Citation Nr: 1314333	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  10-43 545	)	DATE
	)
	)

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


THE ISSUE

Entitlement to one-time payment from the Filipino Veterans Equity Compensation fund.


ATTORNEY FOR THE BOARD

D. Johnson, Counsel












INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.  

The Appellant alleges that he had recognized guerrilla in the service of the Armed Forces of the United States during World War II.

This matter is before the Board of Veterans' Appeals (Board) on appeal of administrative decision issued in January 2010 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), the federal agency charged to verify service for a service department, certified that the Appellant had no service as a member of the Philippine Commonwealth Army, including 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 as required to establish eligibility for Filipino Veterans Equity Compensation Fund benefits.  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).







The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

The VCAA does not apply in this case, because there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (The U.S. Court of Appeals for Veterans Claims held that the VCAA does not apply to a claim if there has been factual development and there is no reasonable possibility that any further assistance would aid the Appellant in substantiating the claim.).


REASONS AND BASES FOR FINDING AND CONCLUSION

Governing Law

The Appellant seeks a one-time payment from the Filipino Veterans Equity Compensation Fund under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Section 1002 (enacted February 17, 2009) (to be codified in Title 38 of the United States Code: Veterans' Benefits).  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.  The Secretary of VA is to administer the fund consistent with applicable provisions of the Title 38 of the United States Code.

Under Section 1002, an eligible person is any person: (1) 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; or (2) any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (3) any eligible person was discharged or released from service under conditions other than dishonorable.  See 38 C.F.R. § 3.40 (eligibility for VA benefits for certain Philippine service).

For the purpose of establishing evidence of service, the Department of Veterans Affairs may accept evidence of service submitted by a claimant, such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department; (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of the Department of Veterans Affairs the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a).

When the claimant does not submit evidence of service or the evidence submitted does not meet the stated requirements, the Department of Veterans Affairs will request verification of service from the service department.  38 C.F.R. § 3.203(c).  The National Personnel Records Center is the federal agency charged to verify service for a service department.

The findings of the U.S. service department verifying a person's service are binding on VA for the purpose of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992).








Facts and Analysis

The Appellant alleges that he served from December 1943 to February 1946 with a recognized guerilla unit of the Commonwealth Army of the Philippines that was specifically recognized by the Army Forces, Western Pacific, as being in the service of the Armed Forces of the United States.

As proof of qualifying service, the Appellant has submitted a certification issued by the Armed Forces of the Philippines, Office of the Adjutant General, which shows that the Appellant had a prior military status of guerilla with the "Z" Co. 6 Bn. 3" Pang. Regt. PTMD.  The certificate shows that the Appellant joined the unit in December 1943 and was discharged in February 1946.

The Appellant also submitted a November 1998 "APPLICATION FOR OLD AGE PENSION (VETERAN)," from the Philippine Veterans Affairs Office (PVAO).  The office indicated the Appellant served as a World War II guerilla with the last unit of assignment being the "Z" Co. 6 Bn. 3" Pang. Regt. PTMD with a rank of private. 

The Appellant also submitted a copy of an identification card issued in December 2009 by the PVAO, which referred to him as a "World War II Veteran." 

The Appellant also provided a form dated in March 2010 from the PVAO that indicated that he was a "veteran of the Philippine Revolution/World War II" who served with the "Z" Co. 6 Bn. 3" Pang. PTMD with the rank of private.  This form also shows that his "APPLICATION FOR OLD AGE PENSION" had been approved.

In December 2009, the NPRC reported that the Appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  



In April 2010, in the Notice of Disagreement, the Appellant stated that he served as a member of Guerilla "2" Company 6th Bn, 3rd Pangasinan Regiment PTMD, with the rank of private with a serial number of 452592 during World War II.  He also stated that he was a Filipino guerilla from December 1943 to February 1946, when the Philippines was under Japanese Imperial rule.

In January 2012 and again in February 2013, the NPRC reported that the Appellant did not have service as a member of the Philippine Commonwealth Army, including the recognized guerrillas in the Service of the United States Armed Forces.  

As the documents submitted by the Appellant were e not official documents of a U.S. service department, the documents fail to satisfy the requirements of 38 C.F.R. § 3.203(a) as acceptable proof of service.  As the documents were not issued by a U.S. service department, the RO sought verification of service from the National Personnel Records Center, the federal agency charged to verify service for a service department, and the NPRC certified in December 2009, in January 2012, and in February 2013, 211 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.  

The findings of the U.S. service department through the NPRC are binding on VA for the purpose of establishing service in the U.S. Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  

The Appellant has provided no further evidence or information that would warrant a request for recertification from a U.S. service department, and no further development is needed.  See Sarmiento v. Brown, 7 Vet. App. 80 (1994) (recertification with evidence of erroneous spelling of name); Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (recertification when there is newly received relevant evidence since the negative certification).




As the Appellant has not submitted acceptable evidence of service under 38 C.F.R. § 3.203(a), and as a U.S. service department has not verified the Appellant's service under 38 C.F.R. § 3.203(c), the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b). 

The Board therefore concludes that the Appellant is not legally eligible for the Filipino Veterans Equity Compensation Fund benefit under the American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5. 

As the law is dispositive, the claim must be denied because of the lack of legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

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



____________________________________________
George Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs