Citation Nr: 1330019	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  10-47 237A	)	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 (FVEC) Fund.


WITNESSES AT HEARING ON APPEAL

Appellant and Witness


ATTORNEY FOR THE BOARD

D. Johnson, Counsel



INTRODUCTION

The appellant alleges that he had recognized guerrilla service, 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.

The appellant testified before the undersigned Veterans Law Judge in February 2013.  A transcript of the hearing is of record.  The appellant submitted additional evidence at this hearing that was accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ).

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 National Personnel Records Center (NPRC), the federal agency charged to verify service for a 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 Armed Forces of the United States.


CONCLUSION OF LAW

The appellant does not have recognized active military service as required to establish eligibility for FVEC 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).


REASONS AND BASES FOR FINDING AND CONCLUSION

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).

Governing Law

The appellant seeks a one-time payment from the FVEC 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 NPRC 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).

Analysis

The appellant alleges that he served from 1942 to 1945 with a recognized guerilla unit of the Commonwealth Army of the Philippines that was specifically recognized as being in the service of the Armed Forces of the United States.

In March 2009, the appellant submitted an application to receive a one-time payment from the FVEC Fund.  On his application, he reported that he served with the 21st MP Company, Military Police Command, (PA), USAFAF from May 1945 to August 1975.

In an April 2009 statement, the appellant explained that he had served as a guerilla from late 1942 to May 1945 with the Red Lion Division, Malvar Unit, under the command of Lieutenant Colonel P.C.A., and under the overall PQOG Quezon Guerilla, and under the overall command of Brigadier General V.U.  He also reported that in 1945 he enlisted in the regular Force of the Military Police Command (PA) United States Armed Force Far East (USAFFE) under the supervision of the US Army; his unit assignment was the 21st Military Police Company.  The appellant provided a brief description of some of his military activities and provided copies of several documents to support his claim.

The documents that were provided by the appellant included a copy of two photo identification cards; the first was issued by the Republic of the Philippines, Department of Transportation and Communications; and the second by the Republic of the Philippines, Commission on Elections.

The appellant also submitted an affidavit dated in December 1958 from P.C.A., who attested that he was the organizer and commander of the Red Lion's Jungle Combat Troops, Fil-American Irregular Troops (FAIT).  P.A.C. also attested that he inducted the appellant into service in May 1942 as a 2nd Lieutenant.

The appellant also provided an Extract of Special Orders dated in August 1975 indicated that he had completed 30 years of military service and was entitled to receive retirement pay.  

He also submitted a military 'Personal Record' showing he enlisted at Camp Murphy in May 1945, and an Oath of Enlistment.  He also provided a copy of a Qualification Card that shows service beginning in May 1945 with the 21st MP Co (PA) MPCJS, at the rank of Private; service in January 1948 with the 28th PC Company at the rank of Corporal, and in September 1950 with the Del Laguna Company.

The appellant provided a certificate from the Military Police Training School, Military Police Command, USAFFE that was awarded to him in June 1945.  

He also sent in a copy of certification dated in March 2005 from the General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General certifying that he completed 30 years of military service from June 1945 to July 1975.  Another certification form dated in May 2005 from General Headquarters, Armed Forces of the Philippines, Office of the Adjutant General certified that the appellant enlisted in May 1945 and was discharged in August 1975.  

In October 2009, following receipt of the appellant's claim and his supporting documents, the RO requested verification of his service from the NPRC.  In November 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 July 2010, the appellant submitted additional evidence into the record.  He provided a duplicate copy of an Extract of Special Orders dated in August 1975 which indicated that he had completed 30 years of military service and was entitled to receive retirement pay.  

In his July 2010 notice of disagreement, and in a separate written statement dated in September 2010, he provided details of his military activities and the units in which he had served.  He stated that he joined the guerillas in 1942 and had remained in that organization until April 1945.  He further indicated that he had enlisted in the regular force of the Military Police Command, Philippine Army, USAFFE as a student civilian volunteer.  While in this unit, he was reportedly assigned to the 21st Military Police Company and deployed to the Laguna Province where he fought in a skirmish with Japanese forces.

In March 2012, the RO submitted another request for verification of service to the NPRC.  That same month, 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 May 2012, the RO submitted another request for verification of service to the NPRC.  This request included additional information regarding the appellant's branch of service (i.e. Malvar Unit Armed Forces in the Western Pacific (AFEWESPAC)); an additional name (i.e. Juan NMI Tolentino); and all dates of enlistment and separation that had been provided by the appellant.

In June 2012, 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 October 2012, the appellant resubmitted a copy of his certificate from the Military Police Training School, Military Police Command, USAFFE that was awarded to him in June 1945.

In February 2013, the appellant and his daughter testified at a hearing before the undersigned.  The appellant stated that he was member of the 21st Military Police Company, 3rd line Division under Brigadier General Vincenti O'Malley.  The appellant also testified that he had participated in an ambush of the Japanese in his hometown of Mitar Batangas and had served the American paratroopers.

In February 2013, the appellant provided another written statement describing his guerilla activities during World War II.  

In March 2013, the RO submitted another request to the NPRC for verification of service.  The RO provided a copy of the appellant's February 2013 letter.  The request also included additional evidence regarding the appellant's reported branch of service, namely the Red Lion Division and President Quezon Own Guerillas (PQOG).  In June 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.  

Philippine veterans are not eligible for VA benefits unless a United States service department certifies their qualifying service.  Duro v. Derwinski, 2 Vet. App. 530 (1992).  Review of the evidence in this case shows the appellant has not had qualifying service as certified by the service department.  Accordingly, the threshold requirement for legal eligibility for one-time payment from the FVEC Fund is not shown.  38 U.S.C.A. § 107; 38 C.F.R. § 3.41.

The documents submitted by the appellant are not official documents of a U.S. service department.  Therefore, these 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 NPRC, the federal agency charged to verify service for a service department.  The NPRC certified in November 2009, March 2012, June 2012, and in June 2013 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 Board acknowledges that the appellant is competent to report the circumstances of his service.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  However, only the service department can establish if and when a person was serving on qualifying active service.  Venturella v. Gober, 11 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994).  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, 2 Vet. App. 530, 532 (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 his service under 38 C.F.R. § 3.203(c), he is not legally eligible for the FVEC Fund benefit under the American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5.  The Board is sympathetic toward the appellant, but is bound by law, and its decision is dictated by the relevant statutes and regulations.  See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). 

Accordingly, the law is dispositive, and 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 FVEC Fund is denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs