Citation Nr: 21030016 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-49 813A DATE: May 17, 2021 REMANDED The propriety of termination of nonservice-connected pension benefits is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1977 to February 1978. He also had a period of service in the Army National Guard of Puerto Rico until July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the Board in March 2020. The question before the Board is whether the Veteran has established threshold eligibility for VA nonservice-connected pension benefits. Specifically, the issue is whether the Veteran has met the qualifying service requirements. A veteran has met the necessary service requirements if he served in 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 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). The term "active military, naval, or air service" includes active duty, 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, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. §§ 3.6(a)-(d). Active duty training 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. The term "period of war" means the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of war by the Congress. 38 U.S.C. § 1501(4); see also 38 C.F.R. § 3.2, (setting forth the beginning and ending dates of each war period beginning with the Indian wars). The term period of war in reference to pension entitlement under 38 U.S.C. §§ 1521, 1541, and 1542 means all of the war periods listed in 38 C.F.R. § 3.2 except the Indian Wars and the Spanish-American War. 38 C.F.R. § 3.2; see also § 3.3(a)(3) and (b)(4)(i). In an August 2016 Administrative Decision, the RO determined that the Veteran's service was not qualifying service for pension purposes. Specifically, the RO determined that the Veteran's military personnel records contained no evidence that he had Federal service as defined by 10 U.S.C. § 12401. In November 2017, the RO granted disability pension benefits effective May 25, 2016, on the basis that he was 65 or older, a patient in a nursing home, or in receipt of Social Security benefits. However, in February 2018, the RO proposed to terminate his pension benefits on the basis that his Army National Guard service was considered service to his state/territory and not considered Federal service since he had not been called to active duty. An October 2018 Administrative Decision determined the award had been made in error as he did not have qualifying service for pension purposes. No overpayment was created as it was an erroneous award of benefits based solely on administrative error. The Veteran maintains that the termination of pension was in error as he received an Army Commendation Medal (ARCOM) for "maintaining morale and spirit de corp [sic] of troops and their families" while he was on active duty special work (ADSW) during preparation for Desert Storm from April 7, 1991, to September 6, 1991. See VA Form 9 received in November 2018. During the March 2020 Board hearing, the Veteran testified that he had 104 days of active duty service during Desert Storm. In an April 2020 decision, the Board remanded the claim to seek clarification and obtain the complete service personnel records for the Veteran's period of service in the National Guard. In May 2020, the RO attempted to locate and associate with the file additional documents for the Veteran's period of National Guard service pursuant to the remand. In September 2020, some paystubs from his service in 1991 were associated with the file. However, another remand is required for the RO to consider the new evidence of record and issue a supplemental statement of the case (SSOC). See 38 C.F.R. § 19.31. (CONTINUED ON NEXT PAGE) The matter is REMANDED for the following action: Readjudicate the claim in an SSOC based on the entirety of the evidence, to include any additional evidence received pursuant to the development ordered in the April 2020 Board remand. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.