Tulingan v. Brown

NEBEKER, Chief Judge, filed the opinion of the Court, FARLEY, Judge, concurring in the result, and KRAMER, Judge, dissenting in part, filed separate opinions. NEBEKER, Chief Judge: The appellant, Esdras S. Tulingan, appeals an April 21, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which sustained a forfeiture of benefits invoked against him for his membership in the Bureau of Constabulary (BC) under 38 U.S.C. § 6104(a). Record (R.) at 5-13. The Court will affirm the BVA decision for the following reasons. I. FACTS Mr. Tulingan had recognized guerilla service in the Philippines from August to September 1942. R. at 51. The service department further certified that he was in a noeasualty status from September 1942 to February 1945, and that he had another period of recognized guerrilla service from March 1945 to February 1946 and Philippine Army service from February to March 1946. Ibid. The veteran reported that he was wounded by a bullet in the upper left thigh in June 1945. R. at 43. Tulingan was granted service connection for the wound in 1949. R. at 59. In applying for compensation, he had denied “rendering assistance to an enemy of the United [485] States or of its allies,” and further denied having “taken an oath, made an affirmance or any other declaration of allegiance to a foreign state”. R. at 29-30. He subsequently admitted to membership in the BC, from December 1943 to November 1944. R. at 70-71. Tulingan stated that he had been “threatened and intimidated by the Japanese Army to join the [BC], but before joining [he] consulted his [guerrilla unit commander] who advised [him] to join said BC in order to assist better the uncaptured guerrillas in their operations.” Ibid. Shortly afterward, VA sent a letter to him, requesting additional information regarding the circumstances surrounding his BC membership. R. at 74-75. Attached to the letter was an October 1944 report from Major R.W. Volckmann of the U.S. Army Headquarters in North Luzon, Philippines. R. at 77-78. The report gave an account of the BC’s activities in North Luzon and stated that membership in the BC was voluntary. Ibid. Tulingan responded in an affidavit, reiterating what he had earlier said, i.e., that he had been forced to join the BC in the province of Nueva Vizcaya. R. at 90-91. Tulingan also submitted an affidavit by Guillermo P. Aban, which stated that Tu-lingan had first consulted him about joining the BC, and that he, as a commanding officer of a guerrilla unit, had given consent for Tulingan to join the BC as long as he remained faithful to his country and continued to undertake certain missions for the guerilla unit. R. at 80-81. Tulingan also submitted an affidavit by Ramon A. Alcaraz (whom Tulingan later identified as a senior inspector of the BC (R. at 160)), which stated that he had personal knowledge that the appellant was planted in the BC with the consent of the guerrilla unit’s commanding officer, Guillermo Aban, and that Tulingan had helped the guerrillas despite being connected with the BC. R. at 84. Tulingan submitted yet another affidavit by Benjamin S. Coloma, who reported that he had served in the same unit between July and September 1942, that they were both captured by the Japanese, and that he had “later learned” that Tulingan had been forced to join the BC. R. at 87. Coloma also stated that Tulingan had remained loyal to and in contact with the guerrilla unit and that, while in the BC, Tulingan had personally reported to him on activities of the enemy. Ibid. The VA Central Office Committee on Waivers and Forfeitures concluded that Tu-lingan’s eligibility for VA benefits was forfeited due to his rendering of assistance to an enemy. R. at 94-95, 97-98, 100, 102, 104; Suppl. R. at 2, 4, 6-7. The BVA affirmed the Committee’s decision and found that Tu-lingan had been guilty, either directly or indirectly, of rendering assistance to an enemy of the U.S. or its allies, and that he thereby forfeited all accrued or future benefits under the laws administered by VA. R. at 111-12. VA restored Tulingan’s eligibility for benefits in 1965. R. at 117. However, fifteen years later that eligibility was again terminated because the reinstatement was found clearly and unmistakably erroneous. Supplemental (Suppl.) R. at 16. Tulingan attempted to regain his eligibility with additional evidence. R. at 133. He submitted additional affidavits from Messrs. Alcaraz and Aban. R. at 146, 157-58. He also submitted a joint affidavit from Laureto Alava and Brigido Serapion'dated in January and' March 1989, which reported that they had served in the BC with him and that they all had been “planted” with the consent of their commanding officer, Mr. Aban, in the BC as “intelligence and cover agents.” R. at 154-55. Tulingan also submitted extracts of service orders relating to a sabotage battalion (guerrilla unit) of which Mr. Aban was commander, Mr. Alcaraz was company commander, and Tulingan was a member as of December-1943. R. at 137, 140-43, 149-50. The RO informed the appellant that the additional evidence submitted was not new and material because it was repetitive and cumulative of the evidence previously considered. R. at 152. Tulingan filed a Notice of Disagreement in March 1989. R. at 152. The RO confirmed the decision in June 1990. Suppl. R. at 20-23. Tulingan appealed to the BVA, which concluded that the additional evidence submitted by him was not new and material evidence. R. at 195-96. This Court, in 1993, vacated the BVA decision, and remanded the matter. Tulingan v. Brown, U.S. Vet.App. No. 91-1524 (mem. [486] dee. Mar. 15, 1993). The Court concluded that Tulingan had submitted new and material evidence, and that the BVA must reopen the claim and evaluate it in light of all the evidence, both old and new. Ibid. The BVA then remanded the claim to the RO for a de novo review. R. at 203-05. The RO denied a revocation of the May 1980 forfeiture decision (R. at 208-10), and returned the case to the BVA. The BVA then reviewed the evidence of record and sustained the forfeiture. R. at 5-14. II. ANALYSIS A. “Clearly Erroneous” Analysis The Court reviews the BVA’s findings regarding forfeiture as a question of fact under the “clearly erroneous” standard of review. Villaruz v. Brown, 7 Vet.App. 561, 565 (1995); Wood v. Derwinski, 1 Vet.App. 190, 192 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). “[T]his Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible basis’ in the record for the factual determinations of the BVA ... [the Court] cannot overturn them.” Gilbert, 1 Vet.App. at 53. Additionally, the BVA must provide an adequate statement of reasons or bases for such findings, including a clear analysis of the evidence which it finds persuasive or unpersuasive with respect to that issue. Id. at 57. The Court holds that there is a plausible basis in the record for the BVA’s findings, and that the reasons and bases for its decision are adequate. Gabrielson v. Brown, 7 Vet.App. 36 (1994). Section 6104(a) of title 38, U.S.Code, provides as follows: (a) Any person shown by evidence satisfactory to the Secretary to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies shall forfeit all accrued or future gratuitous benefits under laws administered by the Secretary. 38 U.S.C. § 6104(a). The record reflects, and Tulingan does not deny, that he was a member of the BC from December 1943 to November 1944. R. at 70-71; Appellant’s Br. at 1, 5. The Board, in relying on the October 1944 report, stated: The [BC] has been recognized 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 training, 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 weapons, and were sometimes used against American forces. R. at 12. The BVA then concluded by inference that the appellant had made “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.” R. at 12. By Tulingan’s own affidavit, he was a member of the BC in Nueva Vizcaya. R. at 77. There is no geographical question (Op. infra at 493), as judicial notice of any reputable map of the Philippines, finds the province in question to be part of the north Luzon island, the same area at issue in the Report. R. at 160; see National GeogRaphic Atlas of the World, 82. (6th ed.1992). Moreover, as relied upon by the Board, the Report pointed out that the BC’s mémbers included “younger persons who adopted this method of securing a living, [and further] that there was not known to have been a single case in which a person was physically or mentally coerced into joining the [BC].” R. at 9. The Board rejected 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 Tulingan 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. R. at 13. The Board rejected Coloma’s affidavit because the BVA found that he had no personal knowledge relating to Tuíingan’s enlistment in the BC. Ibid. The Board rejected the affidavits from Alearaz, Alava, and Serapion after considering their [487] participation in the BC, and finding that their statements were “extremely self-serving and ... not credible.” Ibid. It is the function of the Board, not this Court, to ascribe weight to evidence. Owens v. Brown, 7 Vet.App. 429 (1995). The Board found that Tulingan “was guilty of rendering assistance to an enemy of the United States,” and that therefore the weight of the evidence was against the claim for revocation of the forfeiture. R. at 7. While our earlier remand here was based upon the finding of new and material evidence, we now look upon these decisions in a different context: where a veteran has lost his status as a benefits-eligible claimant, he must establish it anew by a preponderance of the evidence. See Villeza v. Brown, 9 Vet.App. 353, 356-57 (1996). From the record, there appears a “plausible basis” for the Board’s determination, and therefore, the Court finds no error in the Board’s decision. Gilbert, 1 Vet.App. at 53. B. Exercise of Jurisdiction Judge Farley’s concurrence harkens to the language in 38 U.S.C. § 6104(a) (“evidence satisfactory to the Secretary”), which preexisted the Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, 102 Stat. 4105 (1988) (codified at 38 U.S.C. §§ 7251-7298), as a basis to permit the Court to decline review of the decision in this case. At the time that language was enacted the statute’s purpose, whatever else it was, was not to permit a reviewing court to decline review, for as Judge Farley observes, judicial review was prohibited. The question then is whether upon passage of the VJRA the “evidence satisfactory to the Secretary” clause is to be given a new meaning and purpose — one it could not have had upon its earlier enactment. We think not, in view of the plenary grant of the right of judicial review of Board decisions adverse to veterans and other claimants to veterans benefits. If the Court is to have discretion to allow an appeal in forfeiture cases, such power must, in view of the general right of appeal under the VJRA, be specifically granted, as it is in virtually all courts where review is a matter of grace and not right. We are unwilling to read into section 6104(a) such a limitation on the right of appeal where the Board orders or sustains a forfeiture. III. CONCLUSION Accordingly, upon consideration of the record and the briefs of the parties, the Board’s decision of April 21, 1994, is AFFIRMED.