Citation Nr: 21015730 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-04 024 DATE: March 18, 2021 ORDER Entitlement to basic eligibility for Department of Veterans Affairs (VA) home loan guaranty benefits is denied. FINDINGS OF FACT 1. The Veteran completed a total of 17 months and 16 days of continuous active duty prior to his honorable discharge from service. 2. The Veteran was not discharged under one of the exclusions from the minimum 24-month active duty service requirement. CONCLUSION OF LAW The criteria for entitlement to VA home loan guaranty benefits have not been met. 38 U.S.C. §§ 3701, 3702. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1983 to June 1985. The Board previously remanded this appeal in February 2019 for additional development. The agency of original jurisdiction (AOJ) has substantially complied with the Board’s remand directives, and the Board will proceed with a decision on the merits of the claim. For the purpose of eligibility for benefits under 38 U.S.C. Chapter 37, to include VA home loan guaranty benefits, veterans must generally meet the minimum active duty service requirement. See 38 U.S.C. § 3702. Under 38 U.S.C. § 5303A, a person who initially enters active duty after September 7, 1980, the minimum service requirement is 24 months of continuous active duty. See also 38 C.F.R. § 3.12a. In relevant part, the minimum 24-month continuous active duty requirement does not apply to a person who is discharged or released from active duty under 10 U.S.C. § 1171 (early discharge) or 10 U.S.C. § 1173 (discharge for hardship), or a person discharged for a disability incurred or aggravated in line of duty. See 38 U.S.C. § 5303A(b)(3)(A), (B). Additionally, the minimum 24-month continuous active duty requirement does not apply to benefits under 38 U.S.C. Chapter 37 where a person: is discharged for the convenience of the Government, if, in the case of an individual with an obligated period of service of at least three years, the individual completes not less than 30 months of continuous active duty under that period of obligated service; is discharged for a nonservice-connected medical condition that preexisted service; is involuntarily discharged for the convenience of the Government as a result of a reduction in force; or is discharged for a physical or mental condition that was not characterized as a disability and did not result from the individual’s own misconduct but did interfere with the individual’s performance of duty. See 38 U.S.C. § 5303A(b)(3)(G)(i)-(iv). The Veteran seeks entitlement to VA home loan guaranty benefits based on his honorable service in the United States Navy. See July 2015 Eligibility Application. In this case, the Veteran had an obligated period of active duty service of four years. See DD Form 4. Pursuant to service-initiated separation proceedings, the Veteran was honorably discharged for homosexual conduct following the completion of 17 months and 16 days of continuous active duty. See April 1985 Notice of Administrative Board Procedure Proposed Action; see also DD Form 214. The appellant contends that the minimum 24-month continuous active duty requirement should not apply under the provisions of 38 U.S.C. § 5303A(b)(3)(G). See December 2015 VA Form 9. In particular, the Veteran asserts that, at the time of his discharge, homosexuality was listed as a diagnosis in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM). The Veteran indicated that his discharge for homosexuality was based on a preexisting medical condition, and that he was under extreme stress on a daily basis and unable to perform his military duties as a result of harassment and cruelty from fellow sailors that learned of his sexual orientation. The Board is deeply sympathetic to the Veteran’s contentions concerning the basis of his discharge. However, under the governing service directives at the time of the Veteran’s active duty service, separation on the basis of homosexual conduct was specifically distinguished from separation for preexisting medical conditions and/or “other designated physical or mental conditions.” See Department of Defense Directive 1332.14, Enlisted Administrative Separations, (January 28, 1982). Additionally, although service treatment records support the Veteran’s report of experiencing stress, fear, and harassment related to the discovery of his sexual orientation, the Veteran was not discharged for a service-connected disability. The Board has considered whether any of the other exceptions to the minimum 24-month continuous active duty requirement may be applicable, but finds that they are not. In this regard, the Veteran did was not discharged under the authority of 10 U.S.C. § 1171 (early discharge) or 10 U.S.C. § 1173 (discharge for hardship), he was not discharged for the convenience of the Government following 30 months of continuous active duty, and he was not involuntarily discharged for the convenience of the Government as a result of a reduction in force. The Board recognizes that the Department of Defense policy concerning separation for homosexuality in the armed forces has been repealed in its entirety. Should the appellant wish to have the narrative reason and separation code for his discharge corrected accordingly, to include as under one of the discharge provisions discussed above under 38 U.S.C. § 5303A and 38 C.F.R. § 3.12a, he must apply to the Board for Correction of Naval Records (BCNR). The Board is bound by the statutory and regulatory requirements pertaining to basic eligibility for entitlement to VA home loan guaranty benefits, and while sympathetic to the Veteran, the Board is without authority to grant claims on an equitable basis. As such, the Veteran’s claim must be denied. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.