Citation Nr: 0006881	
Decision Date: 03/14/00    Archive Date: 03/17/00

DOCKET NO.  98-19 802A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, 
Philippines


THE ISSUE

Basic eligibility for Department of Veterans Affairs (VA) 
benefits.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Taylor, Associate Counsel









INTRODUCTION

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from the April 1998 decision of the Manila, 
Philippines Department of Veterans Affairs (VA) Regional 
Office (RO), which determined that the appellant did not have 
the required military service to be eligible for VA benefits.  


FINDING OF FACT

The Department of the Army 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 United States Armed Forces.


CONCLUSION OF LAW

The appellant has not met the basic service eligibility 
requirements and may not be considered a veteran for purposes 
of VA benefits.  38 U.S.C.A. §§ 101, 107, 5107 (West 1991 & 
Supp. 1999); 38 C.F.R. §§ 3.1, 3.8, 3.9, 3.203 (1999).


REASONS AND BASES FOR FINDING AND CONCLUSION

Factual Background

In his application for compensation or pension, received in 
May 1997, the appellant reported service from July 1941 to 
April 1946.  Accompanying his application was a Philippine 
Army document which indicated that at induction, the 
appellant served in B Co., 1st Bn, 1st Inf. Regt., PC, and 
that between February 1945 and April 1946, the appellant's 
unit of assignment was in 1st QM Laundry Co.  


In November 1997, the RO requested that the service 
department verify the appellant's service.  The RO provided 
the appellant's full name, the alleged dates of service, the 
date of birth, and the reported service as 1st QM Laundry CO 
PA.  In May 1998, the United States Army Reserve Personnel 
Center (ARPERCEN) reported 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 statements in support of his claim, received in May and 
October 1998, the appellant stated that he was inducted into 
the United States Armed Forces in the Far East (USAFFE) by 
Major Parker in October 1941.  The appellant contended that 
he served in the Army of the United States during World War 
II with an ASN 117279.  

In March 1998, the RO requested APERCEN to verify the 
appellant's service.  In June 1998, the RO received a 
document from APERCEN stating 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.  

At a personal hearing, in May 1999, the appellant testified 
that he had active service from July 1941 to April 1946.  He 
stated that his serial number was 117279 and that he served 
in B Co., 1st Bn, 1st Inf. Regt., PC.  The appellant testified 
that he was trained at Balara Training Camp by United States 
Scouts.  The appellant testified that he was not a prisoner 
of war.  

In August 1999, the RO requested ARPERCEN to verify the 
appellant's service.  In September 1999, the RO received a 
document from ARPERCEN stating that no change in the prior 
negative certification in June 1998, was warranted.  




In May 1999, the RO received an Affidavit from Feliciano B. 
Fontelera who reported that he was as Sector Commander of 
Squadron "C" Cabangan Sector Zambales Military District.  
He reported that the appellant was assigned to 1st Inf. Reg. 
PC.  Further, the RO received a joint affidavit from Dionisio 
C. Bulan and Claudio D. Santos which was dated in January 
1999.  The affiants stated that the appellant served in the 
"Headquarters Squadron "C: Cabangsn Sector Zambales 
military District Western Luzon Guerrilla Forces, USAFFE."  

In a Memorandum for File, dated in October 1999, the RO noted 
that the appellant, by oral testimony at the hearing, 
indicated that the individuals who submitted affidavits in 
support of the appellant's contentions were not the 
appellant's comrades in the same company or battalion, and 
that the affiants did not have any personal knowledge of the 
appellant's entry into service, including his induction into 
service.  The memo also noted that, at the hearing, the 
appellant proffered duplicate copies of these affidavits, 
which were already of record.  

In a December 1999 Memorandum for File, the RO noted that the 
records of individuals who claim to have served in the 
Commonwealth Army of the Philippines inducted into the USAFFE 
and those who claim to have served in the organized guerrilla 
forces are maintained by ARPERCEN.  The RO stated that the 
individual records for each potential claimant were 
maintained in alphabetical order.  It was noted that ARPERCEN 
had repeatedly informed VA that, unless the claimant reported 
personal data such as name, which is different from that 
which was provided in a prior request for service 
verification, there was no value in resubmitting a request 
for reverification.  ARPERCEN indicated that a potential 
claimant's service was verified by the records associated 
with his name and that, if the name is a common one or if 
there are minor discrepancies in spelling or middle initial, 
ARPERCEN would compare the service number, date of birth, 
place of birth, and names of next of kin provided in the 
request for information with the records they have on file.  
The RO noted that documents issued by the Philippine Army or 
Philippine Veterans Affairs (with the exception of Form 23, 
Affidavit for Philippine Army Personnel) were of no value in 
establishing service unless they contained personal data that 
was substantially different than that VA had provided 

to ARPERCEN.  The RO reported that the Philippine government 
has its own regulations and laws which permit recognition of 
military service not recognized by the United States Army and 
findings are not binding on ARPERCEN.  The RO noted that the 
service department had certified that the appellant had no 
valid 

Criteria

A person claiming entitlement to VA benefits must achieve the 
status of claimant before an obligation arises to determine 
whether a claim is well grounded under 38 U.S.C.A. § 5107(a) 
(West 1991).  Aguilar v. Derwinski, 2 Vet. App. 21, 23 
(1991); Sarmiento v. Brown, 7 Vet. App. 80 (1994). 

Eligibility for VA benefits is governed by statutory and 
regulatory law which define an individual's legal status as a 
veteran of active military, naval, or air service.  38 
U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6 (1998).

The term "veteran" is defined as 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).  A 
"service-connected" disability is a disability that was 
incurred or aggravated in the line of duty during active 
military, naval, or air service.  38 U.S.C.A. § 101(16); 38 
C.F.R. § 3.1(k).  "Active military, naval, and air service" 
includes active duty.  "Active duty" is defined as full-time 
duty in the Armed Forces.  38 C.F.R. § 3.6(a)-(b).  "Armed 
Forces" consists of the United States Army, Navy, Marine 
Corps, Air Force, and Coast Guard, including their Reserve 
components.  38 C.F.R. § 3.1.  Additionally, service in the 
Philippine Scouts and in the organized military forces of the 
Government of the Commonwealth of the Philippines, including 
recognized guerrilla service, is recognized service for 
certain VA purposes, as authorized by 38 U.S.C.A. § 107; 38 
C.F.R. §§ 3.8, 3.9.








For the purpose of establishing entitlement to pension, 
compensation, dependency and indemnity or burial benefits, VA 
may accept evidence of service submitted by a claimant, such 
as a DD 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 VA 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 requirements of this 
section, the VA shall request verification of service from a 
service department.  38 C.F.R. § 3.203.  With regard to 
Philippine service, certifications by the service department 
will be accepted as establishing periods of recognized 
service as a Philippine Scout, a member of the Philippine 
Commonwealth Army serving with the Armed Forces of the United 
States, or as a guerrilla.  38 C.F.R. §§ 3.8, 3.9.  Moreover, 
the United States Court of Appeals for Veterans Claims (known 
as the United States Court of Veterans Appeals prior to March 
1, 1999) (hereinafter, "the Court") has held that a service 
department determination as to an individual's service shall 
be binding on the VA.  Duro v. Derwinski, 2 Vet. App. 530 
(1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993).







Analysis

The RO requested verification of the appellant's service on 
three separate occasions.  In these requests, the RO reported 
all of the identifying information regarding the appellant 
provided to the RO.  In May 1998 and June 1998, ARPERCEN 
reported 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.  
Additionally, in September 1999 ARPERCEN reported that no 
change was warranted in the prior negative certification of 
June 1998.  As noted above, the Court has held that a service 
department determination as to whether or not an individual 
had qualifying service is binding on VA.  See Duro; Dacoron.

Additionally, ARPERCEN has stated that the records for each 
potential claimant are maintained in alphabetical order and 
that, unless the claimant reports personal data such as a 
name which is different from that previously provided in a 
request for service verification, there is no value in 
resubmitting a request for verification.  See Sarmiento.  In 
the August 1999 request the RO provided the appellant's full 
name, including his middle name.  The appellant has submitted 
no such additional information that would warrant another 
request for verification.  

The Board notes that the record contains a "Certification" 
from the Philippine Army verifying the appellant's service in 
B Co., 1st Bn, 1st Inf. Regt., PC.  However, VA is not bound 
by Philippine Army determinations of service.  Additionally, 
although he has submitted medical treatment records from 
various doctors and facilities, these are not VA doctors or 
facilities.  In any event, the Board again notes that the 
Court has held that a service department determination as to 
an individual's service shall be binding on VA.  See Duro; 
Dacoron.







Therefore, inasmuch as the service department's verification 
of the appellant's service is binding on VA, the Board 
concludes that the appellant is not considered a "veteran" 
for purposes of entitlement to VA benefits and has not 
attained status as a valid claimant.  Therefore, the 
appellant's claim for entitlement to VA benefits must be 
denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 
426, 430 (1994).  


ORDER

Basic eligibility for VA benefits is not established; thus, 
the claim is denied.



		
	JANE E. SHARP
	Member, Board of Veterans' Appeals