Citation Nr: 21067683
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 18-49 559
DATE: November 5, 2021

ORDER

Entitlement to survivor pension benefits is denied.

FINDING OF FACT

1.  The Veteran's service from September 9, 1937, to September 13, 1939, was not during a period of war.  

2.  The character of the Veteran's discharge for his period of service from December 19, 1939, to December 6, 1945, is a bar to benefits administered by VA.

CONCLUSION OF LAW

The criteria for entitlement to survivor pension benefits have not been met. 38 U.S.C. § 1521 (2018); 38 C.F.R. §§ 3.3, 3.23 (2021).  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Appellant seeks entitlement to VA survivor's pension benefits.  A surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C. § 1541; 38 C.F.R. §§ 3.23, 3.273.

A veteran has met the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (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.  

A review of the record shows that the Veteran served on active duty from September 9, 1937, to September 13, 1939.  World War I was from April 6, 1917, to November 11, 1918.  World War II was from December 7, 1941, to December 31, 1946.  Thus, his active service for this period cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for survivor pension benefits. 38 U.S.C. § 101; 38 C.F.R. §§ 3.2, 3.3, 3.6.  

In an October 1994 Administrative Decision, VA determined that the Veteran's discharge for the period of service from December 19, 1939, to December 6, 1945, was issued under dishonorable conditions and was a statutory bar to benefits under 38 C.F.R. § 3.12 (c)(2) ("benefits are not payable where the former service member was discharged or released by sentence of general court-martial").  The Veteran received a general court-martial on June 5, 1940, was found guilty, and sentenced to be dishonorably discharged, forfeit all pay, and confined at hard labor for a period of three years. 

As the Veteran did not have any qualifying wartime service, the Appellant does not meet the basic eligibility requirements for survivor pension benefits. While the Board is sympathetic to the Appellant, Congress has specifically limited survivor pension benefits to the class described above, and the Board must follow the laws and regulations regarding veterans' benefits. Accordingly, her claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. L. Wallin, 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.