(a) Eligibility for consideration.
To be eligible to apply for consideration under Public Law 95-202 and this part, a group must:
Have been similarly situated to the Women's Air Forces Service Pilots of World War II.
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.
Have rendered that service during a period of armed conflict.
Consist of living persons to whom VA benefits can accrue.
Not have already received benefits from the Federal Government for the service in question.
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:
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.
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.
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.
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.
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.
Examples include the following:
(1) Placing members under a curfew.
(2) Requiring members to work extended hours or unusual shifts.
(3) Changing duty assignments and responsibilities.
(4) Restricting proximity travel to and from the military installation.
(5) Imposing dress and grooming standards.
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:
Armed by the U.S. military for defensive purposes.
Routed by the U.S. military to avoid the enemy.
Instructed by the U.S. military for the defense of the group when attacked by, or in danger of attack by, the enemy.
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.
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 § 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.