Guerrero v. Marsh

• Decision Date: 08 June 1987
• Docket Number: No. 86-1861,86-1861
• Citation: 819 F.2d 238
• Parties: Francisco A. GUERRERO, Petitioner-Appellant, v. John O. MARSH, Jr., Secretary of the United States Army, in his official capacity, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 238

819 F.2d 238

Francisco A. GUERRERO, Petitioner-Appellant, v. John O. MARSH, Jr., Secretary of the United States Army, in his official capacity, Respondent-Appellee.

No. 86-1861.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 14, 1987.

Decided June 8, 1987.

Howard J. DeNike, San Francisco, Cal., for petitioner-appellant.

Captain Mark Landes, Dept. of the Army, Washington, D.C., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before HUG, NELSON and NOONAN, Circuit Judges.

NOONAN, Circuit Judge:

Francisco A. Guerrero appeals from a dismissal of his petition for a writ of mandamus against John O. Marsh, Secretary of the Army. We reverse the dismissal and grant the writ.

FACTS

On March 20, 1947 Francisco A. Guerrero was granted an honorable discharge from the Army of the United States. The discharge identified him as born January 6, 1919 in Baguio. His rank was that of Staff Sergeant, Headquarters Company, Second Battalion, 14th Infantry, and the discharge was signed by S.E. Fain, Colonel, Infantry, Commanding. The discharge noted that Guerrero had participated in the Luzon campaigns and in the Philippine defense campaign and that he had received the Asiatic-Pacific theatre ribbon with one bronze star; the Philippines Defense Ribbon with one bronze star; the World War II victory medal; and the Philippine Independence Ribbon. His mustering out pay was $300 and he was paid an additional sum due for other service, so he received a total of $725.38 on discharge. His character was described as "excellent."

Military history, of which the court may take judicial notice, indicates the importance of the Filipino guerrillas in the liberation of the Philippines. The testimony available ranges from recognition of specific heroic exploits, such as the liberation of the Los Banos Camp, see E.M. Flanagan, The Los Banos Raid 65-66 (1986), to acknowledgments of the assistance given individual American officers, e.g., S. Mellnick, Philippines Diary/1939-1945, 241-265 (1969). It has been broadly stated that without the guerrillas' "support and fanatical loyalty the American invasion forces would have suffered serious losses in men and materiel." T. Agoncillo, The Fateful Years: Japanese Adventure in the Philippines, 1941-45 II, 776 (1965).

Specifically, the role of the 14th Infantry has been recognized by the official history of the United States Army. The 14th Infantry was one of several guerrilla units organized by Colonel Russell W. Volckmann in the fall of 1942--organized into the United States Army Forces in the Philippines (Northern Luzon) (USAFIP(NL)). When the Sixth Army reached Luzon on January 9, 1945 these forces numbered 8,000 men. United States Army in World War II: The War in the Pacific: R.R. Smith, Triumph in the Philippines, 465-466 (1963). The USAFIP(NL) made a substantial contribution to the Sixth Army's campaign in Northern Luzon, causing the redeployment of an entire Japanese division. Between January and June of 1945, the guerrilla units, including the 14th Infantry, were responsible for the killing of nearly 10,000 Japanese while suffering 3,375 casualties themselves. Id. 556.

These well-known accomplishments of the guerrillas integrated into the American army and the bare details of his honorable discharge are supplemented by Guerrero's affidavit filed in connection with this case. Before World War II he was employed at the officer's mess, Camp John Hay in Baguio City. At the time war broke out, he was a locomotive driver. He resigned his job and reported back to the officers' mess where he worked a short time until the command pulled out. Beginning in February 1942 he enlisted in the Philippine He continued his guerrilla activities and was again arrested by the Japanese in March 1943. Again released, he continued to harass the Japanese army in the Baguio area. In October 1944 Lt. Boado, who had inducted him, was captured and killed by the Japanese, along with Alfredo Dollente, who had been Guerrero's companion in his forays. Under the direction of Lt. Fianza, Guerrero continued to perform military missions, getting information on the movements of the Japanese army. In May 1945 he led a tank battalion of American troops into Baguio City. En route he was sent to give surrender orders to Japanese holed up in caves; he engaged in hand to hand fighting with a Japanese soldier who attacked him with a bayonet. After the liberation of Baguio he worked at regimental headquarters gathering information on people blacklisted for cooperating with the Japanese. After his discharge on May 20, 1947, Guerrero went to school financed by his veteran's benefits.

Scouts and engaged in hazardous guerrilla activity. In July of 1942 Lt. Boado let him pledge allegiance to the United States and inducted him into the 14th Infantry of the United States Army. He conducted several guerrilla operations at Camp John Hay, now occupied by the Japanese. In November 1942 he was arrested by Japanese military police who tortured him. After a month of inhuman treatment, during which he refused to reveal information about the whereabouts of American officers with whom he had worked, he was released.

Guerrero's affidavit is buttressed by the affidavits of soldiers who served in the Philippines and knew Guerrero in person. These witnesses include Sgt. Andres Quion; Sgt. Augustin Dollente; Private Boligon Igorot; and Lt. Hospicio Angluben. Private Igorot confirms the arrest of Guerrero by the Japanese military police on suspicion of being a soldier. Augustin Dollente is the father of Alfredo Dollente, Guerrero's companion who was executed by the Japanese along with Lt. Boada. Lt. Angluben's affidavit sets out that he knew Guerrero as a member of the 14th Infantry engaged in military intelligence.

Headquarters, U.S. Command Force, Western Pacific, APO 707, on October 8, 1946 made a determination that Guerrero had been inducted into the Army of the United States on July 27, 1942 "in the grade of Staff Sergeant." This determination is documented in the Army's own files. In a letter of January 17, 1950, the Adjutant General Records Depository, Philippine Commands (Air Force) and 13th Air Force, APO 900, advised an office of the Personnel Records Branch that Guerrero's status had been revoked because he had not been physically present at his induction. No reason appears why the Air Force should have had jurisdiction over his case.

In response to this letter the Adjutant General in Washington on April 20, 1951 directed a review of Guerrero's status in conformity with "the criteria for determining eligibility for 14th Infantry, AUS, status." In response to this directive, the Adjutant General, Special Correspondence Section, DPRB, undertook a review of Guerrero's record in accordance with these criteria. The review noted that a number of inductions were made into the army by...