throbber

`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`EDDIE N. DELA CRUZ,
`Claimant-Appellant
`
`v.
`
`ROBERT WILKIE, SECRETARY OF VETERANS
`AFFAIRS,
`Respondent-Appellee
`______________________
`
`2018-2101
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 17-1020, Judge Coral Wong Pi-
`etsch.
`
`______________________
`
`Decided: July 26, 2019
`______________________
`
`SETH ALAIN WATKINS, Watkins Law & Advocacy,
`PLLC, Washington, DC, argued for claimant-appellant.
`Also represented by LOUIS STEFAN MASTRIANI, Adduci,
`Mastriani & Schaumberg, LLP, Washington, DC.
`
` MARTIN F. HOCKEY, JR., Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for respondent-appellee. Also repre-
`sented by JANA MOSES, JOSEPH H. HUNT, ROBERT EDWARD
`KIRSCHMAN, JR., LOREN MISHA PREHEIM; BRIAN D. GRIFFIN,
`
`

`

`2
`
`DELA CRUZ v. WILKIE
`
`BRANDON A. JONAS, Office of General Counsel, United
`States Department of Veterans Affairs, Washington, DC.
` ______________________
`
`Before DYK, REYNA, and WALLACH, Circuit Judges.
`DYK, Circuit Judge.
`Eddie Dela Cruz appeals from the decision of the Court
`of Appeals for Veterans Claims (“Veterans Court”) affirm-
`ing the denial of his claim for a one-time payment from the
`Filipino Veterans Equity Compensation Fund (“compensa-
`tion fund”). The Department of Veterans Affairs (“VA”) de-
`nied 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”). J.A. 5.
`We hold that the VA can generally rely on the service
`department’s determination in deciding eligibility for pay-
`ment 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 Correc-
`tions 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
`Board.
`
`BACKGROUND
`I
`On July 26, 1941, President Franklin D. Roosevelt is-
`sued an Executive Order to “order into the service of the
`armed forces of the United States . . . all of the organized
`
`

`

`DELA CRUZ v. WILKIE
`
`3
`
`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 Fil-
`ipino military organizations—the regular Philippine
`Scouts, the new Philippine Scouts, the Guerrilla Services,
`and more than 100,000 members of the Philippine Com-
`monwealth Army—served the United States during World
`War II. See ARRA § 1002(a)(3).
`After the war ended, however, Congress passed legis-
`lation—the First Supplemental Surplus Appropriation Re-
`scission 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 ser-
`vice.” 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 bene-
`fits, often at reduced rates. See ARRA § 1002(a)(6)–(8) (de-
`scribing these reduced benefits).
`In 2009, Congress enacted Section 1002 of the Ameri-
`can Recovery and Reinvestment Act of 2009 (“ARRA”), Pub.
`L. No. 111–5, 123 Stat. 115, 200–02 (2009), which estab-
`lished 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
`
`

`

`4
`
`DELA CRUZ v. WILKIE
`
`required Filipino veterans to apply for this payment within
`one year of the statute’s enactment. Id. § 1002(c)(1).
`II
`Although many Filipino veterans have received pay-
`ments under this statute, many have not.1 This is in part
`due to the VA’s requirement that the relevant service de-
`partment (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 depart-
`ment,” 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. So-
`ria 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 Com-
`monwealth 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 depart-
`ment’s determination as conclusive, and noting that the
`proper “recourse lies within the relevant service depart-
`ment, not the VA.” Id. at 749.
`
`
`1 As of January 1, 2019, the VA has granted 18,983
`claims for payment from the compensation fund and denied
`23,772 claims. See U.S. Dep’t of Veterans Affairs, WWII
`Filipino Veterans Equity Compensation (FVEC) Fund,
`https://www.va.gov/centerforminorityveterans/fvec.asp
`(last visited July 24, 2019).
`
`

`

`DELA CRUZ v. WILKIE
`
`5
`
`III
`As 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 Com-
`pensation Fund: Examining the Department of Defense and
`Interagency Process for Verifying Eligibility: Hearing Be-
`fore the Subcomm. on Oversight and Investigations of the
`H. Comm. on Armed Servs., 113th Cong. 9 (2014) [herein-
`after Oversight & Investigations Subcomm. Hearing]
`(Statement of Scott Levins, Director, Nat’l Personnel Rec-
`ords 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.2 Moreover, as explained above, the VA in
`turn treats the Army’s determination of service as conclu-
`sive and binding. The result of this is that a Filipino vet-
`eran who does not appear on the reconstructed roster will
`not receive payment from the compensation fund.
`The problem is that the reconstructed roster is not al-
`ways accurate. This is the result of the methodology em-
`ployed to create the reconstructed roster. According to a
`1949 Army report, many of the original rosters for Filipino
`units were lost, destroyed, or tampered with. See Dela
`Cruz Op. Br. Addendum at 20–21. After the war ended,
`“hundreds of unit rosters were missing,” some sets of ros-
`ters “were being tampered with,” “a number of guerillas
`had been processed and paid but no records existed of their
`having been recognized,” and “no one interested agency
`possessed a complete set of rosters.” Id. at 20. Thus, the
`
`2 The Army also requires a Form 23 affidavit, such
`as the one it had in its files for Dela Cruz, though the affi-
`davit is not sufficient by itself. See Oversight & Investiga-
`tions Subcomm. Hearing at 9.
`
`

`

`6
`
`DELA CRUZ v. WILKIE
`
`Army embarked on a reconstruction project to attempt to
`create one authentic roster of Filipino guerrillas who
`served during World War II.
`To create the reconstructed roster, the Army first de-
`cided which guerrilla units to include in the roster, based
`on information received from the units themselves, mili-
`tary orders, combat histories of the U.S. units that fought
`alongside the Filipino units, and so on. Then, if the Army
`decided that a particular guerrilla unit merited inclusion
`in the roster, it requested a roster from the unit com-
`mander. If the roster appeared to be free of anomalies, it
`was then authenticated for inclusion in the reconstructed
`roster. Since completing the reconstructed roster in 1948,
`the Army has followed a policy prohibiting any changes or
`corrections to the roster. See Oversight & Investigations
`Subcomm. Hearing at 3–4 (Statement of Brigadier Gen.
`David K. MacEwen, The 59th Adjutant Gen. of the U.S.
`Army, Dep’t of the Army); Dela Cruz Op. Br. Addendum at
`1 (1974 Memorandum from Howard H. Callaway, Secre-
`tary of the Army).
`Representatives of the VA and the Army have acknowl-
`edged the potential for inaccuracies in the reconstructed
`roster at Congressional hearings relating to payments to
`Filipino veterans from the compensation fund. At one
`hearing, a VA Senior Advisor for Compensation agreed
`that it would not be unreasonable to think that there are
`eligible individuals who “didn’t make it on the list,” given
`that the reconstructed roster was created “in postwar Phil-
`ippines, after a country has been ravaged by combat for 4
`years.” Filipino Veterans Equity Compensation Fund: In-
`quiry Into the Adequacy of Process in Verifying Eligibility:
`Hearing Before the Subcomm. on Disability Assistance and
`Mem’l Affairs of the H. Comm. on Veterans’ Affairs, 113th
`Cong. 12 (2014) (Statement of Brad Flohr, Senior Advisor
`for Compensation, Veterans Benefits Admin., Dep’t of Vet-
`erans’ Affairs). At the same hearing, Brigadier General
`MacEwen testified on behalf of the Army he did not “doubt
`
`

`

`DELA CRUZ v. WILKIE
`
`7
`
`that there are plenty of people that served honorably, pat-
`riotically” but that may have been excluded from the roster
`if it was determined at the time that their role did not
`“r[i]se to the level of qualifying service.” Id. (Statement of
`Brigadier Gen. David K. MacEwen, The 59th Adjutant
`Gen. of the U.S. Army, Dep’t of the Army). Moreover, at a
`hearing before the House Subcommittee on Oversight and
`Investigations to the Committee on Armed Services, Chair-
`man Heck noted that “it certainly is possible that individ-
`uals who served honorably in a recognized guerrilla unit
`may have been omitted from the reconstructed roster,”
`such as if the individual simply “missed the time when the
`rosters were reconstructed.” Oversight & Investigations
`Subcomm. Hearing at 12 (statement of Rep. Joseph J.
`Heck, Chairman, Subcomm. on Oversight & Investiga-
`tions).
`
`IV
`Contending that he served in the Filipino guerilla
`forces during World War II, Dela Cruz timely applied for
`payment from the compensation fund. To show that he
`served in the Filipino guerrillas, Dela Cruz submitted an
`affidavit describing his service (the “Form 23 affidavit”),
`which he executed at the end of World War II in front of a
`U.S. Army captain. He also provided a certification from
`the Armed Forces of the Philippines, which certified his
`service in a Filipino guerrilla unit. In addition, Dela Cruz
`submitted affidavits by his brother, his wife, his brother-
`in-law, and his neighbor (who stated that he served in the
`Filipino guerrillas together with Dela Cruz). Notably, as
`the Board of Veterans’ Appeals (“BVA”) recognized, Dela
`Cruz has been deemed eligible to receive healthcare from
`the VA, which requires veteran status, based on an affida-
`vit from the Philippine Army.
`The Department of Veterans Affairs Regional Office
`(“RO”) denied Dela Cruz’s claim for payment because it de-
`termined that he did not establish his service. It concluded
`
`

`

`8
`
`DELA CRUZ v. WILKIE
`
`that none of the affidavits and supporting documentation
`Dela Cruz submitted qualified as documents of the service
`department. See 38 C.F.R. § 3.203(a). The RO therefore
`requested the service department, the Army, to verify Dela
`Cruz’s service. See id. § 3.203(c). The Army, in turn, cer-
`tified “that Mr. Dela Cruz did not have service as a member
`of the Philippine Commonwealth Army, including the rec-
`ognized guerillas,” as “he was not listed in the Recon-
`structed Guerilla Roster.” J.A. 5. Although the Army did
`have Dela Cruz’s Form 23 affidavit—the affidavit Dela
`Cruz executed in front of an Army captain in which he de-
`scribed his service in the Filipino guerillas—in its own
`files, the Army indicated that it was unable to verify the
`accuracy of Dela Cruz’s statements of service and, in any
`event, was “not able to accept affidavits to verify service.”
`J.A. 131. After multiple appeals and remands, the BVA
`and Veterans Court affirmed the denial of payment. The
`Veterans Court reasoned that the Army was “not able to
`verify that Mr. Dela Cruz had service” and that the service
`department’s determination as to service is “conclusive and
`binding” on the VA. J.A. 8.
`Dela Cruz appeals. We have jurisdiction under 38
`U.S.C. § 7292(c). We review legal determinations of the
`Veterans Court de novo. Goodman v. Shulkin, 870 F.3d
`1383, 1385 (Fed. Cir. 2017).
`DISCUSSION
`I
`At its core, Dela Cruz’s argument is that the VA should
`have made its own determination as to Dela Cruz’s service
`and thus his eligibility for payment. We rejected a similar
`argument in Soria. 118 F.3d at 749. As noted earlier, be-
`fore the compensation fund was established, Filipino vet-
`erans were only eligible for reduced benefits. In Soria, a
`Filipino veteran applied for these reduced benefits, but the
`VA denied his claim because the Army “refused to certify
`Mr. Soria’s service.” Id. at 748. We explained that under
`
`

`

`DELA CRUZ v. WILKIE
`
`9
`
`38 C.F.R. § 3.203, an applicant for veterans’ benefits must
`prove service “with either official documentation issued by
`a United States service department or verification of the
`claimed service by such a department.” Id. We noted that
`“the VA has long treated the service department’s decision
`on such matters as conclusive and binding on the VA” and
`held that there was “no error in that treatment.” Id. at 749.
`We further explained that if the service department’s re-
`fusal to verify service is in error, the proper “recourse lies
`within the relevant service department, not the VA.” Id.;
`see also Go v. Shinseki, 517 F. App’x 941, 942 (Fed. Cir.
`2013) (holding that under Soria, the VA may apply 38
`C.F.R. § 3.203(c) to claims for payment from the compensa-
`tion fund, and that the applicant’s “avenue for relief” is to
`“file a request to ‘correct’ his military service record” with
`the service department).
`Dela Cruz contends that Soria is distinguishable be-
`cause it did not involve benefits under ARRA § 1002. Ac-
`cording to Dela Cruz, § 1002 is remedial legislation that
`must be construed broadly to effectuate its purpose. Fur-
`ther, he argues that limiting payment only to those Filipino
`veterans whose service is verified by the applicable service
`department under 38 C.F.R. § 3.203(c) would be incon-
`sistent with the statute because the statute’s definition of
`“eligible person” does not include a requirement of service
`department verification.3 The government agrees that
`
`3
`In relevant part, ARRA § 1002(d)(1)(A) defines an
`“eligible person” as “any person” who served
`before July 1, 1946, in the organized military forces
`of the Government of the Commonwealth of the
`Philippines, while such forces were in the service of
`the Armed Forces of the United States pursuant to
`the military order of the President dated July 26,
`1941, including among such military forces orga-
`nized
`guerrilla
`forces under
`commanders
`
`

`

`10
`
`DELA CRUZ v. WILKIE
`
`ARRA § 1002 is remedial legislation, but responds that
`even so, requiring service department verification is con-
`sistent with the statute.
`We agree with the government that the remedial pur-
`pose and language of § 1002 do not foreclose the VA from
`requiring service department verification similar to that
`required under 38 C.F.R. § 3.203(c). The statute expressly
`provides that an application for payment “shall contain
`such information and evidence as the Secretary may re-
`quire,” ARRA § 1002(c)(1), and 38 C.F.R. § 3.203 simply
`specifies the information required to establish service for
`all veterans seeking benefits. The remedial purpose of
`ARRA § 1002 cannot overcome its plain language, which
`allows the VA to prescribe what information and evidence
`is required to apply for payment from the compensation
`fund. Moreover, the language in § 1002 is similar to the
`general statutory grant of authority to the VA to prescribe
`“regulations with respect to the nature and extent of proof
`and evidence and the method of taking and furnishing
`them in order to establish the right to benefits” adminis-
`tered by the VA. 38 U.S.C. § 501(a)(1). Had Congress
`sought to create an exception in ARRA § 1002 to the VA’s
`longstanding regulatory requirement for proving service or
`to limit the VA’s authority to prescribe such regulations, it
`could have expressly done so—but it did not.
`
`
`appointed, designated, or subsequently recognized
`by the Commander in Chief, Southwest Pacific
`Area, or other competent authority in the Army of
`the United States.
`This definition is identical to the provision in the 1946 Re-
`scissions Acts defining who is deemed not to have qualify-
`ing service and therefore cannot obtain the full range of
`veterans’ benefits. See 38 U.S.C. § 107(a).
`
`

`

`DELA CRUZ v. WILKIE
`
`11
`
`Dela Cruz also argues that even if the VA is permitted
`to require service department verification in the context of
`ARRA § 1002, it misapplied that requirement by not ac-
`cepting Dela Cruz’s Form 23 affidavit as a “document is-
`sued by the service department.” 38 C.F.R. § 3.203(a)(1).
`To be sure, the Form 23 itself was prepared by the Army in
`1945 before it was executed by Dela Cruz. In addition, the
`Form 23 affidavit as executed by Dela Cruz has indicia of
`reliability because it was executed under penalty of mili-
`tary courts-martial through the then-governing Articles of
`War. Nevertheless, in establishing service, the Army
`treats the reconstructed roster—not Form 23—as the “de-
`finitive source,” see Oversight & Investigations Subcomm.
`Hearing at 9, instead using Form 23 primarily as a check
`for consistency against the roster, see id. The Army was
`unable to locate Dela Cruz’s name on the reconstructed ros-
`ter, and thus under its approach was unable to verify the
`accuracy of his Form 23 affidavit. J.A. 131. The VA’s deci-
`sion to treat the roster as the “document issued by the ser-
`vice department,” 38 C.F.R. § 3.203(a)(1), was not arbitrary
`and capricious. The Board therefore did not err in not ac-
`cepting Dela Cruz’s Form 23 affidavit alone as establishing
`service.
`For the first time, Dela Cruz argues on appeal that re-
`quiring service department verification to receive payment
`from the compensation fund violates the Equal Protection
`Component of the Due Process Clause of the Fifth Amend-
`ment. Under the circumstances, we decline to consider this
`argument which was not raised at any point in the proceed-
`ings below. See Forshey v. Principi, 284 F.3d 1335, 1355–
`58 (Fed. Cir. 2002) (en banc), superseded in part by statute
`on other grounds.
`
`II
`Dela Cruz alternatively argues that the VA cannot give
`conclusive weight to an Army determination that relies
`solely on the reconstructed roster without giving the
`
`

`

`12
`
`DELA CRUZ v. WILKIE
`
`veteran a meaningful opportunity to challenge his service
`record. However, the VA maintains that the proper rem-
`edy for this lies with Corrections Board, not the VA, be-
`cause only the Corrections Board has the “legal authority
`to amend or correct an official military record.” Gov’t Br.
`at 36. Thus, contends the VA, “a dispute concerning deter-
`minations as to whether a claimant served in the military
`is properly directed” to the Corrections Board. Id. at 37.
`The applicable statute, 10 U.S.C. § 1552(a)(1), provides
`that the Corrections Board, acting on behalf of the Secre-
`tary of the Army, “may correct any military record” of the
`Army when “necessary to correct an error or remove an in-
`justice.” Dela Cruz contends that pursuing such relief
`would be futile, because, according to a 1951 Corrections
`Board memorandum, the Corrections Board will not even
`consider applications for correction submitted by individu-
`als seeking to establish their service in the Philippine mil-
`itary.
`After oral argument, we directed the VA to file a re-
`sponse “stating the position of the United States regarding
`the availability of a remedy from the Army Board for the
`Corrections of Military Records to correct the Recon-
`structed Guerilla Roster.” Dela Cruz v. United States, No.
`18-2101 (Fed. Cir. May 7, 2019), ECF No. 55. The VA’s
`response, which is attached as an Addendum to this opin-
`ion, stated that the VA had
`consulted with counsel for the Department of the
`Army and counsel for the Army Review Boards
`Agency (ARBA), the agency that oversees and ad-
`ministers the [Corrections Board]. Counsel for the
`ARBA has represented that the board will consider
`applications filed by purported Filipino Guerillas
`claiming military service during World War II on
`behalf of the United States Army, including indi-
`viduals who are not currently listed on the Recon-
`structed Guerilla Roster.
`
`

`

`DELA CRUZ v. WILKIE
`
`13
`
`Gov’t Resp. to Order at 1–2. The VA’s response further
`noted that the Corrections Board will only consider such an
`application for correction “after the applicant exhausts all
`other available administrative remedies, including re-
`questing verification of military service from the National
`Personnel Records Center (NPRC) and the Army Human
`Resources Command (AHRC).” Id. at 2. However, the VA
`acknowledges that here, Dela Cruz has already exhausted
`these remedies, as “[t]he NPRC and AHRC have already
`provided responses unfavorable to Mr. Dela Cruz.” Id. at
`3. Thus, “potential relief is available” to Dela Cruz from
`the Corrections Board. Id.; see Soria, 118 F.3d at 749 (“[I]f
`the United States service department refuses to verify the
`applicant’s claimed service, the applicant’s only recourse
`lies within the relevant service department, not the VA.”).
`Under the circumstances, Dela Cruz should promptly
`file a request with the Corrections Board to have his service
`recognized by the Army based on his Form 23 affidavit and
`other available evidence, such as Philippine military docu-
`ments and affidavits by contemporary witnesses. We ex-
`pect the Corrections Board will process the request with
`appropriate dispatch. If the Corrections Board provides re-
`lief, we assume that the VA will promptly approve Dela
`Cruz’s claim for payment from the compensation fund.
`The question remains whether to affirm the denial of
`Dela Cruz’s claim or to remand to the Veterans Court. We
`conclude that remand is appropriate because the Veterans
`Court has exclusive jurisdiction to review a decision by the
`Corrections Board if the Board denies relief to Dela Cruz.
`A similar issue has arisen in the context of claims for mon-
`etary relief under the Tucker Act, over which the Claims
`Court (or its predecessor, the Court of Claims) has exclu-
`sive jurisdiction. In such cases, the Court of Claims had
`authority to review relevant decisions by a military correc-
`tions board. See Grieg v. United States, 640 F.2d 1261,
`1265–67 (Ct. Cl. 1981); Sanders v. United States, 594 F.2d
`804, 812–13 (Ct. Cl. 1979) (en banc), superseded by statute
`
`

`

`14
`
`DELA CRUZ v. WILKIE
`
`on other grounds; see also Richey v. United States, 322 F.3d
`1317, 1323 (Fed. Cir. 2003). The Supreme Court recog-
`nized the appropriateness of such review by the Court of
`Claims. Chappell v. Wallace, 462 U.S. 296, 303 (1983)
`(“Board decisions are subject to judicial review and can be
`set aside if they are arbitrary, capricious, or not based on
`substantial evidence.” (citing Grieg and Sanders)). That
`authority now rests with the Claims Court. See Richey, 322
`F.3d at 1323. And if a claimant files suit in the Claims
`Court in the first instance, rather than first going to the
`Corrections Board, “that court will require resort to a Cor-
`rections Board while the matter remains pending in that
`court.” Id.
`Here, the situation is similar. Compensation under
`ARRA § 1002 is determined only by the Secretary for Vet-
`erans Affairs. An appeal to the Veterans Court is the ex-
`clusive review mechanism for decisions of the Secretary in
`the administration of VA benefits. See 38 U.S.C. §§ 511,
`7104, 7252; In re Russell, 155 F.3d 1012, 1012–13 (8th Cir.
`1998) (per curiam); Beamon v. Brown, 125 F.3d 965, 967–
`71 (6th Cir. 1997); Larrabee v. Derwinski, 968 F.2d 1497,
`1501 (2d Cir. 1992); Vincent v. United States, 731 F. App’x
`954, 957 (Fed. Cir. 2018) (explaining that “the Court of Fed-
`eral Claims lacks jurisdiction to hear a claim for benefits
`under Section 1110 or comparable Title 38 provisions” be-
`cause such a claim “must proceed through the statutorily
`prescribed route of review . . . a route that runs through the
`Court of Appeals for Veterans Claims”). Since the Veterans
`Court has exclusive jurisdiction to review the right to com-
`pensation under ARRA § 1002 and to review relevant deci-
`sions from the Corrections Board, we remand to the
`Veterans Court to hold the case in abeyance pending pro-
`ceedings at the Corrections Board—a procedure identical
`to that followed by the Claims Court in cases arising under
`the Tucker Act. See Richey, 322 F.3d at 1323.
`
`

`

`DELA CRUZ v. WILKIE
`
`15
`
`CONCLUSION
`We conclude that the VA can properly rely on the
`Army’s certification as to service, but it cannot rely simply
`on the Army’s determination that the veteran’s name does
`not appear on the reconstructed roster without giving the
`veteran a meaningful opportunity to challenge his service
`record. Based on the government’s representation that the
`Corrections Board will consider requests for correction by
`individuals who are not listed on the reconstructed roster,
`we conclude that Dela Cruz’s proper recourse is to chal-
`lenge the Army’s determination based on the reconstructed
`roster before the Corrections Board. We trust that the Cor-
`rections Board will act promptly on requests by Filipino
`veterans such as Dela Cruz, particularly given the long
`procedural history of such claims and the fact that most
`World War II veterans are now over 90 years old. The case
`is remanded to the Veterans Court to hold the case in abey-
`ance pending consideration by the Corrections Board. The
`mandate shall issue forthwith.
`AFFIRMED-IN-PART AND REMANDED
`COSTS
`
`No costs.
`
`

`

`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`
`
`No. 2018-2101
`
`EDDIE N. DELA CRUZ,
`
` Claimant-Appellant,
`
` v.
`
`ROBERT WILKIE,
`Secretary of Veterans Affairs,
`
` Respondent-Appellee.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`RESPONDENT-APPELLEE’S RESPONSE
`TO THE COURT’S MAY 7, 2019 ORDER
`
`Respondent-appellee, Robert Wilkie, Secretary of Veterans Affairs,
`
`
`
`respectfully submits this response to the Court’s May 7, 2019 order (ECF No. 55),
`
`directing the Secretary to address the availability of a remedy from the Army
`
`Board for Correction of Military Records (ABCMR or board) to correct the
`
`Reconstructed Guerilla Roster for applicants who challenge their exclusion from
`
`the roster, which, in part, determines eligibility for payment from the Filipino
`
`Veterans Equity Compensation Fund.
`
`Undersigned counsel has consulted with counsel for the Department of the
`
`Army and counsel for the Army Review Boards Agency (ARBA), the agency that
`
`oversees and administers the ABCMR. Counsel for the ARBA has represented
`
`that the board will consider applications filed by purported Filipino Guerillas
`
`

`

`claiming military service during World War II on behalf of the United States
`
`Army, including individuals who are not currently listed on the Reconstructed
`
`Guerilla Roster.
`
`Pursuant to 10 U.S.C. § 1552(a)(1), the Secretary of the Army, acting
`
`through the ABCMR, “may correct any military record of the [Army] when the
`
`Secretary considers it necessary to correct an error or remove an injustice.”
`
`Accordingly, relevant to the Court’s directive, an individual attempting to establish
`
`eligible Philippine military service, as defined in the American Recovery and
`
`Reinvestment Act of 2009, may file an application and supporting documents with
`
`the ABCMR for consideration. The ABCMR will consider applications for
`
`correction only after the applicant exhausts all other available administrative
`
`remedies, including requesting verification of military service from the National
`
`Personnel Records Center (NPRC) and the Army Human Resources Command
`
`(AHRC).
`
`The ABCMR review process is the highest level of administrative appeal
`
`and provides the final decision on behalf of the Army. If the ABCMR denies the
`
`requested relief, the applicant may file an application for reconsideration or seek
`
`judicial review. Army Reg. No. 15-185, § 2-15 (rule governing requests for
`
`reconsideration); Chappell v. Wallace, 462 U.S. 296, 303 (1983) (“Board [for
`
`
`
`2
`
`

`

`Correction of Military Records] decisions are subject to judicial review and can be
`
`set aside if they are arbitrary, capricious, or not based on substantial evidence.”).
`
`At this stage, the ABCMR is the only remedy available to Mr. Dela Cruz to
`
`change the status of his military service. The NPRC and AHRC have already
`
`provided responses unfavorable to Mr. Dela Cruz when the Department of
`
`Veterans Affairs (VA) requested service verification from those agencies.
`
`Appellee Br. 3-4, ECF No. 38. As we stated in our response brief in this appeal,
`
`VA takes no position on whether Mr. Dela Cruz would be successful in pursuing
`
`relief at the ABCMR, but potential relief is available. Id. at 36-37. Regardless of
`
`the potential outcome at the ABCMR, this Court is not the proper forum to resolve
`
`Mr. Dela Cruz’s dispute concerning recognition of his military service. See Soria
`
`v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) (“[I]f the United States service
`
`department refuses to verify the applicant’s claimed service, the applicant’s only
`
`recourse lies within the relevant service department, not the VA.”); Go v. Shinseki,
`
`517 Fed. Appx 941, 942 (Fed. Cir. 2013) (concluding that claimant’s “recourse is
`
`under 10 U.S.C. § 1552, not with this Court”).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`Respectfully submitted,
`
`JOSEPH H. HUNT
`Assistant Attorney General
`
`ROBERT E. KIRSCHMAN, JR.
`Director
`
`

`

`
`
`
`
`
`
`
`
`
`OF COUNSEL:
`
`
`BRIAN D. GRIFFIN
`
`
`Deputy Chief Counsel
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`BRANDON A. JONAS
`
`
`Attorney
`
`
`
`
`Benefits Law Group
`Department of Veterans Affairs
`810 Vermont Ave., NW
`
`Washington, DC 20420
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`May 23, 2019
`
`
`
`
`
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`
`
`
`
`
`
`
`/s/ L. Misha Preheim
`L. MISHA PREHEIM
`Assistant Director
`
`/s/ Jana Moses
`JANA MOSES
`
`Trial Attorney
`Commercial Litigation Branch
`Civil Division
`
`
`Department of Justice
`
`1100 L Street, NW
`Washington, DC 20530
`Tel: (202) 616-2279
`
`
`
`
`Attorneys for Respondent-Appel

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