BVA9502792 DOCKET NO. 93-07 245 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Whether the forfeiture invoked against the appellant under 38 U.S.C.A. § 6104(a) (West 1991) was proper. ATTORNEY FOR THE BOARD Neil Reiter, Counsel INTRODUCTION The service department has certified that the veteran was on a beleaguered status from December 20, 1941, to May 5, 1942, was missing from May 6, 1942, to May 12, 1942, was a prisoner of war from May 13, 1942, to September 27, 1942, was in a no casualty status from September 28, 1942, to August 15, 1945, was absent without leave on August 16 and August 17, 1945, and was a member of the Regular Philippine Army from August 18, 1945, to June 30, 1946. The service department has also certified that alleged prisoner-of-war status from September 28, 1942, to October 10, 1942, was not supported by evidence, that the appellant was a member of the Japanese Bureau of Constabulary from October 11, 1942, to September 9, 1944, and that alleged guerrilla service from September 10, 1944, to August 15, 1945, was not supported by the record. In March 1988, the veteran submitted a claim for service connection for disability. The regional office found that he was entitled to service connection for disability in a rating action dated in July 1989. However, after additional information was received, an administrative decision in July 1990 proposed that forfeiture be invoked against the appellant under the provisions of 38 U.S.C.A. § 6104(a). Subsequently, the veteran was advised of this proposed decision, the reasons for this decision, his appellate rights, and his right to present additional information. After a final administrative determination concerning forfeiture, the veteran's records were sent to the Director of the Compensation and Pension Service, and the Director, in a decision dated in May 1991, determined that the veteran's membership and service in the Bureau of Constabulary from 1942 to 1944 was sufficient to invoke forfeiture under 38 U.S.C.A. § 6104(a). The veteran was provided notice of the declaration of forfeiture, submitted a notice of disagreement, and was then sent a statement of the case relating to this issue. He then submitted a timely appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that the forfeiture should not have been declared against him since he did not join the Bureau of Constabulary voluntarily. He contends that he was forced to join the Bureau of Constabulary when he was a prisoner of war, under threat of harm, and that his duties in the Bureau of Constabulary were merely that of a cook. He noted that he was cleared by a Loyalty Board upon his return to military control in August 1945. 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 forfeiture invoked against the veteran under the provisions of 38 U.S.C.A. § 6104(a) was improper. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the regional office. 2. The appellant served as a member of the Bureau of Constabulary for nearly two years, from October 1942 to September 1944. 3. The evidence of record does not establish that the veteran was disloyal to the United States to the extent that he rendered assistance to the Japanese war effort by his service in the Constabulary. CONCLUSION OF LAW The veteran was not guilty of rendering assistance to an enemy of the United States. 38 U.S.C.A. §§ 5107, 6104(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant facts have been properly developed. I. Background The service department has certified that the veteran had military service between December 1941 and June 1946, including a period of prisoner-of-war status between May 1942 and late September 1942. The service department has also certified that the appellant was a member of the Bureau of Constabulary from October 1942 to early September 1944. He had no recognized guerrilla service. There is some evidence that he had further service in the Philippine Army after June 1946. A claim for service connection for disability was assigned by the appellant in March 1988. In a supplemental form, he reported that he had been a member of the Bureau of Constabulary with the rank of private. Several documents relating to the appellant's service were received subsequently. An Affidavit for Philippine Army Personnel signed by the appellant in January 1946 was received showing the appellant's prisoner-of-war status and his service in the Philippine Constabulary from October 1942 to September 1944. A copy of a Philippine Army Loyalty Status Board report dated in February 1946 shows that the appellant served in the Bureau of Constabulary as a patrolman from October 1942 to September 1944. The Board's finding showed that the appellant was "drafted" into the Bureau of Constabulary after he was released in October 1942, that he served as a patrolman, and that he was released after returning to United States control, with no charges filed against him. It was recommended that he be retained in service. An affidavit from [redacted] signed in February 1946 indicates that the veteran was a patrolman in the Bureau of Constabulary, and that the veteran usually worked in the kitchen as a cook. A statement from [redacted] indicated that he did not believe that the appellant was disloyal in his duties in the Bureau of Constabulary. An affidavit by the appellant dated in February 1946 indicated that he was forced to join the Bureau of Constabulary, and that he served as a cook in that unit. A report from the Loyalty Status Board dated in July 1946 indicated that a review of the appellant's case resulted in the recommendation that he be retained in service. A joint affidavit was received from [redacted] and [redacted] indicating that the appellant was a cook while he was in the Bureau of Constabulary. On a statement in support of claim in August 1989, the appellant indicated that he was forced to join the Bureau of Constabulary, and that after the completion of his military training in that organization, he was assigned as a company cook. A field investigation was performed to interview the appellant and [redacted]. It was noted that [redacted] had also recently applied for Department of Veterans Affairs (VA) benefits. Mr. [redacted] reported that he was a member of the Bureau of Constabulary, that he was forced to join the Bureau, and that he knew the appellant during his service. Mr. [redacted] reported that he was a mess sergeant, and that the appellant was assigned as a cook in the capacity of a private. The appellant was deposed and again reported that he was forced to join the Bureau of Constabulary, and that his duties were that of a cook. He stated that he was a cook, that he did not join patrols against the guerrillas, and that he was not given a weapon. Other documents were received, which showed a list of members of the Bureau of Constabulary that surrendered, and the appellant's name was one of those listed. Another document for clearance of former members of the Bureau of Constabulary show that the appellant was classified as of doubtful loyalty. Another statement was received from [redacted], dated in October 1991, in which Mr. [redacted] again noted that he and the appellant went through academy training for the Bureau of Constabulary, and that such training included police duties. He then noted that he and the appellant were assigned to the mess. II. Analysis 38 U.S.C.A. § 6104(a) provides that any person, shown by satisfactory evidence, to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States shall forfeit all rights to benefits under laws administered by the Secretary of the VA. In this case, the service department has certified that the appellant was a member of the Bureau of Constabulary for nearly a two-year period which began shortly after his prisoner-of-war status had ended. The record clearly reflects, and the appellant has never denied, that he was a member of the Bureau of Constabulary for a significant period of time. Information pertaining to the authority, powers, duties, and functions of the Bureau of Constabulary as contained in the official journals of the Japanese military administration and executive orders pursuant thereto provide evidence of the organization and collaboration of the Bureau of Constabulary with the Japanese Imperial Forces. Membership in that organization subsequent to December 1941 is evidence of assistance to the Japanese war effort. The Bureau of Constabulary has been recognized as being part of the Japanese military occupation and administration, and as part of the Japanese Imperial Forces. In this case, the veteran's membership in the Bureau of Constabulary was questioned initially when he returned to United States control, as he was considered of doubtful loyalty. However, simple membership in such an organization is not conclusive proof that he was guilty of "mutiny, treason, sabotage or rendering assistance to an enemy of the United States...," which is the statutory standard which must be met. In reviewing the record, the Board is struck by the essential absence of any derogatory information beyond the fact of membership in the Bureau. Evidently, the veteran was assigned as a cook in his unit in the Bureau of Constabulary and the evidence does not show that he was ever issued a weapon or took adverse action against the indigenous population. While he was listed as a patrolman on certain documents, it is not clear if the references are to his duties or merely indicative of his rank. There is no indication that he was ever promoted or had any position of leadership or influence. Affidavits in the file, as well as the veteran's own statements, point to his continued duties as a cook while he was in the Bureau of Constabulary. There is no evidence that he ever performed patrol duties. The Loyalty Board reviewed the veteran's case and cleared him, recommending that he be retained in service. There is some evidence in the file that he continued to serve in the Philippine Army after 1946. After reviewing the complete evidence of record, the Board believes that the evidence is equivocal, and that there is insufficient evidence of a persuasive nature that the veteran's assignment and duties in the Bureau of Constabulary were of such a nature as to constitute the rendering of significant assistance to an enemy of the United States. The veteran's duties as a cook would seem to indicate that he did not go out on patrol, or carry a gun in public, and there are no statements or evidence in the file that the veteran took part in activities against the United States, the Philippine Army, or the local population. As he was cleared by the Loyalty Board, the Board believes that there is sufficient reasonable doubt in this case, and that the evidence does not establish that his actions during service were of such a nature as to meet the criteria for forfeiture of his benefits under laws administered by the VA. 38 U.S.C.A. §§ 5107, 6104(a). ORDER The forfeiture invoked against the appellant under the provisions of 38 U.S.C.A. § 6104(a) was not proper. The benefit sought on appeal is granted. ROBERT D. PHILIPP 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 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.