there is a related case that was argued on december third it's not technically related but it has a extraordinary overlap in issues it's the radius appeal is when you're aware of it when that appeal was argued the central issue seemed to be statutory construction is right it's listed as really the case and it is it is it was argued before a different panel that clearly and miss reyes unfortunately died three one something else attorney turn your attention to the appendix would please appendix pages one sixteen and one seventeen yeah and what you'll find here is that in the very very hazy lettering the people try that and that's been the result we eat or me board has had a longstanding policy since just as the war ended that they would not hear any appeals from girls period in the stor that's the first one from the secretary of the army on full team recognition there's another one that follows on a d v m over two importantly a v m over three is the army board's own memo originally classified as secret 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 two will not be docketed for consideration and then that is followed by a memorandum from the deputy secretary of defense on the next page of the den to over four that's a memo from the for the secretary of the army from the deputy again stating we filipinos lose they can't go to the army board we have another one a memorandum from the adjutant general there is a clean copy that makes it really easy to see a d d m zero four zero attached to the great brief so you can see that there are two stamps the point that i was trying to make in your replies which simply was this if a roster existed that stamped reconstructed by guerilla affairs division and approved in twenty three affidavit at the very top of the affidavit there is a processing unit that's listed on the very first line you might look at this in the appendix the form twenty three affidavit again isn't very clear but it shows up twice you can look at either one of them so let's look at the last one because it is just that's on page a p p x two five seven the second volume that's where we find one of these d what that means is recovered personal division that was the r p d and then the recovered personnel division was over the adjutant general section of the question you know how can that be addressed is is is your contention that the word for correction of military records is not performing its statutory obligation by not addressing these issues in connection with the corrections board prosy yes since the one nine hundred forty s what does the statute say about the obligation i believe it's in our brief it says that they're supposed to do to cait all matters related to military records so i guess if we ordered them to do that they do it right maybe yes maybe iraq so there is evidence that he serves it seems to me somebody has to make the determination as to whether in fact he served or not in the really only two alternatives here one  that the winding down of the war around one thousand nine hundred six was chaotic in the philippines and what was found at that time was a collection of rosters that consumed two folders in somebody's office 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 a there's a lot of similar names as well there are this is true but what happened was the army first went through a process that started with and i'd like to dispute the position that judged i q articulated which was that you have a hard time believing that you know this is an affidavit from the united states government and it is an affidavit that was blessed by the united states government fo all the way this process work was you had to be in a recognized guerrilla unit to be processed you were processed as the war was coming to a close and the processing was done to figure out should we keep you were not and we need to create a record of you of permanency that processing was done by processing teams that were organized by the army of the united states and they directed them in record all all it shows is that someone who claimed to be a member of the well you know what and and fill out this form and we are free but i don't see where and and anything that an officer signs and puts into a personnel file including a letter of reprimand for example which at which you haven't signed at all is a is a military record from if you see what i'm certain i do understand what you're saying and i would answer as follows at the beginning of the appendix there are a series of historical documents that were put before the c b c and that series of historical documents shows how the there are a series of memos that set forth how processing was to take place this was all designed for the tenant general eichelberger of the eighth army and they worked together with the and a policy was put in place specifically under the command of general macarthur 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 and if so state what you did ok but that's just what the questions are i understand say where does it tell me that allowing the army is allowing somebody fill out  starting at that page the p p x r a five seven when you go into the room and going through a very important document which is circular number one forty two on a p p x zero eight one one yes if you look at the second page of that document 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 you have 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 this wasn't just a document that somebody showed up with and said would you please notarize that it had much more significance there was a plan and why isn't there some testimony in the record here from somebody who is knowledgeable about the process of time as to how the world is not possible to have such tests i don't know how to get such testimony and i certainly don't know how to get it in this record that would cruz was pro se through the filing of his informal brief we could we could be remanded and say we'd like  personally took digital pictures of them and put them in the appendix i held the original documents at the national archives in college park they're for real they are the official u s government records dela cruz is ninety five years old i percipient witnesses to these acts are either dead or very very aged he was a young man and was a young man so when he joined the guerrillas he was nineteen he was a teenager and he joined just after he lived in the north forty three right that's right and so before that in certain terms that's right so and his affidavit of philippine army personal says that his brief story is that we had this thing called the block on death march eighty thousand people walk north from the botton peninsula on the island of luzon and they ended up at a prison camp dela cruz lived just to the north west of the prison camp sixty thousand people made it there twenty thousand didn't most of them filipinos and so in that context of having witnessed not far from him a japanese invasion which came from the north through where he lived he was a rice farmer he didn't graduate past the seventh grade he made it through junior high school at least a portion of it and then he was a rice farmer for three years and he joined the guerrillas because otherwise their life as they knew it was gone i don't have it that doesn't tell me why i should rely on the form twenty three is a military right i think the answer your honor is is in these historical documents because i can't give you a percipient witness i can give you i could go back and get testimony from somebody at the national archives who would say yeah these are official records i could get some testimony that is that there is a famous army report from one nine hundred forty nine it's facially a military  separate this from the words military record on the top of that it says it was created by the or a p d they recover personal division that's the united states or and if we look through here the army looked for particular information they wanted to know and i mean we there it's all here and there's something else that's important about this document if there's a stamp on it so this document was created in forty six long before this benefit the filipino veterans equity compensation came into existence the document was authenticated by the philippine army by their adjutant general's all i find it fascinating that he's drawing be a benefit i find it fascinating to i don't understand how it's possible that the right hand of the v a is willing to give health care benefits to the guy and the leather hand says there's no you're not legitimate you didn't serve but their answer is all week maybe we'd like to but it have to be authorized and and on and they are out doesn't do it and the problem here is that the v a is employing a standard that requires two pieces of evidence they say you can will there won't they i can't speak for the army as to whether they would respond or how they would respond to it i would characterize as the proper request but this isn't his proper request and what i would refer to court too is testimony before the house subcommittee on oversight investigations on june twenty fourth twenty fourteen addressing the filipino veterans equity compensation fund examining the department of defense interagency process for verifying eligibility i think you'll find there the testimony that you've been asking about earlier this morning and you would read members of the v a the national personal 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 and what did they say so cut to address your question judge dyke there was a chairman hack at the time asked so is the a g m for twenty three the acceptable documents demonstrate proof of service and the representative of the personnel records under said no not on its own what they did in nine is i understand it late forty's from reading this in preparation there's argument not that i would have that cited as you know it's not in the i'm sorry it's not in the briefs and i can't that's why i read the whole title of the court one of the but i'd be happy to provide a copy i just haven't you provided  i mean why don't you provide i will but in here basically the issue that we've been talking about this morning was talked about before the house and twenty fourteen there was several filipino grillers who had issues and even very strong evidence of  participated in various activities during world war two it would have went to what did they say at that so they'll ability of the border i mean they the bottom line i understand from reading this is congress understood that it was their problem gentlemen we appreciate your testimony realizing that you were just a messenger in that you were interpreting the regulations and laws as written 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 by fully deserve the issue of the for twenty three and tell you what i'm thinking about mr hahn in the context of the court of federal claims and the corrections for we have held and morgan is recognize this that it's appropriate to stay proceedings in the court of federal lands to send people to work for russian military records to have the records corrected or not correct why isn't that an appropriate remedy here why should we direct the veterans or to stay proceedings to allow mr dela cruz to applied and corrections or to correct his records who appears on the roster and his claim can be processed appropriately and in that connection why doesn't the statute require the corrections forward to perform that function 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 boarding and i don't know why people haven't been you know i heard earlier it was described as a futile process but i haven't heard any discussion of why an application wasn't made and then the appropriate appeal taken to court what do you do you deny the documentation which repeatedly the board is told don't look at the seven 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 v a and ask them to fix this this is truly pathetic and that in the real sense of the family we're not we're not denying any of that your honor but what we're saying is this this case here is before this court based upon the actions of the secretary and those actions which were done in compliance with thirty eight c f r three point two zero three have already been determined by this court in a presidential decision to be a valid exercise of its evidence yury deciding authority and and so that we make a determination as equal protection there is not a soria but in folks who otherwise are eligible under the rescission act and the d c circuit in the ninth circuit have done this as well as and the d c and the ninth circuit and racine toe in twenty thirteen i think held as much with respect to the us look at those where the board of military correction yeah see the problem is i don't i cannot construct for you your honor a path by which you i think can do that here i think that it requires an action on the part of the claimant to go  take advantage of whatever futile right or not you know right you might have and submit an application to the military correction board 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 you ma hockey we're not going to send somebody off on a wild goose chase to do something which is futile so you before we took that approach we'd have to decide that it wasn't futile to go the board for correction of military records and right now the army says no we won't process that if we're going to send this claimant off of the corrections more and we've got to make a determination as to whether there's a realistic possibility of a remedy not on the facts of this case but in terms of the obligation of the board to make such determinations 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 is roll member of the guerrilla forces so i can get my payment 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 you're talking about strapping one process on to the process that's actually out if you will for the score which is the v a process that the v a process looks back right in this court said that that's ok so what we need to do is somehow get that vehicle before this court under the right circumstances now and i'm not i'm getting the sense here that the court doesn't want to hear that as a as a response and all i can say judge like is that if you or i can stand here now and provide the path for you the army is not involved in this appeal 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 legal istic that action to say i think that's a little bit out of bounds here because we do frankly this the issue before th is reviewing the vaccine court system which is premised on this idea that thirty eight three point two zero three was a valid x or size of the agency's regulatory authority which this court already said it was so this gets us back to yes this is terrible mr della cruz's waited a long time we don't know the answer the a doesn't know the answer maybe the army knows the answer but i'm not sure if you leave this twenty fourteen thing there's it's not clear that even a person who at well clearly what you can discern from reading this hearing testimony is that rove form twenty three is not the be all end all what happened at the time was the form twenty three was submitted and then the army look through all of its records because it could only accept as recognized people under what became the rescission that those people who were working in grill operations that were i think i'm going to use the word sponsored but i'm roughly using that word by the united states army under the responsible to someone who can tell them right so simply because someone was a guerrilla in the philippines during the second world war doesn't mean they qualified for either one o seven or this this equity compensation fund and simply because they filled out form twenty three doesn't mean that they qualify there was a lot of people that filled out these one point three that weren't determined to have been part of the proper if you will for grilli unit i don't know the answer with respect to mr dela cruz he suggests otherwise by saying some of his colleagues who he was with that would be the only remedy available right which and we like to know whether it's a real remedy but i think again i the answer is go there and if you're disappointed do something about it we're not going to send somebody i understand court doesn't want to do that but i can't and we need to know whether this is a realistic possibility or whether it's a futile gesture than the one hundred twenty nine geneva convention which followed the hague rules including under the command of responsible command and those folks who are quite in for those various colonels and generals self made colonels and generals and so on either answer to the united states didn't there were some that didn't but there's there if you're the path that you're going to follow on the records to see if if that hundred twenty second battalion company he was part of something commanded by someone to whom the united states gave very well i mean there's that's that's the one key as to whether they're recognizing the other question of course is wasn't mr cruise part yes i think that's a more difficult question except except he has enough evidence for the v a to be giving a medical care so there is a distinction in practice at least within the v a between the health side of the business and the benefit side the benefit side is very circumstances it's important that people get healthcare it's not it's not necessarily discounting the importance of receiving benefits but that when we're talking about health care versus benefits that there is a there is a recognized understanding that everything should be done to provide health care reason you want and want to talk about that testimony the two congressional hearings that were held in two thousand and fourteen there were some testimony that was put in during the second of those hearings and twenty fourteen both before the house of representatives and they are cited in our reply brief there is a hyperlink that gets you to both sets of testimony i'm happy to put it in a twenty eight day letter in that second hearing testimony was put in by major general hon tonio to google and he attached to his testimony a board of veterans appeals opinion non presidential for an individual named pablo and in that opinion the single judge of the board said effectively i'm going weigh the evidence we're going to use a best evidence rule here and just because you can't meet all of the qualifications for the n p or c to say you qualify i'm the v a and this statute tells me that i have determine eligibility because it says a definition for eligible person and that judge weighed the evidence and found in favor of the individual and he was granted the benefit then something miraculous happened 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 him to congress to let them know that the public case had an anomaly happened seven months after the single judge decision the vice chairman of the board of veterans appeals issued an order requiring reconsider of the reconsideration of the opinion to sponsor on the motion of the fork the single judge was removed and  three judge panel was put in place who then completely got of the opinion pablo then took it up to the ca v c and the six in that the v a did what they do best they settled they gave him the fifteen thousand dollars they called him a veteran it's in the settlement agreement and they made the whole problem go away some of this would never see the light of day but that interesting but not enough found valid the point is the best evidence rule i have a problem with a v c r they take the year and a half to do anything he'll be ninety six and a half we could suggest that they do it what is the problem with going to the corrections or if in fact we were able to discern that they consider th can try but i mean time is of the essence with this individual he's ninety five right we're out of time we've been doing this for a decade bouncing back and forth four times to the board twice to the ca v c well enough is enough the statute says a definition for an eligible person and it clearly states to us that certain things apply certain things apply like definitions in thirty eight u s c one hundred one ok we're showing you have i understand and i appreciate the path but in as you can tell it in part frustrates me i understand that to right you ought to be able to get off the ground like a determination as to whether the board is willing to address the funds on the merits or not i just want to give you a point of information so when the it's not a companion case but in the related case which is  no we won't we won't hear of the the the appeal that a b c m r with respect to correcting the record to show that she was a gorilla in her because they have no jurisdiction over such  that we have an explicit definition of an eligible person here we also have a section that says the secretary show with minister the provisions of this section in a manner consistent with applicable provisions of title thirty eight and other provisions of law and show apply the definitions of section one o one in the administration of such provisions except to the extent otherwise provided just because v a has this three point two zero o three regulation first of all this does not say anything about regulations it says playing laws doesn't say anything about the regulation just because