EDDIE N. DELA CRUZ, Claimant-Appellant
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
from the United States Court of Appeals for Veterans Claims
in No. 17-1020, Judge Coral Wong Pietsch.
Alain Watkins, Watkins Law & Advocacy, PLLC, Washington,
DC, argued for claimant-appellant. Also represented by Louis
Stefan Mastriani, Adduci, Mastriani & Schaumberg, LLP,
F. Hockey, Jr., Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent-appellee. Also represented by Jana Moses,
Joseph H. Hunt, Robert Edward Kirschman, Jr., Loren Misha
Preheim; Brian D. Griffin,
Brandon A. Jonas, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
Dyk, Reyna, and Wallach, Circuit Judges.
Dela Cruz appeals from the decision of the Court of Appeals
for Veterans Claims ("Veterans Court") affirming
the denial of his claim for a one-time payment from the
Filipino Veterans Equity Compensation Fund
("compensation fund"). The Department of Veterans
Affairs ("VA") denied his claim because the Army
certified that Mr. Dela Cruz did not have service as a member
of the Philippine Commonwealth Army, including recognized
guerillas, as "he was not listed in the Reconstructed
Guerilla Roster" ("reconstructed roster").
that the VA can generally rely on the service
department's determination in deciding eligibility for
payment from the compensation fund. But, in this context, the
VA cannot rely on the service department's determination
that the veteran is not on the reconstructed roster without
giving the veteran a meaningful opportunity to challenge his
service record. Dela Cruz's proper avenue for relief is
to seek a correction of his service record from the Army
Board for Correction of Military Records ("Corrections
Board"). The government has represented that the
Corrections Board will consider such an application. We
affirm-in-part and remand to the Veterans Court to hold the
case in abeyance pending consideration by the Corrections
26, 1941, President Franklin D. Roosevelt issued an Executive
Order to "order into the service of the armed forces of
the United States . . . all of the organized military forces
of the Government of the Commonwealth of the
Philippines." Military Order: Organized Military Forces
of the Government of the Commonwealth of the Philippines
Called Into Service of the Armed Forces of the United States,
6 Fed. Reg. 3, 825, 3, 825 (July 26, 1941). At the time, the
Philippines was a territory of the United States. As a result
of the Executive Order, a variety of Filipino military
organizations-the regular Philippine Scouts, the new
Philippine Scouts, the Guerrilla Services, and more than 100,
000 members of the Philippine Commonwealth Army-served the
United States during World War II. See ARRA §
the war ended, however, Congress passed legislation-the First
Supplemental Surplus Appropriation Rescission Act of 1946, 38
U.S.C. § 107(a) and Second Surplus Appropriation
Rescission Act of 1946, 38 U.S.C. § 107(b)
(collectively, "the 1946 Rescissions
Acts")-providing that service in these Filipino military
organizations "shall not be deemed to have been
active military, naval, or air service." Id.
§ 107(a), (b) (emphasis added). As a result, after the
passage of this legislation, Filipino veterans were not
eligible for the same benefits as the United States veterans
they served with during World War II. Instead, the 1946
Rescissions Acts made them eligible only for certain
benefits, often at reduced rates. See ARRA §
1002(a)(6)-(8) (describing these reduced benefits).
2009, Congress enacted Section 1002 of the American Recovery
and Reinvestment Act of 2009 ("ARRA"), Pub. L. No.
111-5, 123 Stat. 115, 200-02 (2009), which established a $198
million fund to provide one-time payments to Filipino
veterans who were excluded from full veterans benefits by the
1946 Rescissions Acts. Compare ARRA §
1002(d)(1)(A) (defining an "eligible person" for
purposes of receiving the one-time payment) with 38
U.S.C. § 107. The one-time payment is $15, 000 for U.S.
citizens and $9, 000 for non-citizens. ARRA § 1002(e).
The statute required Filipino veterans to apply for this
payment within one year of the statute's enactment.
Id. § 1002(c)(1).
many Filipino veterans have received payments under this
statute, many have not. This is in part due to the VA's
requirement that the relevant service department (such as the
Army) verify the veteran's service. For many decades, the
VA has required that all veterans applying for benefits
establish their service in one of two ways: (1) the veteran
can submit a "document issued by the service
department," 38 C.F.R. § 3.203(a); or (2) the VA
will request "verification of service from the service
department," id. § 3.203(c). "[T]he
VA has long treated the service department's decision on
such matters as conclusive and binding on the VA,"
regardless of whatever other evidence documenting service the
claimant provides to the VA. Soria v. Brown, 118
F.3d 747, 749 (Fed. Cir. 1997). In Soria, for
example, the claimant applied for the reduced benefits
discussed above based on his service in the Philippine
Commonwealth Army, but the U.S. Army refused to certify his
service. Id. at 748. The VA denied benefits based on
the Army's determination. Id. This court
affirmed, explaining that there was "no error" in
treating the service department's determination as
conclusive, and noting that the proper "recourse lies
within the relevant service department, not the VA."
Id. at 749.
relevant here, for claims based on Philippine service in
World War II, the appropriate "service department"
is the U.S. Army. To verify the service of a Filipino
guerrilla, the Army relies on the reconstructed roster and
treats the roster as authoritative. See Filipino Veterans
Equity Compensation Fund: Examining the Department of Defense
and Interagency Process for Verifying Eligibility: Hearing
Before the Subcomm. on Oversight and Investigations of the H.
Comm. on Armed Servs., 113th Cong. 9 (2014) [hereinafter
Oversight & Investigations Subcomm. Hearing]
(Statement of Scott Levins, Director, Nat'l Personnel
Records Ctr., Nat'l Archives & Records Admin.)
("[T]he roster is the definitive source."). If an
individual's name does not appear on the reconstructed
roster, the Army will refuse to verify service. Moreover, as
explained above, the VA in turn treats the ...