Citation Nr: 21068986 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-49 813A DATE: November 17, 2021 ORDER The termination of nonservice-connected benefits was proper; the claim for restoration of benefits is denied. FINDING OF FACT The Veteran is not shown to have had any active service during a period of war. CONCLUSION OF LAW The termination of nonservice-connected benefits was proper. 38 U.S.C. § 1521 (2018); 38 C.F.R. §§ 3.3, 3.6, 3.105 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1977 to February 1978. He also had a period of service in the Army National Guard of Puerto Rico until July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the Board in March 2020. In November 2017, the RO granted disability pension benefits effective May 25, 2016, on the basis that he was 65 or older, a patient in a nursing home, or in receipt of Social Security benefits. However, in February 2018, the RO proposed to terminate his pension benefits on the basis that his Army National Guard (ANG) service was considered service to his state/territory and not considered Federal service since he had not been called to active duty. An October 2018 Administrative Decision determined the award had been made in error as he did not have qualifying service for pension purposes. No overpayment was created as it was an erroneous award of benefits based solely on administrative error. To decide if the termination was proper, the Board must determine whether the Veteran has established threshold eligibility for VA nonservice-connected pension benefits. Specifically, the issue is whether the Veteran has met the qualifying service requirements. 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. § 3.3(a). The term "active military, naval, or air service" includes active duty, 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 or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). Active duty training includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(3). 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 Veterans 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 term "period of war" 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 also 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; see also § 3.3(a)(3) and (b)(4)(i). A review of the record shows that the Veteran served on active duty from November 1977 to February 1978. The Vietnam Era ended May 7, 1975, and the Persian Gulf War did not begin until August 2, 1990. Thus, his active service cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a non-service-connected pension. 38 U.S.C. § 101; 38 C.F.R. §§ 3.2, 3.6. In an August 2016 Administrative Decision, the RO determined that the Veteran's ANG service was not qualifying service for pension purposes. Specifically, the RO found that the Veteran's military personnel records contained no evidence that he had Federal service as defined by 10 U.S.C. § 12401 ("member of the ANG are not in active Federal service except when ordered thereto under law"). The Veteran maintains that the termination of pension was in error as he received an Army Commendation Medal (ARCOM) for "maintaining morale and spirit de corp [sic] of troops and their families" while he was on active duty special work (ADSW) during preparation for Desert Storm from April 7, 1991, to September 6, 1991. See VA Form 9 received in November 2018. During the March 2020 Board hearing, the Veteran testified that he had 104 days of active duty service during Desert Storm. A review of the Veteran's Report of Separation and Record of Service by the Army National Guard shows the Veteran was awarded the ARCOM in December 1991 and a copy of the certificate has been obtained. However, there is no evidence that the Veteran had qualifying active military service during the identified period from April 1991 to September 1991. Notably, November 2016 and May 2020 responses from the Defense Personnel Records Information Retrieval System (DPRIS) indicated that no Official Military Personnel file (OMPF) was found for the Veteran. In September 2020, some paystubs from his service in 1991 were associated with the file; however, these records do not show that the Veteran was on active duty during this period. Finally, the Veteran submitted retirement point sheets in support of his claim, but these are not sufficient to show whether he was on active duty during a period of war. As the Veteran did not have any qualifying wartime service, he does not meet the basic eligibility requirements for VA nonservice-connected pension benefits. Thus, the termination of his nonservice-connected pension was proper and the claim for restoration of benefits is denied. Bethany L. Buck 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.