Citation Nr: A21019708 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 200807-103697 DATE: December 10, 2021 ORDER Entitlement to nonservice-connected pension is denied. FINDING OF FACT The Appellant had a period of active duty for training (ACDUTRA) but was not disabled from a disease or injury incurred or aggravated in the line of duty. CONCLUSION OF LAW The criteria for an award of nonservice-connected pension are not met. 38 U.S.C. §§ 101(2), (24), 1521, 5107(a); 38 C.F.R. §§ 3.2, 3.3, 3.6. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant seeks pension benefits. By way of relevant history, a July 2019 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denied pension benefits. The Appellant submitted a VA Form 20-0996, Decision Review Request: Higher Level Review (HLR) in September 2019 and a January 2020 letter decision was issued by the RO, which continued the denial of pension benefits. The Appellant selected the Evidence Submission lane under the Appeals Modernization Act (AMA) review system by submitting a VA Form 10182, Decision Review Request: Board (Notice of Disagreement), in February 2020. Then, the Appellant filed a VA Form 20-0995, Supplemental Claim Application, in May 2020. In May 2020, the agency of original jurisdiction (AOJ) issued a letter decision denying the claim for pension. The Appellant filed another VA Form 10182 in July 2020, this time electing the Hearing lane. In September 2020, the Board issued a decision in response to the February 2020 Form 10182. That decision denied entitlement to nonservice-connected pension. However, pursuant to the July 2020 Form 10182, the Appellant was scheduled for a Board hearing, which was held on April 27, 2021. Recognizing the unique procedural history of this case, including the fact that the AOJ accepted the Appellant's May 2020 Supplemental Claim and issued a decision, which the Appellant duly appealed requesting a Board hearing that was held in April 2021, the Board will again address the claim on the merits. The Board may consider the evidence of record at the time of the rating decision on appeal, and evidence received within 90 days of the April 2021 hearing. As noted, the Appellant asserts that he should be eligible for VA pension benefits, which have, to date, been denied based on a lack of eligible service for pension purposes. Specifically, the AOJ has explained that the Appellant's service records show that his active duty service was for training only, which is not qualifying active-duty service for pension, and the Appellant was not disabled from a disease or injury incurred or aggravated in the line of duty. The Appellant, however, asserts that he had an additional period of active duty service immediately after his period of training. See April 2021 Hearing Transcript. To be eligible for nonservice-connected pension, a veteran must have served in the active military, naval, or air service (1) for 90 days or more during a period of war; (2) during a period of war with discharge or release from such service for a service-connected disability; (3) for a period of 90 consecutive days or more when 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); see also 38 C.F.R. § 3.30. The term "active military, naval, or air service" includes (a) active duty; (b) any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty; and (c) any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from certain cardiovascular events. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). The Board adds that National Guard duty is distinguishable from other Reserve service in that a member of the Army National Guard may be called to duty by the governor of their state. Members of the Army National Guard only serve the Federal military when they are formally called into the military service of the United States and at all other time, 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 (2007). Therefore, to have basic eligibility for veteran's benefits based on a period of duty as a member of state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, or must have performed full-time duty under the provisions of 32 U.S.C. §§316, 502, 503, 504, or 505. See 10 U.S.C. § 12401. In this case, as will be discussed, there is no evidence that the Appellant had Federalized service outside of his period of ACDUTRA. Thus, the Board, in this case, must conclude that the Appellant is not legally eligible for nonservice-connected pension. More specifically, the Appellant states that he joined the National Guard in February 1966, which is reflected on his DD Form 214. He states that he then went to basic training in July 1966, which lasted for four months and 22 days. See Hearing Transcript at p. 5-6. He then asserts that in November 1966, he was deployed directly to special active duty, where he completed specialized duties as a typist. Id. He testified that the deployment to active duty is reflected on his DD Form 214. The Board has considered the Appellant's statements in light of the notations on his DD Form 214. Specifically, although the Appellant asserts the time periods on the form pertain to eligible active service, review of the form itself does not indicate as much. Indeed, the 4-month and 22-day period cited by the Appellant directly correlates to the period of the Appellant's state National Guard service, from February 14, 1966 to July 6, 1966. The form next reflects a time period of 4 months and 10 days, from July 6, 1966 to November 15, 1966, which corresponds directly to his ACDUTRA service. Finally, the remarks at the end of the DD Form 214 show that the Appellant was released from ACDUTRA and returned to state control as a member of the Army National Guard of Washington state. Thus, the DD Form 214 clearly delineates the Appellant's service up to November 15, 1966 and does not verify any Federalized active service after that date. Insofar as the Appellant asserted that he was deployed to active duty immediately following his ACDUTRA period in November 1966, that assertion is contradicted by the notation on the DD Form 214 that he was returned to state control as a member of the National Guard. In addition, a Form NGB-22 contained in the claims file, corroborates the information on the Form DD Form 214 and reflects that the Appellant incurred a six-year military obligation beginning on February 14, 1966, and that he completed a 4-month and 10-day training period from July 6, 1966 to November 15, 1966. The form makes no reference to any subsequent active service in the months or years following his period of ACDUTRA that would otherwise qualify the Appellant for the pension benefits he seeks. As this form serves as the record of service for the Appellant's Washington National Guard service, had the Appellant served in an active duty capacity following his ACDUTRA period in 1966 and 1967 while a member of the Washington Guard as he so states, one would expect this form to memorialize that service. The fact that it does not, and its consistency with the information on the Appellant's DD Form 214, weighs against the Appellant's claim. The Board in no way doubts the Appellant's sincerity in this case. However, after review of all of the available evidence, the Board finds that the information provided by the service department on the Appellant's DD Form 214 and NGB-22 is more probative than his more recent recollection of his service status. Service department determinations as to the dates of service are binding on VA for the purpose of establishing service. The Board therefore must conclude that the dates on the DD Form 214 are accurate. 38 C.F.R. §§ 3.23 and 3.274. 38 U.S.C. §§ 1502, 1521(j). Insofar as the Appellant asserts there may be incorrect information on his DD Form 214 regarding service dates and status, he may request correction through the appropriate Department of Defense channels. Although the AOJ has made numerous attempts to search for outstanding service records, no records were found documenting that the Appellant was ever called to active service qualifying for a VA pension award following his period of ACDUTRA from July to November 1966. As such, the Board cannot grant entitlement to nonservice-connected pension, as the evidence weighs against a finding that the Appellant had active military service that qualifies for pension benefits. The claim is therefore denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.