Citation Nr: 1312921	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  11-06 639	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Whether the appellant is a veteran for the purpose of establishing entitlement to one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel



INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appellant avers that he is a guerrilla veteran of World War II.  He claims he served on active duty from June 1942 to December 1945.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.


FINDING OF FACT

The National Personnel Records Center (NPRC) has certified that the appellant had no requisite military service, to include as a member of the Philippine Commonwealth Army or the recognized guerrillas, in the service of the Armed Forces of the United States.


CONCLUSION OF LAW

The appellant does not have recognized active military service for the purpose of obtaining a one-time payment from the FVEC Fund.  38 U.S.C.A. § 501(a) (West 2002); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. § 3.203 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5107, 5126, and implemented at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) , amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations. The Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim.

Analysis

The appellant seeks entitlement to the one-time payment from the FVEC Fund.  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. 

For eligible persons who accept a payment from the FVEC Fund, such payment shall constitute a complete release of any claim against the United States by reason of such service.  However, nothing in this act prohibits a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act.

Section 1002 (d) provides that an eligible person is any person who--(1) served--(A) 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; or (B) in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable. 

Under 38 C.F.R. § 3.203(a), VA may accept evidence of service submitted by a claimant, such as a Department of Defense (DD) Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate U.S. service department under the following conditions: (1) the evidence is a document issued by the United States service department; (2) the document contains needed information as to length, time, and character of service; and, (3) in the opinion of VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (emphasis added). 

In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown.  Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997).  Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA.  38 C.F.R. 
§ 3.203(c); Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, if the United States service department does not verify the claimed service, the applicant's only recourse lies within the relevant service department, not with VA.  Soria, 118 F.3d 747.  A claimant is not eligible for VA benefits based on Philippine service unless a United States service department documents or certifies his service.  38 C.F.R. § 3.203; Soria, 118 F.3d 747.

The appellant filed his FVEC claim in February 2010 indicating he served in a recognized guerilla from June 1942 to December 1945.  Along with his claim, he included various documents, to include a copy of a certificate of "honorable discharge" issued by the Armed Forces of the United States of America certifying the appellant's service as a member of the "Philippine Scouts" from July 1, 1942 to December 31, 1945.  Other copies of certificates indicate the appellant was part of the Fil-American Guerrilla Forces on the same dates.  The appellant also included his own affidavit confirming his service.

In contrast, the appellant's name is not listed in the Reconstructed Recognized Guerrilla Roster (RRGR) maintained by the RO in Manila.  On May 19, 2010, NPRC further certified that the appellant "has no service as a member of the Philippine Commonwealth Army, including the recognized guerrilla, in the service of the United States Armed Forces."  Every time the appellant submitted new evidence, a new request for certification was made to the NPRC.  The NPRC responded that "no change is warranted from prior negative certification" based on the new information and evidence submitted on September 27, 2010 and again on November 26, 2012.  NPRC made the certification three times after considering the various information provided by the appellant.  See Capellan v. Peake, 539 F.3d 1373, 1381-82 (Fed. Cir. 2008). 

The appellant has not submitted a DD Form 214, or any original copies of Certification of Release or Discharge from Active Duty in accordance with 38 C.F.R. § 3.203(a)(1).  The documentation submitted by the appellant, moreover, shows he served in the "old" Philippine Scouts and not within the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (i.e., the "new" Philippine Scouts).  

Overall, the Board finds the documentation submitted does not in and of itself establish recognized service.  The evidence submitted fails to satisfy the requirements of § 3.203 as acceptable proof of service because they are not official documents of the appropriate United States service department.  The documents submitted simply may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including compensation from the FVEC Fund.  See id.

The NPRC's May 2010, September 2010, and November 2012 certifications, moreover, are binding on VA and VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  The proper course for the appellant, who believes there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the service department.  See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for benefits administered by VA.  This department is bound to follow the certifications by the service departments with jurisdiction over United States military records.

Based upon the record in this case, the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces. Veteran status is a prerequisite to entitlement to payment from the FVEC fund. As such, entitlement to a one-time payment from the FVEC Fund is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

The Board having determined that the appellant is not a veteran for the purpose of establishing entitlement to one-time payment from the FVEC Fund, the benefit sought on appeal is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs