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Gomez v. United States Dep't of the Army

September 2, 2008

JOVITA GOMEZ, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF THE ARMY, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. Having considered defendant's motion, plaintiff's opposition, and the entire record of the case, the Court will grant the motion to dismiss and deny the summary judgment motion as moot.

I. BACKGROUND

Plaintiff is the widow of Federico C. Gomez. See Compl., Attach. (copies of Certificate of Death and Marriage Contract). The record reflects that, on six occasions, attempts were made to confirm the late Mr. Gomez's military service through records searches. It appears that no such records exist.

In April 1977, Mr. Gomez submitted a request to the National Personnel Records Center ("NPRC"), Military Records Center, for the following information:

official reconstructions and confirmations of [his] statement of active military services with awards of medals or sitations [sic] of the standard Army regulation with PURPLE HEART for would received [sic] in service as member of the U.S. Armed Forces of the Philippines during World War II.

Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss Or, in the Alternative, for Summary Judgment ("Def.'s Mot."), Administrative Record ("A.R.") 1.*fn1 NPRC staff initiated a search of United States Armed Forces in the Far East card index files, Guerrilla Affairs Division rosters, extract copies of discharges, a concentration camp death roster, a prisoner of war camp roster, casualty reports, hospital records, and other potential sources of information. See A.R. 2-5. The Army could not establish Mr. Gomez's "service[] as a member of the presurrender forces of the Philippine Commonwealth Army in the service of the Armed Forces of the United States." A.R. 6. Nor could it find his name "listed on any officially approved Guerrilla Affairs Division Roster." Id.

In June 1978, the Veterans Administration submitted a request to the United States Army for service and medical records pertaining to Mr. Gomez for the purpose of processing his claim for disability benefits. A.R. 9. Mr. Gomez alleged that he was on active duty from December 7, 1941 until his honorable discharge on June 25, 1945, last serving with the 110th Division, 10th Military District. See id. The Army determined that Mr. Gomez "ha[d] no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." Id.

In September 1978, Mr. Gomez requested of the Army's Adjutant General copies "of a military certification and or service information[] (MDF) in connection with [his] claims for an appropriate approval of [his] claims for service connected disability . . . due to wounds received during [his] World War II military services." A.R. 10. A handwritten notation on the letter read "neg report." Id. From this notation, it appears that the search located no military records of Mr. Gomez's service.

The administrative record included a Certification from the General Headquarters of the Armed Forces of the Philippines stating that Mr. Gomez's name "is not carried in the approved roster of 1948." A.R. 11.

In April 2006, plaintiff sent a request to the NPRC for "issuance of a Certification of Military Service of [her] late husband," A.R. 15, and submitted a similar request in October 2006. A.R. 17. In its response, the NPRC informed plaintiff that Mr. Gomez's "name is not shown in the official records and archives on file . . . which list the members of the Philippine Commonwealth Army, including recognized guerrillas, in the service of the United States Armed Services during World War II." A.R. 18.

Plaintiff filed the instant complaint on November 7, 2007, which in its entirety reads as follows:

COMPLAINT

Non-payment of military ...


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