Date: April 1, 1998 [VAOPGCPREC 4-98]{.underline}

From: Acting General Counsel (022)

Subj: Applicability of 38 U.S.C. § 2305 in Claims for Burial Benefits
Based upon Service in the Commonwealth Army of the Philippines During
World War II

To: Acting Chairman, Board of Veterans\' Appeals (01)

**QUESTION PRESENTED**:

Does 38 U.S.C. § 2305 have any application in claims for burial benefits
involving veterans who served in the organized military forces of the
Commonwealth of the Philippines while such forces were in the service of
the United States Armed Forces during World War II?

**COMMENTS:**

1\. This question arose as a result of the Court of Veterans Appeals\'
(CVA) single-judge decision in *Cornel v. Brown*, No. 94-1190 (Vet. App.
Oct. 4, 1996) (mem.). In *Cornel,* the CVA affirmed in part and remanded
in part a decision of the Board of Veterans\' Appeals (BVA) denying a
claim brought by a Philippine veteran\'s surviving spouse for
nonservice-connected burial benefits. The CVA recognized that the
veteran served in the organized forces of the Philippine government
prior to July 1, 1946, and that, \"\[u\]nder section 107(a), such
service constitutes active military service in the Armed Forces of the
United States for purposes of chapter 23 of title 38.\" *Cornel*, slip
op. at 1. However, the court went on to find that, even though the
claimant\'s deceased spouse had service which qualified him as a veteran
for certain purposes, that status did not in and of itself make him
eligible for burial benefits. *Id.* The CVA determined that the claimant
did not meet any of various criteria giving rise to eligibility for
Department of Veterans Affairs (VA) burial benefits. The CVA also
stated, however, that, \"\[b\]ecause the veteran\'s status arose prior
to 1958, the BVA should have addressed . . . the possible applicability
of section 2305.\" *Cornel*, slip op. at 3. The CVA remanded the matter
to the BVA for consideration of that issue.

2\. Section 2305 of title 38, United States Code, states as follows:

> The death of any person who had a status which would, under the laws
> in effect on December 31, 1957, afford entitlement to the burial
> benefits and other benefits provided for in \[chapter 23 of title
> 38\], but who did not meet the service requirements contained in
> \[that\] chapter, shall afford entitlement to such benefits,
> notwithstanding the failure of such person to meet such service
> requirements.

Section 2305 derives from the Veterans\' Benefits Act of 1957
(Veterans\' Benefits Act), Pub. L. No. 85-56, § 805, 71 Stat. 83, 118.
[^1] The Veterans\' Benefits Act, which was enacted on June 17, 1957,
but did not become effective until January 1, 1958, was comprehensive
legislation which consolidated various veterans\' benefit laws. While
the primary purpose of the Veterans\' Benefits Act was organizational,
Congress intended several substantive changes to the veterans\' benefits
laws. *See* H.R. Rep. No. 279, 85th Cong., 1st Sess. (1957), *reprinted
in* 1957 U.S.C.C.A.N. 1214, 1215-16; S. Rep. No. 332, 85th Cong., 1st
Sess. (1957), *reprinted in* 1957 U.S.C.C.A.N. 1241, 1242-43. The
legislation contained several saving clauses to preserve eligibility for
persons affected by changes in the law. A May 16, 1957, letter to the
Chairman of the Senate Committee on Finance from the Administrator of
Veterans Affairs concerning the bill (H.R. 53, 85th Cong., 1st Sess.
(1957)) which ultimately became the Veterans\' Benefits Act noted that,
\"in each of the 'benefit' titles, provision is made for extending
entitlement to all classes of persons who prior to the enactment of the
bill had an eligibility status for the benefit, notwithstanding specific
service requirements of the bill.\" S. Rep. No. 332, 85th Cong.,
*reprinted* in 1957 U.S.C.C.A.N. at 1245, 1247. [^2] The title of
section 805 of the Veterans' Benefits Act, the saving provision
applicable to burial benefits, was \"Persons Eligible Under Prior Law,\"
giving further evidence that the provision was intended only to preserve
eligibility for persons already eligible under laws in effect prior to
the effective date of the new statute.

3\. The foregoing makes clear that section 2305 is a saving provision
which preserves burial-benefit eligibility which predated the effective
date of the Veterans\' Benefits Act. As a result of 38 U.S.C. § 2305,
veterans who cannot meet the current criteria for chapter 23 burial
benefits may still be eligible for such benefits if they had been
potentially eligible for burial benefits under laws in effect on
December 31, 1957, but did not meet service requirements for burial
benefits imposed by the Veterans' Benefits Act. Section 2305 would thus
only be of assistance to individuals who served in the Philippine
Commonwealth Army prior July 1, 1946, if such persons were potentially
eligibile for burial benefits under laws in effect on December 31, 1957.

4\. The benefits eligibility of individuals who served in the Philippine
Commonwealth Army during World War II was initially defined by the Act
of Feb. 18, 1946, ch. 30, title II, 60 Stat. 6, 14, which was codified,
as amended, as former 38 U.S.C. § 38. *See* 38 U.S.C.A. § 38 (1954). The
Veterans\' Benefits Act, Pub. L. No. 85-56, § 2202(185), 71 Stat. at
170, repealed former section 38, as amended, but amended and
incorporated the terms of former 38 U.S.C.§ 38 in section 2105 of that
statute. Pub. L. No. 85-56, § 2105, 71 Stat. at 156. This provision was
amended again in 1958 and codified as 38 U.S.C. § 107(a). *See* Pub. L.
No. 85-857, 72 Stat. 1105, 1111 (1958)**.**

5\. Section 107(a) lists burial benefits provided under chapter 23 of
title 38, United States Code, as one of the

benefits available to individuals who served in the Philippine
Commonwealth Army during World War II. 38 U.S.C. § 107(a)(3). However,
pursuant to 38 U.S.C. § 2305, the terms of the predecessor provision, as
in effect on December 31, 1957, must be examined in order to determine
if 38 U.S.C. § 2305 has any application in current claims for burial
benefits based upon service in the Philippine Commonwealth Army during
World War II.

6\. Former section 38 of title 38, as amended by the Servicemen\'s and
Veterans\' Survivor Benefits Act, ch. 837, § 501(i), 70 Stat. 857, 884
(1956), effective January 1, 1957, § 603(a), 70 Stat. at 887, stated, in
pertinent part, as follows:

> Service 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 of the United States dated July 26, 1941, shall
> not be deemed to be or to have been service in the military or naval
> forces of the United States or any component thereof for the purposes
> of any law of the United States conferring rights, privileges, or
> benefits upon any person by reason of the service of such person or
> the service of any other person in the military or naval forces of the
> United States or any component thereof, except benefits under (1) the
> National Service Life Insurance Act of 1940, as amended, under
> contracts heretofore entered into, (2) laws administered by the
> Veterans\' Administration providing for the payment of compensation or
> dependency and indemnity compensation on account of service-connected
> disability or death, and (3) the Missing Persons Act (56 Stat. 143) as
> amended . . . .

Former section 38 was not amended between August 1, 1956, (the enactment
date of the Servicemen's and Veterans' Survivor Benefits Act) and June
17, 1957, (the enactment date of the Veterans' Benefits Act).

7\. A review of the terms of former section 38, as set out above,
reveals that it contained three exceptions to its general prohibition
against payment of VA benefits based upon service in the Philippine
Commonwealth Army during World War II. Those exceptions permitted
eligibility for National Service Life Insurance benefits, VA disability
compensation and dependency and indemnity compensation, and benefits
under the Missing Persons Act to be based on qualifying service in the
Philippine Commonwealth Army. [^3] Significantly, however, former 38
U.S.C. § 38 did not except burial benefits from the general preclusion
against payment of VA benefits based upon service in the Philippine
Commonwealth Army.

8\. The exception for burial-benefit eligibility for qualifying
Philippine service appeared *for the first time* in section 2105 of the
Veterans\' Benefits Act (codified at 38 U.S.C.A. § 2125 (West Supp.
1957)). This statute, which was later replaced by 38 U.S.C. § 107(a),
effectively precluded provision of VA benefits based upon service in the

Philippine Commonwealth Army during World War II, except for benefits
under: (1) the National Service Life Insurance Act of 1940; (2) the
Missing Persons Act; and (3) VA benefit statutes governing compensation
for service connected disability or death, dependency and indemnity
compensation, and burial benefits.

9\. Based on the foregoing, we conclude that 38 U.S.C. § 2305 has no
application in claims for burial benefits involving individuals who
served in the Philippine Commonwealth Army during World War II. Section
2305 is a saving provision applicable to persons potentially eligible
for burial benefits under the laws \"in effect on December 31, 1957.\"
Under former 38 U.S.C. § 38, as in effect on that date, burial benefits
were not among the benefits available based on service in the Philippine
Commonwealth Army during World War II. Burial benefits were not
available based on such service until the Veterans' Benefits Act became
effective on January 1, 1958. Accordingly, individuals whose only
service was in the Philippine Commonwealth Army during World War II had
no potential eligibility which could be preserved by section 2305, and,
consequently, that statute has no application in their claims.

**HELD**:

The saving provision currently codified at 38 U.S.C. § 2305 preserved
potential eligibility for burial benefits under chapter 23 of title 38,
United States Code, for individuals who could have qualified for those
benefits under \"the laws in effect on December 31, 1957.\" The statute
governing benefits eligibility based upon service in the Philippine
Commonwealth Army in World War II that was in effect on that date did
not confer potential eligibility for burial benefits for individuals
with such service. Consequently, section 2305 has no application in
claims for burial benefits based on service in the Philippine
Commonwealth Army during World War II.

John H. Thompson

[^1]: The burial-benefit provision which appeared as section 805 of the
    Veterans\' Benefits Act was originally codified as 38 U.S.C. § 2805.
    *See* 38 U.S.C.A. § 2805 (West Supp. 1957). This provision was
    recodified as 38 U.S.C. § 905 in 1958 and renumbered in 1991 as 38
    U.S.C. § 2305. *See* Pub. L. No. 85-857, 72 Stat. 1105, 1170 (1958),
    and the Department of Veterans Affairs Codification Act, Pub. L. No.
    102-83, § 5(a), 105 Stat. 378, 406 (1991).

[^2]: Those involved in development of the legislation may have been
    concerned that changes in terminology describing service
    requirements would have the effect of rendering certain persons
    ineligible who may have been eligible for particular benefits under
    laws replaced by the Veterans' Benefits Act. *Compare*, *e.g.*,
    section 101 (Definitions) and title VIII (Burial Benefits) of Pub.
    L. No. 85-56, 71 Stat. at 88-89, 117-18 *with* Vet. Reg. Nos. 9(A)
    (Payment of Burial Expenses for Deceased War Veterans) and 10
    (defining various terms) (both of which were repealed by Pub. L. No.
    85-56, § 2202(129), 71 Stat. at 167, and had used somewhat different
    terminology and definitions in describing service requirements).

[^3]: The \"Missing Persons Act\" was originally enacted to provide
    continuing payment of pay and allowances to members of the United
    States Armed Forces and certain Federal civilian employees who were
    officially reported to be missing in action, captured by the enemy,
    or interned in a neutral country. Act of March 7, 1942, ch. 166, 56
    Stat. 143. The \"Missing Persons Act\" has been substantially
    amended since originally enacted and is currently codified at 37
    U.S.C. ch. 10 and 5 U.S.C. ch. 55, subch. VII. It has no bearing on
    the question presented here.