vouching for this is the record. [00:14:30] Speaker 05: Here's where I'm coming from. [00:14:34] Speaker 05: Lots of things in files are military records. [00:14:37] Speaker 05: a lethal authorization as a military record. [00:14:43] Speaker 05: All kinds of things are in a personnel file. [00:14:47] Speaker 05: And anything that an officer signs and puts into a personnel file, including a letter of reprimand, for example, which you haven't signed at all, is a military record. [00:15:02] Speaker 05: From that viewpoint, it strikes me that that's a military record. [00:15:07] Speaker 02: This isn't just a military record. [00:15:09] Speaker 02: It was the only equivalent that a Filipino guerrilla could have of what is today a DD-214. [00:15:16] Speaker 02: It was prepared by the Army of the United States. [00:15:19] Speaker 04: So where is the instruction to the people who are processing these to, let's say, separate the wheat from the chaff, to make a determination as to whether somebody who was allowed to sign one of these affidavits was, in fact, entitled to do so? [00:15:35] Speaker 04: How do I know that? [00:15:37] Speaker 02: Do you mean the one who served, or do you mean the summary court officer? [00:15:40] Speaker 04: The statement of one who served doesn't make it a military record. [00:15:45] Speaker 04: It's the Form 23. [00:15:48] Speaker 04: It's the attestation. [00:15:50] Speaker 04: It's the signature by Army personnel. [00:15:54] Speaker 04: But how do I know what that signifies? [00:15:56] Speaker 04: How do I understand that that's the Army vouching for this person's service? [00:16:03] Speaker 04: Do you see what I'm saying? [00:16:04] Speaker 02: I do understand what you're saying. [00:16:05] Speaker 02: And I would answer as follows. [00:16:07] Speaker 02: At the beginning of the appendix, there are a series of historical documents that were put before the CAVC. [00:16:14] Speaker 02: And that series of historical documents shows how the United States Army designed the form. [00:16:20] Speaker 02: And they modified the design. [00:16:21] Speaker 05: Where is that in the record? [00:16:22] Speaker 05: Because that's what I thought. [00:16:23] Speaker 02: So if we go to the appendix, starting on appendix page 057, APPX 057, there are a series of memos that set forth how processing was to take place. [00:16:37] Speaker 02: This was all designed by Lieutenant General Eichelberger of the Eighth Army. [00:16:44] Speaker 02: And they worked together with the Sixth Army and a policy was put in place specifically under the command of General MacArthur. [00:16:53] Speaker 02: They did things to this document such as the United States Army said, you are going to ask a question on this document about, are you a female? [00:17:02] Speaker 02: And if so, state what you did. [00:17:04] Speaker 04: Okay, but that's just what the questions are. [00:17:08] Speaker 04: It doesn't say, where does it tell me [00:17:11] Speaker 04: that allowing the armies, allowing somebody to fill out the form is somehow a record of that person's service. [00:17:20] Speaker 02: Well, there's a quote in here, and it's in our brief. [00:17:23] Speaker 04: In other words, if at the time the idea was you couldn't sign this form, you couldn't be processed unless we had some reason to believe you were a gorilla, or we had some record that you were a gorilla, maybe the Form 23 is significant. [00:17:37] Speaker 04: But if anybody can just wander in and fill out a Form 23, then maybe it doesn't have any significance. [00:17:44] Speaker 02: these documents that are in the appendix, starting at that page, APPX 057, and going through a very important document which is circular number 142 on APPX 081. [00:18:01] Speaker 02: 081? [00:18:03] Speaker 02: Yes. [00:18:05] Speaker 02: If you look at the second page of that document, [00:18:09] Speaker 02: under the heading processing, it states, when the tactical situation permits, all members of recognized guerrilla forces who present themselves for the purpose will be processed. [00:18:20] Speaker 02: You had to be in a recognized force, and you had to present yourself to a processing team that was led by an officer from the United States Army. [00:18:30] Speaker 02: This wasn't just a document that somebody showed up with and said, will you please notarize it. [00:18:35] Speaker 02: It had much more significance. [00:18:37] Speaker 02: There was a plan in place. [00:18:38] Speaker 04: Why isn't there some testimony in the record here from somebody who was knowledgeable about the process at the time as to how it worked? [00:18:46] Speaker 04: Is it not possible to have such testimony? [00:18:49] Speaker 02: I don't know how to get such testimony, and I certainly don't know how to get it in this record. [00:18:53] Speaker 02: Dela Cruz was pro se through the filing of his informal brief. [00:18:59] Speaker 04: No, but we could remand and say we'd like to know what the processing involves, and you've got to compile a better record. [00:19:06] Speaker 02: My issue with that, Your Honor, is that what we really have is the documentary evidence that comes right out of the National Archives. [00:19:12] Speaker 02: These pages that you see in the appendix [00:19:16] Speaker 02: I personally took digital pictures of them and put them in the appendix. [00:19:20] Speaker 02: I held the original documents at the National Archives in College Park. [00:19:25] Speaker 02: They're for real. [00:19:26] Speaker 02: They are the official U.S. [00:19:27] Speaker 02: government records. [00:19:29] Speaker 02: Delacruz is 95 years old. [00:19:31] Speaker 02: I mean, the percipient witnesses to these acts are either dead or very, very aged. [00:19:37] Speaker 05: He was a young man at the time. [00:19:38] Speaker 02: He was a young man. [00:19:39] Speaker 02: So when he joined [00:19:40] Speaker 02: the guerrillas, he was 19, he was a teenager, and he joined just after he lived in the north... He joined in 1943, right? [00:19:50] Speaker 02: That's right. [00:19:51] Speaker 02: And so before that... That's right. [00:19:54] Speaker 02: And his affidavit of Philippine Army personnel says that. [00:19:59] Speaker 02: His brief story is that we had this thing called the Bataan Death March. [00:20:04] Speaker 02: 80,000 people walked north from the Bataan Peninsula on the island of Luzon, and they ended up at a prison camp. [00:20:12] Speaker 02: Delacruz lived just to the northwest of the prison camp. [00:20:15] Speaker 02: 60,000 people made it there, 20,000 didn't, most of them Filipinos. [00:20:21] Speaker 02: And so in that context of having witnessed, not far from him, [00:20:27] Speaker 02: a Japanese invasion which came from the north through where he lived. [00:20:31] Speaker 02: He was a rice farmer. [00:20:33] Speaker 02: He didn't graduate past the seventh grade. [00:20:35] Speaker 02: He made it through junior high school, at least a portion of it. [00:20:39] Speaker 02: Then he was a rice farmer for three years and he joined the guerrillas because [00:20:44] Speaker 02: Otherwise, their life as they knew it was gone. [00:20:47] Speaker 04: Okay, but that doesn't tell me why I should rely on the Form 23 as a military record. [00:20:52] Speaker 02: I think the answer, Your Honor, is in these historical documents because I can't give you a percipient witness. [00:20:59] Speaker 02: I could go back and get testimony from somebody at the National Archives who would say, yeah, these are official records. [00:21:06] Speaker 02: I could get some testimony that is that there is a famous Army report from 1949 [00:21:12] Speaker 05: It's facially a military record. [00:21:15] Speaker 02: It is. [00:21:16] Speaker 05: It may not be accurate. [00:21:19] Speaker 05: It may not be a lot of things. [00:21:21] Speaker 05: But it's facially a military record. [00:21:23] Speaker 05: It is signed by the United States military. [00:21:25] Speaker 02: I agree. [00:21:27] Speaker 05: That's what military records are. [00:21:30] Speaker 02: I don't know how you could separate this from the words military record. [00:21:33] Speaker 02: On the top of it, it says it was created by the RPD, the Recovered Personnel Division. [00:21:38] Speaker 02: That's the United States Army. [00:21:41] Speaker 02: If we look through here, the Army looked for particular information. [00:21:45] Speaker 02: They wanted to know. [00:21:46] Speaker 05: It stands out. [00:21:47] Speaker 05: I mean, it's there. [00:21:50] Speaker 02: It's all here. [00:21:51] Speaker 02: And there's something else that's important about this document. [00:21:53] Speaker 02: It bears a stamp on it. [00:21:55] Speaker 02: So this document was created in 1946. [00:21:59] Speaker 02: Long before this benefit, the Filipino Veterans' Equity Compensation, came into existence. [00:22:05] Speaker 02: The document was authenticated by the Philippine Army, by their adjutant general's office. [00:22:10] Speaker 05: I find it fascinating that he's drawing VA benefits. [00:22:13] Speaker 02: I find it fascinating, too. [00:22:14] Speaker 02: I don't understand how it's possible that the right hand at the VA is willing to give health care benefits to the guy, and the left hand says, no, you're not legitimate. [00:22:23] Speaker 02: You didn't serve. [00:22:23] Speaker 05: But their answer is, whoa, maybe we'd like to, but it has to be authorized. [00:22:33] Speaker 05: NARL doesn't do it. [00:22:36] Speaker 02: The problem here is that the VA is employing a standard that requires two pieces of evidence. [00:22:44] Speaker 02: They say, you can have this Form 23 affidavit, but if we don't find your name on that reconstructed roster, this is as good as shred. [00:22:53] Speaker 05: So assume that the Warrant for Correction of Military Records would do its function. [00:23:02] Speaker 05: Could they take that evidence and then correct that roster? [00:23:06] Speaker 05: Do they have the power to? [00:23:08] Speaker 02: My answer to that is yes. [00:23:09] Speaker 02: The Army's answer to that since the late 1940s is no. [00:23:12] Speaker 02: No, no, it's not. [00:23:13] Speaker 02: They won't do it. [00:23:14] Speaker 04: No, the answer is no. [00:23:15] Speaker 02: They won't do it. [00:23:16] Speaker 04: Why don't we ask Mr. Hockey about this? [00:23:19] Speaker 04: He'll give you some information. [00:23:20] Speaker 04: Thank you, Your Honor. [00:23:32] Speaker 05: Will they or won't they, Mr. Hoppe? [00:23:35] Speaker 03: I can't speak for the Army as to whether they would respond or how they would respond to it. [00:23:40] Speaker 03: I would characterize as a proper request. [00:23:44] Speaker 03: But this isn't a proper request. [00:23:47] Speaker 05: OK, one, has that policy changed since the order came down? [00:23:52] Speaker 05: Don't consider any Filipino guerrillas. [00:23:56] Speaker 05: The policy, Bo Calloway says, [00:24:02] Speaker 03: What I would refer to court to is testimony before the House Subcommittee on Oversight and Investigations on June 24, 2014 [00:24:13] Speaker 03: addressing the Filipino Veterans Equity Compensation Fund, examining the Department of Defense and interagency process for verifying eligibility. [00:24:21] Speaker 03: I think you'll find there the testimony that you've been asking about earlier this morning, in which members of the VA, the National Personnel Records Center, and the Army testified before the House on how to address this issue with respect to folks coming in as part of this equity compensation fund, but not finding their name on the proper roster. [00:24:43] Speaker 04: And what did they say? [00:24:45] Speaker 03: So to address your question, Judge Dyke, there was a chairman, Heck, at the time, asked, so is the AGA 0423 the acceptable document to demonstrate proof of service? [00:24:55] Speaker 03: And the representative of the Personnel Records Center said, no, not on its own. [00:25:00] Speaker 03: What they did in 1940, as I understand it, late 40s from reading this, in preparation for today's argument, not that I thought it would come up. [00:25:07] Speaker 05: Do we have that cited as a new document? [00:25:08] Speaker 03: No, it's not in the, I'm sorry, it's not in the briefs, and that's why I read the whole title. [00:25:12] Speaker 03: For the court's benefit, but I'd be happy to provide a copy. [00:25:15] Speaker 03: I just happen to Why don't you provide a copy? [00:25:17] Speaker 04: Pardon me why don't you I will? [00:25:20] Speaker 03: But in here basically the issue that we've been talking about this morning was talked about before the house in 2014 there was several Filipino guerrillas who had issues and had even very strong evidence that they had participated in various activities during World War two What did they say at that time so availability of the board remedy? [00:25:40] Speaker 03: The bottom line I understand from reading this is Congress understood that it was their problem. [00:25:58] Speaker 03: in thanking the three representatives. [00:26:01] Speaker 03: All right, gentlemen, we appreciate your testimony, realizing that you are just the messenger and that you are interpreting the regulations and the laws that was written. [00:26:08] Speaker 03: And it is incumbent upon us to make the necessary changes to be able to continue to try to expand the benefit to get to those that rightfully deserve. [00:26:16] Speaker 03: The issue, the Form 23. [00:26:17] Speaker 04: Let me tell you what I'm thinking about, Mr. Hockey. [00:26:20] Speaker 04: In the context of the Court of Federal Claims, [00:26:23] Speaker 04: in the Corrections Board we have held, and Martina's recognized this, that it's appropriate to stay proceedings in the Court of Federal Claims to send people to the Board for Correction of Military Records to have the records corrected or not corrected. [00:26:38] Speaker 04: Why isn't that an appropriate remedy here? [00:26:41] Speaker 04: Why shouldn't we direct the Veterans Court to stay proceedings to allow Mr. Delacruz to apply to the Corrections Board [00:26:52] Speaker 04: to correct his records so he appears on the roster and his claim can be processed appropriately. [00:27:00] Speaker 04: And in that connection, why doesn't the statute require the Corrections Board to perform that function? [00:27:10] Speaker 03: So I don't know what, maybe there's a military statute that would require the, I mean we talked earlier about obviously the board has duties imposed on the board being the Military Correction Board. [00:27:21] Speaker 03: And I don't know why people haven't been, you know, I heard earlier it was described as a feudal process, but I haven't heard any discussion of why an application wasn't made and then the appropriate appeal taken to a court. [00:27:35] Speaker 05: Well, do you deny the documentation in which repeatedly the board is told don't look at the gorillas? [00:27:46] Speaker 03: I understand that position to be what the Army is saying. [00:27:50] Speaker 03: I've read the documents. [00:27:52] Speaker 03: But I also, as a lawyer that appears before this and other courts regularly, recognize that it's not necessarily the final word. [00:27:59] Speaker 03: Right. [00:27:59] Speaker 05: But have we ever said to them, hey, we order you to do this? [00:28:03] Speaker 03: I don't know if it's ever been presented to this court as part of an appropriate vehicle upon which this court could then provide that instruction. [00:28:11] Speaker 04: We've talked about that in one of these cases. [00:28:13] Speaker 03: We talked about it back in Soria in 1997 when we invited everyone to go and try to invoke a regular process upon which you go to the folks who are in control of this, the Army, not the VA, and ask them to fix this. [00:28:27] Speaker 05: This is truly pathetic in the real sense of the word, ethos. [00:28:31] Speaker 05: I mean, these copies are old. [00:28:34] Speaker 03: They were young and then they weren't old. [00:28:37] Speaker 03: But from our perspective, what we have here is a regulation from the secretary, which this court has already blessed as a valid implementation of its general evidentiary deciding powers. [00:28:46] Speaker 05: So there needs to be a correction. [00:28:48] Speaker 03: Not to that. [00:28:49] Speaker 05: Look, assuming that this individual risked [00:28:56] Speaker 05: way more than everything, because it wasn't just him. [00:28:59] Speaker 03: It was his family. [00:29:01] Speaker 03: We're not denying any of that, Your Honor. [00:29:03] Speaker 03: But what we're saying is this case here is before this court based upon the actions of the secretary. [00:29:09] Speaker 03: And those actions, which were done in compliance with 38 CFR 3.203, have already been determined by this court in a presidential decision to be a valid exercise of its evidentiary deciding authority. [00:29:21] Speaker 01: And so that- In Soria, did we make a determination as to equal protection? [00:29:28] Speaker 03: Not in Soria, but in Tallinn. [00:29:30] Speaker 03: And the court addressed the equal protection argument about, generally, Section 107, which is the rescission act, which this act follows up on. [00:29:41] Speaker 03: It basically awards these one-time payments to those folks who otherwise are eligible under the rescission act. [00:29:48] Speaker 03: And the DC Circuit and the Ninth Circuit have done as well. [00:29:53] Speaker 03: And the Ninth Circuit and Rosinto in 2013, I think, held as much with respect to the Equity Compensation Act. [00:30:00] Speaker 05: What's the government's position going to be? [00:30:04] Speaker 03: For the Army? [00:30:05] Speaker 05: What's the government's position going to be if we tell [00:30:10] Speaker 05: the board to take a fresh and honest look at those. [00:30:15] Speaker 03: The Board of Military Corrections. [00:30:16] Speaker 03: Yeah. [00:30:17] Speaker 03: See, the problem is I cannot construct for you, Your Honor, a path [00:30:22] Speaker 03: by which you, I think, can do that here. [00:30:25] Speaker 03: I think that it requires an action on the part of the claimant to go and take advantage of whatever feudal right or not feudal right he might have and submit an application to the Military Correction Board. [00:30:37] Speaker 03: And when that board comes back and says, we're not going to dock at this, or we're not going to, then you do something about it. [00:30:42] Speaker 03: You maybe file a mandamus. [00:30:45] Speaker 03: You appeal to a district court. [00:30:46] Speaker 04: Look, Mr. Hockey, we're not going to send somebody off on a wild goose chase to do something which is feudal. [00:30:52] Speaker 04: Before we took that approach, we'd have to decide that it wasn't futile to go to the board for correction of military records. [00:30:59] Speaker 04: And right now, the Army says, no, we won't process that. [00:31:02] Speaker 04: If we're going to send this claimant off to the Corrections Board, we've got to make a determination as to whether there's a realistic possibility of a remedy. [00:31:11] Speaker 04: Not on the facts of this case, but in terms of the obligation of the board to make such determinations. [00:31:18] Speaker 04: And I think it would be helpful to us to know what the government's position is if this claimant did that, went to the board and say, please show me as an enrolled member of the guerrilla forces so I can get my payment. [00:31:34] Speaker 03: Well, I mean, I have the legal response, which is I don't think this is the case to do that, Your Honor, even though you're talking about strapping one process on to the process that's actually at issue before this court, which is the VA process. [00:31:47] Speaker 03: But the VA process looked back. [00:31:50] Speaker 03: Right. [00:31:50] Speaker 03: And this court said that that's OK. [00:31:52] Speaker 03: So what we need to do is somehow get that vehicle before this court under the right circumstances. [00:31:57] Speaker 03: Now, I'm not. [00:31:59] Speaker 03: I'm getting the sense here that the court doesn't want to hear that as a response. [00:32:03] Speaker 03: And all I can say, Judge Dyke, is that I can't stand here now and provide the path for you. [00:32:10] Speaker 03: The Army's not involved in this appeal. [00:32:12] Speaker 03: We would have to go back and figure out whether we could give some sort of response to an order like that, although I can't promise you that we wouldn't respond in a more legalistic fashion to say, I think that's a little bit out of bounds here. [00:32:26] Speaker 03: Because we do, frankly. [00:32:27] Speaker 03: The issue before this court is reviewing the Vectors Court's decision, which is premised on this idea that 383.203 was a valid exercise of the agency's regulatory authority, which this court's already said it was. [00:32:44] Speaker 03: This gets us back to, yes, this is terrible. [00:32:47] Speaker 03: Mr. Delacruz has waited a long time. [00:32:49] Speaker 03: We don't know the answer. [00:32:51] Speaker 03: VA doesn't know the answer. [00:32:52] Speaker 03: Maybe the Army knows the answer. [00:32:54] Speaker 03: But I'm not sure if you read this 2014 thing, it's not clear that even a person who had, well, clearly what you can discern from reading this hearing testimony is that a rule of Form 23 is not the be all and end all. [00:33:08] Speaker 03: What happened at the time was the Form 23 was submitted. [00:33:11] Speaker 03: and then the army looked through all of its records because it could only accept as recognized people under what became the rescission act, those people who were working in guerrilla operations that were, I think, I'm going to use the word sponsor, but I'm roughly using that word, by the United States Army. [00:33:28] Speaker 05: Under the command of a responsible commander. [00:33:30] Speaker 03: Exactly. [00:33:31] Speaker 03: They had like criteria. [00:33:32] Speaker 03: Responsible is the key word. [00:33:33] Speaker 03: I mean, in an odd way, to me as a layman, I thought it was an odd way to describe guerrilla activity, but there is a sort of [00:33:41] Speaker 03: control aspect to it. [00:33:43] Speaker 05: Are they responsible to someone who can tell them what to do? [00:33:47] Speaker 03: Right. [00:33:47] Speaker 03: So simply because someone was a guerilla in the Philippines during the Second World War doesn't mean they qualified for either 107 or this equity compensation fund. [00:33:56] Speaker 03: And simply because they filled out a Form 23 doesn't mean that they qualify. [00:34:00] Speaker 03: There was a lot of people that filled out these Form 23s that weren't determined to have been part of the proper, if you will, guerrilla unit. [00:34:07] Speaker 03: I don't know the answer with respect to Mr. Dela Cruz. [00:34:09] Speaker 03: He suggests otherwise by saying some of his colleagues who he was with were covered. [00:34:13] Speaker 03: I don't know. [00:34:15] Speaker 04: But the- So what if we entered an order asking you to tell us whether there's an alternative remedy here before the corrections board? [00:34:25] Speaker 03: We've argued in the past that that would be the only remedy available. [00:34:30] Speaker 03: Right. [00:34:31] Speaker 04: And we'd like to know whether it's a real remedy. [00:34:33] Speaker 03: But I think, again, the answer is go there. [00:34:38] Speaker 03: And if you're disappointed, do something about it. [00:34:41] Speaker 04: We're not going to send somebody. [00:34:42] Speaker 03: I understand that the court doesn't want to do that. [00:34:44] Speaker 04: But I can't. [00:34:45] Speaker 04: We need to know whether this is a realistic possibility or whether it's a futile gesture. [00:34:52] Speaker 05: The 1929 Geneva Convention [00:34:56] Speaker 05: which followed the Hague rules, said that a prisoner of war, and this is how they define any fighter, is a member of the armed forces of a signatory power or any member of a guerrilla or volunteer unit which is not part of the armed forces which meets the test, including under the command of a responsible commander. [00:35:16] Speaker 05: And those folks who were fighting for those various self-made colonels and generals and so on either [00:35:26] Speaker 05: Answer to the United States are didn't. [00:35:28] Speaker 05: There were some that didn't. [00:35:31] Speaker 05: But there's the path that you're going to have to follow in the records to see if that 122nd Battalion, Company D, was part of something [00:35:44] Speaker 05: commanded by someone to whom the United States gave recognition. [00:35:50] Speaker 05: That's the one key as to whether they're recognized grillers. [00:35:53] Speaker 05: The other question, of course, is was Mr. Delacruz part of the Delta Company? [00:35:59] Speaker 03: Yes, and I think that's the more difficult question. [00:36:02] Speaker 05: Except he has enough evidence for the VA to be giving him medical care. [00:36:06] Speaker 03: So there is a distinction in practice, at least within the VA, between the health side of the business and the benefit side. [00:36:12] Speaker 03: The benefit side is very careful in providing money through benefits. [00:36:19] Speaker 04: They're not careful about the health care? [00:36:20] Speaker 03: No, I think it's not that it's not careful about health care. [00:36:23] Speaker 03: It's just that there have been decisions made within the VA [00:36:27] Speaker 03: where, in certain circumstances, it's important that people get health care. [00:36:31] Speaker 03: It's not necessarily discounting the importance of receiving benefits, but that when you were talking about health care versus benefits, there is a recognized understanding that everything should be done to provide health care. [00:36:49] Speaker 04: All right. [00:36:49] Speaker 04: OK. [00:36:49] Speaker 04: Thank you, Mr. Horn. [00:36:50] Speaker ?: Thank you. [00:36:59] Speaker 02: I want to talk about that testimony, the two congressional hearings that were held in 2014. [00:37:06] Speaker 02: There was some testimony that was put in during the second of those hearings in 2014, both before the House of Representatives, and they are cited in our reply brief. [00:37:17] Speaker 02: There is a hyperlink that gets you to both sets of testimony. [00:37:20] Speaker 02: I'm happy to put it in a 28-J letter. [00:37:23] Speaker 02: In that second hearing, testimony was put in by Major General Antonio Taguba. [00:37:30] Speaker 02: And he attached to his testimony a Board of Veterans' Appeals opinion, non-precedential, for an individual named Pablo. [00:37:40] Speaker 02: And in that opinion, the single judge at the board said effectively, I'm going to weigh the evidence. [00:37:46] Speaker 02: We're going to use a best evidence rule here. [00:37:49] Speaker 02: And just because you can't meet all of the qualifications for the NPRC to say you qualify, [00:37:56] Speaker 02: I'm the VA, and this statute tells me that I have to determine eligibility, because it says a definition for eligible person. [00:38:06] Speaker 02: And that judge weighed the evidence and found in favor of the individual, and he was granted the benefit. [00:38:11] Speaker 02: Then something miraculous happened. [00:38:13] Speaker 02: Seven months later, and this is not in the testimony, Major General Taguba is a warrior, he's not a lawyer, and he didn't know to put into Congress to let them know, [00:38:23] Speaker 02: that the Pablo case had an anomaly happen. [00:38:26] Speaker 02: Seven months after the single judge decision, the vice chairman of the Board of Veterans' Appeals issued an order requiring reconsideration of the opinion, Susponte. [00:38:39] Speaker 02: On the motion of the board, the single judge was removed and a three judge panel was put in place who then completely gutted the opinion. [00:38:51] Speaker 02: Pablo then took it up to the CA VC and the VA did what they do best. [00:38:57] Speaker 02: They settled. [00:38:58] Speaker 02: They gave him the $15,000. [00:39:00] Speaker 02: They called him a veteran. [00:39:01] Speaker 02: It's in the settlement agreement. [00:39:03] Speaker 02: And they made the whole problem go away so that this would never see the light of day. [00:39:06] Speaker 02: OK. [00:39:07] Speaker 02: Well, that's interesting, but not necessarily relevant. [00:39:09] Speaker 02: The point is the best evidence rule. [00:39:11] Speaker 02: I have a problem with ABCMR. [00:39:14] Speaker 02: They take a year and a half to do anything. [00:39:15] Speaker 02: He'll be 96 and a half. [00:39:17] Speaker 04: We could suggest that they do it more quickly. [00:39:21] Speaker 04: What is the problem with going to the corrections board if, in fact, [00:39:26] Speaker 04: we are able to discern that they will consider this on the merits. [00:39:31] Speaker 02: I can predict what's going to happen. [00:39:32] Speaker 02: They're going to say no is what they do on almost everything. [00:39:35] Speaker 02: And then I'm going to have to go to a district court to fix it. [00:39:37] Speaker 02: And then he'll not make it. [00:39:39] Speaker 02: He's almost 100. [00:39:40] Speaker 02: He's 95. [00:39:41] Speaker 05: You can also take a writ of mandamus at that point. [00:39:44] Speaker 02: I can try. [00:39:45] Speaker 02: But time is of the essence with this individual. [00:39:48] Speaker 02: He's 95. [00:39:50] Speaker 02: We're out of time. [00:39:51] Speaker 02: We've been doing this for a decade, bouncing back and forth four times to the board, twice to the CAVC. [00:39:58] Speaker 02: Enough is enough. [00:39:58] Speaker 02: This statute says. [00:40:00] Speaker 02: definition for an eligible person and it clearly states to us that certain things apply certain things apply like definitions in 38 USC 101 okay we're showing you a path I understand and I appreciate the path but in as you can tell it in part frustrates me I understand that too but you ought to be able to get off the ground and [00:40:28] Speaker 05: like a sprinter on this. [00:40:31] Speaker 05: I understand. [00:40:33] Speaker 05: And if we encourage them to act either to say yay or nay, quickly. [00:40:39] Speaker 02: My experience with ABCMR has been poor. [00:40:43] Speaker 02: They are a denial board as far as I am concerned. [00:40:46] Speaker 02: It is a rare event to get a win there. [00:40:47] Speaker 05: If they refuse to act, take a writ. [00:40:50] Speaker 02: We could do that, but it's not just refusing to act. [00:40:53] Speaker 02: They will give us an opinion, and it will simply deny. [00:40:56] Speaker 02: In fact, this was tried in the companion case. [00:40:59] Speaker 02: They will deny on the ground that they do not reopen the records at this point after the 1940s. [00:41:04] Speaker 04: But that's what we're trying to find out. [00:41:07] Speaker 04: I mean, no one is suggesting that your client be told to pursue a remedy which is futile. [00:41:13] Speaker 04: I understand. [00:41:13] Speaker 04: We need to make a determination as to whether [00:41:16] Speaker 04: the board is willing to address these kinds of claims on the merits or not. [00:41:21] Speaker 02: I just want to give you a point of information. [00:41:23] Speaker 02: So it's not a companion case, but in the related case, which is Feliciano Reyes, who passed away in December, my co-counsel, Mr. Mastroianni, actually sent an inquiry to the Army Board for the Correction of Military Records, attempting to do exactly this, and got back a short response saying no. [00:41:43] Speaker 02: No what? [00:41:44] Speaker 02: No, we won't hear the appeal at ABCMR with respect to correcting the record to show that she was a gorilla. [00:41:55] Speaker 02: Because they have no jurisdiction over such determinations? [00:41:59] Speaker 02: I don't have the letter in front of me. [00:42:01] Speaker 02: I'm sorry, I can't tell you. [00:42:02] Speaker 02: Why don't you submit the letter so that we can see? [00:42:04] Speaker 02: Happy to do that. [00:42:06] Speaker 02: My problem here is that... Right away? [00:42:09] Speaker 02: Yes, right away. [00:42:12] Speaker 02: Agreed. [00:42:13] Speaker 02: The problem here is that we have an explicit definition of an eligible person here. [00:42:21] Speaker 02: We also have a section that says, the secretary shall administer the provisions of this section in a manner consistent with applicable provisions of Title 38 and other provisions of law, and shall apply the definitions of Section 101 [00:42:41] Speaker 02: in the administration of such provisions, except to the extent otherwise provided. [00:42:46] Speaker 02: Just because VA has this 3.203 regulation, first of all, this does not say anything about regulations. [00:42:54] Speaker 02: It says applying laws. [00:42:55] Speaker 02: It doesn't say anything about their regulation. [00:42:58] Speaker 02: Just because they have a regulation doesn't mean that they can override what Congress has told them to do, which is measure eligibility. [00:43:06] Speaker 04: I think we're about out of time here. [00:43:08] Speaker 04: I appreciate your time. [00:43:09] Speaker 04: Thank you. [00:43:09] Speaker 04: Thank both counsels. [00:43:10] Speaker 04: The case is submitted. [00:43:11] Speaker 04: Thank you.