Citation Nr: 21072674 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-38 951 DATE: December 6, 2021 ORDER As basic eligibility for VA nonservice-connected pension benefits is not established, the appeal is denied. FINDINGS OF FACT 1. The Appellant was administratively discharged in March 1973, under other than honorable conditions, as a result of being absent without leave (AWOL) from his unit from October 16, 1972, to February 1, 1973. 2. The Appellant's character of service is under other than honorable conditions after requesting and receiving an Undesirable Discharge for the Good of the Service. 3. The Appellant has been incarcerated for a felony throughout the appeal period. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected pension benefits are not established. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty from August 1972 to March 1973. The case is on appeal from a July 2017 rating decision. The case was previously before the Board in July 2019, at which time the claim was remanded for further development. Entitlement to VA nonservice-connected pension benefits. Legal Criteria VA will pay a pension to each veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his own misconduct. 38 U.S.C. § 1521. The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1. If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.12. If any individual to or for whom pension is being paid under a public or private law administered by VA is imprisoned in a Federal, State or local penal institution as the result of conviction of a felony or misdemeanor, such pension payments will be discontinued effective on the 61st day of imprisonment following conviction. Analysis The Appellant is seeking nonservice-connected pension. At present, the appellant does not meet the criteria for basic eligibility for nonservice-connected pension benefits. The Appellant's Certificate of Release or Discharge (DD214) shows that he served from August 1972 to March 1973 during the period of the Vietnam War. It also indicates that his discharge is characterized as under other than honorable conditions, due to 125 days "lost" under 10 U.S.C. § 972. His service records show that he requested to be discharged under undesirable conditions in order to avoid trial by court-martial, stated that he did not like the Army, and signed a statement that he had been advised by counsel that he may be deprived of many or all Army benefits by requesting the discharge after he was furnished a list of such federal veterans' benefits to include pension. In a July 2020 administrative decision, the RO determined that the Appellant's discharge for the service period of August 31, 1972, to March 8, 1973, is a statutory bar to VA benefits under the provisions of 38 C.F.R. § 3.12(c)(4). The RO notified the Appellant of this determination in August 2020. The Appellant was informed of his right to appeal this decision. At present, there is no indication in the claims file that he submitted a timely appeal of the July 2020 decision. As such, the RO's decision remains final. The character of discharge issue is a separately appealable determination. Because he did not appeal it, it remains binding in the instant matter. Moreover, absent an appeal, the Board does not have jurisdictional authority to review it. See 38 C.F.R. § 20.104. The Board acknowledges the Appellant's disagreement with the denial of pension; however, the ultimate determination by the service department was a discharge under other than honorable conditions. If the Appellant wishes to do so, he may apply with the service department to attempt to upgrade his character of discharge. As a final matter, the Board notes the Appellant is currently incarcerated, which serves as a bar to his actual receipt of non-service connected pension benefits. 38 C.F.R. § 3.666. However, his claim for pension benefits was previously remanded in July 2019 to determine whether he has eligibility to nonservice-connected pension benefits regardless of the bar to receiving associated pension payments while incarcerated. Specifically, the Regional Office (RO) was directed to obtain the Appellant's SPRs, and his financial income/net worth statements. While his military records were obtained to include his DD214, the Appellant did not submit the required financial documentation in support of his claim. However, as the Appellant has been deemed barred from VA pension benefits due to his character of discharge, the directive to obtain the Appellant's income/net worth information has become moot. (Continued on the next page) In sum, the Appellant's discharge as under other than honorable conditions, in lieu of a court-martial and pursuant to willful and persistent misconduct, is considered to have been issued under dishonorable conditions per federal regulation. 38 C.F.R. § 3.12(d). Thus, the Appellant's claim for nonservice-connected pension is denied. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.