Citation Nr: 1320081	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  11-31 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada



THE ISSUE

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



ATTORNEY FOR THE BOARD

A. Shawkey, Counsel



INTRODUCTION

The appellant claims service during World War II.

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2010 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  In this determination the RO denied a claim for a one-time payment from the Filipino Veterans Equity Compensation Fund.  The case was forwarded to the Board from the Reno, Nevada, RO.

In April 2013, the RO informed the appellant that he was scheduled to appear at a Board hearing at the RO in May 2013; this was pursuant to his October 2011 and June 2012 requests on his substantive appeals to attend a Board hearing.  However, the record shows that he failed to report to the hearing.  

In an April 2009 Memorandum Decision of the United States Court of Appeals for Veteran's Claims (Court), the Court dismissed the appellant's notice of appeal (NOA) from a November 2005 Board decision denying his claim for eligibility for VA benefits on the basis that he did not have qualifying active military service for purposes of VA benefits.  By letter dated in February 2012, VA informed the appellant that the Court had recently clarified that the time to file a Notice of Appeal (NOA) may be equitably tolled in certain, limited circumstances.  See Bove, Rasheed, Lopez, and King v. Shinseki, 25 Vet. App. 136 (2011).  Thus, based on the date his claim was dismissed, the appellant was informed that he had until June 5, 2012, to file a motion to recall mandate premised on an argument that the NOA should be equitably tolled.  It does not appear from the record that the Veteran filed such a motion.  Thus, the Board will proceed with a decision on the issue as noted on the title page above.   

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 through 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 U.S. Armed Forces during World War II.


CONCLUSION OF LAW

The appellant does not have the requisite service to entitle him to a 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 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000

As it is the law, and not the facts, that are dispositive of the appeal, the duties to notify and assist imposed by the VCAA are not applicable to this claim.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  The enactment of the VCAA does not affect matters on appeal from the Board when the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  Because qualifying service and how it may be established are outlined in statute and regulation, and because service department certifications of service are binding on VA, the Board's review is limited to interpreting the pertinent law and regulations.

II.  Analysis

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 appellant contends that he served with a unit that should be recognized as establishing legal entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.  He has specifically asserted that he served in the USAFFE Luzon Guerilla Army Forces in East Central Luzon Guerilla Area, Pangasinan-Tarlac Military District, Headquarter Squadron 427, Philippines, under a regiment commander in the U.S. Army.  He also asserts that in San Manuel, Tarlac, Guerilla Unit Squadron 427 was formed where he served as a 2nd Lieutenant in the Intelligence Unit in April 1943.  

The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable.  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).

Pursuant to 38 U.S.C.A. § 107(a) service 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, will not be deemed to have been active military, naval, or air service except for specified benefits including disability compensation benefits authorized by chapter 11, title 38, United States Code.  38 U.S.C.A. § 107(a).  Under 38 C.F.R. § 3.40, certain service with the Commonwealth Army of the Philippines, with the Philippine Scouts, and guerilla service is included for VA benefits purposes.  These include service of persons enlisted under section 14, Public Law 190, 79th Congress (Act of October 6, 1945).

Under 38 C.F.R. § 3.203(a), the 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.  A copy of an original document is acceptable if the copy is issued by the service department or if the copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; and (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of VA, the document is genuine and the information contained in it is accurate.

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of 38 C.F.R. § 3.203(a), VA is required to request verification of service from the service department.  See 38 C.F.R. § 3.203(c).

Under 38 C.F.R. §§ 3.40 and 3.41, certification of service is a prerogative of the service department, and the VA has no authority to amend or change their decision. The Court has held that findings by a United States service department verifying or denying a person's service are binding and conclusive upon the VA.  See Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

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 this case, the appellant does not contend that he served in the organized military of the Government of the Commonwealth of the Philippines, or in the Philippine Scouts.  He essentially contends that he served as part of the recognized guerillas.  In support of his claim, he submitted evidence that includes his statements and affidavits, affidavits from people who purportedly served with him, and Philippine military documents.  The pertinent documents are outlined below.

An April 1943 unit roster of the USAFFE Luzon Guerilla Army Forces, includes the appellant's name, listed under Officers, 2nd Lieutenant.  A Certificate of Service indicates that the appellant served in the Guerilla Forces from April 1943 to April 1945.  Additional April 1943 documents indicate that the appellant was inducted as 2nd Lieutenant and Intelligence Officer in his unit.  It was noted on a Special Order Extract that the appellant was appointed by order of a major in the U.S. Army. 

A memorandum document dated in June 1947 addressed to Guerilla Affairs from an individual stating that he had been the Captain-Inf (G) of Squadron 427 and was filing a supplemental roster of squadron 427 (which lists the appellant's name), for consideration for recognition of active civilian guerillas.  A reply, dated in July 1947, addressed to the above noted individual from Headquarters, Philippine-Ryukyos Command, Office of the Commanding General, confirming receipt of the request and denying the request as it was not timely filed.

A November 1957 affidavit submitted by the individual above stating that he was an organizer of a guerilla unit attached to the 32nd Infantry Division, U.S. Army, and personally knew the appellant was inducted into his unit in April 1943, where he was commissioned as 2nd Lieutenant.  The individual also noted that the appellant was not included in the recognized roster because he asked to be separated from the unit in April 1945 so that he could report to his civilian occupation, but that the appellant was included in their original roster signed by their Colonel. 

A January 1992 joint affidavit submitted from two individuals who stated that they were members of the G. Company, 2nd Battalion, 1st Pangasinan Regiment with the ranks of Sergeant and Corporal and personally knew the appellant to be a 2nd Lieutenant in their unit.  They also stated that the appellant was not given an Army serial number because he was released for private medical treatment for malaria, and went straight into a civilian job. 

An Application for Age Old Pension from Philippine Veterans Affairs Office dated in February 1993.

An affidavit submitted in March 2000 from two individuals who stated that they were officers and personally knew that the appellant was inducted in 1943 and served as a 2nd Lieutenant and Intelligence Officer.  They also noted that their unit was attached to the 32nd Infantry Division of the U.S. Army. 

Documents dated in October 2000 and November 2000 from the Philippines Department of National Defense, Military Service Board, recognizing the appellant as a conferred military veteran.  The appellant also submitted a copy of the 1997 Philippine Congressional Act, which created the Military Service Board under the Department of National Defense to review applications for confirmation of military service between December 1941 and July 1945. 

A Certificate of Appreciation, dated in January 2007, from Veterans of Foreign Wars of the United States recognizing the appellant as faithfully supporting fellow veterans and their families.

An affidavit submitted in February 2003 by an individual who indicated that he was an Officer in the U.S. Army during World War II and was stationed with the 26th Cavalry Regiment, Philippine Scouts, on Luzon Island in the Philippines.  He said he organized and commanded a Guerilla Force, known as the East Central Luzon Guerilla Area (ECLGA).  He also noted that one of the units under his command was the 1st Pangasinan Regiment, Pangasinan-Tarlac Military District.  He stated that after having examined the affidavits, rosters, and other documents submitted by the appellant, with particular attention to the Military Service Board's Confirmation of Military Service, which was signed by an individual who coincidentally was on the affiant's staff in the ECLGA, he believed the appellant had been a legitimate recognized guerrilla under his command and recommended that he be accepted.  The Board notes that this is the same individual whose name appeared on a 1943 document ordering that the appellant be inducted as a 2nd Lieutenant and Intelligence Officer in the Guerilla Forces of the Commonwealth of the Philippines. 

Following receipt of the above-outlined documents, the RO contacted the service department on three occasions and requested verification of the appellant's reported service.  In conjunction with the requests, the RO provided the NPRC with copies of the supportive documents outlined above.  See Capellan v. Peake, 539 F. 3d 1373, 1381-82 (Fed. Cir. 2008).  In March 2010, December 2010 and April 2012, the NPRC responded 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.  It is noted that these findings were consistent with earlier determinations regarding earlier claims.  Such verification was also made in May 1985.

As noted, the NPRC has, in conjunction with this claim, certified on three occasions 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).  The proper course for the appellant, if he 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).  Recognition of service by the Philippine Government, although sufficient for entitlement to benefits from that Government, is not sufficient for entitlement to the one-time payment from the Filipino Veterans Equity Compensation Fund.  This department is bound to follow the certifications by the service departments with jurisdiction over United States military records.

As the service department through the NPRC has certified that the appellant did not have the requisite service to qualify him for payment from the Filipino Veterans Equity Compensation Fund, the appeal must be denied.


ORDER

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


____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs