Citation Nr: 1317771	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  11-18 348A	)	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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert E. P. Jones, Counsel
INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines (RO).

In April 2013 the appellant submitted an additional statement in support of his claim along with a waiver of RO review of the newly submitted evidence.

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 service department has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.


CONCLUSION OF LAW

The appellant did not have the requisite service to entitle him to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

As set forth in more detail below, the service department has certified that the appellant had no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the U.S. Armed Forces during World War II.  VA is bound by this certification.  See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997) ("The U.S. Court of Appeals for the Federal Circuit's (Federal Circuit) decision recognizes that service department certifications that Philippine service either qualifies or does not qualify the claimant for veteran status are conclusive and binding on VA."); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).  In light of the binding certification, any VCAA notification error is non-prejudicial as the appellant is not entitled to the benefit as a matter of law.  See Valiao v. Principi, 17 Vet. App. 229 (2003).

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.

For eligible persons who accept a payment from the Filipino Veterans Equity Compensation Fund, such payment shall constitute a complete release of any claim against the United States by reason of such service.  Nothing in the act, however, 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 that 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.

The appellant asserts that he served as a recognized guerrilla from March 1945 to November 1945.  At his April 2013 hearing he stated that he fought the Japanese Army for almost nine months.  At the hearing he submitted a letter in which he asserted that he had earned the FVEC benefit due to his guerrilla service in the Philippines in 1945.  He stated that if the National Personnel Records Center (NPRC) lacks documentation of his service, such is due to someone else's actions or neglect, not any fault of his own, and it is unfair to hold that against him and deny him the benefit he rightfully deserves.  

The appellant submitted a number of official looking documents that he asserts support his claim.  These records include a service record for the period from January 3, 1945 to November 14, 1945, with enlistment record and final indorsement.  He additionally submitted a list of beneficiaries of the Philippine Veterans Affairs Office and a certification from the Office of Adjutant General, Armed Forces of the Philippines.  In August 2011 he submitted a document titled Special Orders, Number 270.  

The record reveals that the RO sent the appellant's pertinent information, to the NPRC with the accompanying information or evidence.  In responses dated in October 2009 and June 2011, the NPRC stated that while the appellant's name was listed in the Reconstructed Recognized Guerrilla Roster (RRGR), he 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 NPRC made that certification after considering the various information provided by the appellant.

The appellant did not submit a Department of Defense DD Form 214, Armed Forces of the United States Report of Transfer of Discharge (DD Form 214), or an original Certificate of Discharge in accordance with 38 C.F.R. § 3.203(a)(1).  The statements and testimony made by the appellant fail to satisfy the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate United States service department.  As such, the appellant's statements and testimony 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 Filipino Veterans Equity Compensation Fund.

In sum, the NPRC has certified that the appellant had no qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces.  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).  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.

Because the appellant had no qualifying service, the basic eligibility criteria for establishing entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund are not met, and the claim must be denied.


ORDER

Basic eligibility for a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs