Citation Nr: 22014351 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 15-30 922A DATE: March 12, 2022 ORDER The claim of entitlement to basic eligibility for Department of Veterans Affairs (VA) home loan guaranty benefits is denied. FINDING OF FACT The appellant had active military service from January to April 1966; he did not serve on active duty for 90 days or more during a period of war and was not discharged due to service connected disability. CONCLUSION OF LAW The criteria for home loan guaranty eligibility under Chapter 37, Title 38, United States Code, are not met. 38 U.S.C. §§ 3702(a), 5303A(a), (b); 38 C.F.R. § 3.315. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had active duty service with the United States Marine Corps from January 17, 1966 to April 13, 1966. He received a discharge under honorable conditions. The instant matter is on appeal from a May 2015 rating decision. In October 2020 and March 2021, the Board remanded this issue for additional evidentiary development. 1. The claim of entitlement to basic eligibility for VA home loan guaranty benefits For veterans who served before September 7, 1980, basic entitlement to home loan guaranty benefits are generally available to individuals who were discharged or released from a period of active duty for a service-connected disability; served for 90 days or more during World War II, the Korean conflict or the Vietnam era; served for more than 180 days and were discharged or released under conditions other than dishonorable; or based on a couple of other situations not pertinent to this appeal. 38 U.S.C. § 3702(a)(2). Notably, the Korean conflict occurred from June 27, 1950, through January 31, 1955, and the Vietnam era occurred from February 28, 1961, to May 7, 1975, for veterans serving in Vietnam, and from August 5, 1964, to May 7, 1975, for all other cases. 38 C.F.R. § 3.2. In this case, the appellant had active service from January 17 to April 13, 1966, his DD-214 calculating a net period of service of two months and 27 days, which constitutes a period of less than 90 days during the Vietnam era. Accordingly, entitlement to a home loan guaranty benefits is not warranted based on the length of the appellant's service. 38 U.S.C. § 3702(a)(2). The Board previously remanded to obtain the appellant's service department records to determine why he was discharged prior to the expiration of his contract. Records reflect that the appellant underwent a Medical Board due to a period of unauthorized absence (UA) from initial training and an incident of superficial lacerations to the wrist while awaiting admission to the recruit evaluation unit. In March 1966, he underwent psychiatric evaluation and was diagnosed with passive-dependency personality that existed prior to entry to service and was not aggravated by service or otherwise incurred in the line of duty. The appellant reported that he tried to avoid being drafted and went UA when he first arrived at training. He could "give no motivation for his recent behavior other than he couldn't stand the service. He was not suicidal. He was obstreperous in his expression of anger. There were no delusions, hallucinations or ideas of reference. There is no evidence of underlying psychosis or neurosis." Instead, the appellant reported dissatisfaction with being drafted as he "tried to avoid being drafted" and spent all his life "in a small town". The appellant stated that he disliked "being yelled at and moved so rapidly while at Marine Corps Recruit Depot." While hospitalized, the appellant was treated with both group and individual psychotherapy. He showed no evidence of depression, but instead remained unmotivated to return to duty. According to the treating clinicians, it "became obvious that his characterological traits were lifelong in duration and that he would continue in his passive-resistance to duty in the future." After an adequate period of observation and treatment, a conference of staff psychiatrists concluded that the appellant "had shown long-standing evidence of pathological emotional immaturity which precluded his rendering any further useful service in the U.S. Marine Corps", and a diagnosis of passive-dependency personality "manifested by being home bound, [his] inability to separate from home, passive expression of anger, [and] inability to mobilize resources in active behavior." It was the opinion of the Board that the appellant suffered from a preexisting personality disorder that rendered him unsuitable for service, and he suffered from no disability which was related to service or aggravated thereby. The appellant was discharged due to unsuitability. In sum, the appellant served less than 90 days during the Vietnam era and was not discharged due to a service-connected disability. Instead, it was determined that he possessed a preexisting personality disorder that was not caused or aggravated by service, and rendered him unsuitable for service. Thus, the appellant is not entitled to VA home loan guaranty benefits. See 38 U.S.C. §§ 3702(a); 38 C.F.R. § 3.315. The appellant reported in his May 2015 Notice of Disagreement that he "made a mistake long ago" and he feels like he "paid the price for it." Thus, he should be entitled to home loan guaranty benefits. Unfortunately, the Board is bound to follow the law and has no authority to grant benefits on an equitable basis. See e.g., Harvey v. Brown, 6 Vet. App. 416, 425 (1994); McTighe v. Brown, 7 Vet. App. 29 (1994) (holding that payment of government benefits must be authorized by statute; thus, erroneous advice given by a government employee cannot be used to estop the government from denying benefits); Smith (Edward) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (explaining that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress"). Accordingly, the appellant's claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.