Citation Nr: 1319607 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 11-24 245 ) 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 P. Olson, Counsel INTRODUCTION The appellant contends he had recognized guerilla service during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2010 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which determined that the appellant did not have qualifying service to be eligible for the one-time payment from the Filipino Veterans Equity Compensation Fund. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant seeks entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund. This issue involves the critical legal criteria of requiring evidence establishing that the appellant is a "veteran" for VA purposes. This determination rests on the nature of his military service. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d) (2012). 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 Filipino Veterans Equity Compensation 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 "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." Id. 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. Id. In support of his claim, the appellant has submitted a document from the Commonwealth of the Philippines indicating that he (with his last name spelled LATUHA) was discharged from the military service of the Philippine Commonwealth as of September 27, 1945. In addition, the appellant submitted an Affidavit for Philippine Army Personnel indicating that he (with his last name spelled LATUHA) was with "B" Company, Bayside Regiment in Binanognan from July 15 1942 to February 4, 1945; attached to a Cavalry Division in Taytay-Antipolo from February 5, 1945 to March 10, 1945; attached to 43 Division in Binanognan from March 11, 1945 to May 5, 1945; and laid low waiting for orders from May 6, 1945 until his discharge on September 27, 1945. It was indicated that he was a civilian guerrilla. In June 2011, VA received a document from National Headquarters DAV-Philians Social Security Organization indicating that the appellant would received from the United States Federal Government $547.30 for service in a guerrilla unit from May 7, 1942 to November 27, 1942; $2,310.40 for service from November 20, 1942 to August 5, 1944 and from August 6, 1944 to September 26, 1945. The document states, The following "STATEMENT OF UNPAID ARREARS-IN-PAY" is an individual computation of payment purposely, to be received from the United States Federal Government by the aid World War II Veteran who accomplished this form. This form is to be accomplished by the DAV-PHILIANS MEMBERS ONLY as this organization is contemplating to file a CIVIL SUIT within the U.S. Court of Claims, Washington, D.C. or in any United States Federal Courts of jurisdiction for the COLLECTION OF PAYMENT of its Veterans Unpaid Members corresponding to their recognized unpaid military services during World War II pursuant to the provisions of Executive Order No. 21 of Ex-President Sergio Osmena dated October 28, 1944 and duly confirmed by General Douglas MacArthur dated, November 17, 1944. This "Statement of Unpaid Arrears-in-Pay" was computed pursuant to the provisions of Executive Order No. 22 of the above-named authorities within the same specific period. This form is a collection of data and statistics to be utilized as DOCUMENTARY EVIDENCE in Courts or in pushing Legislations in the United States benefitting the said claimant ... The appellant also submitted a June 2010 letter from the Department of National Defense, Philippines Veterans Affairs Office, Veterans Compound which certifies that according to the records available, the appellant is a veteran of Philippine Revolution/World War II who served with Marking's Fil-American Troops with the grade/rank of Pvt. Further, the appellant submitted documents from National Headquarters, DAV-PHILIANS SOCIAL SECURITY ORGANIZATION also in contemplation of a civil suit for payment by the United States Government for military services performed by the appellant. A guerrilla is a person who served in a unit that resisted the Japanese after capitulation of the Armed Forces. The unit must have been under a commissioned officer of the United States Army, United States Navy, United States Marine Corps, or Philippine Army, that was recognized by, and cooperating with, the Armed Forces of the United States. Service recognized by Guerrilla Affairs Division (GAD) as shown on a reconstructed troop roster, casualty roster, or individual letter of recognition This type of service is usually certified by the service department as "Recognized guerrilla service," and qualifying service for compensation. Guerrilla service not recognized by GAD, but in a guerrilla unit under the command of a commissioned officer of the U.S. Armed Forces (including the Regular Philippine Scouts) or in the Philippine Army, will be certified by the service department as "Unrecognized guerrilla service under......" (naming the officer and, if the officer was a member of the Philippine Army, giving the officer's rank and organization). This type of service is qualifying service for compensation only if the person was a former member of the Armed Forces of the United States, including the Regular Philippine Scouts, or the Philippine Army. Guerrilla service not recognized by GAD and not under the command of a commissioned officer of the Armed Forces of the United States or Philippine Army is certified as "Unrecognized anti-Japanese activity" and is not, in and of itself, qualifying service for compensation. However, this type of service may be considered active service for Department of Veterans Affairs (VA) benefits under 38 C.F.R. § 3.41 if it was performed by a person who was a former member of the Armed Forces of the United States, including the Regular Philippine Scouts, or Philippine Army, and whose injury or death is determined to have been inflicted by the Japanese because of unrecognized anti-Japanese guerilla activity. In March 2010, VA requested certification by NPRC to establish active service. VA noted that the Veteran's name was on the guerrilla roster. NPRC reported, "Subject has no service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces." This finding was reaffirmed in March 2013, following submission to NPRC of Certification from Philippine Veterans Affairs Office dated June 10, 2010, USAFFE-Guerrilla Military Data and Statistics, Confirmation and Recognition of payment and Explanatory note from DAV-Philians Social Security Organization, PA AGO Form No. 55 (Certificate of honorable discharged), PA AGO Form 23 Affidavit for Philippine Army Personnel. NPRC noted no change warranted in prior negative service certification. In March 2013, however, VA stated that the appellant's name was not on the guerrilla roster. The Board observes that in past instances where veteran status has been the issue, and the Board's decision was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court), the Court has routinely held (by endorsing Joint Motions by the parties) that if any certification is made based upon imprecise and/or nonspecific information, such certification will be deemed inadequate. Based on the inconsistent submissions to NPRC, it is the Board's opinion that another request for service department certification of the appellant's service/nonservice is necessary. Accordingly, the case is REMANDED for the following action: 1. An additional attempt to verify the appellant's active service, including under the last name of LATOJA and the alternate name of LATUHA, should be accomplished by contacting the appropriate federal entities, including the National Personnel Records Center, and any other authority deemed appropriate. 2. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).