Citation Nr: 1202187	
Decision Date: 01/20/12    Archive Date: 01/30/12

DOCKET NO.  10-29 813	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Hager, Counsel





INTRODUCTION

The Veteran served on active duty in the Philippine Scouts from March 1941 to May 1945 and from May 1945 to June 1946.  He was a prisoner of war from May 7, 1942 to May 19, 1942.  He was not in a casualty status from August 1942 to May 1945.

This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines.  In that decision, the RO denied the Veteran's claim for a one time payment from the Filipino Veterans Equity Compensation Fund.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's service does not render him eligible for compensation under the Filipino Veterans Equity Compensation Fund.


CONCLUSION OF LAW

The Veteran is not an "eligible person" as defined by the statute creating the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.40, 3.41, 3.203 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the American Recovery and Reinvestment Act, a new one-time benefit is provided for certain Philippine veterans to be paid from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).  Payments for eligible persons will be either in the amount of $9,000 for non-United States citizens, or $15,000 for United States citizens.

Section 1002 (d) of the law creates two categories of eligible persons.  Subsection (1)(A) provides that an eligible person is any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States.  Section (1)(B) provides that an eligible person is any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  This latter category is sometimes referred to as "New Philippine Scouts."  See April 2008 VA Fact Sheet, "VA Benefits for Filipino Veterans."

The Veteran contends, and the National Personnel Records Center (NPRC) has verified, that he had active service in the United States Army from March 1941 to May 1945 and from May 1945 to June 1946.  Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision.  The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA.  See Spence v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

The Veteran contends that his second period of service caused him to fall within section 1002(d)(1)(B) of the statute.  However, both his first and second periods of service were in the United States Army.  The two categories of eligible persons under the statute are those who served in the organized military forces of the Government of the Commonwealth of the Philippines while in the service of the U.S. Armed Forces pursuant to the President's July 26, 1941 military order, and those who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945, i.e., the New Philippine Scouts.  The Veteran served with neither organization.  While the Veteran's second period of service was during the existence of the New Philippine Scouts, 38 C.F.R. § 3.40(b) provides that "all enlistments and reenlistments of the Philippine Scouts in the Regular Army between October 6, 1945 and June 30, 1947 were made under the provisions of Pub L. 190 as it constituted the sole authority for such enlistments during that period."  The Veteran's period of service began in May 1945, prior to this period of time.  This is further evidence that he was not in the New Philippine Scouts.  The Board also notes that the Veteran has previously been granted both pension and compensation benefits based on his U.S. Army service.

As the Veteran does not fall into either category of those eligible for payment under the Filipino Veterans Equity Compensation Fund, his claim for entitlement to a one time payment from this fund must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Legal Entitlement to a one time payment from the Filipino Veterans Equity Compensation Fund is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs