Realuyo v. C. METZLER , 263 F. Supp. 2d 686 ( 2003 )

263 F.Supp.2d 686 (2003)

Amelia Roa REALUYO, and Alvin A. Realuyo Petitioners,
v.
John C. METZLER, Jr. Superintendent, Arlington National Cemetery, and Thomas E. White, Secretary of the Army Respondents.

No. 03 Civ. 3187(RO).

United States District Court, S.D. New York.

May 20, 2003.

McCallion & Associates, LLP, H. Rajan Sharma, Law Offices of Pompeyo Roa Realuyo, Pompeyo Roa Realuyo, New York City, for Petitioners.

Office of the United States Attorney for the Southern District of New York, James B. Comey, U.S. Attorney, Allison D. Penn, Assistant U.S. Attorney, New York City, for Respondents.

OPINION AND ORDER

OWEN, District Judge.

Augusto Roa Realuyo in World War II fought from September 1, 1941 to June 1, 1946 as a member of the Philippine Commonwealth Army, which was brought into the armed forces of the United States by order of President Roosevelt on July 26, 1941. Realuyo served with honor in the Philippines and in the subsequent months detainment in a Japanese prisoner of war camp. Realuyo was honorably discharged on June 1, 1946.

In the 1980's, Realuyo came to Manhattan for treatment of his war-related ailments at the Veterans Hospital here. He became a United States citizen in 1990 under special legislation granting citizenship to Filipino veterans of World War II. Just recently, on April 25, 2003, Realuyo passed away at the Veterans Hospital. His sister and son have petitioned for a writ of mandamus pursuant to 28 U.S.C. § 1361 compelling the Superintendent of Arlington National Cemetery and the Secretary of the Army to allow Realuyo's remains to be buried at Arlington.

Despite Realuyo's service during World War II, including his internment by the Japanese and his being in the harrowing and infamous Bataan Death March, there is no statute or regulation authorizing his burial in at Arlington, and regrettably, I must deny the petition for mandamus.

Under 38 U.S.C. § 107(a), service such as Realuyo's that was "in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941" is not considered "active military service" for the purpose of United States laws, except certain specifically identified provisions, including the right to burial in a national cemetery under 38 U.S.C. § 2402(8). Section 2402(8) clearly entitles Realuyo or fellow Philippine Commonwealth Army veterans to burial in national cemeteries if they are citizens, as Realuyo was.

However, entitlement to burial in a national cemetery under § 2402(8) does not include entitlement to burial at Arlington, eligibility for which is not governed by § 2402, but by separate regulations contained in 32 C.F.R. § 553.15 and Army Regulation 290-5. Under those provisions, veterans who were prisoners of war are eligible for burial at Arlington provided those veterans were serving in the active military service of the United States at the time of imprisonment. Under 38 U.S.C. § 107(a), service in the Philippine Commonwealth Army is not deemed to have been "active military service of the United States." See Gonzales v. United States, 275 F.3d 1340 (Fed.Cir.2001) ("Congress ... [has] determined that service of the United States Armed Forces pursuant to President Roosevelt's July 26, 1941 order ... shall not be deemed to have been active military service ... for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person ... in the Armed Forces, with certain exceptions.") (quotations omitted). Thus, except in connection with benefits under certain specifically identified provisions, not including the regulations governing entitlement to burial at Arlington, service with the Philippine Commonwealth Army does not constitute active United States military service. I am therefore without power to order the relief Realuyo requested, deserving though his service was.

So ordered.