Citation Nr: 20003023 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-62 739 DATE: January 14, 2020 ORDER Basic eligibility for nonservice-connected pension is denied. FINDING OF FACT The appellant did not have active military, naval, or air service for 90 days during a period of war and was not discharged for 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 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The served on active duty for training in the United States Marine Corps Reserve from December 1999 to May 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Basic eligibility for nonservice-connected pension The appellant contends that he should be eligible for pension. The Board finds that the Veteran is not legally eligible for nonservice-connected pension due to a lack of qualifying service. See 38 U.S.C. § 1521 (j). 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. 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). The service records show that the appellant (a) did not serve on active duty; (b) was not disabled from a disease or injury incurred or aggravated in the line of duty during active duty for training; and (c) was not disabled from an injury incurred or aggravated in the line of duty or from certain cardiovascular events during inactive duty training, if any. VA records show that the appellant currently has no service-connected disabilities. 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. The Board cannot grant pension as a matter of law, because the appellant did not have wartime service with discharge from a service-connected disability. See 38 U.S.C. § 1521 (j). The Veteran served in the United States Marine Corps Reserve. The Veteran’s only time on active duty for training was in recruit training from December 1999 to May 2000. See January 2017 Certificate of Release or Discharge From Active Duty. The Veteran’s Reserve service was not active military, naval, or air 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 because he was not disabled from a disease or injury incurred or aggravated in the line of duty during active duty for training. 3 8 U.S.C. § 1521 (j); 38 C.F.R. § 3.3 (a) (3). Furthermore, service connection is not in effect for any disability. The Veteran was released from active duty for training with an honorable characterization of service. However, in February 2002, he received an other-than-honorable discharge from the Marine Corps Reserve for failure to participate. The Veteran did not participate in inactive duty training and thus there is no service after May 2000 for consideration. The Board has considered the Veteran’s lay statements, including his belief that he should be awarded a nonservice-connected pension due to service during war time and claimed discrimination. See November 2017 Form 9. However, the Board finds that the Veteran does not meet the minimum eligibility requirements for basic entitlement to nonservice-connected pension, and as such the appeal must be denied. See 38 U.S.C. § 1521 (j); 38 C.F.R. § 3.3 (a)(3). (Continued on the next page) 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, 1 Vet. App. at 53-56. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, Associate 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.