EXHIBIT "A" STAFF MEMORANDUM NO. 14 AFWESPAC, DECEMBER 27, 1945 (a) A person missing in action (whereabouts unknown) or captured and imprisoned or interned by the enemy until his recovery by the United States forces, will be determined to be in a casualty status with entitlement to pay for such period. (b) A person who evaded capture, or fled to the hills, or actively joined guerrillas, or actively participated in the anti-Japanese movement, or remained in hiding to avoid capture, until his return to military control, will be determined to be in a casualty status with entitlement to pay for such period. (c) A person who evaded capture, but returned to his home and continued a normal mode of living, will be determined not to be in a casualty status and not entitled to pay from the date he returned home until he actively joined guerrillas or actively participated in the anti-Japanese movement, or returned to military control. (d) A person who was captured and imprisoned or interned by the enemy, but was thereafter released will be determined not in a casualty status and not entitled to pay from the date of his release until the date he actively joined a guerrilla force, or actively participated in the anti-Japanese movement, or returned to military control. (e) A person whose active service in or for the military forces of the United States was terminated as a result of the enemy occupation and who was permitted to return to his home and pursue a normal mode of living, will be determined not in a casualty status and not entitled to pay after the date of termination of such service. (f) A person falling within (c), (d), or (e), above, who can prove that material restraint was imposed on him or that he suffered “serious deprivation,” to an extent greater than the restrictions, inconveniences, and lowered standards of living generally suffered by other residents incident to the Japanese occupation, as a direct result of his former official status under the United States, will be determined in a casualty status with entitlement to pay for the period such condition existed. The burden of proof rests with the claimant. Mr. DILWEG. I hope, Mr. Chairman, that if the House does pass the bill over there, that we do have an opportunity to be heard. Chairman RUSSELL. I will make every effort to do that, but this Missing Persons Act is a basic part of our laws dealing with our own servicemen who are missing. There may be great merit to this Philippine Scout controversy; it has been here in one form or another before this committee, or the Appropriations Committee, for some time. But I do not think the committee would approve of tying up this bill now by putting this Philippine Scout amendment on here. I will therefore have to ask you to have your statement printed in the record, and you will be given an opportunity at some future date to be heard on that bill if it passes the House. Mr. DILWEG. In addition to that, Mr. Chairman, may I include with the record-and it is with the consent of Congressman Teague-the statement that he gave to the House committee on this bill when it was before the Armed Services Committee? Chairman RUSSELL, Yes, we will print that in the record, too. (The statement referred to is as follows:) STATEMENT OF HON. OLIN E. TEAGUE My name is Olin E. Teague, Member of Congress from the Sixth Congressional District of Texas. I wish to present the case of the Philippine Scouts for remedial legislation as contained in proposed bills H. R. 3674 introduced by Hon, Leroy Johnson and my bill H. R. 2208, which are identical. The facts of this case, briefly stated, are as follows: The Philippine Scouts were an integral part of the United States Army in the Philippines at the time the organized military forces of the Commonwealth of the Philippines were inducted into the service of the Armed Forces of the United States by a military order of President Roosevelt dated July 26, 1941 (title 10 U. S. C. A., ch. 18, secs. 321–335). These servicemen participated in the Philippine campaign under the command of General MacArthur as commander in chief until the fall of Corregidor and formal surrender of the United States Army Forces in the Far East by Lt. Gen. J. M. Wainwright on May 6, 1942. After the fall of Bataan and Corregidor, the surrendered Philippine Scouts were taken by the Japanese as prisoners of war, kept in concentration camps for several months, and later paroled under certain conditions. After the liberation of the Philippines the Philippine Scouts applied for arrears in pay and allowances corresponding to the period from their imprisonment to the time of the reconquest of the country or their return to military control. Their claim was based on section 2 of the Missing Persons Act of March 7, 1942, which provides as follows: "SEC. 2. Any person who is in active service and who is officially determined to be absent in a status of missing, missing in action, interned in a neutral country, captured by an enemy, beleaguered or beseiged shall, for the period he is officially carried or determined to be in any such status be entitled to receive or to have credited to his account the same pay and allowances to which he was entitled at the beginning of such period of absence or may become entitled thereafter, and entitlement to pay and allowances shall terminate upon the date of receipt by the department concerned of evidence that the person is dead or upon the date of death prescribed or determined under provisions of section 5 of this Act: Provided, That such entitlement to pay and allowances shall not terminate upon expiration of term of service during absence and in case of death during absence shall not terminate earlier than the dates herein prescribed: Provided further, That there shall be no entitlement to pay and allowances for any period during which such person may be officially determined absent from his post of duty without authority and he shall be indebted to the Government for any payments from amounts credited to his account for such period." In the beginning many of the applications for arrears in pay and allowances were approved and payments were actually made but subsequently no payments were approved for any period beyond the term of concentration of the prisoners of war unless they could show that they actively joined a duly recognized guerrilla force or actively participated in the anti-Japanese movement or returned to military control. The change of policy was based on headquarters' staff memorandum No. 14 AFWESPAC, dated December 27, 1945, interpretation of Missing Persons Act, which prescribed additional requirements before a veteran could be entitled to pay under the Missing Persons Act. The said memorandum reads as follows: "Any person who was captured and imprisoned or interned by the enemy, but was thereafter released, will be determined not in casualty status and not entitled to pay from the date of his release until the date he actively joined a guerrilla force or actively participated in the anti-Japanese movement or returned to military control." These new requirements disqualified a considerable number of the former Philippine Scout prisoners of war from entitlement to any of the benefits granted under the Missing Persons Act after they were paroled. Staff memorandum No. 14 was based on an old act of 1814, section 846 of title 10, United States Code. This section provided— "SEC. 846. Pay during captivity: Every noncommissioned officer and private of the Regular Army, and every officer, noncommissioned officer, and private of any militia or volunteer corps in the service of the United States who is captured by the enemy, shall be entitled to receive during his captivity, notwithstanding the expiration of his term of service, the same pay, subsistence, and allowance to which he may be entitled, while in the actual service of the United States; but this provision shall not be construed to entitle any prisoner of war of such militia corps to any pay or compensation after the date of his parole, except the traveling expenses allowed by law." It has been urged that the concluding clause of this section is a bar to the claim of the Philippine Scouts for arrears in pay and allowances. However, the United States Court of Claims in a decision rendered on November 7, 1950, in the case of Moreno v. The United States, No. 48754, held that this provision of law does not apply to the members of the Philippine Scouts, but only to the members of the Militia Corps. The pertinent portion of the decision reads as follows: "The Government urges that the concluding clause of section 846 of title 10 is a bar to the plaintiff's claim. We think not. It applies only to members of a Militia Corps mentioned earlier in the section. This section was enacted March 30, 1814 (3 Stat. 115, Rev. Stat., sec. 1288). If there has been in recent times, any unit of armed services which answers the description of a Militia Corps as that expression was used in 1814, the Philippine Scouts were, at the period here in question, not such a unit. Statutory authorization for the enlistment of natives of the Philippines in the Army of the United States is found in 10 United States Code 321. When so enlisted they do not form a unit which could be called a Militia Corps." Apart from the above consideration it is submitted that the claim of the Philippine Scouts for arrears in pay and allowances is well founded because of the following reasons: First General MacArthur, then still Commanding General, USAPFE, and commander in chief, Southwest Pacific area, in an order issued December 8, 1944, ruled that all officers and enlisted men of the Philippine Army remained in that status until relieved therefrom by order isued by the Commanding General, USAFFE, regardless of any surrender in conformity with orders issued by their commanders, or refusal to surrender, or any parole or oath signed by them. The order of General MacArthur under reference reads as follows: HEADQUARTERS, UNITED STATES ARMY FORCES IN THE FAR EAST, Subject: Status of members of the Philippine Army. December 8, 1944. 1. All officers and enlisted men of the Philippine Army, including the Philippine Constabulary, who have been called into the service of the United States Army Forces in the Far East, remain on that status until relieved therefrom by order issued by the Commanding General, USAFFE. Action by these individuals in surrendering to the enemy forces in conformity with orders issued by their commanders, or in refusing to surrender, has no effect on such status. 2. Any "parole" or "oath" signed by such personnel as a condition of release by the enemy from prisoner-of-war status will be considered as having been signed under duress and as of no validity. Such personnel remains subject to the orders of the Commanding General, USAFFE, and will be assigned to appropriate duty in the Philippine Army units. By command of General MacArthur: G. E. TOMBERLIN, In a letter dated August 30, 1950, addressed to Dr. Marcelino V. Bernardo, Philippine Mission in Japan, General MacArthur said in effect that his ruling applied to the Philippine Scouts as well. The pertinent portion of his letter reads: "It is my recollection, however, that the order was intended to eradicate any impression of a differential treatment between members of the Philippine Army and those of the Philippine Scouts. Unquestionably they should be treated on the same basis as regards this general subject." Second: The order of General MacArthur, quoted above, was only an application of the generally accepted principle of law to the effect that a prisoner of war does not lose his military status and remains a prisoner of war even though not confined in prison. "A prisoner of war is one who has been captured while fighting under the banner of some state. He is prisoner of war even though never confined in prison" (Bouvier's Law Dictionary, Rawlee's Revision). "A paroled prisoner of war is simply a soldier who has been placed under a disability to engage in active operations against the enemy. He remains a part of the Army and as such subject to military control as he was before his capture. If he absents himself from a post or station to which as a paroled prisoner of war he has been assigned by the military authorities, he is absent without leave or in desertion according to the intent with which he absented himself" (Digest of Opinions of the Judge Advocate General of the United States Army, 1912, p. 1076). "But military persons, released on parole, cannot be held to have lost their military status. And even though they had given their parole, it does not necessarily follow that they would observe it" (Cited in Digest of International Law, Hackworth, vol. VI, p. 173). Third: The paroled Philippine Scouts continued to be prisoners of war not only in principle of law as stated above but also in reality. For they were under such constant surveillance and were required to report to the Japanese authorities so often that they were virtually "in the hands of the enemy" as these words are used in the Missing Persons Act. The extent to which they were controlled by the Japanese authorities can be gaged by an examination of the following order issued by the Japanese military authorities requiring them to "Report in detail at the Japanese Military Police Headquarters, Port Santiago, either orally or verbally, under penalty of being considered malicious, on all occasions, to wit: "1. When you have obtained a job, or when you are jobless. "2. When you have changed your occupation. "3. Change of residence. "4. When you are going to join any political thought party or any other party. "5. When you are leaving the Philippines. "6. When you are dead. "7. When you have got married." Fourth: The Philippine Scout officers and men were promised that they "will draw full pay until you are mustered out of the service and you will be entitled to all bonus and insurance privileges from USAFFE." This promise was contained in an order the full text of which is as follows: Message to all Filipino officers and men: "1. Direct written orders have been received by me from General Sharp, and authorized by General MacArthur for me to surrender the forces of Negroes. "2. These orders have been obeyed by this headquarters and as a member of this command you also must obey them. "3. Failure to surrender classifies you as: "(a) Deserted by Philippine and United States Governments. Penalty, death.. "(b) Outlaw by Imperial Japanese Army. Penalty, death. "4. By terms of the agreement the Imperial Japanese Army has been furnished: "(a) Your name and home address. "(b) Your present location. "(c) The arms and ammunition you have. "5. By surrendering you will draw full pay until you are mustered out of the service and you will be entitled to all bonus and insurance privileges from USAFFE. You will also be recognized as an honorable prisoner of war by the Philippine Government, USAFFE, and by the Imperial Japanese Army and treated as such. "6. Half of the officers and men have already reported to Fabrica and are well treated. "7. Report in person with your arms and ammunition to Cadre Barracks in Fabrica before midnight Wednesday, May 27. "8. By complying with these orders you will save your honor, your life, and assure the safety of your family and friends. "ROGER HILSMAN, "Colonel, Infantry, "United States Army, Commanding.” Fifth: With respect to the Philippine Scouts, their enlistment constituted them members of the United States Army Forces at all times previous to and after their capture by the Japanese until the period of their enlistment expired after they were able to report to the United States Army when the Philippines were recaptured. Under their enlistment, according to a long line of decisions, there was created a binding contract between them and the United States which entitled them to their pay as members of a unit of the United States Army (U. S. v. Grimly, 137 U. S. 147; McCord v. Page, Provost Marshal of Brooks Field, 124 F. 2d 68; Campbell v. Olipant, 206 s. w. 2d 406; and In re Miller, 61 A. 2d 745, 356, P. 56; Bowman v. U. S., 10 Ct. Cls. 408; Wilson v. U. S., 25 Ct. Cls. 339; Conrad v. U. S., 32 Ct. Cls. 139). See sections 359, 861, and 1268 of 10 United States Code Annotated (U. S. C. A.). One of the discriminatory features of this whole business is the fact that the Army selected a handful of high-ranking officers for full payment during the period of parole. This may have occurred because of the standing of these men, or because of the fact that they were economically able to press their claims before the United States Army. Some of them made personal appearances in this country. You realize, of course, that the $9 a month private could not do this. The Navy chose to pay its military personnel as well as its civilian employees who were in exactly the same position. The Navy paid them for the full period of time between the fall of the Philippines and our recapture thereof, and the payments were made under the authority of the very act we now seek to amend for the purpose of paying the United States Regular Army Philippine Scouts. A clear statement of the Navy's justification in doing so is set forth in a letter from Rear Adm. M. L. Royar, Supply Corps, United States Navy, Chief of the Bureau of Supplies and Accounts, United States Navy, to the Honorable Carl Vinson, under date of April 11, 1952. Pertinent extracts from the above letter, which are quoted below, fully reveal the inequity of the Army's arbitrary decision with reference to the Philippine Scouts: "For assimilation purposes, the Comptroller General has recognized the Insular Force as the Navy counterpart of the Philippine Scouts of the Army. "Enlisted men of the Insular Force of the Navy were not excluded by general or specific language from benefits of the Missing Persons Act. Consequently, those members in active service who were officially determined to be lawfully absent in a status of missing, missing in action, interned in a neutral country, captured by an enemy, beleaguered or besieged, were for the period officially determined to be in such status paid the pay and allowances to which otherwise entitled from date of commencement of absence until date of return to the controllable jurisdiction of the Navy Department. The mere fact that upon repatriation it was ascertained that member of the Insular Force had been paroled, but was unable to return to naval jurisdiction or communicate that fact to the authorities would not be considered a basis for denying such member the active duty pay and allowances to which otherwise entitled under the Missing Persons Act while so absent." Under date of June 15, 1954, the position of the Navy was supplemented by a letter addressed to me over the signature of Ira H. Nunn, Rear Admiral, United States Navy, Judge Advocate General of the Navy, and reads as follows: "The naval liaison officer to the Congress has forwarded to this Office your informal inquiry whether any Filipino naval personnel in the service of the United States Navy during World War II, who accepted paroles from the Japanese, were in fact paid their arrears of pay under the Missing Persons Act (50 U. S. C., 1946 edition, 1001-1015). "Unless such members voluntarily served in a military capacity or collaborated with the Japanese, were guilty of disloyalty, or committed overt acts against the United States, they were in fact paid under the Missing Persons Act, supra, from the date on which it was officially determined that a missing status commenced until their return to naval jurisdiction. The mere fact that such members were paroled was not a basis for denying them the active-duty pay and allowances to which they were otherwise entitled." The Defense Department itself recognizes that the parole meant nothing; that these people were virtually prisoners of war, and they so state on page 587 of the book entitled "United States Army in World War II-the Fall of the Philippines," written under the direction of the Chief of Military History, Department of the Army. We quote: "With the capitulation of Corregidor and the islands to the south, all communication with the Philippines came to an end. The entire garrison, an army of 140,000 men passed into captivity and except for a handful who escaped, no word of their fate reached the United States. Though most of the Filipinos were ultimately released from prison camp, there was no way by which they could communicate with the Allies except through the clandestine intelligence organization kept alive by funds and equipment from Australia. Nominally free, the former troops of MacArthur's and Wainwright's army were as effectively prisoners of the Japanese as if they had remained in prison camp." On May 12, 1954, in a communication from the Secretary of the Army addressed to the Honorable William Langer, chairman of the Senate Committee on the Judiciary, in opposing legislation to extend the time for certain military procurement claims against the United States in the Philippine Islands, it was stated: "Almost immediately claims were asserted against the United States for pay and allowances and for compensation for services and supplies. These claims may be roughly divided into three categories: (1) Those concerned with |