Citation Nr: 21067266 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-43 997 DATE: November 3, 2021 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDING OF FACT The preponderance of evidence is against the finding that the Veteran has qualifying wartime active service. CONCLUSION OF LAW The criteria for non-service-connected pension benefits are not met. 38 U.S.C. §§ 1521, 1522, 1523, 5107; 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.102, 3.340, 3.342, 4.17. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1986 to June 1989. After that, he was transferred to inactive reserves, and was discharged from the inactive reserves in March 1994. This matter comes to the Board of Veterans' Appeals (Board) from a February 2017 determination of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which denied the Veteran's entitlement to nonservice-connected disability pension. The Veteran requested a hearing before the Board as part of his appeal. However, in April 2021, the Veteran's representative withdrew his request for a hearing. Additionally, in July 2021, the Veteran submitted a written statement indicating that he "waive[d] the request for a hearing." Therefore, the Board will proceed to adjudication of the claim without a hearing. 1. Entitlement to non-service-connected pension benefits The Veteran contends that he meets the minimum qualifications for pension benefits. As explained in more detail below, the Board finds that, unfortunately, the Veteran's claim for pension must be denied. 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 or she 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." 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). "Active duty" is defined as full-time duty in the Armed Forces, other than active duty for training. 38 C.F.R. § 3.6 (a), (b). "Armed Forces" consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. "Active duty for training" includes "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C. § 101 (22)(A). The term "period of war" is defined by law and means the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress. 38 U.S.C. § 1501 (4); see 38 C.F.R. § 3.2, (setting forth the beginning and ending dates of each war period beginning with the Indian wars). The term period of war in reference to pension entitlement under 38 U.S.C. §§ 1521, 1541, and 1542 means all of the war periods listed in 38 C.F.R. § 3.2 except the Indian Wars and the Spanish-American War. 38 C.F.R. §§ 3.2, 3.3(a)(3) and (b)(4)(i). In the present case, the Veteran's DD Form 214 shows that he served on active duty from December 10, 1986 to June 16, 1989. However, such service does not coincide with a period of war, as defined by VA regulation. 38 C.F.R. § 3.2. Under 38 U.S.C. § 101 and 38 C.F.R. § 3.2(f), specifying periods of war, the Vietnam era ended on May 7, 1975; the Persian Gulf War began August 2, 1990. Therefore, the Veteran's active service was not during either the Vietnam era or the Persian Gulf War. The Veteran argues that his service ended in January 1994. The Veteran's DD Form 214 shows that he entered active duty service in December 1986 and separated in June 1989, and he was credited with over 2 years and 6 months of active service, but not 8 years. The reason for separation is "expiration of term of active service" and the type of separation is listed as "released from active duty and transferred to Naval Reserve." The Veteran was transferred to the "Naval Reserve Personnel Center." The 1994 date that the Veteran references is listed on the DD-214 as "Reserve Obligation Termination Date." Additionally, military personnel records show that the Veteran enlisted in the Naval Reserve in January 1986. The Veteran's history of assignments reflects that he performed periods active duty for training (ACDUTRA) and received drill pay in early 1986, was called to active duty in December 1986, then released from active duty in June 1989. The personnel records show that the Veteran was discharged from the "U.S. Naval Reserve (Inactive)" in 1994. The history of assignments does not show any ACDUTRA after the Veteran's release from active duty in June 1989. Based on the Veteran's personnel records and DD-214, the Board finds that the Veteran's service from June 1989 to March 1994 is not qualifying service for pension purposes. The Veteran has not contended, nor do the personnel records show, that he was ordered to active duty after 1989 while on inactive reserve status or that he had otherwise qualifying active Reserve service with a specific unit. Moreover, in order to have qualifying service based on the Reserves, there must be evidence that the individual concerned died or became disabled during a period of ACDUTRA or inactive duty training (INACDUTRA) because of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA or INACDUTRA will not qualify as "active military, naval, or air service." Here, the Veteran is service-connected for a disability incurred while he was on active duty and not with a Reserve component. Therefore, the evidence does not show that the Veteran became disabled during a period of ACDUTRA. Moreover, the Veteran's history of assignments does not show any ACDUTRA after 1989. In fact, the records show that the Veteran was in an inactive component, and the records do not show any INACDUTRA. In sum, the preponderance of the evidence is against a finding that the Veteran has qualifying service during a period of war. The Board acknowledges the Veteran's argument that his receiving a Navy Expeditionary Medal (NEM) indicates that he had qualifying service during a period of war. In April 2021, the Veteran's representative submitted an article indicating that the NEM is awarded to servicemembers "who shall have actually landed on foreign territory and engaged in operations against armed opposition or operated under circumstances which, after full consideration, shall be deemed to merit special recognition and for which service no campaign medal has been awarded." The article further indicates that the Persian Gulf War is a qualifying campaign for receipt of the NEM. First, the Board notes that the Veteran's DD Form 214 indicates he has sea service, but no foreign service. Second, the Veteran's military personnel records specifically show that the Veteran was awarded a Navy "E" Ribbon for service performed from January 1988 to December 1988, and an Armed Forces Expeditionary Medal for service performed between May 1988 and July 1988. These dates do not correspond with a period of war as defined by law. Third, the article explains that the NEM may be awarded for other circumstances deemed to merit special attention, and not just for wartime service, and that the Persian Gulf is only one qualifying event. However, the article does not pertain specifically to this Veteran, nor does it show that engagement in operations during the Persian Gulf is this Veteran's qualifying event for receiving the NEM. The Board affords this article little weight in its analysis, and affords the Veteran's DD-214 and service personnel records significant, and more, weight than the article. The Veteran's records pertain specifically to him, and adequately document the type of service the Veteran performed. Only service department records can establish if and when a person was serving on active duty, active duty for training, or inactive duty training. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). "[S]ervice department records are binding on VA for purposed of establishing service in the U.S. Armed Forces.' Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Although the Board is sympathetic with respect to the Veteran's disability, without the requisite qualifying service, he is not eligible for VA nonservice-connected pension benefits. In this case, the law is dispositive. Accordingly, the Veteran's claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.