BVA9500651 DOCKET NO. 89-19 578 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether new and material evidence has been submitted to reopen a claim for revocation of the forfeiture of the veteran's rights to U.S. Department of Veterans Affairs (VA) benefits under the provisions of 38 U.S.C.A. § 6104(a) (West 1991). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran has been credited with active service with the Philippine Scouts from February 1941 to September 1958. He had active service from February to December 1941, and was in beleaguered status from December 1941 to April 1942. He was a Prisoner of War (POW) of the Imperial Japanese Government from April to October 1942, and was in a no-casualty status from October 1942 to April 1945. He returned to military control in April 1945, and had inactive duty from that time until May 1956. His last period of active service was from May 1956 to September 1958. No recognized guerrilla service has been certified by the service department. By decision of July 17, 1964, the Board of Veterans' Appeals (Board) held that the evidence established beyond a reasonable doubt that the veteran had forfeited his rights to VA benefits pursuant to 38 U.S.C. § 3504(a) (now 38 U.S.C.A. § 6104(a)). However, a copy of the July 1964 Board decision cannot be located. This appeal arises from a November 1986 determination by the Manila, Philippines Regional Office (RO) which denied revocation of the forfeiture declared against the veteran on the grounds that new and material evidence had not been submitted to warrant reopening the claim, inasmuch as no evidence had been submitted which would establish that the veteran had not voluntarily served in the Bureau of Constabulary (BC). By decisions of December 1989 and September 1991, the Board remanded this case to the RO to obtain additional information and for due process development. The veteran died in June 1991. In May 1993, the appellant (the veteran's son) filed a claim for accrued benefits. There is some question as to whether the appellant is a proper claimant in this forfeiture action. Because of the possibility of entitlement to accrued benefits, the undersigned deems him to be a proper claimant for purposes of this decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in effect, that the documentary and testimonial evidence submitted since the Board last considered this case in 1964 is both new and material, that the claim should be considered to be reopened, and that the forfeiture previously invoked against the veteran should be revoked. Prior to his death, the veteran asserted that he was forced to join the BC, and provided confidential information to the Philippine guerrillas and assisted them while a member of the BC. He stated that he was cleared of charges of collaboration with the enemy by a Philippine court in 1949, and that his rights to VA benefits should not be forfeited, in view of his honorable discharge from service in 1958. He asserted that his mere membership in the BC was intended for the promotion and preservation of law and order and not an act of treason or providing aid and assistance to the enemy. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen the claim for revocation of the forfeiture invoked against the veteran. FINDINGS OF FACT 1. The RO has attempted to obtain all relevant evidence necessary for an equitable disposition of the appellant's appeal. 2. By decision of July 1964, the Board determined that the veteran had forfeited his right to VA benefits under the provisions of 38 U.S.C. § 3504(a) (now 38 U.S.C.A. § 6104(a)). 3. Additional evidence submitted since the July 1964 Board decision only continues to show that the veteran was a willing member of the BC and had no recognized Philippine guerrilla service - information which was already of record when the Board considered this case in 1964. CONCLUSIONS OF LAW 1. The evidence received since the Board forfeited the veteran's rights to VA benefits under the provisions of 38 U.S.C. § 3504(a) (now 38 U.S.C.A. § 6104(a)) in 1964 is neither new nor material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. The July 1964 Board decision forfeiting all of the veteran's rights, claims, and benefits under all laws administered by the VA is final. 38 U.S.C.A. §§ 6104(a), 7104 (West 1991); 38 C.F.R. § 20.1105 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS All relevant facts have been properly developed in this case. In this regard, the Board remanded this case in December 1989 and September 1991 to conduct a search for the missing Board decision of July 17, 1964 which denied revocation of the forfeiture invoked against the veteran, as well as to obtain confidential data retained in a security file. In February and May 1991, extracts from several captured BC documents pertaining to the veteran were received and associated with the claims folder. However, the Manila, Philippines RO indicated in February and May 1991 that certain records pertaining to the veteran's case were missing, and in March 1991, the RO indicated that the Board decision of July 1964 was not of record at the RO. In May 1991, the Manila RO noted that the sole pertinent record maintained in the RO's locked files was a copy of the December 1961 VA Board on Waivers and Forfeitures decision which forfeited the veteran's VA benefits. In a memorandum of January 1994, the VA Compensation and Pension Service indicated that a search for a copy of the July 1964 Board decision and the veteran's security file had not been successful. However, copies of extracts of several captured BC documents referring to the veteran were discovered and have been associated with the claims folder. The Board finds that the VA has undertaken adequate development to assure that a reasonably exhaustive search for relevant records was mounted in accordance with the requirements of Dixon v. Derwinski, 3 Vet.App. 261 (1992). Although an actual copy of the July 1964 Board decision cannot be located, the record does contain a copy of a letter dated July 17, 1964 whereby the veteran was notified of the Board decision. That letter, discussed below, details the reasons and bases for the forfeiture, and the Board is satisfied that the current evidence of record is adequate to equitably adjudicate this claim. Under the applicable criteria, any person shown by evidence satisfactory to the Secretary to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies, shall forfeit all accrued and future gratuitous benefits under laws administered by the VA. 38 U.S.C.A. § 6104(a). The evidence which was of record when the Board considered the issue of whether the veteran had forfeited his rights to VA benefits under the provisions of 38 U.S.C. § 3504(a) (now 38 U.S.C.A. § 6104(a)) in July 1964 is summarized below. A captured November 1943 BC document indicated the veteran's appointment as a patrolman in November 1942, and that he was recommended for promotion to corporal on the basis of an excellent efficiency rating. January 1946 Philippine Peoples Court documents indicate that the veteran was charged with treason and collaboration with the enemy during the Japanese occupation of the Philippine Islands during World War II by virtue of his service with the BC, which included operations against guerrillas. The charges were eventually dismissed due to insufficiency of evidence under Philippine law. In a July 1946 Philippine Army affidavit, the veteran left blank spaces provided for indicating participation in any guerrilla activities - indicating no such participation. He stated that he had been drafted into the BC immediately after his release as a POW in October 1942, and he received training in the BC until his unit was disbanded in September 1944. He indicated that he held the position of corporal and received pay for his work. March 1949 Philippine Peoples Court documents include the argument that the veteran's mere employment with the established government of the enemy did not constitute the crime of treason. April 1949 Philippine court documents include the testimony of a witness as to the veteran's service with the BC in 1944, and the veteran's allegedly having furnished information about Japanese military movements and supplies, which the witness then allegedly passed on to his Philippine guerrilla commanding officer. The veteran testified that he did not join the BC voluntarily, but was compelled to wear a uniform, undergo training, and go out on patrols with Japanese soldiers. He denied burning houses, torturing civilians, or arresting guerrillas. He stated that he did not escape from the BC to join the guerrillas because he was sickly and his wife was pregnant at the time. In recounting the involuntary nature of his service with the BC, the veteran denied being tortured or manhandled into signing a BC membership affidavit. He stated that his service with the BC resulted in his promotion in rank from private to detachment commander. He further stated that he declined an invitation to join Philippine guerrilla forces due to illness. Another witness testified that the veteran interceded for him on one occasion when he was detained and questioned by Japanese military police. September 1949 Philippine legal documents include affidavits from individuals, including information to the effect that in January 1943 the veteran was a member of a BC patrol with Japanese soldiers who conducted a brutal mopping-up operation through many towns, but the veteran's role as an active, willing participant in the operation was questionable. Evidence was offered to the effect that he merely marched behind the actively-engaged Japanese soldiers as an unwilling member of the patrol. In a January 1950 Philippine military affidavit, the veteran indicated that he was forced to join the BC. He stated that he was "employed" by the BC from November 1942 to September 1944 and received pay for his work. December 1954 affidavits from several individuals include one from a service comrade who attested to having been drafted into the BC with the veteran following time spent in a concentration camp. A June 1957 military medical report includes the veteran's military history, to the effect that he was forced to join the BC in December 1942 and received 45 days of training. On assignment in a city in January 1943, he reportedly had the main duty of maintaining peace and order. An October 1958 newspaper article is to the effect that the veteran was forced by Japanese authorities to join the BC following his release from a concentration camp during World War II. In a November 1958 supplement to his application for VA disability compensation, the veteran stated that he was employed by the BC from 1942 until 1944, when his unit was disbanded. He also stated that he assisted guerrilla units by relating information about Japanese activities to guerrilla leaders and soldiers. He admitted to having taken an oath to support or cooperate with the Imperial Japanese Government against the United States and its allies, as a result of which charges were filed against him in the Philippines for helping or aiding the Japanese armed forces or puppet government. The veteran stated that he had been cleared of the charges against him. A September 1959 RO search of captured BC records indicated that the veteran was appointed as a student patrolman in October 1942 and graduated from the BC Academy. He was promoted to the rank of corporal in November 1943. In November 1959, a VA field examination was conducted in the veteran's case. In a deposition, the veteran asserted that he was compelled to join the BC after release from a concentration camp in October 1942. He wore a uniform, and his duties were those of a policeman, maintaining peace and order and traffic control. He also went on patrol, including on one occasion with the Japanese against the guerrillas. He stated that he received a salary for his BC work and was armed with weapons and issued ammunition. He received a promotion to corporal in July 1944. At one point, he served as a replacement for a detachment commander in 1944. His commanding officer recommended him for promotion to corporal after participating in a patrol in January 1943 with the Japanese to mop-up guerrillas, with activities including burning civilian houses and crops and confiscation of property. His other duties with the BC in subsequent assignments included office work. The veteran also attested to maintaining contact with Philippine guerrillas while a BC member. In another deposition, a service comrade attested to being drafted into the BC with the veteran. Another service comrade deposed that he was not forced to join the BC, but rather, chose to do so. Two former guerrilla officers stated that their guerrilla organizations had no contact with the BC in the city where the veteran alleged to have assisted the guerrillas. In a statement of August 1960, the veteran admitted serving with the BC, but he denied any active treason or disloyalty to the United States or Philippine Islands, as his services in the BC were obtained by duress and intimidation by the enemy while he was a POW. He denied killing Philippine guerrillas, and stated that he only maintained peace and order. During the course of a personal hearing conducted at the RO in October 1960, the veteran testified that he was drafted into the BC by the Japanese as a POW. He stated that he participated in patrols to maintain peace and order and fight against bandits posing as guerrillas who confiscated food and clothing of civilians. He also stated that he agreed to assist the guerrillas during his service with the BC. In an affidavit of December 1962, the veteran attested to having been forced to join the BC in December 1942. While a BC member, he stated that he was ordered to accompany a Japanese patrol, but he claimed never to have fired a single shot against guerrilla forces. He asserted that mere membership in the BC intended for the promotion and preservation of law and order and acting only for that purpose was government work, not an act of treason. In July 1964, the veteran was notified of a Board decision that concluded that the evidence established, beyond a reasonable doubt, that his service in the Japanese-controlled BC for a period of two or more years during the Japanese occupation of the Philippine Islands in World War II constituted rendering assistance to an enemy of the United States or its allies within the purview of 38 U.S.C. § 3504(a), thereby warranting forfeiture of all accrued or future gratuitous benefits under the laws administered by the VA. The evidence showed that the veteran had been armed by the BC and participated in patrols against the guerrillas, that he had been commended, and by his faithful and efficient service, promoted to corporal, after which he led detachments on patrol, and that he chose to remain with the BC organization until the return of United States and allied forces to the Philippine Islands. The fact that he had been the recipient of an award for meritorious service with the Armed Forces of the United States prior to his service with the BC, or that a charge of treason, beyond the jurisdiction of the United States courts, had been dismissed for the lack of two witnesses to testify, was found to be not controlling with respect to the law under which forfeiture was invoked in this case. Except as provided in 38 U.S.C.A. § 5108, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b). When a claimant requests that a claim be reopened after an appellate decision has been promulgated and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a basis for allowing the claim. An adverse determination as to either question is appealable. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1105. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. "New and material evidence" means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself, or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). On claims to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). "New evidence" is evidence that is not "merely cumulative" of other evidence on the record. Ibid. Evidence is "material" where it is "relevant to and probative of the issue at hand" and where it is of "sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin, 1 Vet.App. 74. Second, if the Board determines that the evidence is new and material, it must reopen the claim and "evaluate the merits of the veteran's claim in light of all the evidence, both new and old." Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The evidence added to the record since the 1964 Board decision includes numerous statements from the veteran dated between 1979 and 1990, and the testimony of the veteran at a hearing on appeal conducted at the RO in November 1988. However, the additional evidence presented in this case is only cumulative. The evidence previously of record showed that the veteran was a voluntary member of the BC, the purpose of which organization was to assist the Imperial Japanese Government. The new evidence shows nothing more. In fact, the new evidence is, in pertinent part, contradictory to the veteran's assertions that he was forced to join the BC. In his November 1987 Substantive Appeal, the veteran claimed that he pretended to be obedient and was picked-up to be enlisted in the BC for the purpose of securing needed medical treatment. This constitutes evidence that he voluntarily joined the BC, and supports the factual basis which served as the grounds for the 1964 Board decision forfeiting his right to VA benefits. The veteran also claimed that he assisted Philippine guerrillas in his role as a BC member by furnishing them information and securing their release from Japanese captivity. However, this claim is contradicted by the above-mentioned July 1946 Philippine Army affidavit, wherein the veteran left blank spaces provided to indicate guerrilla activities - an indication that he in fact participated in no such guerrilla activities. His statement that he was promoted in rank in the BC only because he was close to BC officers who were also only pretending to be loyal to the Japanese is contradicted by a November 1943 captured BC document which indicates that he was recommended for promotion on the basis of an excellent efficiency rating. In a September 1988 statement, the veteran admitted going out on armed patrol with the Japanese and encountering guerrillas who fired upon them. At the November 1988 hearing on appeal, the veteran testified that, as a POW, he was directed to work on a cotton plantation, but when he arrived at his place of disembarkation, he was told that he had to be trained for the BC. He also stated that he participated in a BC patrol led by Japanese which was ambushed and fired-upon by guerrillas, which led to an exchange of fire. The guerrillas then reportedly disengaged, burning their own headquarters and civilian structures in dispersing. That testimony again only confirms the factual basis which served as the grounds for the Board's 1964 forfeiture decision, in that it shows the veteran's active participation in BC activities against the Philippine guerrillas. In statements of April 1989 and January 1990, the veteran reiterated his contentions that he was forced to join the BC, that his duties consisted of keeping peace and order and directing traffic, that he was never involved in activity against the guerrillas, and that he in fact assisted guerrilla leaders while with the BC and secured the release of guerrillas from Japanese custody. However, the statement that he assisted the guerrillas is contradicted by his above-mentioned July 1946 affidavit, wherein no such assistance was claimed, as well as by the November 1959 statements from former guerrilla officers obtained during the course of a VA field examination, wherein they denied that their guerrilla organizations had any contact with the BC in the city where the veteran alleged to have assisted them. The extracts from several captured BC documents received in February and May 1991 merely confirm the veteran's membership and service with the BC, evidence which was previously of record. As the additional evidence added to the record since 1964 contains no objective proof whatever that the veteran did not render assistance to an enemy of the United States by virtue of his sustained service with the BC, the Board finds that this is not new and material evidence warranting reopening the claim for revocation of the forfeiture, and the claim is dismissed. On the contrary, the additional evidence only continues to show beyond a reasonable doubt that the veteran was guilty of rendering assistance to an enemy of the United States by virtue of his sustained membership and service in the Japanese-sponsored and controlled BC during the enemy occupation of the Philippine Islands, and that forfeiture of his right to VA benefits therefore remains appropriate under the provisions of 38 U.S.C.A. § 6104(a). ORDER New and material evidence not having been submitted to reopen a claim for revocation of the forfeiture of the veteran's rights to VA benefits under the provisions of 38 U.S.C.A. § 6104(a), the claim is dismissed. I. S. SHERMAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board.