Citation Nr: 18156801
Decision Date: 12/11/18	Archive Date: 12/10/18

DOCKET NO. 14-34 139
DATE:	December 11, 2018
ORDER
Entitlement to death pension benefits is denied.
FINDING OF FACT
The Veteran did not have qualifying wartime service for death pension purposes.
CONCLUSION OF LAW
The criteria for basic eligibility for VA death pension benefits have not been met. 38 U.S.C. §§ 101, 1521, 1541 (2012); 38 C.F.R. §§ 3.2, 3.3 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served in the United States Army from November 1948 to January 1950.  He died in August 1995.  The appellant is his surviving spouse.
Death pension benefits are generally available for surviving spouses as a result of the Veteran’s nonservice-connected death.  38 U.S.C. §§ 1521, 1541.  To prevail, the evidence must show that the Veteran (1) served for at least ninety days during a period of war; or (2) served during a period of war and was discharged for a service-connected disability.  38 U.S.C. § 1521; 38 C.F.R. § 3.3; see also Martin v. Brown, 7 Vet. App. 196, 199 (1994) (“Eligibility for non-service-connected pension is conditioned on service during a period of war.”)  
The term “period of war” is defined by statute, and means the Spanish American War, the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress.  
World War II began December 7, 1941, and ended December 31, 1946, and the Korean conflict began June 27, 1950, and ended January 31, 1955; there was no period of war in the interim.  38 U.S.C. § 101(29), (33); 38 C.F.R. § 3.2(f), (i).  
The Veteran served from November 24, 1948, to January 11, 1950.  His service occurred after World War II and before the Korean conflict.  Because the Veteran did not have qualifying wartime service, entitlement to death pension benefits is not warranted as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  





The preponderance of the evidence is against the claim for death pension benefits; there is no doubt to be resolved; and death pension is not warranted.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).
 
MICHAEL E. KILCOYNE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Adamson, Counsel