Citation Nr: 18159436 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-54 282 DATE: December 19, 2018 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The appellant did not serve on active duty for 90 days during a period of war and does not have a service-connected disability. CONCLUSION OF LAW The appellant’s service does not meet threshold service eligibility requirements for VA pension benefits. 38 U.S.C. §§ 101 (2), 1521(a) and (j), 5107(a) (2012); 38 C.F.R. §§ 3.2, 3.3, 3.6 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the Army National Guard of Tennessee from February 1963 to January 1969, to include periods of active duty for training (ACDUTRA) from April 13, 1963 to October 11, 1963, from July 19, 1964 to August 2, 1964, from July 17, 1965 to August 1, 1965, and from August 11, 1968 to August 23, 1968. The appellant was scheduled for a Board videoconference hearing that was scheduled for December 8, 2018. In correspondence received on November 20, 2018, the appellant cancelled his hearing request. Accordingly, the hearing request is withdrawn. 38 C.F.R. § 20.702 (e) (2017). Entitlement to nonservice-connected pension benefits The appellant (and his wife) contend that he should be eligible for pension. In November 2015, the appellant’s wife submitted a statement on behalf of the appellant that he “served six years in the National Guard and served six months active duty, [and that] he was active duty ready during the Vietnam War.” To be eligible for nonservice-connected pension, a Veteran must have served in the active military, naval, or air service (1) for 90 days or more during a period of war; (2) during a period of war with discharge or release from such service for a service-connected disability; (3) for a period of 90 consecutive days or more when such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate period of service during more than one period of war. 38 U.S.C. § 1521 (j) (2012); see also 38 C.F.R. § 3.3 (2017). The term “active military, naval, or air service” includes (a) active duty; (b) any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty; and (c) any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from certain cardiovascular events. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Following a review of the record, the Board determines that the appellant is not legally eligible for non-service connected pension. See 38 U.S.C. § 1521 (j). The appellant is not eligible for pension because his discharge was not the result of a service-connected disability during ACDUTRA or inactive duty for training (INACDUTRA); and he does not otherwise meet the 90-day “active service” during a period of war threshold for purposes of determining eligibility for a non-service-connected pension. Pension is only available to a veteran with active duty for training if discharged for a service-connected disability. See 38 U.S.C.§ 1521 (j). The appellant has no service-connected disabilities and he was not discharged for a service-connected disability. ACDUTRA and INACDUTRA are not the same thing as active duty, and the law has clearly defined each to draw a clear distinction between the two. 38 C.F.R. § 3.6. The appellant’s National Guard service was not “active service,” and it cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a non-service-connected pension. 38 U.S.C. §§ 101 (24); 1521 (j); 38 C.F.R. §§ 3.3 (a) (3), 3.6. While the appellant was issued a DD-214 for service from April 13, 1963 to October 11, 1963, the DD-214 states that the appellant was “ordered to ACDUTRA” and states in the remarks section that he served 6 months of ACDUTRA. As such, this period of service did not constitute “active duty” service, but rather was ACDUTRA. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. Further, even if this period constituted “active duty” service, it would not meet the requirement of “active duty” service for 90 days or more during a period of war. See 38 C.F.R. § 3.3. The appellant’s period of ACDUTRA from April 13, 1963 to October 11, 1963 was not served during a period of war. This period falls between the Korean conflict (June 27, 1950 to January 31, 1955) and the Vietnam era (February 28, 1961 to May 7, 1975 for Veterans who served in the Republic of Vietnam during that period; otherwise August 5, 1964 to May 7, 1975). See 38 C.F.R. 3.2. The Board notes that this service occurred after February 28, 1961; however, the appellant has not contended that he served in the Republic of Vietnam and his personnel records document no service in Vietnam. The appellant’s subsequent documented periods of ACDUTRA (from July 19, 1964 to August 2, 1964, from July 17, 1965 to August 1, 1965, and from August 11, 1968 to August 23, 1968) do not total 90 days after August 5, 1964 and as they were ACDUTRA are not considered “active duty.” See 38 C.F.R. §§ 3.3 (a) (3); 3.6 (a). Based upon the forgoing, the appellant does not have the requisite service to qualify for a nonservice-connected pension. See 38 U.S.C. § 1521 (j); 38 C.F.R. § 3.3 (a)(3). In this case, the law is dispositive, and the appellant’s nonservice-connected pension claim must be denied as a matter of law because he did not have the requisite wartime service. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). This finding is in no way intended to diminish the value or significance of the appellant’s service, but is rather required to fulfill the Board’s duty to ensure compliance with the applicable statutes and regulations. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel