Citation Nr: 21071006 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-00 009 DATE: November 29, 2021 ORDER Eligibility for future burial in a Department of Veterans Affairs (VA) national cemetery is denied. FINDING OF FACT The appellant served with the Army National Guard (ARNG) of Massachusetts and the United States Amy Reserve (USAR) with a period of service from May 1955 to May 1958, but no period of active duty service. CONCLUSION OF LAW The criteria for future burial in a national cemetery have not been satisfied. 38 U.S.C. §§ 101, 2402, 5303A; 38 C.F.R. §§ 3.1, 3.6, 38.620. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served with the ARNG of Massachusetts and the USAR with a period of service from May 1955 to May 1958. This appeal arises out of a "pre-need" claim where the appellant is seeking an eligibility determination from VA's National Cemetery Administration, in advance, for burial in a national cemetery. The Veteran testified before the undersigned Veterans Law Judge in November 2021. Any person classified as a "veteran" is eligible for burial in a national cemetery. 38 U.S.C. § 2402(a); 38 C.F.R. § 38.620(a). The term "veteran" means any person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). "Active military, naval, or air service" includes active duty, and "any period of [active duty for training (ACDUTRA)] 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 for training (INACDUTRA)] 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 occurring during such training." 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Eligibility for burial in a national cemetery is also available to any member of a Reserve component of the Armed Forces, and any member of the Army National Guard or the Air National Guard, whose death occurs while such member is hospitalized or undergoing treatment at the expense of the United States for an injury or disease contracted or incurred under honorable conditions while performing ACDUTRA, INACDUTRA, or undergoing such hospitalization or treatment. 38 U.S.C. § 2402(b); 38 C.F.R. § 38.620(b). As an initial matter, there is no evidence that the appellant became disabled from a disease or injury incurred during a period of ACDUTRA or INACDUTRA, and he does not contend otherwise. The Veteran's claim has been denied based on the findings of the National Cemetery Administration that his ARNG and USAR service does not establish that the appellant had "active military, naval, or air service" under the law, and, therefore, attained "veteran" status eligibility for burial in a VA national cemetery, to include after review of necessary personnel records obtained from the National Personnel Records Center and State of Massachusetts Adjutant General's Office 38 U.S.C. § 2402; 38 C.F.R. § 38.620. The Veteran enlisted in May 1955 and was discharged in May 1958 by reason of his three-year term of service. There is no indication of any period of active service, however. The Board acknowledges his statement during his hearing testimony before the undersigned that he serviced in South Carolina for a time. The Veteran did not elaborate on this service, however, nor did he make such an argument in his initial notice of disagreement with the National Cemetery Administrations denial of his claim. Instead, rather than asserting active duty service, the Veteran has merely expressed disagreement with VA policy pertaining to this issue, stating that he believed he was "being discriminated against for the fact that [he] was not called upon to defend [his] country not deployed to any location," and that the law on this matter "needs to be readdressed and revised." The Veteran even acknowledged that he was not called to active duty in his December 2017 appeal to the Board, stating that "I find it unfair for myself and others who volunteered to serve, yet not called to active duty." While not unsympathetic, the Board is bound by the applicable laws and regulations. After considering the evidence of record, the appellant did not have "active military, naval, or air service", and did not become disabled from a disease or injury incurred in line of duty during any period of ACDUTRA or INACDUTRA. As such, his service does not make him eligible for burial in a national cemetery. The Board is grateful for the appellant's ARNG and USAR service. However, Because the law is dispositive on this question, the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.