Citation Nr: 1312935	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  11-24 454	)	DATE
	)
	)

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 a one-time payment from the Filipino Veterans Equity Compensation (FVEC) fund.


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) from a May 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  A notice of disagreement was filed in September 2010, a statement of the case was issued in July 2011, and a substantive appeal was received in September 2011.  

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).


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 & West Supp. 2012); 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

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) redefined VA's duty to assist claimants in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). 

In this case, resolution of the appellant's claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits and qualifying service under the FVEC.  The VCAA is therefore inapplicable and need not be considered in this case.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004). 

II.  Factual Background and Legal Analysis

Under the American Recovery and Reinvestment Act, a 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. 

For eligible persons who accept a payment from the FVEC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ."  However, nothing in the act "prohibit[s] 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 addresses Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. 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.

In February 2009, the RO received the appellant's application for the one-time payment from the FVEC. 

In this case, the appellant does not contend that he served in the organized military forces of the Government of the Commonwealth of the Philippines, or in the Philippine Scouts.  He asserts that he served with the Commonwealth of the Philippines as a recognized guerilla.  Specifically, the appellant asserts that he served in the guerrilla forces from May 1942 to November 1945.  

The RO submitted the pertinent information to the NPRC for verification.  In September 2009, the NPRC certified that 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.  

In January 2010, the appellant asserted that his surname was spelled differently.

The RO submitted the pertinent information, including the alternative spelling, to the NPRC for verification.  In April 2010, the NPRC certified that 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.  

In support of his claim, the appellant submitted several documents, including a November 1993 Certification from the General Headquarters, Armed Forces of the Philippines, Camp General Emilio Aguinaldo, which reflects a military status of "Approved Revised Reconstructed Grla Roster" with a date of recognition of January 9, 1945 and a revised date of recognition of May 10, 1942.  The Certification was signed by the Asst Adjutant General.  

The appellant also submitted November 1953 correspondence from General Headquarters, Armed Forces of the Philippines, Reserve Affairs Division, which reflects that the appellant appears in the reconstructed roster (Grla) of the "L" Company, 3rd Battalion, 14th Infantry, USAFIF NL and recognized as of January 9, 1945.  The recognition of the guerilla unit has been revised as of October 1, 1943.  

He submitted a November 1945 document from Headquarters which reflects the appellant's name and that he was honorably discharged.  

He submitted a November 1945 document which indicated that the appellant was a member of Company "L' and was recommended for a position under the Provincial Government of the Province.  

He also submitted a Joint Affidavit signed by E.C. and S.D. which attest to the birth of the appellant.  

The above documents, however, do not satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as none are an official document of the appropriate United States service department or NPRC.  Accordingly, they may not be accepted by the Board as verification of service for the purpose of determining eligibility for VA benefits, including the one-time payment from the FVEC. 

The appellant did not submit a Certification of Release or Discharge from Active Duty (DD Form 214) or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  The NPRC has certified on two occasions, in consideration of different spellings of his name, that he had no qualifying service.  This verification is binding on VA such that VA has no authority to change or amend the finding.  Duro v. Derwinski, 2 Vet App. 530, 532 (1992). 

The proper course for any claimant, 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). 

Based upon the record in this case, the appellant had no qualifying service.  He, therefore, does meet the basic eligibility criteria for establishing entitlement to the one-time payment from the FVEC.  His claim must be denied.


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.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs