Citation Nr: 21008273 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 18-40 200 DATE: February 12, 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 United States Air Force Reserves (USAFR) with a period of active duty for training (ACDUTRA) from July 16, 1967 to November 15, 1967, but no active duty service. CONCLUSION OF LAW The criteria are not met for entitlement to future burial in a national cemetery. 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 in the USAFR from May 1967 to May 1973, but, as will be discussed, not all that service was qualifying for the purpose of establishing his entitlement to the requested benefit. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2017 decision of the VA National Cemetery Administration (NCA) in St. Louis, Missouri. In January 2021, in support of his claim, the appellant testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Eligibility for future burial in a national cemetery The appellant is seeking an eligibility determination, prospectively, for eventual burial in a national cemetery. During his recent hearing in January 2021 before this Board, the appellant clarified that he just wants burial (cemetery) benefits, not looking to obtain anything else. He points out he was a staff sergeant (E5) in the Air Force and told several times while in service that he had sufficient time served to qualify (told he only needed 120/121 days of wartime service to qualify for this benefit). He maintains he had a total of 289 days of service, so well more than required. In calculating this number, he recounted the following: 110 days at Suffolk County and McGuire Air Force Bases (calculated as 22 days (11 weekends multiplied by 2 days per weekend) multiplied by 5 years, totaling 110 days); plus 56 days of summer camp (14 days (2 weeks multiplied by 7 days per week) multiplied by 4 years, totaling 56 days); plus 123 days of basic training at Lackland and Sheppard Air Force Bases.   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 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 training (INACDUTRA) during which the individual concerned was disabled or died from an injury [though not also disease] 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). The threshold question in this case is whether the appellant has “active military, naval, or air service” under the law, and, therefore, attained “veteran” status. 38 U.S.C. § 2402; 38 C.F.R. § 38.620. As an initial matter, there is no evidence that the appellant became disabled from a disease or injury incurred during a period of ACDUTRA, and he does not contend otherwise. See December 2020 VA Form 21-0820, Report of General Information. He is not in receipt of compensation for a service-connected disability. Military personnel records show the appellant enlisted in the USAFR in May 1967. His DD Form 214 shows one period of ACDUTRA from July 16, 1967 to November 15, 1967, approximating four months. He received an honorable discharge from the USAFR in May 1973. There is no indication of any period of active duty service. In his June 2018 notice of disagreement (NOD), the appellant claims that he is entitled to the requested burial benefit because he served on ACDUTRA and in summer trainings on dates that coincided with wartime in the Republic of Vietnam. See also, August 2018 VA Form 9, Appeal to the Board of Veterans’ Appeals. But, after considering the evidence of record in this case, the Board finds that the appellant did not have “active military, naval, or air service” as contemplated by the governing statutes and regulations (beyond what is indicated) and did not become disabled from a disease or an injury incurred in the line of duty during his period of ACDUTRA. Notably, he has not been granted service connection for any disability. To the extent the appellant contends that he is entitled to burial at a national cemetery based on his calculation of 289 days of total service, which includes basic training and summer camps, the Board reiterates that, under the applicable statutes and regulations, he does not have the requisite service. As explained, burial in a national cemetery is limited to any person classified as a “veteran,” meaning an individual who served in active duty service and was discharged under condition other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The definition of “active military, naval, or air service” is limited to active duty, and any period of ACDUTRA where the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury (though not also disease) incurred or aggravated in the line of duty or a listed heart or brain condition during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Here, though, the appellant does not have any active duty service. And, although he has a period of ACDUTRA, he was not disabled during that period of service. Further, basic training and summer camps do not qualify as active duty service. Therefore, he has not attained “veteran” status for that other service.   All of that said, the Board is certainly very grateful for the appellant’s USAFR service, however characterized. But, according to the applicable statutes and regulations, his service does not make him eligible for burial in a national cemetery. 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). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.