Arbitrary, capricious and absurd

On 2/28/2022 the U.S. Court of Appeals for Veterans Claims in No. 19-4633 (Bareford v. McDonough) set aside, vacated and remanded a 2017 ruling by the Board of Veterans’ Appeals. That ruling held that I was an “improper applicant” for a memorial marker on behalf of PVT Roy Anderson, citing a 2016 VA regulation permitting only family member applicants. In its decision the court held that this regulation was arbitrary, capricious and absurd.

PVT Anderson served honorably during World War I. He was killed on 9/2/1935 while in performance of duty as a federal employee during the Labor Day Hurricane. His wife died in 1930 and they had no children. On 9/4/1935 President Roosevelt ordered VA to bury unclaimed veterans remains at Arlington National Cemetery. However, in 1937 Anderson’s cremated remains were commingled with hundreds of other veterans and civilians in a crypt. His name does not appear on the adjacent monument in Islamorada, Fla., or anywhere else.

Until 2012, anyone with knowledge of the veteran could apply for a headstone, grave marker or memorial. In that year VA began enforcing a 2009 rule change with the family member restriction on all applications. The public outcry was immediate. For decades private individuals, cemeteries and veterans groups had worked to mark the graves of forgotten veterans dating back to the Revolution. Two bills were introduced in Congress compelling VA to reverse itself. In 2016 VA responded by broadening the applicant pool for headstones and grave markers, but doubling down on memorials when the remains are unavailable for burial, as in Anderson’s case. In justification VA presented the specious argument that unlike headstones, memorials were the exclusive concern of family members. VA held that absence of an application meant the family didn’t want a memorial, regardless if a family member even existed. The court observed that the memorial entitlement is to the veteran, not the family.

I attempted to work under the new rule and succeeded in locating distant relations of three other veterans buried in the Islamorada crypt. Their names now appear on the memorial wall at South Florida National Cemetery. But that left Anderson and 163 other forgotten veterans. In November 2016 I began the long process of appeal. Victory is sweet.

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