Citation Nr: 21066041 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-42 705 DATE: October 28, 2021 ORDER Entitlement to Dependency and Indemnity Compensation (DIC) benefits is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The decedent died in February 2013. 2. The decedent's DD Form 214 for his active duty service from September 1969 to February 15, 1972 reflects an honorable discharge. 3. The decedent's DD Form 214 for his active duty service from February 16, 1972 to August 1972 reflects a discharge "under other than honorable conditions." 4. In an October 1980 administrative decision, the Agency of Original Jurisdiction (AOJ) determined that the decedent's discharge for the period of service from February 16, 1972 to August 1972 was dishonorable for VA purposes and applied to his entire period of active duty service from September 1969 to February 1972 because the February 1972 discharge occurred prior to the expiration of the decedent's four-year term of his original period of service. 5. The decedent did not appeal the October 1980 administrative decision and no new and material evidence has been received pertinent to that administrative decision; accordingly the October 1980 decision is final. 6. The decedent's service from September 1969 to August 1972 was dishonorable for VA purposes and therefore is not qualifying active service for VA purposes. Entitlement to DIC benefits and accrued benefits is precluded as a matter of law. CONCLUSION OF LAW The decedent's service from September 1969 to August 1972 was under dishonorable conditions for VA compensation purposes and is a bar to VA benefits based on that period of service, to include claims for DIC and accrued benefits. 38 U.S.C. §§ 101(2), 5303; 38 C.F.R. § 3.12. REASONS AND BASES FOR FINDINGS AND CONCLUSION The decedent had active service with the United States Air Force from September 1969 to August 1972. In an October 1980 administrative decision, the Agency of Original Jurisdiction (AOJ) determined that the decedent's undesirable discharge in August 1972 was dishonorable for VA purposes, was binding as to his entire active duty service, and was a bar to VA benefits and precluded "entitlement to gratuitous VA benefits for [his] dependents and survivors." The decedent passed away in February 2013 and the appellant is his surviving spouse. In June 2021, the appellant testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. Entitlement to DIC benefits and entitlement to accrued benefits The appellant is seeking DIC benefits and alleges that the cause of the decedent's death is related to his active duty service. She has also filed a claim seeking entitlement to accrued benefits. After careful review of the claims file, the Board concludes that consideration of the merits of the appellant's claims is not warranted. In order to qualify for VA benefits, a claimant must demonstrate that he, she, or the party upon whose service the claimant predicates the claim was a "veteran." Aguilar v. Derwinski, 2 Vet. App. 21 (1991); see also, e.g., 38 U.S.C. § 1110 (entitlement to wartime disability compensation predicated upon status as disabled veteran). A "veteran" is any person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable." 38 U.S.C. § 101(2). Thus, a claimant must establish as a threshold matter that he was discharged under conditions other than dishonorable. According to the decedent's first DD Form 214, his character of discharge for his period of service from September 1969 to February 15, 1972 was "honorable," but his second DD Form 214 reflects that his character of discharge for the period of service from February 16, 1972 to August 1972 was "under other than honorable conditions." A discharge or release under other than honorable conditions is considered to have been issued under dishonorable conditions if it is determined that it was issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious, or unless it is found that the person was insane at the time of committing the offense causing such discharge or release. Id. In an October 1980 Character of Discharge administrative decision, the AOJ determined that the decedent was given an undesirable discharge which was under dishonorable conditions and a bar to VA benefits, and that the discharge under dishonorable conditions was binding to his periods of service from September 2, 1969 to February 15, 1972 and from February 16, 1972 to August 10, 1972 because his February 15, 1972 discharge was prior to the expiration of the four-year term of his original period of service. Notice of the October 1980 administrative decision was provided to the decedent that same month, and the notice letter advised the decedent that the decision "has the additional effect of precluding entitlement to gratuitous VA benefits for your dependents and survivors." The decedent did not appeal the October 1980 determination or submit new and material evidence within one year of that decision; accordingly, the October 1980 administrative decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). Neither the decedent during his lifetime nor the appellant has raised a claim of clear and unmistakable error (CUE) with regard to the October 1980 decision. See 38 C.F.R. § 3.105(a) (2018). Consequently, the Board is bound by the October 1980 determination that the decedent's service from September 1969 to August 1972 was dishonorable for VA purposes. Only veterans and the surviving spouse, child(ren), or parent(s) of a veteran are eligible to receive pension, compensation, and dependency and indemnity compensation benefits. 38 C.F.R. §§ 3.3, 3.4, 3.5. In this case, the decedent was discharged under dishonorable conditions for VA purposes for his period of service from September 1969 to August 1972, and he had no other qualifying service. Such a discharge is a statutory bar to VA benefits, to include DIC and accrued benefits. (Continued on the next page) Accordingly, as there is no legal basis upon which to award the claimed benefits, the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.