Citation Nr: 20046941 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 19-12 942 DATE: July 14, 2020 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The Veteran’s service does not meet the requirements for entitlement to VA nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for basic eligibility for nonservice-connected pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.2, 3.3. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard, to include a verified period of active duty for training (ACDUTRA) from February 1974 to June 1974, with additional service in the United States Army Reserve. Entitlement to nonservice-connected pension benefits Pension is payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct. 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) during a period of war and was discharged or released from service for a service-connected 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). The term “active military, naval, or air service” includes active duty, and “any period of active duty for training 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 training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Additionally, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. “[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor.” Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veteran’s benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. The Veteran’s DD-214 of record shows that he served in the Army National Guard from February 1974 to June 1974. The Board acknowledges that this was during the Vietnam War era. In addition, the indicated period of service is in excess of 90 days. However, the evidence of record indicates that the service was ACDUTRA. Specifically, under the Remarks section, his DD-214 indicates that he was “released from ACDUTRA and retuned to state control” as a member of Tennessee Army National Guard to complete the remainder of his service obligation of five years and seven months. Accordingly, pursuant to applicable law noted above defining active military, naval, or air service for the purposes of entitlement to a nonservice-connected pension, the Veteran’s ACDUTRA service does not constitute active military service. As the Veteran does not have any qualifying wartime service, he does not meet the basic eligibility requirements for VA nonservice-connected pension benefits. The Board acknowledges the Veteran’s contention that he had a total of six years of service, consisting of three years in the Army National Guard and three years in the Army Reserve from January 1, 1974. See September 2018 notice of disagreement. A document associated with the Veteran’s claims file in April 2018 shows he was discharged from the United States Army Reserve in February 1980. However, there is no indication, and the Veteran does not contend, that he was called to active duty service while serving in the Tennessee Army National Guard or Army Reserve. Moreover, the Veteran has not been service-connected for any disability related to his service in the Tennessee Army National Guard or Army Reserve. The Board notes that Congress has limited VA benefits to National Guard and Reserve members who have not served on active duty to those were disabled or died during a period of ACDUTRA or INACDUTRA. The Board also notes the Veteran’s alternative argument, in that he contends “the military froze [his] separation date and extended it by two months” in 1974. See May 2019 substantive appeal. However, even giving the Veteran the full benefit of the doubt, as established above, the extended time does not constitute active military service for the purpose of establishing basic eligibility for VA nonservice-connected pension benefits. Although the Board is sympathetic with respect to the Veteran’s claim, the Board is bound by the law in this matter. Without the requisite qualifying service, the Veteran is not eligible for VA nonservice-connected pension benefits. As such, entitlement to nonservice-connected pension benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, 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.