BVA9501011 DOCKET NO. 92-11 964 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Washington, D.C. THE ISSUE Whether the appellant has basic eligibility for non-service- connected disability pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The appellant had recognized guerrilla service in the Philippines from February to June 1945, and service in the Regular Philippine Army from June 1945 to March 1946. He further served as an enlisted man in the Philippine Scouts from July 1946 to April 1949. Philippine Armed Forces records also indicate that the appellant served in the Regular Philippine Army in the service of U.S. Armed Forces beginning in December 1941, although such service has not been verified by the U.S. Department of the Army. This case came before the Board of Veterans’ Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C., in January 1992 which found that the appellant did not meet basic eligibility requirements for non-service-connected pension benefits. The case was administratively remanded in August 1992 to afford the appellant an opportunity for a personal hearing. Such a hearing was held at the RO in Detroit, Michigan, in December 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that, under laws administered by VA, he is entitled to VA disability pension benefits on the basis of his service in the Army of the United States from July 1946 to April 1949. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant does not have basic eligibility for VA non-service-connected disability pension benefits. FINDING OF FACT The appellant had recognized guerrilla service in the Philippines from February to June 1945 and service in the Regular Philippine Army in the service of U.S. Armed Forces from June 1945 to March 1946, and service as an enlisted man in the Philippine Scouts from July 1946 to April 1949. Service in the Philippine Army in the service of U.S. Armed Forces beginning in December 1941 has not been verified by the U.S. service department. CONCLUSION OF LAW The appellant’s service, consisting of recognized guerrilla service, service in the Regular Philippine Army, and service as a Philippine Scout enlisted under Section 14, Public Law 190, 79th Congress, does not constitute active military service for purposes of VA disability pension benefits. 38 U.S.C.A. §§ 101(2), 107, 1502, 1521 (West 1991); 38 C.F.R. §§ 3.6, 3.8 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Both the serviceman and the National Personnel Records Center have provided statements as to his military service. There is no argument as to the units, the periods, or the capacity in which he served. The record reflects that he had recognized guerrilla service in the Philippines from February to June 1945 and service in the Regular Philippine Army from June 1945 to March 1946, in the service of U.S. Armed Forces. Further, he enlisted in the Philippine Scouts on July 15, 1946, and served therein until April 1949. Additionally, there are indications in the record that the appellant may also have served in the Philippine Army in the service of U.S. Armed Forces beginning in December 1941. However, this service has not been verified by the U.S. Department of the Army, although this is not significant in this case. Whether or not he served during the earlier period, such service in the Philippine Army would not confer eligibility for pension in any event, as will be discussed below. At his personal hearing, the appellant provided testimony regarding the dates of his service with the Commonwealth Army of the Philippines and with the Philippine Scouts, as noted above. He also again expressed his belief that such service qualifies him for non-service-connected VA disability pension benefits. The law authorizes the payment of pension to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C.A. §§ 1502, 1521. 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), shall not be deemed to have been active military, naval or air service for the purpose of any law of the United States conferring any rights, privileges or benefits upon any person by reason of the service of such person in the Armed Forces, except for benefits under certain contracts of National Service Life Insurance; the Missing Person’s Act; compensation for service-connected disability or death; dependency or indemnity compensation for service-connected death; and burial benefits. Service in the Philippine Scouts under Section 14, Public Law 190, 79th Congress (the "Armed Forces Voluntary Recruitment Act of 1945"), shall not be deemed to have been active military, naval or air service, except for benefits under certain contracts of National Service Life Insurance; compensation for service-connected disability or death; and dependency or indemnity compensation for service-connected death. This does not apply to officers who were commissioned in connection with the administration of Public Law 190. 38 U.S.C.A. § 107; 38 C.F.R. § 3.8. In order to establish basic eligibility for VA disability pension benefits, it is required, in part, that the serviceman have active military, naval or air service. See 38 U.S.C.A. §§ 101(2), 1521. Under the pertinent laws and regulations, service as a member of the Commonwealth Army of the Philippines (Regular Philippine Army), including the recognized guerrilla forces, while in the service of U.S. Armed Forces, is not deemed to be active service for VA disability pension benefits. Further, since the appellant's enlistment as a Philippine Scout was in July 1946, his enlistment was under Section 14, Public Law 190, 79th Congress, as that was the only authority for enlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947. See 38 C.F.R. § 3.8(b). By law, unlike service in the Regular Philippine Scouts or "old" Scouts, such service is not deemed to be qualifying service for non-service-connected disability pension benefits. The appellant was not commissioned as an officer during this period. Accordingly, it is apparent that favorable action in connection with the appellant’s claim for non-service-connected disability pension benefits is not in order. The law precludes basic eligibility for pension based on the appellant's service. The Board has carefully reviewed the entire record in this case, including the testimony presented by the appellant at the December 1992 personal hearing. However, this is a case in which the law is dispositive, and the appeal must therefore be denied. Sabonis v. Brown, 6 Vet.App. 426 (1994). ORDER Basic eligibility for non-service-connected VA disability pension benefits is denied. D. C. SPICKLER Member, Board of Veterans’ Appeals (CONTINUED ON NEXT PAGE) 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 of Veterans’ Appeals 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 of Veterans’ Appeals.