Citation Nr: 18143930 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 14-41 300A DATE: October 22, 2018 ORDER` Basic eligibility for Department of Veterans Affairs (VA) home loan guaranty benefits is denied. FINDINGS OF FACT 1. The Veteran had active service from November 2001 to December 2002. 2. Service connection has not been established for any disability, and the Veteran does not meet any other exception to the minimum duty requirements. CONCLUSION OF LAW The legal criteria for basic eligibility for VA home loan guaranty benefits are not met. 38 U.S.C. §§ 3701, 3702, 5303A. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from November 2001 to December 2002. The Veteran testified in support of this claim during a hearing held at the RO before the undersigned Veterans Law Judge in April 2018. Basic eligibility for VA home loan guaranty benefits The Veteran seeks basic eligibility for VA home loan guaranty benefits as found at Chapter 37, Title 38, United States Code. The Veteran asserts that because he was discharged under the “Don’t Ask, Don’t Tell” program, which has since been removed, he should be entitled to VA home loan guaranty benefits. Home loan guaranty benefits are granted only to Veterans who satisfy the basic entitlement criteria outlined in 38 U.S.C. §§ 3701 and 3702. Basic entitlement for Veterans with active duty service is generally addressed in 38 U.S.C. § 3702, as modified by certain minimum active duty requirements set forth in 38 U.S.C. § 5303A. In pertinent part, a Veteran is basically eligible for housing loan benefits under section 3702 if he or she served after July 25, 1947, for a period of more than 180 days, and was discharged or released therefrom under conditions other than dishonorable; or served on active duty for 90 days or more at any time during the Persian Gulf War, other than a Veteran who is ineligible for such benefits under 38 U.S.C. § 5303A (b). 38 U.S.C. § 3702(a)(1), (2). Notwithstanding the foregoing, eligibility for certain VA benefits, including VA home loan guaranty benefits, are subject to additional minimum active duty service requirements, generally either 24 months of continuous active duty or the full period for which the person was called or ordered to active duty. 38 U.S.C. § 5303A(b)(1). There are exceptions to the minimum duty requirements set forth at 38 U.S.C. § 5303A(b)(1). The length of service requirements do not apply: (A) to a person who is discharged or released from active duty under section 1171 or 1173 of title 10; (B) to a person who is discharged or released from active duty for a disability incurred or aggravated in line of duty; (C) to a person who has a disability that the Secretary has determined to be compensable under chapter 11 of this title; (D) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; (E) to benefits under chapter 19 of this title; (F) to benefits under chapter 30 or chapter 37 of this title by reason of – (i) a discharge or release from active duty for the convenience of the Government, as described in sections 3011(a)(1)(A)(ii)(II) and 3012(b)(1)(A)(iv) of this title; (ii) a discharge or release from active duty for a medical condition which preexisted service on active duty and which the Secretary determines is not service connected, as described in clauses (A)(ii)(I) and (B)(ii)(I) of section 3011(a)(1) of this title and in section 3012(b)(1)(A)(ii) of this title; (iii) an involuntary discharge or release from active duty for the convenience of the Government as a result of a reduction in force, as described in clauses (A)(ii)(III) and (B)(ii)(III) of section 3011(a)(1) of this title and in section 3012(b)(1)(A)(v) of this title; or (iv) a discharge or release from active duty for a physical or mental condition that was not characterized as a disability and did not result from the individual’s own willful misconduct but did interfere with the individual’s performance of duty, as described in section 3011(a)(1)(A)(ii)(I) of this title; or (G) to benefits under chapter 43 of this title. After reviewing all the evidence of record, the Board finds that the Veteran did not have 24 months of continuous active duty, did not complete the full period for which the Veteran was called or ordered to active duty, and does not meet an exception to the minimum duty requirements set forth at 38 U.S.C. § 5303A(b)(1). Unfortunately, there is no equity built into the VA home loan guaranty program. The Veteran did not complete a continuous period of active duty of at least 24 months, did not complete the full enlistment in the Army and has not alleged any additional periods of service that have not been recognized by VA. As such, the Veteran does not meet the basic eligibility requirements under 38 U.S.C. § 5303A(b)(1). As for exceptions to the basic eligibility requirements under 38 U.S.C. § 5303A, the Board observes that the provisions of 38 U.S.C. § 5303A (b)(3) do not apply in the Veteran’s case. In particular, the Veteran (1) was not discharged or released from active duty under Title 10 under Section 1171 or 1172; (2) was not discharged or released from active duty for a disability incurred or aggravated in line of duty; (3) was not found to have had a disability that the Secretary has determined to be compensable under chapter 11 of Title 38; (4) is not utilizing the provision of a benefit for or in connection with a service-connected disability, condition, or death; and (5) is not seeking benefits under Chapter 19 or Chapter 43 of Title 38. Further, the Veteran is not currently serving on active duty and does not have at least six years in the Selected Reserve; therefore, the Veteran does not meet the requirements for eligibility for VA home loan benefits under 38 U.S.C. § 3701(b)(5)(A). After considering the evidence of record, the Board finds the Veteran does not meet the basic eligibility requirements for VA home loan guaranty benefits. As the disposition of this issue is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. Mason, 16 Vet. App. at 131-32; Sabonis, 6 Vet. App. at 426. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke