Tagupa: Proving Service Eligibility for WWII Philippine Guerrilla Fighters

Juliet T. Tagupa v. Robert A McDonald, Opinion Number 11-3575, decided August 26, 2014 concerns whether someone had served as a guerrilla fighter in the Phlippines.  The veteran had submitted an wartime identification card stating he had actively participated in anti-Japanese resistance as well affidavits from comrades.  However, the Board denied service connection because the NRPC found no record of service. 

Typically 38 CFR section 3.203 allows the VA to either accept proof of service from the veteran or request verification from the service department.  The Army has executed a memorandum of agreement with the NRPC allowing the NRPC to provide reference service information regarding Philippine Army files.  However, the Court found the MOA does not clarify whether the NRPC has the authority to make an administrative determination of service or whether the NRPC is just a reference librarian.  As a result the Court found it is not clear the VA had requested service verification from the service department, the Army, and remanded on that basis.

The Court also found the VA had failed in its duty to assist in that VA regulations require the VA to attempt to prove service by alternate means, but stated because of the other basis of remand it is premature to determine what duty to assist the VA must conduct if the Army provides a negative verification response.

Chief Judge Kasold wrote separately to say the plain language of the MOA between the NRPC and Army does not give the NRPC authority to issue a service department determination that is not otherwise contained in the records it maintains.  Thus he agreed that the VA provided inadequate reasons or bases for determining the veteran did not serve in an unrecognized guerrilla unit during WWII.  However, the Chief judge also stated he found the VA’s rejection of the materials submitted by the veteran to be plausible and not clearly erroneous.

Authored by Judge Davis and joined by Judge Moorman. Chief Judge Kasold concurred and dissented in part.

Thomas Andrews is an attorney in Columbia, South Carolina.  You can visit his website at http://www.thomasandrewslaw.com