Tulingan v. Brown

KRAMER, Judge,

concurring in part and dissenting in part:

I concur in part II.B., see Villaruz v. Brown, 7 Vet.App. 561 (1995), and dissent in parts II.A. and III. The primary issue before the Court is whether the BVA’s finding, made pursuant to 38 U.S.C. § 6104 (a), that the appellant rendered assistance to an enemy of the Umted States, thereby forfeiting his right to VA benefits, is clearly erroneous. The Board, relying on the October 1944 report, stated:

The [BC] has been reeogmzed as having been part of the Japanese military occupation and administration, and as part of the Japanese Imperial Forces. Members of the [BC] were sent for traimng, and as reported by headquarters staff of the [U.S.] Army in October 1944, were comprised of enlistees and volunteers. These persons who were members of the [BC] helped Japanese Forces control the local population, made pledges of allegiance to the Japanese Government, were issued *493 weapons, and were sometimes used against American forces.

R. at 12 (emphasis added). The BVA then “concluded]” that the appellant took “an oath of allegiance to an organization which was under the control and domination of a foreign power, and which was at war with the United States”; this was a preliminary finding which was a primary basis for the Board’s finding that the appellant had rendered assistance to an enemy of the United States. R. at 12.

The October 1944 report, however, does not state that members of the BC made pledges of allegiance or oaths to either the Japanese Government or an organization under its control. The report is limited to general observations about the activities of the BC only with respect to North Luzon. R. at 77-78. There is nothing in the report, or otherwise in the record on appeal, that places the appellant’s BC activities in North Luzon (including the appellant’s affidavit on which the majority relies but which never speaks of North Luzon) or which shows a relationship between the areas of North Luzon and Nueva Vizcaya (the actual area for the appellant’s BC activities). Despite the majority’s invocation of judicial notice to “illustrate!] [that] the province in question [Nueva Vizcaya] ... [is] part of the northern Luzon island” (ante at 486), it is difficult to draw that conclusion from the referenced map. The map shows the province of Nueva Vizcaya as part of Luzon; however, it does not show any area denominated as northern Luzon. In addition, there is nothing in the report that specifically relates to the appellant. In light of the limited scope, geographical and otherwise, of the October 1944 report and the lack of evidence in the record refuting the appellant’s denial that he ever gave an oath or other formal declaration of allegiance to a foreign state (R. at 30), the Court should hold that the Board’s preliminary finding in this regard is clearly erroneous, see Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), and should remand the matter to the BVA for development of the circumstances surrounding the appellant’s service in the BC. See 38 U.S.C. § 5107 (a) (where claimant has submitted “evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded,” Secretary has duty to assist him in developing the facts pertinent to claim). The need for further development is especially true in light of the Board’s treatment of the affidavits of Messrs. Aban and Coloma.

The Board rejected Mr. Aban’s affidavit and the extracts of service orders relating to a sabotage battalion on the grounds that the sabotage battalion was not a recognized guerrilla unit and that, because the appellant had no recognized guerrilla service during this period, he could not have been planted in the BC on behalf of an official Philippine or American unit. The Court should conclude that this is not an adequate reason or basis to reject the evidence because the affidavit’s purpose was not to demonstrate that the appellant was working on behalf of a recognized guerrilla unit, but rather that the appellant was not rendering aid or assistance to an enemy of the United States. See 38 U.S.C. § 7104 (d)(1); Gilbert, 1 Vet.App. at 57 (BVA decisions “must contain clear analysis and succinct but complete explanations” sufficient to inform the claimant and ‘“permit effective judicial review’ ”).

The Board rejected Mr. Coloma’s affidavit (although his own loyalty is not in question) because the BVA found that he had no personal knowledge relating to the appellant’s enlistment in the BC. Mr. Coloma’s lack of knowledge regarding that enlistment is not an adequate reason or basis for rejecting his entire affidavit because it also stated that the appellant had personally reported to him on activities of the enemy while the appellant was in the BC, a statement that if true, would seem to support the appellant’s contention that he had joined the BC as a spy and remained loyal to the United States and its allies. See ibid. (As to the Board’s rejection of the affidavits from Messrs. Alcaraz, Alava, and Serapion, considering their participation in the BC, the BVA’s finding that their statements were “extremely self-serving and [] not credible,” (R. at 13) was plausible, and thus not clearly erroneous. See Gilbert, 1 Vet.App. at 53 .)

In sum, the evidence of record demonstrates only that the appellant served in the *494 BC. Assuming further development were not to provide additional light regarding the circumstances surrounding such service, I note that no statute or regulation has been cited, nor am I aware of any, that indicates that, as a matter of law, BC service, per se, constitutes rendering assistance to an enemy within the meaning of 38 U.S.C. § 6104 (a). See Wellman v. Whittier, 259 F.2d 163, 167-68 (D.C.Cir.1958) (interpreting the predecessor to section 6104(a) and stating that “[t]he strict interpretation necessary as to so drastic a forfeiture statute as [38 U.S.C.] § 728 requires that it be limited to its application to the specific grounds spelled out by Congress, with clear proof of the overt acts relied upon ”) (emphasis added). Thus, any determination to this effect constitutes a factual finding that must be accompanied by an adequate statement of reasons or bases, which the BVA has failed to provide, as required by law. See Gilbert, 1 Vet.App. at 57 . I would vacate the BVA decision and remand the matter for proceedings consistent with this dissent.