Citation Nr: 1319248 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 11-29 223 ) 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 (FVEC) Fund. ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The appellant contends that he served in the Philippine Commonwealth Army, to include recognized guerrilla service, in the service of the United States Armed Forces, between 1942 and 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. 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 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 service requirements for eligibility for a one-time payment from the FVEC Fund have not been met. 38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2012); American Recovery and Reinvestment Act of 2009, § 1002, Pub. L. No. 111-5; 38 C.F.R. § 3.203 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the American Recovery and Reinvestment Act of 2009, Congress established the "Filipino Veterans Equity Compensation Fund" and authorized VA to make one-time payments from the fund to eligible persons who submitted a claim within the one-year period beginning on the date of enactment. Pub.L. No. 111-5, § 1002, 123 Stat. 115. The act defined the term "eligible person" as 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. Id. at § 1002(d). 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, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on the matter is conclusive and binding on VA. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203(c). 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, supra. Thus, in cases where verification of the claimed service is required, absent documentation or certification of such service by the relevant service department, a claimant would not be eligible for VA benefits based on such service. Soria, supra; 38 C.F.R. § 3.203. Under 38 C.F.R. § 3.203(a), VA 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). In the instant case, the appellant seeks entitlement to a one-time payment from the FVEC Fund. In support of his claim, he asserted that he had service with the organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the United States Armed Forces and listed his unit as "MP B. Co.64th Inf. Reg.". A review of the Reconstructed Guerilla Roster maintained by the RO failed to reveal the appellant's name. The RO thus requested that the National Personnel Records Center (NPRC) complete an AGUZ Form 632 and furnish all extracts of Form 23 executed prior to and subsequent to June 30, 1946. In a response dated in September 2009, the NPRC indicated 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 December 2009, the RO denied entitlement to a one-time payment from the FVEC Fund upon finding that the appellant did not have the requisite military service to render him eligible for such benefits. The appellant disagreed with the decision and requested recertification of his service based on the information contained in a photocopy of his AGO Form 23 (Affidavit for Philippine Army Personnel), which purported to show that the appellant was categorized as a "civilian guerilla" and had served as "Private Infantry" with "2" Pltn. 13th Co. 4th Bn. 6th Prov. Station Compl. Camp Tiring" from November 1942 to January 1946. The matter was again referred to the NPRC, which request included the appellant's AGO Form 23. In a September 2010 response, the NPRC found that no change in the prior negative service certification was warranted based on the additional information provided. Thereafter, the appellant submitted additional statements indicating various other units to which he was assigned and dates of service. The matter was again referred to the NPRC with a request for recertification of service based on the additional information provided. In a March 2013 response, the NPRC found that no change in the prior negative service certification was warranted based on the additional information provided. In consideration of the evidence of record, the Board concludes that the appellant is not eligible for a one-time payment from the FVEC Fund because the evidence fails to establish that he had the requisite qualifying military service. Notably, none of the documents submitted by the appellant satisfies the requirements of 38 C.F.R. § 3.203 as acceptable proof of service, as they are not official documents of the appropriate service department. As such, those documents may not be accepted by the Board as verification of service for the purpose of determining eligibility for a one-time payment from the FVEC Fund. Further, all information submitted by the appellant has been referred to the NPRC for review and the NPRC has declined to certify the claimed service on three separate occasions. Although the appellant contends that he did indeed have the requisite service to be eligible for a one-time payment from the FVEC Fund, the lack of certification from the NPRC is binding on VA. See Duro, supra. Accordingly, because NPRC failed to certify that the appellant had the requisite service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces, the appellant has not achieved veteran status for purposes of entitlement to payment from the FVEC Fund and the claim must be denied as a matter of law. See Sabonis, 6 Vet. App. at 430. ORDER Entitlement to a one-time payment from the FVEC Fund is denied. ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs