Citation Nr: 19150992 Decision Date: 07/01/19 Archive Date: 07/01/19 DOCKET NO. 17-67 896 DATE: July 1, 2019 ORDER The claim of entitlement to burial or interment in a Department of Veterans Affairs (VA) national cemetery is denied. FINDINGS OF FACT 1. The service member served a period of active duty for training (ACDUTRA) from July 1964 to January 1965; he had no active duty service. 2. The service member is still alive, and has not become disabled from a disease or injury incurred in line of duty during his period of ACDUTRA. CONCLUSION OF LAW The criteria for basic eligibility for burial or interment in a VA national cemetery are not met. 38 U.S.C. §§ 101, 2402, 5303A; 38 C.F.R. §§ 3.1, 3.6, 38.620. REASONS AND BASES FOR FINDINGS AND CONCLUSION The service member, who is the appellant, served a period of ACDUTRA from July 1964 to January 1965. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2017 decision in which the VA National Cemetery Administration (NCA) denied the claim seeking eligibility for burial or interment in a VA national cemetery. In November 2017, the appellant filed a notice of disagreement (NOD). In December 2017, a statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. The appellant seeks a determination that upon his death, he will be eligible for burial or interment in a VA national cemetery. Any person classified as a “veteran” is eligible for burial in a national cemetery. 38 U.S.C. § 2402(a); 38 C.F.R. § 38.620(a). The term “veteran” means any person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). “Active military, naval, or air service” includes active duty, and “any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.” 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Eligibility for burial in a national cemetery is also available to any member of a Reserve component of the Armed Forces, and any member of the Army National Guard or the Air National Guard, whose death occurs while such member is hospitalized or undergoing treatment at the expense of the United States for an injury or disease contracted or incurred under honorable conditions while performing ACDUTRA, INACDUTRA, or undergoing such hospitalization or treatment. 38 U.S.C. § 2402(b); 38 C.F.R. § 38.620(b). The appellant contends that he should be declared eligible for burial or interment in a VA national cemetery. The threshold question in this case is whether the appellant had “active military, naval, or air service” under the law, and, therefore, attained “veteran” status, or died while hospitalized or undergoing treatment at the expense of the United States for an injury or disease contracted or incurred under honorable conditions while performing ACDUTRA. 38 U.S.C. § 2402; 38 C.F.R. § 38.620. As an initial matter, there is no evidence that the decedent became disabled from a disease or injury incurred during a period of ACDUTRA, and the appellant does not contend otherwise. Further, the appellant is alive and thus did not die during his period of ACDUTRA. The record shows that the appellant served a period of ACDUTRA from July 1964 to January 1965. The appellant had no period of active duty service and he does not contend otherwise. The appellant does not dispute the facts regarding his service. The applicable law and regulatory criteria state that for a member of the National Guard to be eligible for burial in a national cemetery, he must either be considered a “veteran” or have died while hospitalized or undergoing treatment for an injury or disease contracted or incurred while was performing ACDUTRA or INACDUTRA. 38 U.S.C. § 2402; 38 C.F.R. § 38.620. After considering the evidence of record in this case, the Board finds that the appellant did not have active military, naval, or air service, and has not died or become disabled from a disease or injury incurred in line of duty during his period of ACDUTRA. As such, the appellant is not eligible for interment or burial in a VA national cemetery. Because the law is dispositive on this question, the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.