Emmanuel Go v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EMMANUEL C. GO,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7009
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1290, Judge Mary J. Schoelen.
______________________
Decided: July 9, 2013
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ALAN J. GOULD, Law Offices Gould & Hahn, of Berke-
ley, California, argued for claimant-appellant.
MICHAEL P. GOODMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent-appellee. With him on the brief were STUART F.
DELERY, Principal Deputy Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR,, Assistant Director. Of counsel on the brief were
MICHAEL J. TIMINSKI, Deputy Assistant General Counsel,
2 GO v. SHINSEKI
and BRIAN D. GRIFFIN, Attorney, United States Depart-
ment of Veterans Affairs, of Washington, DC.
______________________
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
PER CURIAM.
Claimant–Appellant Emmanuel C. Go (“Go”) appeals
the decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) affirming the denial
of his claim for compensation under the Filipino Veterans
Equity Compensation Fund (“FVECF”). The FVECF
provides for a one-time payment to individuals with
qualifying military service. American Recovery and
Reinvestment Act of 2009, Pub. L. No. 111-5, § 1002, 123
Stat. 115, 200-02. On numerous occasions, the Depart-
ment of Veterans Affairs (“VA”) requested verification of
service from the National Personnel Records Center
(“NPRC”) and the U.S. Army Reserve Personnel Center
(“ARPERCEN”) because Go did not have the documenta-
tion necessary to establish qualifying service under 38
C.F.R. § 3.203(a). See 38 C.F.R. § 3.203 (providing two
methods to establish qualifying service: (1) by applicant’s
submission of an official U.S. service department record
containing verifying information, or (2) upon VA verifica-
tion through request to the applicable service depart-
ment). Because all records previously held by
ARPERCEN were transferred to the NPRC in 1999, only
the NPRC could search the relevant service department
records. JA49–50. Each time the NPRC did so, it re-
sponded that it had no evidence that Go engaged in
qualifying service. Go’s claim ultimately was denied on
that basis. On appeal, Go contends that the VA should
not have been bound by the NPRC’s determination be-
cause its records are flawed. According to Go, the VA
should have conducted an independent analysis of evi-
dence he presented to establish qualifying service. Under
this court’s precedent, however, a service department’s
GO v. SHINSEKI 3
determination under § 3.203(c) is “conclusive and binding
on the VA.” Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir.
1997). Consequently, we affirm the decision of the Veter-
ans Court denying Go’s claim.
As the VA concedes, however, Go has another poten-
tial avenue for relief. Go may file a request to “correct”
his military service record under 10 U.S.C. § 1552, which
provides that “[t]he Secretary of a military department
may correct any military record of the Secretary’s de-
partment when the Secretary considers it necessary to
correct an error or remove an injustice.” See also Soria,
118 F.3d at 749 (“[I]f the United States service depart-
ment refuses to verify the applicant’s claimed service, the
applicant’s only recourse lies within the relevant service
department, not the VA.”). If the information Go possess-
es regarding the fact of his service is deemed sufficient to
justify revision of his military record, he may resubmit his
claim for compensation from the FVECF. Thus, while we
are not unsympathetic to Go’s assertion that the NPRC
database may be incorrect or, at least, incomplete, his
recourse is under 10 U.S.C. § 1552, not with this Court.
AFFIRMED