Citation Nr: 0202540 Decision Date: 03/19/02 Archive Date: 03/25/02 DOCKET NO. 01-07 628A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to basic eligibility for nonservice-connected disability pension. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Associate Counsel INTRODUCTION The appellant had active military service from August 1958 to February 1959. This matter comes to the Board of Veterans' Appeals (Board) from a March 2000 rating decision of the Department of Veterans Affairs (VA) Los Angeles Regional Office (RO), which denied entitlement to nonservice-connected pension benefits. FINDING OF FACT The appellant did not perform honorable active service during a period of war. CONCLUSION OF LAW The basic eligibility requirements for VA nonservice- connected pension benefits have not been met. 38 U.S.C.A. §§ 1521(a), (j), 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.2, 3.3 (2001). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 provides that the Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for benefits unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The Secretary may defer providing assistance pending the submission by the claimant of essential information missing from the application. 38 U.S.C.A. § 5103A (West Supp. 2001). Having reviewed the complete record, the Board believes that there is ample evidence of record upon which to decide the appellant's claim. The Board is unaware of, and the appellant has not identified, any additional evidence which is necessary to make an informed decision on the above- referenced issue. Thus, the Board believes that all relevant evidence which is available has been obtained. Further, the appellant and his representative have been notified of the evidence necessary to establish the benefit sought. Consequently, the Board concludes that VA's statutory duty to assist the appellant has been satisfied. Service records indicate that the appellant was issued an administrative discharge "under other than honorable conditions" based on a February 1959 recommendation by a Board of Officers. A DA Form 37 of record indicates that his discharge was recommended because of undesirable habits or traits of character. A DD Form 493 of record reveals his conviction in December 1958 by special court-martial for a 12-day period of absence without leave. His approved sentenced included three months incarceration at hard labor. His DD Form 214 indicates that his active military service was from August 15, 1958 to February 27, 1959. In February 1987, the National Personnel Records Center (NPRC) verified those service dates and character of discharge. The NPRC identified no other period or periods of active service. A review of the file indicates several periods of enlistment with the Army Reserve. Based on earlier applications for VA pension benefits in 1977 and 1987, the appellant was informed that basic eligibility for such benefits required at least 90 days of active duty; in 1977 he was informed that inactive reservist duty did not count toward his VA pension eligibility. In December 1999, he filed another claim for VA nonservice- connected pension benefits, indicating that he entered active service in 1968 and that his separation took place in 1974. In March 2000, the RO denied his claim on the basis that he did not meet the requirement for qualifying service. In June 2001, the RO wrote to the appellant explaining that his active service dates were from August 1958 to February 1959, and that service during that period did not constitute wartime service under the law. The RO also explained that the character of his discharge was "other than honorable." The RO informed him that his stated dates of service, from 1968 through 1974, were with the Army Reserve and that such service did not qualify him for pension benefits. 38 C.F.R. § 3.3 (2001) provides that basic entitlement to pension exists if a veteran served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. 1521(j)); or served in the active military, naval or air service during a period of war and was discharged or released from such service for a disability adjudged service-connected without presumptive provisions of law or at time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability (38 U.S.C. 1521(j)); or served in the active military, naval or air service for a period of 90 consecutive days or more and such period began or ended during a period of war (38 U.S.C. 1521(j)); or served in the active military, naval or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war (38 U.S.C. 1521(j)). 38 C.F.R. § 3.3(a)(3). None of his active service, that is from August 1958 to February 1959, coincided with a period of war. See 38 C.F.R. § 3.2 (2001). He claims qualifying service from 1968 to 1974; however, the available evidence shows that such service was with the Army Reserve, and the NPRC has verified his active military service as from August 1958 to February 1959 only. For the foregoing reason, the Board finds that the appellant does not meet the basic eligibility requirements for nonservice-connected pension benefits. 38 U.S.C.A. §§ 1521, 5303; 38 C.F.R. §§ 3.3, 3.12. The holding in Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) states that where the law and not the evidence is dispositive of an appellant's claim, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. In this case, the appellant lacks legal entitlement to VA nonservice- connected pension benefits due to nonqualifying peacetime active service. Accordingly, basic eligibility for VA nonservice-connected pension benefits is not evident and the appellant's claim fails as a matter of law. Id. at 430. The Board notes that the claims file contains no determination regarding whether the character of the appellant's discharge from service, namely, "under other than honorable conditions" amounts to a dishonorable discharge, which constitutes a total bar to VA benefits. See 38 U.S.C.A. § 5303 (West 199); 38 C.F.R. § 3.12 (2001). However, as he is not shown by the evidence to be basically qualified for VA nonservice-connected pension benefits due to his peacetime active service, the matter of character of discharge is essentially academic. ORDER Basic eligibility for a VA nonservice-connected disability pension is denied. J.F. GOUGH Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.