I Factual History

Plaintiff’s family member, Pvt Arthur H. Kelder, survived the infamous Bataan Death March of April 1942 only to perish a few months later while a prisoner in the Cabanatuan POW camp. He and thirteen other fallen American heroes who died the same day were interred in the camp cemetery in communal grave number 717. The death was certified and burial documented by the American officers authorized to do so. These records were retrieved after liberation of the camp and have been admitted in multiple judicial and administrative proceedings and found credible.

After the war, the grave was opened and the remains of one man were immediately identified on the basis of information from the burial record and individually identified by an identification tag. The remains were all temporarily interred in Manila Cemetery #2 where the remains of three more men were identified on the basis of the burial record and military dental records. The remains of the remaining ten men were eventually transferred to above ground storage in an aircraft hangar at Nichols Field. Graves registration personnel attempted, unsuccessfully, to obtain civilian dental records of only one man in order to individually identify his remains. No further effort was ever made to obtain individually identifying information on Kelder or the remaining men.

Facing a congressionally mandated deadline to complete the Fort McKinley Military Cemetery, the still unidentified remains were interred there without military or religious ceremony before exhausting all possible avenues for identification. Records of the burials were then classified and restricted from public access. Family members were informed only that the remains were “non-recoverable.”

By 2009, the records of Pvt Arthur H. Kelder had been automatically declassified and obtained by Plaintiff. Immediately recognizing that Kelder’s remains were obviously one of no more than ten possibles, he contacted other family members who provided information of distinctive gold dental inlays which conclusively identified the unidentified remains designated as Manila #2 X-816 which were buried in grave A-12-195 in the cemetery now operated by Defendant ABMC.

Granted power of attorney by the primary next-of-kin, Plaintiff petitioned the U.S. Army Human Resources Command to recognize unknown X-816 as the remains of Arthur H. Kelder. That petition was subsequently forwarded to Defendant DPMO. Simultaneously, the JPAC Intelligence Directorate completed an investigation concerning all ten of the unknowns recovered from Cabanatuan Grave 717 and recommended disinterment for identification.

In addition to the evidence of the identity of unidentified remains X-816 submitted by Plaintiff, family reference samples (DNA) are available for all ten of the Grave 717 unknowns and would permit use of this modern identification technology if any party wishes to dispute the factual basis of the identification of X-816. Defendants have routinely employed DNA matching technology since at least 1998 when The Vietnam Unknown was disinterred from the Tomb of the Unknown in Arlington National Cemetery and identified as Lt. Michael J. Blassie.

II Introduction

This is an action for review of agency refusal to act to identify the remains of a member of Plaintiff’s family missing since his death and burial in a WWII POW camp. Plaintiff has submitted overwhelming factual and expert opinion evidence that unidentified remains designated Manila #2 number X-816 are those of Pvt Arthur H. Kelder.

Plaintiff is further seeking injunctive action requiring that Defendants comply with their statutory obligations under 10 U.S.C. §§ 1501-1509 and that they be enjoined from future discrimination against the families of unknowns.