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 . . . 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.
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