Citation Nr: 21073677 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 17-17 837 DATE: December 9, 2021 ORDER Entitlement to non-service-connected benefits pension is denied. FINDING OF FACT The appellant is not shown to have served on active duty during a period of war as recognized by the Department of Veterans Affairs (VA). CONCLUSION OF LAW The criteria for basic eligibility for non-service-connected pension benefits have not been met. 38 U.S.C. §§ 101, 1521; 38 C.F.R. §§ 3.2, 3.3, 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the Army National Guard between July 1979 and September 1983, to include a period of active duty for training from August 1979 to January 1980. His decorations include the Marksman (Rifle) Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2016 determination issued by a VA Pension Management Center. In correspondence dated in March 2018, June 2018, and October 2019, the appellant indicated that he wanted to opt into the Appeals Modernization Act (AMA) review system. See 38 C.F.R. § 19.2(d). However, he did not submit a signed Rapid Appeals Modernization Program (RAMP) election form in order to effectuate that election until after his appeal was docketed at the Board and the RAMP program had concluded. As such, his appeal is being processed via the legacy system. In his May 2017 substantive appeal, the appellant indicated that he wanted to appear at a Board hearing. A September 2021 letter notified him that a Board hearing was scheduled for November 8, 2021. While the record contains an October 2021 request for postponement of that hearing, notes embedded in the Board's electronic recordkeeping system (Caseflow) reflect that his representative later withdrew the hearing request on the day of the hearing. See 38 C.F.R. § 20.704(e). Entitlement to non-service-connected benefits pension is denied. The appellant seeks to establish entitlement to non-service-connected pension benefits. He feels that he is entitled to benefits based on the service he provided to his country and the hardships he endured. Non-service-connected disability pension benefits may be provided to a veteran of a war who has the requisite service and who is permanently and totally disabled. 38 U.S.C. § 1521(a). A veteran meets such service requirements if he or she served in the 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 such 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). VA presently recognizes the following as periods of war: January 1, 1817 through December 31, 1898, inclusive; April 21, 1898 through July 4, 1902, inclusive; May 9, 1916 through April 5, 1917; April 6, 1917 through November 11, 1918, inclusive; December 7, 1941 through December 31, 1946, inclusive; June 27, 1950 through January 31, 1955, inclusive; August 5, 1964 through May 7, 1975, inclusive; and August 2, 1990 through a date to be prescribed by Presidential proclamation or law. 38 U.S.C. § 101; 38 C.F.R. § 3.2. Here, it is clear that the appellant does not have the requisite active-duty service to qualify for non-service-connected pension benefits. As noted previously, he is shown to have served in the Army National Guard between July 1979 and September 1983, to include a period of active duty for training from August 1979 to January 1980. Aside from the fact that his service does not qualify as "active duty," all of his service took place subsequent to the Vietnam War era (August 5, 1964, through May 7, 1975), and prior to the Gulf War era (in effect since August 2, 1990). Id. The appellant does not contend, and the record does not otherwise reflect, that he had any additional periods of service during wartime. In order for the appellant to meet the basic service requirements for non-service-connected pension benefits, the evidence must establish that he served during a period of war. The facts clearly show that he did not serve on active duty during a period of war as recognized by VA. As such, eligibility for non-service-connected pension benefits must be denied as a matter of law. Sabonis v. Brown, Vet. App. 426, 429-30 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.