CAMP FOSTER, Okinawa — The family at the center of a court battle with the government over the identification of a loved one missing in World War II got the news last week that they had been waiting for: Pvt. Arthur “Bud” Kelder had been identified and would be coming home.
Yet after they began to look at the report from the Joint Prisoners of War, Missing in Action Accounting Command Central Identification Laboratory, their jubilation turned to dismay.
They are being given only a minute percentage of Kelder’s skeletal remains, leaving the vast majority of bones in the government’s possession unidentified. In addition, the family says the government has made procedural missteps and used flawed science, making the ID questionable.
“It’s definitely progress,” Kelder cousin John Eakin said about presumptive ID. “I don’t want to sound ungrateful, like I just want a little more, and a little more and a little more. But I just don’t see this as a valid ID because of the way they went about it.”
Eakin, who is suing the government for a timely identification on behalf of the family, said they intend to fight until they get a “good identification.” They want to wait until all testing is complete, so they can bury all of Kelder’s remains at once. They are asking that the most advanced techniques be used to verify remains in question — to ensure that Kelder’s remains have not been buried in caskets of others already identified and returned to other families. That would also address concerns that other remains have been misidentified.
A spokeswoman for the defense accounting agency, Lt. Col. Melinda Morgan, declined to answer questions about the case but said the family had to “accept the ID” before Kelder would be officially considered accounted for.
Court records indicate the family was notified of the identification on Jan. 22. Eakin said they were immediately pressured to drop their lawsuit, filed in 2012. He said they were told to accept the identification as is, or Kelder’s remains could be buried in a veterans cemetery without their involvement.
Joining the suit
Two other families have joined Eakin in his lawsuit against the government.
The family of 2nd Lt. Alexander “Sandy” Nininger Jr., who was posthumously awarded the first Medal of Honor of World War II, filed legal paperwork on Jan. 23.
Government records indicate Nininger could be buried in grave J-7-20 at the Manila cemetery, near Kelder’s former resting place. The motion was filed by Nininger’s nephew, former Rhode Island state Sen. John A. Patterson.
Sally Hill Jones filed suit on Dec. 4 seeking the identification of a set of remains that has been in the JPAC lab since 2005. JPAC officials said the remains do not belong to her uncle, Staff Sgt. Carl Holley, but according to court documents, they said they used an “unaccredited test protocol” to arrive at the “unvalidated” result. Jones says she will continue to fight in court for an ID.
The government’s accounting agencies have been plagued with problems for years, from questionable recovery results and internal turf wars to phony repatriation ceremonies. In February 2014, Secretary of Defense Chuck Hagel ordered a major reorganization of the agencies.
Eakin said his family questions how the Kelder identification was handled; they are being given only three long bones and a skull. The JPAC-CIL report says it is “possible” that more of Kelder’s remains will be identified.
“I don’t expect to get every finger and toe,” Eakin said. “But where is the rest?”
The report states that the remains were “moderately comingled,” requiring DNA analysis. The lab used mitochondrial DNA and Y-STR DNA testing, which tries to make a match using the maternal and paternal family lines of DNA. However, those processes are not exact and have a margin of error. Experts have said those tests are better used to exclude remains, not to make identifications. More precise nuclear DNA testing was not used.
JPAC did not follow the standard accounting practice of exhuming all of the remains buried together and identifying them concurrently. Four servicemembers whose remains were found with Kelder’s were allegedly identified after the war. Stars and Stripes obtained documents in December that said those identifications could be incorrect.
“It’s certainly a mess now,” Eakin said. “I am not trying to stir the pot just to stir the pot. All of these guys deserve to come home.”
Eakin believes Kelder’s ID was made prematurely to compel him to drop his suit. The government filed a motion to essentially end the court case on the same day that the family was notified of the ID, before they viewed the report. That would cancel claims by Jones and Patterson as well.
“Callous doesn’t begin to describe how I took what they did,” Eakin said.
Scientific certainty?
Stars and Stripes first detailed the Kelder case in 2013. He was one of 14 servicemembers and NAVY employees who died at the hands of the Japanese on Nov. 19, 1942, at the Cabanatuan Prisoner of War Camp in Luzon. The men were buried in communal grave 717.
After the war, four were identified and returned to the U.S. for burial; the other 10 were buried in Manila as unknowns.
In 2009, Eakin began to probe his cousin’s case. He soon discovered that the Army knew Kelder had been buried in one of 10 plots. He narrowed it down further through his research. Only one of the unknowns had gold dental inlays like his cousin. His theory was backed by two forensic dentists.
According to documents, Eakin contacted JPAC and the Defense POW/Missing Personnel Office.
JPAC’s former scientific director and deputy to the command for CIL operations, Thomas Holland stated in a Jan. 28, 2013, memo that the case did not meet the standard of “scientific certainty” necessary to justify disinterment for DNA identification. JPAC commander Maj. Gen. Kelly McKeague, now interim deputy director of government personnel accounting, used Holland’s memo as the basis for JPAC’s opinion, which was reiterated by DPMO — virtually ending Eakin’s quest.
Eakin decided to sue, representing himself for most of the case.
Eakin discovered that Rick Stone, then a JPAC investigator, had been asked to look into the Cabanatuan grave 717 remains by JPAC’s deputy to the commander for external relations and legislative affairs, Johnie Webb. Stone had recommended forensic review in reports to Webb, saying that the 10 men could likely be identified. He also said that the four IDs could be incorrect.
Stone, who says his methods were called “voodoo” by JPAC officials, feels vindicated by the ID.
“I literally begged them to test my methods on a case like Pvt. Kelder’s,” he said. “They just laughed at me. Pvt. Kelder is coming home and I don’t think anyone in the JPAC command is laughing now.”
With a judge considering wresting control away from JPAC, the government exhumed the 10 sets of remains in August and have been working on identifications.
Eakin said the government has not disinterred the remains attributed to the four men from grave 717 — Pfc. Daniel Bain, Pfc. Juan Gutierrez, Sgt. Lawrence Hanscom and Pfc. Harvey Nichols.
Looking for answers
Patterson, who is Nininger’s nephew, said Eakin inspired him to take a similar action on behalf of his uncle. Grave J-7-20 contains the unknown remains of X-1130.
According to the report for X-1130, the remains were first thought to be Nininger’s and were close to being positively identified as the Philippine scout. A height discrepancy halted the ID.
Patterson said the methodology used at the time has been debunked. He wants the remains exhumed and tested to see if they belong to his uncle.
Nininger was killed while charging alone into enemy territory and engaging in vicious hand-to-hand combat with Japanese invaders on Jan. 12, 1942, near Abucay, Bataan, in the Philippines, according to his Medal of Honor citation. He was wounded several times but managed to destroy enemy foxholes, killing groups of soldiers and snipers.
After the position was retaken, a dead enemy officer and two dead enemy soldiers lay by his side.
Patterson hopes the Medal of Honor’s cache will call attention to Eakin’s case and help other families get answers.
“I’d love to see someone from the government side step in and say, ‘We’re going to do this right,’” he said. “It’s just awful.”
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