Citation Nr: 20004231 Decision Date: 01/17/20 Archive Date: 01/16/20 DOCKET NO. 15-29 417 DATE: January 17, 2020 ORDER The claim of entitlement to burial in a Department of Veterans Affairs (VA) national cemetery is denied. FINDINGS OF FACT 1. The Veteran enlisted in the Army for an initial period of service for four years. 2. The Veteran was released from active service under honorable conditions for the period of active service from October 1988 to July 1990. 3. The Veteran was barred from reenlisting due to his performance. 4. The Veteran did not complete a continuous period of active duty of at least 24 months, nor did he complete his first full term of military service. 5. At the time of the Veteran’s death, service connection had not been established for any disability(ies). CONCLUSION OF LAW The criteria for the Veteran’s entitlement to burial in a VA national cemetery are not met. 38 U.S.C. §§ 101, 2402; 38 C.F.R. §§ 3.12a, 38.620. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1988 to July 1990. He died in May 2015. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from a May 2015 decision in which the VA National Cemetery Administration (NCA) denied the claim for entitlement to burial in a VA national cemetery. The appellant filed a notice of disagreement (NOD) in June 2015. The RO issued a statement of the case (SOC) in June 2015, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in August 2015. The appellant requested a Board video-conference hearing before a Veterans Law Judge on her August 2015 VA Form 9. She was notified that her Board hearing had been scheduled for a date in November 2018 by way of a letter dated November 2018. This letter was sent to her address of record and was not returned as undeliverable. The appellant failed to appear for the scheduled Board hearing, and, to date, has offered no explanation as to why she failed to appear for the scheduled hearing and has not requested that the hearing be rescheduled. Under these circumstances, the appellant’s Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). As a final preliminary matter, the Board notes that the Veteran’s electronic files are stored under his Social Security number ([REDACTED]), not the claims file number listed on the first page of this decision. All records have been reviewed. The appellant asserts that the Veteran is eligible for burial in a VA national cemetery 38 C.F.R. § 38.620 provides that any veteran is eligible for burial in a VA national cemetery. However, to be a “veteran” within the meaning of the regulation, the service member in question must have active military service and be released from such service under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 38.620(a). In the present claim, to be eligible for certain VA benefits, including burial in a VA national cemetery, a service member who initially enters service after September 7, 1980, must perform a “minimum active-duty requirement;” either 24 months of continuous active duty or the full period for which the service member was called or ordered to active duty. An exception may be granted if the service member was discharged or released because of an early out or hardship (10 U.S.C. §§ 1171 or 1173); was discharged or released for a service-connected disability directly due to service; or, has a compensable service-connected disability. If a person is, by reason of this section, barred from receiving any benefits under Title 38, United States Code (or under any other law administered by VA based on a period of active duty, the person’s dependents or survivors are also barred from receiving benefits based on the same period of active duty. 38 U.S.C. § 5303A; 38 C.F.R. § 3.12a(d). Generally, a person who initially enters active service after September 7, 1980, and who is discharged or released from a period of active duty before completing the shorter of: (A) 24 months of continuous active duty, or (B) the full period for which such person was called or ordered to active duty, is not eligible by reason of such period of active duty for any benefit administered by VA. 38 U.S.C. § 5303A(b)(1); 38 C.F.R. § 3.12a(a), (b). Per the service personnel records, the Veteran did not have 24 months of continuous active duty service, and he did not complete the full period of active duty for which he enlisted. The Veteran enlisted in the Army in October 1988 for a period of four years. His DD-214 indicates that he was separated from service in July 1990. The service personnel records show that the Veteran was barred from reenlisting to complete his four-year term due to performance issues. Thus, he did not complete his initial term of service and did not serve on active duty for 24 months. In addition, the Veteran did not have any service-connected disabilities. Therefore, none of the exceptions provided by 38 C.F.R. § 3.12a(d) apply. The legal authority pertaining eligibility to burial in a VA national cemetery is prescribed by Congress and implemented via regulations enacted by VA, and neither the agency of original jurisdiction nor the Board is free to disregard laws and regulations enacted for the administration of VA programs. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). In other words, the Board is bound by the governing legal authority, and is without authority to grant benefits on an equitable basis. As, on these facts, there is no legal basis to find that the Veteran is eligible for burial in a VA national cemetery, the appellant’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). R. FEINBERG 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.