RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            3 August 2004
      DOCKET NUMBER:   AR2004106339


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. John T. Meixell               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his military status
from Philippine Commonwealth Army or Recognized Guerrilla to Army of the
United States (AUS).  The applicant also requests correction of minor
errors in his military record, which include his date of birth and military
rank.

2.  The applicant states, in effect, that it is ridiculously unjust that he
served in the AUS from 10 May 1942 through 20 November 1945, but is being
deprived of his status even though he was inducted into the AUS with the
14th Infantry, United States Armed Forces in the Philippines, Northern
Luzon (USAFIP-NL) pursuant to the 12 July 1942 military order of General
MacArthur, which brought the
14th Infantry into the AUS.  He claims he was never a member of the
Philippine Army, including the recognized guerrillas.

3.  The applicant indicates his application is submitted to the Board
pursuant to a court order from the United States District Court, Central
District of California, Southern Division, Santa Ana, California, dated 17
December 2003, which dismissed his case without prejudice predicated upon
an agreement that the Army Board for Correction of Military Records (ABCMR)
would consider his application for correction of military records.

4.  The applicant cites a supportive court case that he claims is the
precedent case law upon which his relief request is based.  He claims the
individual in the cited case was also a member of the 14th Infantry, USAFIP-
NL, who was originally granted AUS status, which was soon revoked because
his name was not included in the list of soldiers who were determined to
have acquired AUS status pursuant to the military order of General
MacArthur.  The individual involved in the case fought so hard in court and
finally gained a writ of mandamus into the AUS on 27 July 1942 and was
honorably discharged on
20 March 1947.  As a result, he was given status as a veteran of the United
States Army.

5.  The applicant claims his case is more unique than the individual
involved in the precedent setting case law because his military service
between 10 May 1942 and 20 November 1945 is proof enough of his actual
presence in the
14th Infantry at the time it was brought into the AUS pursuant to General
MacArthur’s order of 12 July 1942.

6.  The applicant provides a self-authored statement and nine exhibits
listed on the enclosed application (DD Form 149) Exhibit List in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  There are no military records pertaining to the applicant.  This case
is being considered using reconstructed records, which primarily consist of
the documents provided by the applicant and documents pertaining to the
applicant provided by the National Personnel Records Center (NPRC).

2.  The Official Statement of Military Service on file pertaining to the
applicant confirms he served as a member of the Philippine Commonwealth
Army, including the recognized guerrillas, in the service of the Armed
Forces of the Untied States, pursuant to the Call of the President of the
United States, dated 26 July 1941, from 10 May 1942 until being honorably
discharged on
20 November 1945.

3.  On 8 October 1946, the applicant completed an affidavit as part of his
military service claim for AUS status.  In this document, he lists his date
of birth as
25 December 1923.  He further stated that he was a civilian on 7 December
1941 and on 16 July 1942, he was inducted into Company E, 2nd Battalion,
14th Infantry, AUS.  He claimed that while serving with this unit, he was
trained in guerrilla warfare and in early August 1942, he was sent to
Tayug, Pangasinan, his home, to look for a good site for a camp for the
unit.  He also stated his unit commander joined him there in November 1942,
at which time he assisted the unit commander in locating a command post.
He also stated that while the unit remained there, he assisted in obtaining
food for members of the unit.

4.  In the affidavit, the applicant further indicated that upon the capture
of the unit commander in March 1944, the unit dispersed.  However, on 1
August 1944, the unit was reassembled by the unit commander of L Company,
14th Infantry, USAFIP-NL.  He claimed that while serving with this unit, he
participated in an ambush of enemy trucks on 26 October 1944, at the same
time liberating forces had already landed at Leyte.  Subsequently, the unit
was attached to liberating forces and fought against the enemy with these
forces until the cease-fire in August 1945.
5.  A Headquarters, Armed Forces Western Pacific Check Sheet (AG-Recovered
Personnel Division) shows that a review of the applicant’s personnel folder
and the packet he submitted in connection with a claim for AUS status based
on service with the 14th Infantry, USAFIP-NL was conducted in October 1946.
 As a result of this review, it was determined by the responsible officials
that he held no AUS status based on his 14th Infantry service.

6.  A Determination of Status Letter pertaining to the applicant, which was
issued by Headquarters, United States Army Forces Pacific on 15 October
1946, directed that the applicant be advised his case was carefully
considered and it was determined that he had no status in the AUS.  It
further indicated the applicant would be advised he was released from AUS
military control and that any claims he may have had were with the
Philippine Army.

7.  A form on file, dated 29 August 1949, indicates that the applicant was
determined to be a member of the Philippine Army who served with the Armed
Forces of the United States.  It further indicated that a claim for arrears
in pay was forwarded to Headquarters, National Defense Forces for payment
on
21 November 1947.

8.  On 16 September 1949, an official of Headquarters, Adjutant General
Records Depository, Philippines Command, notified the applicant that his
claim of AUS status on the basis of his service with the 14th Infantry,
Philippine Army was carefully considered and it was determined he had no
AUS status.  It further indicated that any military status he had by virtue
of his service with the
14th Infantry rested with the Philippine Army.

9.  On 4 May 1979, the Director, Personnel Services, Office of The Adjutant
General (OTAG), in response to a request from the applicant, provided the
applicant an official statement of his military service during World War II
in the Philippines.  The official seal of The Adjutant General was affixed
to the Official Statement of Service and it confirmed the applicant served
in the Philippine Commonwealth Army, including recognized guerrillas, from
10 May 1942 through 30 November 1945, pursuant to the call of the President
of the United States dated 28 July 1941.  His date of birth was listed as
25 December 1923, as he had attested to in his post war affidavits and
which were recorded in his personnel folder at the time.
10.  On 15 May 1993, the applicant petitioned the OTAG, Reserve Components
Personnel and Administration Center, to take advantage of a Philippine law
that granted pensions to World War II veterans of that country.  In his
request, he stated that his service was pursuant to the Call of the
President of the United States, dated 26 July 1941.

11.  The evidence also includes documents issued by the responsible OTAG
and/or NPRC, St. Louis, officials between 1994 and 2000.  These documents
confirm that on at least nine separate occasions during this period, the
applicant requested and was denied AUS status.  They further show that he
was repeatedly advised that after reoccupation of the Philippines in 1944-
1945,
DA conducted an intensive study of the history and organization of the
14th Infantry, AUS, which was located on Luzon Island in 1942.  This study
determined that initially many personnel were erroneously granted status in
the
14th Infantry and their status was subsequently revoked.

12.  The responsible Army officials have also repeatedly informed the
applicant that AUS status in the 14th Infantry was only granted to members
appearing on an officially approved roster of personnel who were physically
present and inducted on 14 July 1942, and that he was not included on this
roster.  As a result, he was not entitled to and could not be granted AUS
status.

13.  On 3 June 2003, an Archives Technician, NPRC, provided a written
response to a Congressional Inquiry submitted on the applicant’s behalf.
In this reply, the interested Member of Congress, and by extension the
applicant, were informed that an Application for Correction of Military
Records (DD Form 149) was not applicable in his case and determinations
concerning members of the Philippine Commonwealth Army or recognized
guerrillas were processed by the NPRC under the Missing Persons Act, Public
Law 77-490, dated 7 March 1942.  This response further indicated that the
applicant had been advised that numerous reviews of his case had been
completed and that the certification of his service provided in each of
these cases was correct.
14.  The 3 June 2003 NPRC correspondence further indicated that after an
intensive study conducted after the 1944-1945 reoccupation of the
Philippines, it was determined that many individuals have been erroneously
granted status in the 14th Infantry and this status was subsequently
revoked.  Further, service as a member of the 14th Infantry could only be
established by the appearance of a person’s name on an officially approved
roster of personnel who were physically present and inducted on 14 July
1942.  However, it was possible for a person to acquire service with the
14th Infantry, USAFIP-NL, a guerrilla unit of the Philippine Commonwealth
Army, which is the service credit the applicant was entitled to and
received.

15.  Under the Military Order of the President of the United States, dated
26 July 1941, the organized military forces of the Government of the
Commonwealth of the Philippines were called and ordered into service of the
Armed Forces of the United States.  The original designation of this force
was United States Armed Forces Far East (USAFFE).  The term USAFFE is
administratively applied to those members of the Philippine Commonwealth
Army who were inducted for service with the Armed Forces of the United
States in the service of the United States in the Philippines in response
to the above order.

16.  The authority conferred upon the Secretary of the Army by the Missing
Persons Act of 1942, in connection with the administration of the arrears
in pay of personnel who were in the Philippines during World War II was
initially delegated to the Overseas Commander, whose jurisdiction included
the Philippines.  In 1953, the responsibility for administering the Act
with respect to the aforementioned class of persons was transferred to The
Adjutant General’s Office and was administered by the Commanding Officer,
United States Army Records Center, St. Louis, Missouri.

17.  In 1954, the Assistant Secretary of the Army (Manpower and Reserve
Forces) determined that the Secretarial authority delegated under the
Missing Persons Act would be exercised only by the Commanding Officer,
United States Army Records Center and that the Army Board for Correction of
Military Records would not accept such cases for consideration.  In 1961,
the Deputy Secretary of Defense approved exemption of all applications
pertaining to status, death and essential dates rendered under the Missing
Persons Act from consideration by the Correction Board.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his military status should be changed from
Philippine Commonwealth Army, including recognized guerrillas, to AUS based
on his service in the 14th Infantry and the supporting documents he
submitted were carefully considered.  However, they provide an insufficient
evidentiary basis to support the requested relief.

2.  The evidence confirms the applicant’s claim for AUS status was properly
reviewed and considered under a formal claims review process established by
the Army policy in effect at the time, which was based on a comprehensive
Army Study of the issue conducted upon the reoccupation of the Philippines
in 1944/1945.

3.  As indicated in his initial affidavit of service contained in the AUS
status claim he submitted based on service with the 14th Infantry, the
applicant admitted that he was trained as a guerrilla after joining the
unit.  He also indicated that the duties he performed between 1942 and 1944
were mostly of a guerrilla nature
in and around his home.  As a result, his certification as a member of the
14th Infantry, USAFIP-NL, Philippine Commonwealth Army, including the
recognized guerrillas, in the service of the Armed Forces of the Untied
States appears to be appropriate based on the nature of his service.

4.  Further, as opposed to the circumstances outlined in case law cited by
the applicant, it does not appear his AUS status was repeatedly granted and
revoked by the Army.  The Army has consistently categorized the applicant
as a member of the Philippine Commonwealth Army since 1946, when
responsible officials issued the initial determination of his status based
on a thorough review of his personnel folder and the claim packet he
submitted at the time.  Further, a final payment settlement for the
applicant was forwarded to the Philippine National Defense Forces for
payment in November 1947.  Finally, in a 1993 request to the Army to obtain
the necessary forms to apply for a pension from the Government of the
Philippines, the applicant admitted his service had been pursuant to the
Call of the President of the United States, dated 26 July 1941.
5.  The evidence also confirms that the Army at his request has conducted
numerous reviews of the applicant’s status.  In 1976, after a comprehensive
review of his record, the OTAG issued the applicant an Official Statement
of Service confirming that he served as a member of the 14th Infantry,
USAFIP-NL, Philippine Commonwealth Army, including recognized guerrillas,
in support of the Armed Forces of the United States from 10 May 1942 to 20
November 1945, pursuant to the Call of the President of the United States,
dated 26 July 1941.

6.  Subsequent reviews of the applicant’s case completed by the responsible
Army agencies at his request have consistently arrived at the same
conclusion that he had no AUS status.  The applicant’s affidavit of service
and all relevant factors of his service have repeatedly been reviewed and
this determination has not changed.  Further, it is consistent with the
Missing Persons Act of 1942 and with agreements on the issue entered into
by the Governments of the United States and the Republic of the Philippines
at the time.

7.  It is also important to note that the applicant’s case has not been
passed from agency to agency without the merits of his claim ever being
considered as he asserts.  Although, he clearly is dissatisfied with the
outcome, it appears the appropriate Army agencies delegated the Secretarial
authority to act in these matters has completed many reviews of the merits
of his claim for AUS status.

8.  As a result of the Missing Persons Act of 1942 and the subsequent
delegation of authority decisions of the Assistant Secretary of the Army
(Manpower and Reserve Forces) in 1954 and the Deputy Secretary of Defense
in 1961, this Board does not normally accept cases submitted by personnel
who served in the Philippines during World War II.  However, this case was
reviewed based on an agreement with the court to conduct a complete and
comprehensive review of the merits of the applicant’s claim for AUS status.


9.  The merits review of this case has surfaced no evidence that would call
into question the official determination made regarding the applicant’s
military service status rendered in 1946, which has consistently been
upheld during numerous reviews completed by the responsible agencies in the
over 50 years that have passed.
10.  The applicant’s honorable service in support of the Armed Forces of
the United States is recognized and appreciated.  However, it is clear that
his service was as a recognized guerrilla of the 14th Infantry USAFIP-NL,
Philippine Commonwealth Army.  Granting the applicant AUS status at this
late date would serve an injustice upon the many Philippine Nationals who
served under similar circumstances during World War II.

11.  The applicant’s claims that his date of birth and rank were incorrect
on his military records were also carefully considered.  However, the
applicant has no military record on file at the NPRC.  Further, the date of
birth listed on the OTAG statement of service issued in 1979 is consistent
with the one he attested to in his post-war affidavit, which was on file in
the Philippine Army personnel folder that existed at the time.  As a result
of the absence of any military record to correct and given there is no
evidence that the applicant has suffered any injustice related to these
factors, there is no appropriate correction for the Board to make regarding
these issues at this time.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_GJW____  _JTM___  __FE___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                  _Fred N. Eichorn_
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106339                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/08/03                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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