Citation Nr: 21009330 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-24 358 DATE: February 22, 2021 ORDER Entitlement to nonservice-connected pension benefits is denied. FINDINGS OF FACT 1. The Veteran served on active duty from January 1988 to May 1990; this period is not shown to be active service during a period of war. 2. During the Veteran’s service with the United States Air Force Reserves, he did not have active service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. CONCLUSION OF LAW The criteria for basic eligibility for VA nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 101, 1521, 5107 (2012); 38 C.F.R. §§ 3.2, 3.3, 3.6, 3.314 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1988 to May 1990. He also had service with the United States Air Force (USAF) Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 decision. The issue was most recently before the Board in June 2020 and remanded, in pertinent part, to verify duty status and obtain records from the Defense Finance and Accounting System (DFAS). As to whether the Board’s remand orders have been complied with, the Board notes that. the Department of the Air Force verified in August 2020 that there were no records found for the Veteran. The Air Reserve Personnel Center indicated they only have records dating back to 2004. See October 2020 Report of General Information. In October 2020, DFAS indicated they could not provide pay records and suggested the Veteran try to obtain leave and earning statements directly as VA would not be successful as a third party requested. In October 2020, the RO asked the Veteran to inquire directly with DFAS and request leave and earning statements. He was further informed that he could request a summary of active duty points from Air Force Human Resource Command; however, he was notified that this would not confirm active duty service for VA benefit consideration. In December 2020, the Veteran submitted “Request and Authorization for Active Duty Training/Active Duty Tour” forms from the Secretary of the Air Force. The documents showed various periods of temporary duty assignments in 1996 while in the Air Force Reserves. In December 2020 after the issuance of the most recent Supplemental Statement of the Case, the Veteran stated he had no further evidence to submit. Given the above, the Board finds that all requested development has been substantially complied with. The RO has taken all possible steps to try to obtain the requested information. When unable to obtain it, the RO informed the Veteran of the same and allowed the Veteran the opportunity to submit evidence. The Veteran availed himself of the opportunity and most recently stated he had no additional evidence to submit. Therefore, the Board finds that another remand is unnecessary as any further requests to obtain records would be futile. Thus, the Board shall proceed with adjudication of the issue on the merits. Entitlement to nonservice-connected pension benefits The question before the Board is whether the Veteran has established threshold eligibility for VA non-service connected pension benefits. Establishing basic eligibility for VA disability pension benefits requires, in part, that the Veteran has active military, naval or air service. See 38 U.S.C. §§ 101 (2), (24), 1521(a), (j); 38 C.F.R. §§ 3.1, 3.6. The term “Veteran” is defined as a 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). The term “active military, naval, or air service” includes “active duty” and “any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty.” 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). “Active duty” is defined as full-time duty in the Armed Forces, other than active duty for training. 38 C.F.R. § 3.6 (a), (b). “Armed Forces” consists of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. “Active duty for training” includes “full-time duty in the Armed Forces performed by Reserves for training purposes.” 38 U.S.C. § 101 (22)(A). Active duty training also includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(3). Additionally, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state.  “[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, 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, 57 (2007).  Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id.  A veteran meets the service requirements to receive nonservice-connected pension benefits if he or she served in active military, naval, or air service (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from 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). The Veteran served on active duty from January 1988 to May 1990. Under 38 U.S.C. § 101 and 38 C.F.R. § 3.2(f), specifying periods of war, the Persian Gulf War began on August 2, 1990. Thus, he did not serve 90 days or more during a period of war. The Veteran contends that, while serving with the USAF Reserve, he was deployed twice to Incirlik Air Force Base in Turkey in 1996 and 1998. He contends that, during these deployments, he was on active duty service in a combat war zone for Operation Northern Watch. See January 2014 Correspondence. The Veteran maintains that he was on active duty for 90 days in 1996 and 39 days in 1998. See December 2016 VA Form 21-4138. In support of his appeal, the Veteran submitted his “ANG/USAFR Point Credit Summary” reports showing the points he earned towards retirement. The Board notes the report identifies points as “Active Duty Other,” which is not sufficient enough for the Board to determine whether such service was active duty versus active duty for training (ACDUTRA). The Veteran has not been service-connected for any disability incurred during a period of ACDUTRA and, therefore, such periods of service would not be countable as active military service for purposes of calculating time towards establishing pension eligibility unless they are active duty. Reserve service is not the same as active duty, and the law has clearly defined each to draw a clear distinction between the two. The Veteran can aggregate multiple periods of qualifying active service so long as at least each period of qualifying active service was performed during a period of war. 38 C.F.R. § 3.3. The Veteran has submitted Request and Authorization for Active Duty Training/Active Duty Tour forms showing that he had temporary duty assignments (TDY) for Active Duty Support (ADS) (previously known as active duty special work (ADSW)) for operational support from May 10, 1996, to June 16, 1996, for 38 days. The Veteran was also ordered to active duty for 5 days from June 24, 1996 to June 28, 1996, for 5 days from July 8, 1996, to July 12, 1996, and five days from July 15, 1996, to July 19, 1996, for a total of 15 days. While this type of service qualifies as ative duty service, he would need an aggregate of 90 days or more in two or more separate periods of service during more than one period of war, and the Veteran only had 48 days. 38 U.S.C. § 1521(j)(4). Thus, the Veteran’s Reserve service cannot be considered qualifying service toward the requisite 90-day threshold for purposes of determining eligibility for a non-service-connected pension. 38 U.S.C. § 101; 38 C.F.R. §§ 3.2, 3.6. As the Veteran did not have any qualifying wartime service, he does not meet the basic eligibility requirements for VA non-service connected pension benefits. In this case, the law is dispositive. Accordingly, the Veteran’s claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. L. Wallin, 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.