VETERANS LAW JOURNAL

WINTER 2014-15

Moot Court Competition DrawsRecord Number of Participating Schools

by Megan C. Kral

The final round teams

On November 15 and 16, 2014, the U.S. Court ofAppeals for Veterans Claims (CAVC), the CAVC BarAssociation, and The George Washington UniversityLaw School co sponsored the sixth annual NationalVeterans Law Moot Court Competition (NVLMCC).This year, the NVLMCC drew 20 teams from arecord breaking 14 law schools. The two personteams addressed two issues in the fictional case ofEarhart v. McDonald before the Supreme Court.

The issues were: (1) does a claimant waive the rightto raise an issue on appeal to the U.S. Court ofAppeals for Veterans Claims when the claimant didnot argue the issue during the proceedings at theDepartment of Veterans Affairs and it was notreasonably raised by the record? And (2) does the

evidentiary presumption of 38 U.S.C. § 1154(b),which affords combat veterans the ability toestablish an in service injury or disease on the basisof lay evidence alone, apply to operators of aerialdrones?

Ultimately, the Chicago Kent College of Law team ofLyal Fox III and Jared Reynolds were namedchampions, defeating the team of Frances Denizardand Alexander Gilewicz from the Florida CoastalSchool of Law. In the final round of competition,these two teams argued before Judges WilliamMoorman, Margaret Bartley, and William Greene ofthe CAVC.

The other two semifinal teams comprised LindsayJohnson and Emily Suhr from Pepperdine UniversitySchool of Law and Ethan Singleton and John Kingfrom Widener University School of Law. Thesemifinal rounds were judged by Gregory Block,Clerk of the CAVC; Mary Ann Flynn, VA AssistantGeneral Counsel for Professional Staff Group VII;and Louis George, Director of Outreach andEducation Components for the Veterans ConsortiumPro Bono Program and Director of Training andPublications for the National Veterans Legal ServicesProgram.

Moot Court Competition, continued on page 5.

VETERANS LAW JOURNALA QUARTERLY PUBLICATION OF THE COURT OF APPEALS FOR VETERANS CLAIMS BAR ASSOCIATION

VETERANS LAW JOURNAL Winter 2014-15

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Message from the PresidentIt is an honor to serve as the CAVC Bar AssociationPresident for the upcoming year. Our goals for thisyear are to further strengthen our existingmembership and relationships, as well as developnew partnerships that will lead to a greaterunderstanding in the legal community of the CAVCand of veterans law in general.

As a veteran myself, I am encouraged by yourcontinued service to the veteran community. I amoptimistic that my experience as a judge advocatefor the U.S. Marine Corps, a clerk for the HonorableRobert N. Davis, a private practitioner at Bergmann& Moore, LLC, and now as a professor and attorneyat The Lewis B. Puller Jr. Veterans Benefits Clinic atThe College of William & Mary Law School, willallow me to relate to the various needs of our diversemembership. Having served as a representative ofthe government, judiciary, veteran, and now ofacademia, I know that each role comes with itsunique challenges. For that reason, I encourage youto feel free to communicate what you would like tosee the Bar Association provide that will advanceyour professional career.

Thank you to everyone who responded to the recentmembership survey, which is still available on ourwebsite if you would like to participate and have nothad the chance yet. The Board of Governors and Ihave taken your input very seriously and are using itto develop programs and events for the upcomingyear. If you ever have any suggestions for programsor events, please feel free to e mail us [email protected]. We value your inputgreatly and are always looking for fresh ideas!

I look forward to working with each of you over thenext year and to continuing the great work that mypredecessor, Bradley Hennings, accomplished lastyear.

Aniela SzymanskiPresident, CAVC Bar Association

IN THIS ISSUE

Message from the Chief Judge ...............................3Mulling Mooting.....................................................5Regulation Rewrite Summary ................................6How Much Deference is Afforded to VA .............6Robertson v. Gibson ................................................7Beraud v. Shinseki ...................................................9Tagupa v. McDonald ...............................................10Suguitan v. McDonald.............................................11Book Reviews ........................................................13

. . . and more!

Winter 2014-15 VETERANS LAW JOURNAL

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A Message from the Chief Judge

By Hon. Bruce E. Kasold

Dear Bar Association Members,

First, let me thank new President, Aniela Szymanski,and the newly empaneled Board of Governors foragreeing to serve your fellow members and for thecountless hours you will devote to making this yearjust as successful as last year. And, on that note, weshould all congratulate last year's President, BradHennings, and the entire Board of Governors, for anextremely successful FY 2014. From CLE andeducational programs, to philanthropicopportunities, to networking occasions, youprovided a wealth of events where members cametogether both in person and remotely – well done!The vitality of the Bar Association depends onindividuals stepping up and serving, and thewillingness of these members to do so is trulyappreciated.

As most of you know, the Board of Veterans' Appealssubstantially increased the number of decisions itissued last fiscal year. What should be no surprisethen is that the number of cases appealed to theCourt is also increasing, with the Court havingreceived more than 350 appeals in four of the lastfive months. At the same time, only 25 35% ofappeals filed at the Court are being initiated byappellants without legal representation. That is asignificant drop from the near 60% pro se filing rateof ten years ago. Moreover, less than 20% ofappellants remain pro se through the time ofdisposition. Clearly, you all are part of a vibrant andactive group.

This Fall we held oral arguments at the law schoolsof the University of Pittsburgh, Catholic University,and George Washington University. Twenty teamsof students from fourteen different law schoolsparticipated in the sixth annual National VeteransLaw Moot Court Competition. I also presented theCharles L. Decker Lecture in Administrative andCivil Law at the Army's Judge Advocate General'sSchool, co located with the University of VirginiaLaw School. Interest in Veterans Law continues togrow every year, with opportunities to learn aboutand represent veterans expanding at law schools,and the Army JAG Corps considering extending legalassistance to include helping veterans with theirclaims.

The Court's bar is growing, as is the number of thoselearning about veterans law, and the Bar Associationhas played a significant role in both of thesedevelopments. You should all be proud of yourAssociation's many achievements. I know I am!

Regards,

Chief Judge Kasold


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Meet Your 2014 15 Board of Governors

OfficersAniela K. Szymanski, President,

College of William and Mary Law School

Zachary Stolz, President Elect,Chisholm Chisholm & Kilpatrick

Bradley W. Hennings, Immediate Past President,Board of Veterans’ Appeals

Mark Vichich,Treasurer,Office of the General Counsel,

U.S. Department of Veterans Affairs

Virginia A. Girard Brady, Secretary,ABS Legal Advocates, P.A.

Members at Large

Patrick Berkshire,National Veterans Legal Services

Program

David E. Boelzner,Goodman, Allen & Filetti

Lauren Kologe,Military Officers Association of America

Megan Kral,Board of Veterans’ Appeals

Courtney McRae,Veterans Consortium Pro Bono Program

Ronen Morris,Office of the General Counsel,


Anthony C. Scire, Jr.,U.S. Court of Appeals for Veterans Claims

Matthew D. Tenner,Board of Veterans’ Appeals

Christopher Wallace,Office of the General Counsel,



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Mulling Mooting: the Legal WritingInstitute's Inaugural Moot Court

Conference

by Jonathan M. Gaffney

Earlier this year, I received an email advertising afirst of its kind conference on moot court programs,co sponsored by Marquette Law School and theLegal Writing Institute's Moot Court Committee.Given my role as director of the National VeteransLaw Moot Court Program (NVLMCC), I jumped atthe chance to pick the brains of other moot courtorganizers and to learn best practices in the field. Isubmitted a presentation proposal that wasultimately accepted, and the Bar Associationgenerously agreed to sponsor my trip as part of itsoutreach and education efforts.

The event, held at Marquette University inMilwaukee on October 25, drew more than 50attendees from around the country and featured achoice of 29 different seminars and presentationsthroughout the day. My session was titled "MakingSpecialized Competitions Accessible to GeneralAudiences" and used examples from the NVLMCC todemonstrate how to help students approach a newlegal field.

Although the conference was geared primarilytoward law school advisors and coaches, I learnedseveral things that I plan to integrate into theNVLMCC moving forward, including new guidancefor coaches, scoring policies, and ideas forintegrating multimedia sources into the competitionproblem. In addition, several attendees reaffirmedthe importance of what I've long known to be theNVLMCC's greatest strength: its practitioner judges.Having volunteers who know the underlying law notonly makes the questions more authentic, it givesstudents a taste of actual practice in the field andcontributes to the success of the competition.

Thanks to the Bar Association for the opportunity toattend the conference, and a huge thank you to thevolunteer practitioners who make the NVLMCCpossible every year. I look forward to working withyou next year to put some of the new ideas from theconference into practice!

Jon Gaffney is the director of the NVLMCC and is alaw clerk to the Hon. Alan G. Lance, Sr., of the U. S.Court of Appeals for Veterans Claims.

Moot Court Competition, continued from front page.

Best Petitioner’s Brief was awarded to FrancesDenizard and Alexander Gilewicz from the FloridaCoastal School of Law. Mr. Gilewicz was also namedBest Oral Advocate. Lindsay Johnson and EmilySuhr from Pepperdine University School of Law wonRunner Up Petitioner’s Brief, and Ms. Suhr wasnamed Runner Up Oral Advocate.

For the Respondents, Christopher Ferlito andJennifer Richards from the University of DetroitMercy School of Law won Best Brief, with the teamof Ethan Singleton and John King from WidenerUniversity School of Law winning Runner UpRespondent’s Brief.

The other participating schools included: the SandraDay O’Connor College of Law at Arizona StateUniversity; the George Washington University LawSchool; the Maurice A. Deane School of Law atHofstra University; the John Marshall Law School;the University of Missouri School of Law; theCumberland School of Law at Samford University;the Stetson University College of Law; the TexasA&M University School of Law; and the William &Mary School of Law.

As in years past, the NVLMCC was made possible bythe extraordinary efforts of dozens of members ofthe CAVC, the CAVC Bar Association, and TheGeorge Washington University Law School. Over 50attorneys from the CAVC, VA, and the private barvolunteered their time and expertise to draft thecompetition problem or judge the competitor’sbriefs and oral arguments. Special thanks to JonGaffney, this year’s competition director, for all hishard work and dedication in facilitating thissuccessful and well received competition

Megan C. Kral is associate counsel at the Board ofVeterans’ Appeals.


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Summary of the VA RegulationRewrite Project

by Zachary M. Stolz

William F. Russo, the Deputy Director ofRegulations Management for VA updatedparticipants at the June 6, 2014, CAVC BarAssociation’s CLE event on the progress of theregulation rewrite project.

Mr. Russo provided background of the project torewrite 38 C.F.R. Part 3 and the necessity to provideclearer guidance to VA personnel as well as to thenation’s veterans. Mr. Russo explained that underan Executive Order from President Obama, agenciesare to improve regulatory review by makingregulations "accessible, consistent, written in plainlanguage, and easy to understand."

VA undertook this major operation and has, to date,contributed thousands of hours to its completionand has solicited review and commenting from theprivate bar and from the country’s veterans serviceorganizations. The rewrite will result in a new Part 5to 38 C.F.R. and will not change how VA develops,adjudicates, or pays claims. But the new Part 5 isdesigned to make it easier to find, read, understand,and apply VA regulations. This will result in fasterclaims processing, more efficient employee training,and a more logical layout for the regulatoryframework.

According to Mr. Russo, the next steps in theprocess are: drafting responses to public commentsfor the final rule, fixing citation errors in thedistribution and derivation tables, and once thebacklog is sufficiently reduced, implement Part 5.

Zachary M. Stolz is an attorney at Chisholm,Chisholm & Kilpatrick.

For More information about the project:http://www.va.gov/ORPM/Regulation_Rewrite_Project.asp

HowMuch Deference is to beAfforded VA in its Interpretation of

the Law?

by Nicholas L. Phinney

Reporting on Pacheco v. Gibson, 27 Vet.App. 21(2014), and Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014).

It is a long held tenet of administrative law that anagency which is responsible for enforcing orapplying a particular law is entitled to greatdeference in how it interprets such a law. See Auerv. Robbins, 519 U.S. 452, 457 (1997); see also ChevronU.S.A., Inc. v. Natural Resources Defense Council,Inc., 467 U.S. 837, 842–43 (1984). Recently, however,judges serving on both the U.S. Court of Appeals forVeterans Claims and the U.S Court of appeals for theFederal Circuit (Federal Circuit) have questionedboth how and whether this rule should apply in theveterans benefits system.

How Much Deference, continued on next page.

CONTRIBUTORS WANTED

The publications committee is looking forcontributions to upcoming editions of theVeterans Law Journal. Participants do not needto be located in the Washington, DC area.Please contact Megan Kral at:[email protected] for more information.


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How Much Deference, continued from page 6.

In Pacheco v. Gibson, an en banc CAVC consideredVA’s interpretation of 38 C.F.R. § 3.157(b) (2014). VAread the regulation to mean that the date of anoutpatient or hospital examination or the date of anadmission to a VA or uniformed services hospitalcould not serve as a request to reopen a claim forservice connection and compensation because theprevious disallowance of such a claim had not beenbased on the noncompensive nature of a serviceconnected disability. Pacheco, 27 Vet.App. at 25. Ina per curiam decision, the majority found VA’sinterpretation of the regulation to be reasonable andupheld it accordingly. Id. at 29.

In a separate opinion, Judge Davis, joined by severalof his colleagues, opined that VA’s interpretation ofthe regulation was not entitled to deference becauseVA is required to resolve interpretive doubt in favorof veterans. Id. at 42 (Davis, J., concurring in partand dissenting in part). In a separate opinion, JudgeGreenberg agreed with Judge Davis’s approachregarding application of the benefit of the doubt. Id.at 42 45 (Greenberg, J., concurring in part anddissenting in part). He continued: "In the matter ofdeference, I would not reward the Secretary forwriting an ambiguous, and unintelligible,regulation." Id. at 43.

More recently, in Johnson v. McDonald, the FederalCircuit considered the scope of 38 C.F.R. § 3.321(b)(2014). The Court held that the plain language ofthe regulation demonstrated that, in considering theneed for an extraschedular referral, VA must notonly consider each service connected disabilityindividually but must also consider the combinedeffects of a claimant’s conditions. Id. at 1365.

In a concurring opinion, Judge O’Malley expressedthe opinion that, were the regulation not sounambiguous, the case would present theopportunity for continued application of the rule ofagency deference. Id. at 1366 67 (O’Malley, J.,concurring). She noted how several Supreme CourtJustices have recently indicated that it may be timeto revisit the question of whether administrativeagencies should receive such wide latitude in theirapplication of the law. Id. at 1367. In particular, sheagreed with Justice Scalia’s view that "deferring to an

agency’s interpretation of its own rule encouragesthe agency to enact vague rules which give it thepower, in future adjudications, to do what it pleases.This frustrates the notice and predictabilitypurposes of rulemaking, and promotes arbitrarygovernment. " Id. (citing Talk Am., Inc. v. Mich. BellTel. Co., ___ U.S. ___, 131 S.Ct. 2254, 2266 (2011)(Scalia, J., concurring)). She also seemed to agreewith the view of Judge Davis and Judge Greenbergexpressed in Pacheco that the benefit of the doubttrumps agency deference.

Given the tension between the deference principlesof Auer and Chevron and the reasonable doubt to beafforded to veterans, deference to agencyinterpretation may lose its place among theprinciples of veterans benefits law if it does not loseits place in administrative law altogether beforethen.

Nicholas L. Phinney is an attorney at Chisholm,Chisholm, and Kilpatrick, LTD.

Federal Circuit Clarifies Role of aClemency Discharge on Veterans'

Benefits Determinations

by Lauren Meyer

Reporting on Robertson v. Gibson, 759 F.3d 1351 (Fed. Cir. 2014)

On July 21, 2014, the Federal Circuit held thata veteran’s receipt of a presidential pardon underPresident Ford’s "Program for the Return of VietnamEra Draft Evaders and Military Deserters" did notpreclude the VA from considering the claimantappellant's underlying conduct and subsequentdischarge when determining whether he wasentitled to veterans’ benefits.

In 1963, claimant appellant, Tony W. Robertson,voluntarily enlisted in the Army. During his service,he went absent without leave (AWOL) on two

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occasions. First, Robertson failed to report to hisduty station for 39 days in 1964. Then, he wentAWOL for 313 days until the military apprehendedhim in 1966. In July 1967, the Army convictedRobertson of a second AWOL offense anddischarged him "Under Conditions Other ThanHonorable." In January 1974, Robertson filed a claimfor veterans benefits. The VA denied his claim,noting that the circumstances surrounding hisdischarge precluded any VA benefits. In July 1976,Robertson received a clemency discharge andpardon under President Ford's "Program for theReturn of Vietnam Era Draft Evaders and MilitaryDeserters."

Robertson reapplied for veterans benefits in late1976, and the VA again denied the claim based onthe circumstances surrounding his discharge. Hereapplied for benefits numerous times over the next25 years with the same result; he did not appealthese decisions. In November 2007, Robertson againrenewed the claim and received another denial. Hesubsequently appealed the decision to the Board ofVeterans' Appeals. The Board denied Robertson'sclaim, and the CAVC affirmed. Robertson appealedthe CAVC's decision.

Robertson argued that the case concerned themeaning of a pardon, urging that his receipt of a fullpardon and clemency discharge meant that the VAcould not consider his AWOL offense in reviewinghis application for veterans benefits. The FederalCircuit rejected this broad view of what his pardonmeant, asserting that the case was instead aboutRobertson's "specific pardon" in "this specificcontext of veterans' benefits." Reviewing the termsof the pardon in context, the Federal Circuit heldthat Robertson’s pardon bestowed limited clemencyand restored limited privileges that did not precludethe VA from considering his AWOL offense.

The court first examined the origins of thepresidential pardon program, started by PresidentFord in the aftermath of the Vietnam War. InSeptember 1974, he announced the clemencyprogram and established the Presidential ClemencyBoard (PCB) to advise and administer theprogram. Several "core principles" guided the PCB,

including the notion that the President was granting"clemency, not amnesty, and that clemency was tobe determined on a case by case basis, not througha categorical approach."

As part of the program, the President pardonedqualified applicants convicted of AWOLoffenses. However, a pardon under the clemencyprogram was "no more than a partial restoration ofan applicant's records and rights, blotting outneither the fact nor the record of hisconviction." Stated benefits of a pardon includedrestoration of the right to vote, holding office,holding trade licenses, and "enjoying other rightslost or impaired by a felony conviction." ThePresident also upgraded qualified applicants'discharge status to a new status of "clemencydischarge." The clemency program aimed to reducethe social stigma of a "bad paper" discharge andimprove employability for veterans. It did notconfer or preclude veterans benefits; it was a neutraldischarge, and applicants remained eligible to seekveterans benefits from the Department of VeteransAffairs.

President Ford's pardon program specificallygranted veterans benefits in about eighty"particularly meritorious AWOL cases," comprisingonly 0.6% of all AWOL cases. These tended to beextreme situations where the applicant had one ormore tours in Vietnam, suffered combat relatedwounds or disabilities, or had absences that "couldbe excused in light of extraordinary emotionaltrauma experienced during combat."

Relying on reports from the PCB, the court stressedthat "[f]or the vast majority of applicants . . . thePresident did not anticipate that the clemencydischarge and presidential pardon would provideentitlement to veterans' benefits." The court thenconsidered the plain language of Robertson'sdischarge, which granted a "full pardon." Thoughthis language was broad when viewed in isolation,the court noted two limiting phrases that applied tothe "full pardon" "pursuant to an executive grantof conditional clemency" and "grant of executiveclemency." These two limiting phrases "strongly

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suggest that Mr. Robertson's 'full pardon' must beread in the context of the clemency programdescribed by Presidential Proclamation 4313." Thecourt refused to "read the pardon in a vacuum, asMr. Robertson suggests," stating, "there can be littledoubt that Mr. Robertson's pardon was intended tohave limited effect with respect to his entitlementfor veterans benefits."

The court cited to PCB hearings and reportsindicating that the President had cleared the way toveterans benefits for clemency program applicantsunder very narrow circumstances involving"decorated soldiers who had been wounded,disabled, or traumatized in combat . . . Mr.Robertson was not such an applicant and did notreceive veterans' benefits." The court stressed PCBlanguage indicating that a pardon "d[id] not changehistory" or "compensate for any rights or benefits,legal or economic, that the individual had alreadylost." Robertson had not earned or acquired a rightto veterans benefits at the time of his pardon. Thecourt also noted that Robertson had a yearremaining on his term of service at the time of hisdischarge, leaving his eligibility for veterans benefitseven absent the 1967 AWOL conviction "entirelyspeculative."

The court rejected Robertson's position because it"would effectively turn President Ford's clemencyprogram on its head," as "entitlement to benefits . . .would have been the rule, not the exception." "Mostapplicants would have been entitled to veterans'benefits because, if not for their AWOL offenses,their service records generally would not havejustified a negative character of dischargedetermination that would have supported a denial ofbenefits." Had the President intended the clemencydischarge to pave the way to benefits, he "would nothave singled out particularly deserving applicants toreceive veterans' benefits under his clemencyprogram."

In sum, the mere fact that a veteran receives a "fullpardon" for his less than honorable discharge frommilitary service does not preclude the VA fromconsidering the circumstances of discharge whendetermining eligibility for veterans benefits. A

presidential pardon should be analyzed within thecontext of the executive program establishing itsbasis. A pardon, without more, does notautomatically establish a veteran’s eligibility forbenefits.

Lauren Meyer is an Attorney Advisor at the SocialSecurity Administration, Office of DisabilityAdjudication and Review.

Interplay Between 38 C.F.R. § 3.156(b)and Implicit Denial

by James Drysdale

Reporting on Beraud v. McDonald, 766 F.3d 1402(Fed. Cir. 2014)

The Federal Circuit (Judges Lourie (dissenting),O’Malley (writing), and Chen), considered whetherVA’s failure to make a finding under 38 C.F.R. §3.156(b) as to whether evidence submitted withinthe one year appeal period of a RO’s decision wasnew and material evidence prevented that decisionfrom becoming final, notwithstanding a subsequentRO denial of an identical claim. In 1985, the ROinformed the Veteran that it was having troublegetting his service medical records. After the ROdenied his claim, but within the one year appealperiod, the Veteran sent a letter to VA identifyinghis reserve units and the location of his servicemedical records. He did not, however, appeal theRO’s denial. In 1990, his claim was reopened anddenied on the merits. Ultimately, the Veteran wasgranted service connection with the effective date ofAugust 27, 2004, the date of his informal claim forcompensation. The CAVC found that even if theVeteran’s 1985 claim remained pending because VAhad failed to make the required determinationunder 38 C.F.R. § 3.156(b), the 1990 denial of anidentical claim nevertheless terminated thependency of that claim and, therefore, there was nobasis for an earlier effective date. See Beraud v.

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Shinseki, 26 Vet.App. 313, 320 (2013) (relying onWilliams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir.2008)).

The Federal Circuit reversed and remanded theCAVC panel decision and emphasized that VA wasunder an express regulatory obligation to make adetermination regarding the character of the newevidence submitted within the one year appealperiod, but had not done so. Beraud, 766 F.3d. at1406 (citing its decision in Bond v. Shinseki, 659 F.3d1362, 1367 (Fed. Cir. 2011)). The Federal Circuitexplained that the CAVC was incorrect to presumethat VA considered all relevant evidence in makingits 1990 decision, to include the service medicalrecords the Veteran referenced in 1985, given thatVA never obtained those records. Therefore, theCourt held that until VA makes "a determinationthat is directly responsive to the new submission"the Veteran’s 1985 claim remains open,notwithstanding the subsequent 1990 denial of anidentical claim.

In a dissenting opinion, Judge Lourie wrote that hewould have affirmed the decision of the CAVCbecause he viewed Williams, 521 F.3d 1348, ascontrolling. Williams held that an initial claimremained pending due to a lack of notice that theclaim was disallowed, but that final adjudication ofan identical second claim terminated the initialclaim. Williams, 521 F.3d at 1349–50. The opiniondisagreed with the majority that Bond, 659 F.3d at1367, was controlling, since Bond did not carve outan exception to Williams. Judge Lourie reasonedthat unlike Williams, Bond did not include a laterclaim whose resolution terminated the initial claim.He found that where there was a subsequent finaladjudication of an identical second claim, apresumption that VA considered and rejectedevidence submitted by a veteran could be applied,since adjudication of the second claim would allow aveteran to raise the issue of evidence that was notpreviously considered.

James Drysdale is an Appellate Attorney in theDepartment of Veterans Affairs Office of GeneralCounsel, Staff Group VII

VA Must Ask Service Department toVerify Service of WWII Filipino

Soldier

by David E. Boelzner

Reporting on Tagupa v. McDonald, No. 11 3575, ___Vet. App. ___ (August 26, 2014).

Juliet Tagupa’s late husband claimed to have foughton behalf of U.S. forces during the Japanese Army’soccupation of the Philippine Islands. U.S lawrecognizes for veterans benefits purposes the serviceof such soldiers if they served with actual U.S.military units, with guerrilla groups recognized ashaving served allied interests, or in certaincircumstances with unrecognized guerrilla groups(e.g. if led by a former U.S. or PhilippineCommonwealth Army officer). Mr. Tagupa servedwith a group called the Anderson Fil AmericanGuerrillas, which claimed to have been recognizedby the U.S. Government.

VA directed its routine request for serviceverification to the National Personnel RecordsCenter (NPRC), which responded that Mr. Tagupahad no service in the Philippine CommonwealthArmy or the recognized guerrillas. The primaryissue on appeal was whether this inquiry satisfied 38C.F.R. § 3.203(c), which states that, if nodocumentation supplied by the claimant isacceptable and probative of qualifying service undersubsection (a) of section 3.203, VA "shall requestverification of service from the service department. "

Mrs. Tagupa contended that the NPRC was not theservice department and that nothing established itas an agent of the service department for purposesof verifying service. VA argued that NPRC had beendelegated authority to respond to serviceverification requests through a Memorandum ofAgreement (MOA) executed by the Army andNPRC’s parent, the National Archives and Records

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Administration, in 1998, under which NPRC wouldprovide "reference service" on its collection ofPhilippine Army files and archival holdings.

A frustration for the CAVC and the parties was thatfacts necessary to resolve the issue of NPRC’sauthority and role were not of record. VA hadroutinely sought verification from NPRC, just as itwould in the case of a U.S. service member, and theBoard had considered neither NPRC’s authority northe MOA concerning verification of a Filipinosoldier’s service. After oral argument in the case,the CAVC initially sought to remand for the limitedpurpose of having the Board address the MOA andVA’s procedures for verifying service. But after theVA raised some concerns about the effects of askingthe Board for such a determination, the CAVCrevoked its order and decided the case on the recordit had.

The CAVC did ultimately take judicial notice of theexistence of the MOA, but it found the MOAinsufficiently clear about whether NPRC wasdelegated authority to make service determinations.(In his dissent, Chief Judge Kasold expressed hisview that the MOA quite clearly did not delegatesuch authority. The Court refused to take judicialnotice of the content of government web sites citedby the parties, or of a report published in a WhiteHouse blog stating that NPRC did not make servicedeterminations.) Accordingly, because nothing inthe record clearly established that the Army haddelegated its authority to determine nature andcharacter of service, the Court held that the plainlanguage of § 3.203(c) required remand for the VA toseek verification of service by the Army. Slip op. at8.

The Court sustained Mrs. Tagupa’s allegation thatthe Board had erred in failing to considerunrecognized guerrilla service. And the Courtnoted, but held it premature to address, the issue ofwhether VA would have an additional duty ofassistance, by seeking alternative means ofverification, if the Army responded with a negativeverification.

Appellant had also argued that the Board failed toproperly determine whether the ID card issued bythe allegedly U.S. authorized Anderson FilAmerican Guerrillas constituted, in effect, a U.S.service document satisfying subsection (a) of 3.203.The majority upheld this reasons and basesargument, with Chief Judge Kasold dissenting.

The decision establishes that, absent some futuredetermination that the MOA or other authoritydelegated to the NPRC the service department’sresponsibility for verifying service, VA must seekverification from the military department. Itremains to be seen whether the service departmentswill undertake to make these determinations, giventhe difficulty of sifting through evidence.

David E. Boelzner of Goodman, Allen & Filettirepresents veterans and was counsel for Mrs. Tagupa.

CAVC Denies Motion to SubstituteBased on Lack of Standing

by Selket Nicole Cottle

Reporting on Suguitan v. McDonald, __ Vet.App. __,2014 WL 5463947 (Oct. 29, 2014) (per curiam).

On October 29, 2014, the U.S. Court of Appeals forVeterans Claims (CAVC) held in Suguitan v.McDonald that appellant’s son lacked standing topursue her appeal of a Board of Veterans’ Appeals(Board) decision denying her a one time paymentfrom the Filipino Veterans Equity CompensationFund (FVECF).

The appellant, Simona Suguitan, was married toFilipino veteran Luis S. Suguitan, who died inOctober 1996. In November 2009, she filed a claimfor a payment from the FVECF. The Board deniedher claim because the veteran, who died prior to theenactment of the American Recovery andReinvestment Act of 2009 (ARRA), whichestablished the FVECF, had (obviously) not filed a

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claim thereunder. Appellant appealed but, while herclaim was pending at the CAVC, she died.

In April 2014, appellant’s son, Benedicto Suguitan,filed a motion to substitute, arguing that it would beappropriate for the CAVC to issue a nunc pro tuncorder reversing the Board’s denial of appellant’sclaim for an FVECF payment, i.e. dating the decisionprior to her death. He contended that such an orderwould allow her estate to collect the payment owedto her at the time of her death and that he wouldbenefit as a beneficiary to her estate.

The CAVC first addressed whether appellant’s sonhad standing to be substituted in the appeal as aresult of his status as an accrued benefits beneficiaryunder 38 U.S.C. § 5121. It held that he lackedstanding because statutory section 5121 applies onlyto "periodic" monetary payments, which excludeone time payments such as those awarded under theFVECF. Id. at *3.

The CAVC then addressed appellant’s standingunder the line of cases, including Padgett v.Nicholson, 473 F.3d 1364 (Fed. Cir. 2007), grantingnunc pro tunc relief. Such cases establish threeprerequisites for nunc pro tunc relief: (1) theappellant died after the case was submitted to theCourt for decision; (2) substitution is appropriatebecause the person seeking substitution hasstanding; and (3) considerations of justice andfairness have been satisfied. The CAVC held thatappellant’s son failed to satisfy the second of theseelements. Id. at *4.

The CAVC noted that to establish standing,appellant’s son must show that he could benefitfrom a nunc pro tunc order addressing entitlementto an FVECF payment. However, where a nunc protunc order could not positively impact the son’srequest to recover the FVECF benefit, "substitutionis properly denied for lack of standing. " Id. at *5.

In examining the language of ARRA § 1002, theCAVC noted that the statute provides that the onlyeligible recipients of FVECF payments are (1) aveteran with qualifying service who filed a claimwithin the relevant time period and (2) a surviving

spouse of a veteran who had properly filed a claimthat was pending at the veteran’s death. The CAVCthus held that because appellant was the spouse of aveteran who had not filed a claim for an FVECFpayment before his death, she was ineligible torecover payment under the statute. Id. at *7. Itfollowed, then, that appellant’s son, as the putativebeneficiary of her estate "has not been adverselyaffected by the Board’s decision and he lacksstanding to be substituted on this appeal." Id. TheCAVC therefore denied the son’s motion tosubstitute due to lack of standing.

The CAVC acknowledged the son’s notice that, ifsubstituted, he would pursue his mother’s argumentthat ARRA § 1002 failed to afford equal protection tosurviving spouses of veterans who died before thecreation of the FVECF. But the Court held that,because he lacked standing to substitute forappellant, the Court could not reach the merits ofher appeal. Id. at 8. The CAVC vacated the Boarddecision and dismissed appellant’s appeal.

Selket Nicole Cottle is a Senior Appellate Attorney inthe Department of Veterans Affairs Office of GeneralCounsel, Staff Group VII, and a former law clerk atthe U.S. Court of Appeals for Veterans Claims.

Now available at www.cavcbar.net :

The transcript from the CAVC Bar Association’sJune 6, 2014, Veterans Law Conference and CLE,featuring:

Attorney Fee Structure Panel

VA Administrative Appeals and Part V RewriteProject

Statutory and Regulatory Construction

Evidence Gathering and Assessment Panel

The Honorable Evan J. Wallach, Speech

Practical Ethical Considerations


13

Book Review:

THE GOOD SPY: THE LIFE ANDDEATH OF ROBERT AMES

Kai BirdCrown, New York City, NY, 2014, 430

pp.

Reviewed by Alice A. Booher

If author Kai Bird’s name rings a bell, that is becausehe has a earned a reputation for excellence inreporting and myriad prestigious awards for hiswriting skills,1 has had sufficient success, backingand fellowships to permit a certain freedom to bethorough,2 and sustains a pragmatic track record ofnever disappointing. This most recent bookculminates an extraordinary research effort andobvious personal commitment to the subject, andresults in quite simply a (not to say in any waysimple) masterpiece.

1 Kai Bird coauthored American Prometheus: The TriumphAnd Tragedy Of J. Robert Oppenheimer (2005) with MartinJ. Sherwin, for which they won the Pulitzer Prize(biography), as well as the National Book Critics CircleAward for Biography and the Duff Cooper Prize forHistory in London. His Crossing Mandelbaum Gate:Coming Of Age Between The Arabs And Israelis, 1956 1078(2010) was a Finalist for both the 2011 National BookCritics Circle Award and the 2011 Dayton Literary PeacePrize. He wrote The Chairman: John J. McCloy; TheMaking Of The American Establishment (1992); and TheColor Of Truth: McGeorge Bundy AndWilliam Bundy,Brothers In Arms (1998). With Lawrence Lifschultz, hewas coeditor of Hiroshima’s Shadow: Writings On TheDenial Of History And The Smithsonian Controversy(1998).2 He utilized fellowships from the John SimonGuggenheim Memorial Foundation, the Alicia PattersonFoundation, the John D. and Catherine MacArthurFoundation, the Thomas J. Watson Foundation, theGerman Marshall Fund, the Rockefeller’s Foundation’sStudy Center (Bellagio, Italy), and the Woodrow WilsonInternational Center for Scholars in Washington, D.C. Heis a contributing editor of The Nation and an electedfellow of the Society of American Historians. See alsowww.kaibird.com.

It is probably wise to eliminate any potentialconfusion from the outset: the remarkable andhonorable Central Intelligence Agency (CIA) manwith the surname "Ames" about whom this book iswritten is Robert (Bob) Clayton Ames. It is not theless than honorable Aldrich Ames.3 They areunrelated, in name or anything else.

Bird is a writer who knows and uses words like finetuned lasers and just as targeted. Thus, his use ofthe term "Good" in his title, one of a handful ofwords in English that can convey a hundredmeanings, as adverb, adjective or noun, is bothintended and accurate in as many ways. Bob Amesfulfilled many definitions of "good" in the sense thathe conformed to a high standard; he usually actedon sound reasoning and judgment; he was likeableand logical; he held a firm allegiance; and heexhibited such exceptional knowledge, skill ofendeavors and experience as to be "the best" in whathe did in a wide spectrum over his tragicallyshortened but exemplary life.

Ames and his wife Yvonne had been next door Saudi

The Good Spy, continued on next page.

3 Aldrich (Rick) Hazen Ames worked for CIA as acounterintelligence officer and analyst and as a KGBmole; he was convicted in 1994 of espionage, spying forthe Soviet Union and Russia and compromising many CIAassets, was found guilty of espionage under 18 U.S.C. §794(c), and is imprisoned for life without parole.


14

The Good Spy, continued from page 13.

Arabia4 neighbors of the then 12 year old Bird,whose dad was a foreign service officer. The book,however, is not from the author’s personalobservations, but from hundreds of interviews,generally absent official CIA cooperation, but withobvious and insightful collaboration of intelligenceoperatives, clandestine and analytical, American,Israeli, Palestinian, as well as members of Ames’family and friends. Not coincidentally, one wouldbe hard pressed to find another book so revealingand providing relatively candid viewpoints ofimportant historical incidents in recent MiddleEastern history from all of the salient ops players,from CIA/NSA/State/FBI and the White House tosenior Mossad (with whom Ames liaised, if that canbe the proper phrase), and Iranian leadership, topowerful individuals such as PLO Chairman Arafatand his inner circle.

Bird assists the reader in navigation of the world ofhistory and espionage as best he can bydistinguishing yet identifying players andinformants by their real names when possible, oftenby pseudonyms (printed in italics), sometimes byaliases or by code names, nicknames, cryptonyms,and occasionally simply by what they callthemselves, self monikers which may be none of theabove. It sounds confusing, but the system workswell in the context and certainly annotates theinformation given.

As if the book were a stage play, up front there is apractical yet limited "Cast of Characters," whichhelps sort the players. The setting of the scenes andlocales is also skillfully smooth to the point ofperfection.5 Bird is particularly adept at describingpivotal characters, many of whom are already wellknown to the point of notoriety; in the context of

4 1962 1965, CIA and Foreign Service lived alike in thesmall U.S. consulate compound in Saudi Arabia as inmany other locations; Bird did not know that the Ameseswere CIA at the time.5 One such example is Bird’s dead on visual, analyticaland scholarly description of The Farm, the CIA traininggrounds between Williamsburg and Richmond, VA aboutwhich many authors talk but few actually explain(probably because so few have ever actually been there).

the Ames’ story, Bird brings special deft nuances intheir personalities.6

The author provides a methodical examination ofthe end facts by developing the actions andrelationships from all sides; because he is describingsome of the most pivotal events in recent history,the impact is enormous.

Robert Ames completed his Army service, accepteda proffered CIA job in 1960, and entered theyearlong Ops Course 11. On the rolls as ForeignService Reserve Officers, their job was recruitmentof foreign agents and collection of covert intel fromforeign sources. In a rather extraordinarycoincidence of timing, soon after their arrival theyreceived insider briefings on the CIA supportedlanding at the Bay of Pigs, Cuba. Ames didexceedingly well in practical ops and volunteered forPanamanian jungle training. He expressed earlyinterest in the Middle East, voraciously studiedArabic and history, and loved all of it; he and hisfamily were sent to Dhahran, Saudi Arabia,7 wherehe was one of only two CIA officers. Ames’ businessplaced him proximate to royalty but he alsodeveloped a personal penchant for wandering thedesert in his jeep, developing genuine rapportamong the Bedouins. This mode and manner ofinvolvement and commitment expanded anddeveloped with postings to Yemen and Lebanon. Itwas just this sort of duality of interest and breadthof immersion that would be the measure of hiscareer.

Bird discusses Ames in such a manner that itbecomes clear that integral to his extraordinarysuccess was his personal character, almost an aura


6 One such example is Clair George, a man who woremany CIA hats over the years, one of which was as BeirutStation Chief, and whose personal observations theauthor quotes in pithy context.7 Located because of its proximity to the oil, andconsidered a "hardship post," it was then so small that itwas not considered a station but a base; Ames’ cover wasas a commercial officer, and his pseudonym for signingcables back to Langley was Orrin W. Biedenkopf, whichhe carried the rest of his life.


15


about him coupled with exceptional intellect andearnest veracity that gained him the trust andcandor of and from many sources. Not the least ofthese were Ali Hassan Salameh,8 who supervisedArafat’s personal bodyguards (among many otherthings, proved and unproved), and Mustafa Zein,9

the eventual head of Arafat’s budding intelligencebureau, Force 17. Perhaps more astounding,regardless of where Ames was posted at a giventime, whether in Beirut, Tehran, Kuwait or CONUS(where he was head for Near East and South Asia),he actively cultivated and maintained these oftenseemingly contradictory contacts. Bob Ames’working professional and personal relationshipsincluded an idiosyncratic batch of people, meetingfor a "greater good and understanding" within theumbrella of timing of the Munich Olympicsmassacre in 1972; creation and development ofgroups such as Abu Nidal, Black September andother Palestinian terrorist groups; the Lebanese civilwar in 1975; the overthrow of the Iranian Shah in1979; Israel’s ongoing relationship/invasions withand into Lebanon starting in 1982; the massacres inSabra and Shatila outside Beirut by LebaneseChristian militias in 1982; to the birth of Hezbollah.The panoply of events in which he was, at the veryleast, in some manner an intimate witness, is quiteextraordinary.

As the considered top specialist in Arab affairs, andwith the blessing of many at the CIA and/orDepartment of State if not elsewhere, Ames had a

8 Salameh’s wide spectrum career evolving to Chief ofForce 17 is well described, including his second marriagein 1977 to Georgina Rizik, Miss Lebanon and MissUniverse (1971). Salameh would also recruit the infamousImad Mughniyeh, another Shi’ite Lebanese, into thePLO’s Force 17; Mughniyeh would become associatedwith a long list of work including kidnappings, airhijackings and car bombings.9 Zein, is a complicated Shi’ite Lebanese businessmanwho became an intermediary in Ames’ relationship withSalameh; both Zein and Salameh have been justifiablycredited by many with much evil, but according to Bird,in several documented incidences, both men affirmativelyacted as Ames’ friends, and in Zein’s case, personallyintervened to assist in the return of the bodies of 8 U.S.servicemen after the failed Desert One rescue mission.

remarkable legacy of having dealt, with facility andhonesty (apparently mostly mutual), with those thatothers would or could not touch, including PLO.Bob Ames was integral to the story of these events,all of which are monumental in recent history. Hewas a man at the top of his game, with access to allof the important players and venues, including theReagan White House, and in January 1983 receivedthe CIA’s highest honor under the SeniorIntelligence Service.10

Ames last met with President Reagan at the WhiteHouse on March 17, 1983, after having decided toagain visit the Middle East. Ames had not beenthere for 5 years or so and wanted to get an on theground feel for how things were going; he plannedto stop and see old Mossad contacts in Tel Aviv andthen, at the last minute, added Beirut to his trip. Hewanted to see Zein who had cabled that he hadurgent business to discuss and wanted Ames to meetwith Lebanon’s new president Amin Gemayel,brother of the assassinated Bashir Gemayel. Atlunch with an old friend at the CIA before leaving,Ames commented that he had no plans to conductother official Embassy business but might go intothe CIA station to be collegial. He had some lastbriefings with old cohorts, who were all concernedat the deterioration in the dangerous situation.11


10 The Distinguished Intelligence Certificate waspresented personally to him by Director Casey along witha stipend of $20,000. At about the same time, Ames sawlegendary CIA veteran Clair George, whom Casey hadappointed as CIA’s liaison to Congress and who thoughtAmes overly optimistic and naive about the Arab Israeliconflict solutions.11 Specifically, it seemed unrealistic that the US andIsraelis could impose a Maronite government on theShi’ites; a few months earlier a car bomb had destroyedan Israeli interrogation and prison facility in Tyre, thesecond time this had happened; the first had been a truckbomb that had destroyed the Iraqi embassy in Beirut.

CONTRIBUTION IDEAS?

Please contact Megan Kral at [email protected] more information.


16


Having said his goodbyes at Langley,12 Ames arrivedin Beirut on Sunday, April 17, 1983.

Author Bird goes to great pains to discuss all of thepertinent members of the Embassy present at thattime, both permanent and those there temporarily,including some new CIA employees, and whenapplicable, to discuss the exchanges and interactionsthey had with each other and Ames while he waspresent on that visit. They constituted a remarkablegroup of Americans, including some of both theCIA’s most experienced and promising operatives.Bird’s detailed discussion of the contributions madeby these men and women is a unique tribute to all ofthem, perhaps the most complete outsideunavailable sources, and alone well worth the book.

On the night of Ames’ arrival, there were twoparties, one at the home of the Jim and MoniqueLewis13 (which Ames attended) guests included thecomplete CIA station, a tight knit group of friends,coworkers and a few newcomers and the other atthe apartment of USAID employee Tish Butler, whohad invited the off duty U.S. Marine Corps guardsincluding young LCpl Bobby McMaugh, whose dadwas a career DIA employee. By all accounts, bothsocial events were successes but attendees wereaware of the seriousness of their circumstances andthat was reflected in their conversations. As Birdputs it, everyone there knew that the guest of honor,Ames, was the “ghostwriter of the Reagan peaceinitiative” and met regularly with the President aswell as Secretary of State Schultz.

12 At the ops center, he ran into Thomas Braman, thenserving as Director Casey’s intel officer; having workedtogether recently in Iran, they had met at The Farm 23years earlier. Braman had been captured in February 1979at the Tehran embassy and roughed up by RevolutionaryGuards; ever since, when one of them went on a trip, theother would jokingly say: "keep your head down; " hisparting words to Ames were that mantra.13 Jim Lewis, Deputy CIA Station Chief, Beirut, was one ofthe CIA’s most experienced covert operatives; he hadbeen one of the last POWs released from North Vietnamin 1975; his Vietnamese born, naturalized Americancitizen, pharmacology trained wife Monique Nuet Lewis,was on her first day as a CIA administrative officer onApril 18, 1983.

In the morning, Ames had breakfast with Zein, thenwent to the Embassy for what became a contentiousmorning long CIA station meeting; Zein brieflyfollowed Ames to talk about a possible luncheon,and when Ames said he was too busy, opted for adinner and Zein reluctantly left. Station Chief KenHaas called his wife to ask her to bring his lunchsandwich early, but soon sent her away so as to dealwith a bothersome cable; she dallied but manyEmbassy offices were closed so she left at 1255 hours;at 1304 she got out of their car at home to the soundof a massive explosion behind her. Bird adeptlycatches others in their "where were you" moments,for both those who survived14 and the horrificnumbers who did not.15

A heavily laden battered GMC pickup truck, drivenby a young Shi’ite Lebanese man, turned into theEmbassy’s exit driveway and accelerated down somesteps and into the glass doors; at 1304 he detonatedhis cargo and the explosion ripped through thesalmon colored building. It took an inordinate time


14 One of these was David Ignatius, a reporter and son of aformer SecNav. He had had an interview in the Embassybuilding and left about 1300, picking up his passport atthe Marine Guard station on the way out. He was about amile away when he heard the explosion and ran backdown the cornice, where he viewed the hideous carnageof blown away building with dangling bodies. Zein wasdriving to the meeting with Gemayel and saw the plumeof smoke and could only wait with anxiety. Since then,Pulitzer Prize winning Ignatius, who specializes in spynovels among other articles and is now associate editorwith The Washington Post, has worked with author KaiBird to present the story to spellbound audiences and tointroduce folks to Bob Ames and those who died withhim.15 Including Deborah Hixon, a 30 year CIA officer inBeirut on a TDY assignment; William Sheil, former GreenBeret special forces and CIA contract interrogator; Dr.Ken Haas, Station Chief, considered a young rising star;Frank Johnston, veteran CIA operative; Phyllis Faraci, asingle woman who had turned her CIA secretarial careerinto adventure including South Vietnam where she wasone of the final 4 to be evacuated in April 1975.


17


to clear the scene and find everyone. Ames waseventually found in a stairwell, without a mark onhim.16 A total of 63 people died and some 120people were wounded, many with lifelong injuries.

Seventeen Americans were killed, of whom 8 wereCIA officers, an unprecedented number then orsince, a U.S. Marine and 4 other Americanservicemen, three USAID officials, Janet Lee Steven(a freelance American reporter)17 and 46 Lebanesecivilians.18

16 Ames’ death certificate showed cause of death as“fractures, burns, wounds, internal hemorrhage as a resultof the explosion.”17 Stevens, then pregnant, was working on a story of theSabra and Shatila massacres and was scheduled to fly thenext day to Cyprus to see her friend, author DavidCornwell, a/k/a John le Carré, who released his book TheLittle Drummer Girl in March 1983, the title based on thename used for Janet in the Palestinian refugee camps.18 Three CIA officers survived, one having lunch outside inSidon, one inspecting a Persian carpet on his lunch hour,and another avoiding the Embassy as he was in Lebanonunder deep cover.

On April 23, President and Mrs. Reagan met a cargoplane carrying 16 coffins at Andrews Air ForceBase19; it had been just a month since he had metwith Ames. The CIA wept in the long line of blacklimos and bluebird buses from Foggy Bottom,Langley and The Farm winding up the Hill whereAmes (and some other Beirut casualties) would beburied at Arlington National Cemetery. Zein flew infrom Beirut and rode with the family behind thecaisson and the U.S. Marine leading the riderlesshorse. At the time, Ames’ was the only gravestoneto identify a clandestine officer of the CIA. Twodays later there was a service for 3,000 diplomatsand other citizens at Washington NationalCathedral attended by Vice President George H.W.Bush and Defense Secretary Weinberger. Thefuneral, described in detail by Bird, had beenpainful. Casey said of Ames at the memorial serviceat Langley: "He was the closest thing to anirreplaceable man . . . They did not die in vain."

Perhaps more profound was what would happen onSeptember 13, 1993, while Israeli minister YitzhakRabin and Yasir Arafat, Chairman of the PLO, wereabout to sign a peace accord at the White House,witnessed by President Bill Clinton and others onthe South Lawn. Led by Frank Anderson, the CIA’sranking clandestine officer in the Arab world, and indeference to Ames’ work and memory, during thesigning many of his old friends and new associatesclimbed back onto the bluebird buses and went backto Arlington. The extraordinary tribute to the fallenhero who had given his life to make it happen tookplace at the moment that Israeli and Palestinianofficials shook hands after signing a Declaration ofPrinciples on Palestine.

Since then, immediately and long term, there hasbeen much anger and discussion about who was toblame for the 1983 bombing. Justice for those whodied in Beirut may not come conclusively if ever. Inan unusually detailed analysis by author Bird, the


19 One of the Americans killed, Albert Votaw, a USAIDofficer, was cremated in Beirut at the wishes of his family.


18


relative potential impact of one suspect, a veryyoung Hezbollah member, Imad Mughniyeh,20 isassessed, as are others, as well as they can be fromall perspectives. Veteran CIA hands can only sumup that the Beirut embassy operation was "directedand guided by the Iranian Revolutionary GuardCorps and carried out by Hezbollah."

Ames’ widow lives in North Carolina; their sixchildren went to college, married and have kids oftheir own. They all cooperated with Bird in tellingthe story of the remarkable Bob Ames, even if it hadto be 30 years after his death.21

Many orators and politicians have quoted AbrahamLincoln as saying: "Whatever you are, be a goodone". Whether Lincoln actually said it or not, theadmonition undeniably applied to Bob Ames, whowas and did just that, whatever definition one usesfor "good." Robert Ames lived and died anextraordinary story; Kai Bird has told it exceedinglywell.

20 If one counts all embassy bombings and Marine Corpsbarracks attacks, Mughniyeh is accountable for moredeaths than anyone until September 11, 2001; he wasinvolved but whether he was the mastermind of the 1983attack is perhaps not quite so certain. Mughniyeh wasknown to and worked with Zein. Zein would later serveto try to negotiate a release after the kidnapping of CIABeirut chief William Buckley in March 1984. In February2008, Mughniyeh died in a SUV explosion in Damascus.The stories of others, such as Ali Reza Asgari, whodefected to the West in 2007, may be suitable for anotherbook and later day.21 Bird says that Zein too has been obsessed with Ames’life and death and has spent much of the last decadesmethodically investigating the Beirut embassy bombing,even writing his unpublished memoirs, and at greatpersonal risk, interviewing Syrian intel officers; Bird saysthat Zein remains convinced that Asgari, now purportedlyliving CONUS, was responsible.

Alice A. Booher, B.A., L.L.B., J.D., is a former Foreign Service Officer and Counsel, Department of Veterans Affairs, Board of Veterans Appeals (1969-2011). She has written extensively for decades on various veteran-related topics and has been published in national media including Stars & Stripes, American ExPOW Bulletin, ThePentagram, Naval Institute Proceedings, NavalHistory, Army History Foundation’s On Point, TheMilitary Advocate, Joint Force Quarterly and others.

Now available at www.cavcbar.net :

Audio from the CAVC Bar Association’sMay 6, 2014, "Best Practices and Common

Pitfalls at the Court of Appeals for VeteransClaims: "

As the community of veterans law attorneys grows, it ismore crucial than ever to understand how to effectivelyhandle cases at the Court. Please join us for a programthat will look at some of the current challenges facingpractitioners at the Court, including recent rule issues,conferencing, interacting with the Court and opposingcounsel and more.

Do you have a viewpoint to share?

Please contact Megan Kral at [email protected] more information.


19

Book Review:

Over Here,Edward Humes

(Harcourt, 2006), 336 p.p.

Reviewed by Aaron Moshiashwili

I grew up in a cozy suburb, in a mass producedhouse my middle class parents were able to buy, notrent. I went to a high quality local school, staffedwith college graduates, many holding advanceddegrees. After high school, college was theexpectation.

To anyone who grew up in my generation, or eventhe previous one, this is just normal life in America.And yet, fifty years before I was born, not a singleelement of that list would have been the case. Fiftyyears before I was born:

Modern suburbs didn’t exist;The middle class was tiny;Home ownership was out of reach for most;"High school teacher" was an unskilled job;Colleges were bastions of conservatism andonly the elite could attend.

(In fact, my university had more students than theentire college population of the U.S. in 1925.)

The changes between then and now aren’t due torandom chance or evolution over time. Thesemassive social shifts were planned. They wereimplemented in a bill considered, at the time, soimportant that its authors called it a new Bill ofRights.

Today, we don’t call it the GI Bill of Rights. We justcall it the GI Bill. And in that change, we harm ourown understanding of just how much thismonumental piece of legislation has affected thecountry we live in today. As we pass the bill’s 70thanniversary, we live in a country that has benefittedenormously from the "238,000 teachers, 91,000scientists, 67,000 doctors, 450,000 engineers,240,000 accountants, 17,000 journalists, 22,000

dentists along with a million lawyers, nurses,businessmen, artists, actors, writers, pilots, andothers" the Bill educated.

In school, I spent hours learning historical triviallike the Teapot Dome scandal and carpetbaggingduring the post Civil War era. Total time spent onthe law that literally created the entire world aroundme? Zero. The more I learn more about the postWWII GI Bill, the more I consider this the singlegreatest failure of my education.

Over Here, by Edward Humes, not only corrects thisfailure, it does so thoughtfully and comprehensively,wrapped in a package that is a joy to read. Humesleaves the reader with a wealth of knowledge aboutthe bill and a desire to learn more about the peopleand events he writes about.

Humes splits his book into nine chapters, eachdiscussing a different aspect of the GI Bill housing,education, the arts, medicine, technology, etc. Eachchapter is anchored by the story of a living (as of2006, when the book was written) WWII veteranwhose life was altered by that particular aspect ofthe bill. Humes interviewed each subject and quotesthem extensively. This does a fantastic job of addinghuman depth, emotion, and even a bit of war storyexcitement to what could easily be a dry, academicbook.

Some of these people were decorated for theirservice while some served quietly stateside. Thebook features two senators (Dole and McGovern) aswell as the doctor who ended PKU (a childhooddisease) and a Nobel prize winning physicist, LeonLederman. Lederman gives a key quote about thebill’s impact when he says that prior to the war andthe bill, his mother hoped that if the stars alignedright, her son might manage to become a dentist.Over Here also talks about teachers, cops, and thewhole spectrum of post war experience. If anything,Humes glosses over the stories of the celebrated andpowerful to talk about the ordinary people touchedby the bill. The book is much richer for it.

Over Here, continued on next page.


20

Over Here, continued from page 19.

So let me jump back amoment. When I say thatthe book made me "desireto learn more," what I meanis that the book made mewant to write fan letters tothese veterans. It made mewant to say thank you, notonly for their service but fortheir bravery andperseverance through thetrials of their lives after thewar. This book made meproud to be part of thecountry that these peoplelived in, and proud to bepart of a country thathelped make their livesbetter. And yet, this is not ahagiography of the GreatestGeneration in fact, one ofthe interviewees explicitlyrejects that label as just amedia creation, and Humesquotes Sen. McGovern (a B24 pilot) claiming that ifthey were the "greatestgeneration" it was becauseof the GI Bill, not the war.

Humes’ focus on the bill’s triumphs doesn’t causehim to lose sight of its flaws. Two chapters towardsthe end discuss racial and gender disparities in theGI Bill. Racism was baked into the bill from the startthe chair of the House Veterans Committee at the

time was Representative John Rankin of Mississippi,a man who used racial slurs on the House floor anddid his best to protect Nazi war criminals fromprosecution after the war. Almost unique amongbenefits legislation, the GI Bill was ostensiblycolorblind veteran status alone triggered benefits.This meant that black veterans could use it to go tocollege, buy houses, etc.

Rankin and others responded to this threat to thecarefully cultivated racial segregation in the Southby granting a huge amount of power to localbureaucrats. As veterans throughout history have

known, Congress may call it a right, but if you stillneed some local official to stamp your paper

"approved," nothing isguaranteed. In Chicago,Monte Posey (whose pointof view is used for thisparticular chapter) couldargue his way past theobvious displeasure of a VAadministrator who thoughtthe black veteran wasn’tsuited for college, onlytrade school. In the south,black veterans had almostno chance to use thebenefits they had earned.

Women didn’t have it muchbetter; in some ways thecondescending paternalismthey faced could be morecorrosive than the overtdiscrimination against nonwhite veterans. Thousandsof women doing vitalwartime jobs statesidetest piloting aircraft, forinstance had their jobsretroactively declaredcivilian. Enormous socialpressure was levied against

women who wanted to serve; after the war, the samepressures were levied against women who wanted tokeep some of the gains made through theircontributions to the war effort.

On the off chance I haven’t said it strongly enoughyet, I highly recommend that you read Over Here. Iwill be lending and gifting it furiously. Its contentsshed light on not only the politics of veterans andthe WWII era, but how our country got where it istoday and that light illuminates some of the mostimportant policy discussions of our time. None toosubtly, Humes features many of the veterans helpedby the bill musing that something like it would be ashelpful today as it was seventy years ago.

Over Here, continued on next page.


21

Over Here, continued from page 20.

But if you’re going to read it, you need to know is itan engaging and fun? Well, one of the early passagesis about a literal race against time to get the billpassed. It involves a congressman in a sickbed inGeorgia racing (with military escort) through arainstorm to a plane chartered by the AmericanLegion before just barely making it in time to castthe tie breaking vote to get the bill out ofcommittee. How can you pass that up?

You can’t, and you shouldn’t. Every Americanconcerned with our country’s history or futureshould know about how the GI Bill helped make thecountry we live in today. And most importantly,Over Here should be required reading in publicschool, if for no other reason than so the studentsunderstand how the GI Bill made those schools whatthey are today.

Aaron Moshiashwili is hoping his twins will startsleeping through the night soon.

On August 17, 2014, CAVC Bar Association members meton the National Mall to wash the Vietnam Veterans

Memorial

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MEMBERSHIP APPLICATION/RENEWAL FORM

_______________________________________________________________________________________ Last Name First Name Middle Initial ________________________________________________________________________________________ Employer / Firm Name ________________________________________________________________________________________ Mailing Address City State Zip _______________________________________________________________________________________ Telephone Number (including area code) E-mail Address

Membership Category (Please Check One)

______ REGULAR MEMBERSHIP: I am an attorney or non-attorney practitioner in private or government practice and certify that I am admitted to practice in the U.S. Court of Appeals for Veterans Claims (Court).

$95.00*

______ ASSOCIATE MEMBERSHIP: I am an attorney in good standing in the highest court of my state, but not admitted to practice before this Court.

$95.00

______ GOVERNMENT/ORGANIZATIONAL MEMBERSHIP: I am an attorney or non-attorney practitioner in government practice designated for government/organizational membership by my supervisor.

N/C**

______ COURT MEMBERSHIP: I am an employee of the Court and have been designated as eligible to participate in Bar Association activities. (Non-voting Membership)

N/C***

______ STUDENT MEMBERSHIP: I am enrolled in an accredited law school.

$25.00

______ TRIAL MEMBERSHIP: I am a newly-admitted attorney seeking a trial membership for the remainder of the membership year, ending September 30th. (Non-voting Membership)

FREE!

Membership fees are payable by check to the Court of Appeals for Veterans Claims Bar Association. Please mail your completed application to the address above. __________________ ____________________________________________________ (Date) (Signature)

Documents

VETERANS LAW JOURNAL