[Code of Federal Regulations]

[Title 32, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 32CFR47.4]



[Page 305-306]

 

                       TITLE 32--NATIONAL DEFENSE

 

              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE

 

PART 47_ACTIVE DUTY SERVICE FOR CIVILIAN OR CONTRACTUAL GROUPS--Table of 

Contents

 

Sec.  47.4  Policy.



    (a) Eligibility for consideration. To be eligible to apply for 

consideration under Public Law 95-202 and this part, a group must:

    (1) Have been similarly situated to the Women's Air Forces Service 

Pilots of World War II.

    (2) Have rendered service to the United States in what was 

considered civilian employment with the U.S. Armed Forces either through 

formal Civil Service hiring or less formal hiring if the engagement was 

created under the exigencies of war, or as the result of a contract with 

the U.S. Government to provide direct support to the U.S. Armed Forces.

    (3) Have rendered that service during a period of armed conflict.

    (4) Consist of living persons to whom VA benefits can accrue.

    (5) Not have already received benefits from the Federal Government 

for the service in question.

    (b) A determination of AD service that is considered to be 

equivalent to active military service is made on the extent to which the 

group was under the control of the U.S. Armed Forces in support of a 

military operation or mission during an armed conflict. The extent of 

control exerted over the group must be similar to that exerted over 

military personnel and shall be determined by, but not necessarily 

limited to, the following:

    (1) Incidents favoring equivalency--(i) Uniqueness of service. 

Civilian service (civilian employment or contractual service) is a vital 

element of the war-fighting capability of the Armed Forces. Civilian 

service during a period of armed conflict is not necessarily equivalent 

to active military service, even when performed in a combat zone. 

Service must be beyond that generally performed by civilian employees 

and must be occasioned by unique circumstances. For civilian service to 

be recognized under this part, the following factors must be present:

    (A) The group was created or organized by U.S. Government 

authorities to fill a wartime need or, if a group was not created 

specifically for a wartime need, but existed before that time, then its 

wartime mission was of a nature to substantially alter the 

organization's prewar character.

    (B) If the application is based on service in a combat zone, the 

mission of the group in a combat zone must have been substantially 

different from the mission of similar groups not in a combat zone.

    (ii) Organizational authority over the group. The concept of 

military control is reinforced if the military command authority 

determines such things as the structure of the civilian organization, 

the location of the group, the mission and activities of the group, and 

the staffing requirements to include the length of employment and pay 

grades of the members of the group.

    (iii) Integration into the military organization. Integrated 

civilian groups are subject to the regulations, standards, and control 

of the military command authority.

    (A) Examples include the following:

    (1) Exchanging military courtesies.

    (2) Wearing military clothing, insignia, and devices.

    (3) Assimilating the group into the military organizational 

structure.

    (4) Emoluments associated with military personnel; i.e., the use of 

commissaries and exchanges, and membership in military clubs.

    (B) A group fully integrated into the military would give the 

impression that the members of the group were military, except that they 

were paid and accounted for as civilians.

    (C) Integration into the military may lead to an expectation by 

members of the group that the service of the group imminently would be 

recognized as active military service. Such integration acts in favor of 

recognition.

    (iv) Subjection to military discipline. During past armed conflicts, 

U.S. military commanders sometimes restricted the rights or liberties of 

civilian members as if they were military members.

    (A) Examples include the following:

    (1) Placing members under a curfew.

    (2) Requiring members to work extended hours or unusual shifts.



[[Page 306]]



    (3) Changing duty assignments and responsibilities.

    (4) Restricting proximity travel to and from the military 

installation.

    (5) Imposing dress and grooming standards.

    (B) Consequences for noncompliance might include a loss of some 

privilege, dismissal from the group, or trial under military law. Such 

military discipline acts in favor of recognition.

    (v) Subjection to military justice. Military members are subject to 

the military criminal justice system. During times of war, ``persons 

serving with or accompanying an Armed Force in the field'' are subject 

to the military criminal justice code. Those who were serving with the 

U.S. Armed Forces may have been treated as if they were military and 

subjected to court-martial jurisdiction to maintain discipline. Such 

treatment is a factor in favor of recognition.

    (vi) Prohibition against members of the group joining the armed 

forces. Some organizations may have been formed to serve in a military 

capacity to overcome the operation of existing laws or treaty or because 

of a governmentally established policy to retain individuals in the 

group as part of a civilian force. These factors act in favor of 

recognition.

    (vii) Receipt of military training and/or achievement of military 

capability. If a group employed skills or resources that were enhanced 

as the result of military training or equipment designed or issued for 

that purpose, this acts toward recognition.

    (2) Incidents not favoring equivalency--(i) Submission to the U.S. 

Armed Forces for protection. A group that seeks protection and 

assistance from the U.S. Armed Forces and submits to military control 

for its own well-being is not deemed to have provided service to the 

Armed Forces equivalent to AD military service, even though the group 

may have been as follows:

    (A) Armed by the U.S. military for defensive purposes.

    (B) Routed by the U.S. military to avoid the enemy.

    (C) Instructed by the U.S. military for the defense of the group 

when attacked by, or in danger of attack by, the enemy.

    (D) Otherwise submitted themselves to the U.S. military for 

sustenance and protection.

    (ii) Permitted to resign. The ability of members to resign at will 

and without penalty acts against military control. Penalty may be direct 

and severe, such as confinement, or indirect and moderate, such as 

difficult and costly transportation from an overseas location.

    (iii) Prior recognition of group service. Recognition of a group's 

service by agencies of State or local government does not provide 

support in favor of recognition under this part.

    (3) Status of group in international law. In addition to other 

factors, consideration will be given to whether members of the group 

were regarded and treated as civilians, or assimilated to the Armed 

Forces as reflected in treaties, customary international law, judicial 

decisions, and U.S. diplomatic practice.

    (c) Reconsideration. Applications by groups previously denied a 

favorable determination by the Secretary of the Air Force shall be 

reconsidered under this part if the group submits evidence that is new, 

relevant, and substantive. Any request that the DoD Civilian/Military 

Service Review Board established hereunder (see Sec.  47.5(b)) 

determines does not provide new, relevant, and substantive evidence 

shall be returned to the applicant with the reasons for nonacceptance.

    (d) Counsel Representation. Neither the Department of Defense nor 

Department of Transportation shall provide representation by counsel or 

defray the cost of such representation with respect to any matter 

covered by this part.