Citation Nr: 20021056 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 18-31 923 DATE: March 24, 2020 ORDER Entitlement to non-service-connected pension benefits is denied. FINDING OF FACT The Veteran does not have qualifying active military service for VA non-service-connected pension benefit purposes. CONCLUSION OF LAW The criteria for basic eligibility requirements for non-service-connected disability pension benefits are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active military service from May 28, 1974 to June 14, 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s January 2018 decision. Entitlement to non-service-connected pension benefits The Veteran contends that he should be awarded entitlement to non-service-connected pension benefits because he is in receipt of other VA benefits, such as health benefits, (see April 2018 notice of disagreement) and he was young at the time (presumably meaning when he was in the Army) and did not understand military procedures. VA non-service-connected pension benefits are payable to a veteran who is permanently and totally disabled from non-service-connected disability or disabilities, which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements of that section if he served in active military, naval, or air service: (1) for 90 days or more during a period of war; (2) was discharged or released during a period of war from service for a disability adjudged service-connected without the benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (3) for a period of 90 consecutive days or more and 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 periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3). In the present case, the Veteran served on active duty from May 25th to June 14th in 1974. The Board acknowledges that this was during the Vietnam era and, therefore, was during a period of war. See 38 C.F.R. § 3.2(f). However, he only served on active duty for 17 days before he was discharged through the Trainee Discharge Program set forth in DA message DTG 011510Z August 1973, Subject: Evaluation and Discharge of Enlistees Before 180 Active Duty Days. The Veteran’s service personnel records clearly demonstrate that the Veteran was discharged due to “extremely poor attitude” and because he was not “capable of learning basic soldiering skills.” See June 6, 1974 letter to Veteran from his commanding officer advising him that action to discharge him from the Army had been initiated. He was counseled twice, on June 3rd and 5th of 1974, and the counseling notes stated that he had an inability to learn and no desire or interest in trying to learn things or in staying in the Army. These statements were made after the Veteran was in basic training for less than one week. The Veteran contends that he should be allowed pension benefits because he receives other VA benefits, but he acknowledges that those benefits do not have the same 90-day requirement as pension benefits do. Therefore, his receipt of those benefits is not a relevant consideration because the law pertaining to VA non-service-connected pension benefits requires that a veteran have 90 days of active duty be served for there to be basic eligibility to pension benefits. The only exception to the 90-day service requirement is that the veteran have been discharged due to a service-connected disability, which is not the case here. The Veteran claims he is unable to work due to a mental health disorder and submitted medical records showing he was diagnosed to have a schizophreniform disorder in 1990. However, the Veteran was denied service connection for schizophreniform disorder in a December 2005 rating decision. More significantly, the Veteran was not discharged from active duty because of any mental health disability, but because of his inability to perform and his poor attitude. Therefore, the exception to the 90-day service requirement is not met in the present case. The Veteran himself does not contend that he was discharged from active duty due to his psychiatric disorder, but rather admits that it was because he was “young and did not understand military procedures.” The clear evidence demonstrates the Veteran does not have qualifying service to be eligible for VA pension benefits as he does not have 90 days of active military service and was not discharged from service due to a service-connected disability. Therefore, based on the available evidence regarding the Veteran’s service, the provisions of 38 C.F.R. § 3.3 are dispositive in this matter. As the Veteran did not have the type of qualifying service required to confer eligibility for VA non-service-connected disability pension benefits, the Veteran’s claim must be denied   because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kreitlow, Saramae 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.