honor good morning there may be as court on july twenty sixth one nine hundred forty one president roosevelt called into the service of the u s armed forces all of the ground based military personnel in the philippines when he did so he did so on the critically and absolutely by calling them in to serve as he called not only the human beings of the service but all their assets and their resources including the records for those forces as part of his military order general macarthur was appointed as the commander in chief of the southwest pacific area and that included the philippines at the time the seventh military district on the gross oriental island in the philippines was recognized by general macarthur and fact the commanders of the forces in that area both in the commonwealth army and in the grill forces reported directly to general macarthur until he gave operational authority to general eichelberger of the eighth army so i all times every single man and woman in the he dictated that was required to process all guerrillas and personnel in the philippines including in the gross oriental island which is the seventh military district by doing  general headquarters in australia at the time took that form and they laid out the content and they devised the form they gave it to eight army personnel you've got one that was counter signed by us officer you had the one that was signed by the summary court officer of the eighth army lieutenant carroll turk government's here it is one of the affidavits that's at issue here and that's what counts because this is a service this is a official document issued by service department number one number two it shows the length time and character of th and three it is not subject to challenge or you know i go with attacking the army's conclusion that there is no proof of her service absolutely without question but that's not the issue in front of us as it was with regard to requiring the that that the appellant's name be on the the roster recognise grell as it's unconstitutional because she was a woman she was per se excluded from reading for an issue i mean  five thirty three to five it seems to me that this particular question might be an application of a lot of fact tell me why you think i'm wrong it's not an application of lot of fact in the sense that you have constitutional issues before you so you can look at the facts in the terms true that's not the case that you're dealing with the case that you're dealing with is that the a secretary has said that based on the arm refusal to recognize that form twenty three or anything else that she doesn't qualify but what's wrong with that and ours in this case let's assume for argument's sake that the form twenty three is an official government document so what so what what he wants to do about that so it meets the terms of the your form twenty three was no good now if we conclude it is good should we order the army to rethink it is that work directly or i just want to correct one thing you said the army never said form twenty three was no good  we have to confirm it with the claimants name on the we constructed roster and she was a woman who was directly prohibited from being on the roster the army said we're not going to accept the form person served under a commander appointed designated center this eligibility requires that the eligible person the one who serve under that is not incorporated by reference in the twenty's or your honor all the evidence is that everybody in the seventh military district what were recognized because they were they were they were commanders who were under the direct command of general macarthur and then general eichelberger so everybody on the island that was in charge so what what what we're you know if say we reject your argument the form twenty three alone satisfies the thirty eight c f r three point two or three doesn't even apply here and that instead what the v a should've done was look at the eligibility requirements of a thousand and two d so you tell me why is that why is it that the regulation should be displaced in this circumstance where it is the v a s usual practice when they're looking at whether someone served to rely on the process they have in their regulations because three point two zero three is the normal protocol for determining now this is i'm referring to getting to where your argument should've gone from the beginning what is it you're looking at in this statute and i'm referring now to section ten to thirty eight u what is it in that statute that says the v a s section three point two zero three is not the way to determine benefit of that is that you what you have to prove to the are you have you have to prove that you served the military forces that were under the commanders appointed designated or subsequently recognized by the commander in chief of something when you think you are can prove yes well and who should be the deciding authority or that question the v a had that document not the army that's correct it never should have given it to the army because it had the documents with that all it information in there but the v a has a rule called three point two zero three under which they send their everything to the garment why isn't that perfectly appropriate rule because it contravene the intent and purpose in the letter and spirit of the act they didn't need to do that and somebody has to make the decision in the statute that requires and i'm going ask the government saying question is there anything in the statute that requires that the v a use three point two and three in determining her alleged ability service does i do under the statute i would have thought you might have answered that by saying that the armed forces being referred to there is the armed forces of the united states which is referred to would be one way and that the point of that is even if you were not actually in the armed forces of the united states but you were in an organized military force of the government of the commonwealth of philippine for the purposes of this that your you will be assumed to be active member of the united states armed forces i would have thought that would be your answer i did say that this was the armed forces an additional benefit this is a benefit to go to everybody who didn't know who was for clothes from benefits that's the whole purpose of this of this act it's it's not augmenting something it's not in addition  to and contrary to the government's argument which we have only ever saved well seven out of if you couldn't get this you could silk at this this is for anybody who applies there is there is no there's nobody excluded from th nowhere in here does that say and by the way when we said everybody we meant just these people are not these people anybody who applies who meets the criteria qualifies and deserves and is entitle to an  you've got that issue but i think if you look at the and then you look at i conjunction with the and i just confirms with the says and it also follows the legislative history it's absolutely crystal clear that three point two zero three will it change to me that is his problem his client's problem is to somehow get the secretary of the day to decide her eligibility under d two d independently of the armories usual way of doing business the army's usual way of doing business is to look in their files and their records including that famous document with all the names on it that's part of the army's work isn't that correct yeah sure yes that's the v a doesn't database it's part of the army's database right correctly b a says that they are you look in your databases and tell us whether she is qualified for benefits the army says  verification of military service from the army is just seeking verification it's not asking the army whether the claimant is eligible for whatever been a sense it's claim of yours who i'm wearing on there when someone tell him i didn't but they don't have any way to verify right or they go to the army for vertigo and so typically in a case of a u s citizen who's been serving in the army or got hurt in the number something they'll look in they'll find that the person was discharge and the discharge record shows the dates of service along on the deals are the same problem right and so in this case where the people who had served in the philippines since they have now actually served in the u s military they don't have a u s just charge somebody honest problem that is to say either to go back to the army and say oh you're mistaken but that's not why we're here we're here because he's arguing the v a i think he's arguing although it was hard to find out from i think he's arguing that this is not a case in which the secretary should have gone to the army saying to the extent that his argument is that three point two zero three doesn't apply the statutory language specifically says that the secretary shall administer the the minister the provisions of this section in a manner consistent with the a political provisions of title thirty eight united states code and other provisions of law and shall apply the definition is that a new connection with previous benefits that were being sought out of the philippines a allowing for additional benefits for the one section one zero seven a group a group that already or if i is simply called recognition of service yes the service as describ forces were armed forces are we talking about council my understanding is the armed services of the united states armed forces of i'm sorry i'm sure it's the only armed forces referred to in the statute i think right it's the armed forces of the united states so what that section does is make someone who qualifies under d an eligible person under d a member of the united states armed forces for whatever purposes but notice it says to the extent provided in this section yes or no apostles who can you tell us  what to do well what is it that is what you can get it gets you payment of from the philippine veterans on the purpose of this section which only pertains to the philippine veterans find it get someone i think i understand your honor and this may be a reasonable explanation i think it's limiting the claimant to the payment instead whereas when  them something it's giving them something additional yes or no they wouldn't otherwise be for getting the money under the statue so i'm saying to myself why doesn't that mean that you don't need th because the v a is still responsible for confirming the military service of verifying the military service of the claimant and i ask you something i'm going to add just divert for a second because you said something earlier where  three point two or three they even though the n p r see might verify or not verify someone service that still isn't determining whether somebody is eligible or not at the v a i thought you were trying to say something like the v a will do some sort of other determination i'd like to know what that is well typically when the claimant files a claim there the verification of their military service is one few factors that need to be satisfied  looking at the eligibility determination just to be clear i don't want to talk about the v a s general procedure i really specifically want to ask what you're referring to with respect to the particular statute issue here and what procedures to the undertake i verifying with the service department this person have qualifying military service yes or no and the army i'm sorry the v a is bound by what clear that assume used the nothing in the statute permits the v a to escape from its own booby trap again then there would really be no well well the veterans court was correct in determining that there is really no legitimate constitutional challenge to the secretary's policy or rules all of the arguments that israel has raised in her brief relate specifically to undertaken in three point two three doesn't a secretary have some responsibility for using a constitutional right to urrea and making his decisions ate the secretary's decision no because the secretary is following it's again longstanding precedent that it shall verify service with the service department  power to make certain that the delegate behaves for all right well that's all he's talking about here is to say he sinks when the military that chap that constitutional challenge to the discriminatory practices of the army can be brought to the district court he can bring this about what you're saying also the people raise trust to tional challengers of the b b n all the time and  it will come as a great shock to you to know that the military and in exercising your delegated authority is violating the constitution which you will know about the shepherd this court and talon has already looked at you know whether certain benefits that are administered to the philippine national folks individuals right where philippine national origin are allowed to a decision based on constitutional criteria the decision is unconstitutional but let me ask you a slightly different you put a lot of reliance on  otherwise provided in this section let's assume we were to decide that this action provides a direct responsibility on the part of the secretary to decide these cases on the best evidence available which is not use three point two zero three exclusively he may go to three point two zero three and ask the army for their information but let's assume we construed the statute as saying this to secretary look at all the evidence in these cases treat the army's view as only one item that the application shall contain what evidence that the secretary requires and in this case the secretary saying we require verification from the military service department and the military service department has rendered a negative determination even after not just a question for you it says the application of the claim shall contain that's the application made by the app can't always the applicant is the process of the applicant has to first get the certification and then go to you i thought that's not how the process worked the i mean i'm not exactly sure of all the components that go into the application itself but what happened in this case was that  used to help search the records to determine whether the person has a qualifying service so it's helpful to but secretary never saw that evidence the v a secretary never personally saw the agio form made the decision with all of that evidence and i'd like to know what the the secretary actually decided what he actually decided according to your brief is that military service in addition to all of the other evidence and the ultimate answer was no this person does not have qualifying military service the v a relied on the the army's decision in that regard but documents that are provided and then give the information and it's helpful to some whether or not somebody is on the roster when it seems as if really it's coming down to whether somebody is on the roster now is that correct yes or are you aware of any cases in which the agency or the board has allowed filipino civilian guerrillas during world war two to obtain this one time benefit now was stating the fact that they're not on the roster but in this case i believe that the claimant was not on the reconstructed roster but was able to write enough information where the board actually looked beyond the roster as far as as as we now know that the the a relies upon the military service department terminations in doing in determining whether the person is qualifying military service especially for these cases because to get her fifteen thousand dollars well your honor i certainly can't make any promises about the adjudicatory process and if the court decides that it should be  sure that the able do everything to be diligent about getting any sort of process any claim process that would not be unreasonable should we be mad and for us to provide that this shall be expedit i understand your under the reinvestment act and the v a official answered yes let's in our brief part of the way now just a couple of comments just keep in mind that during this entire period of the war the philippines was a part of the united states of territory of the the way in which the regulation is being applied doesn't show flat out discrimination against women because nurses include right registered nurse so you have a form of the gander for example all of your chain of command evidence that in that brilliant brief of history has brought all this for a device that would have to be tested in a court of law to make sure that was all there i can't make judgements i can't take judicial notice of those i think we think you can you are and the thing is that those records were either for the most part yes i need you haven't shown me any proof that a mail order lay or whatever the title was the player has been in the hospital that a you can't win your constitutional argument without that your honor you kind of we were getting the burden put on us where under kaplan vs peak and other cases the duty is on the v a and the government to do its utmost to assist mrs ray if you have gotten to have gotten and gather all of these records that it had constructively before and the one hundred forty nine report was before the b h it was responsible for bringing that to identifying that in the inner agency task force at the white house ordered and digitise you didn't release it to the public so they had expressed knowledge of the unconstitutional treatment of all women in service except for registered nurses so it's this is not a mystery here they have all those records constructively before them because they delegate the army the right to do that and this argument that this is right for the gone to the army board for correction military records is is completely bogus because there every day people are dying that veterans and they're going to be foreclosed if this even if you have a remained that last sixty days you were going to lose dozens and dozens of people and about ten thousand people have been denied benefits and a good part of them