Citation Nr: 0005353	
Decision Date: 02/29/00    Archive Date: 03/07/00

DOCKET NO.  97-29 060	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri



THE ISSUE

Whether the veteran is eligible for nonservice-connected 
pension benefits.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

B. N. Booher, Associate Counsel




INTRODUCTION

The veteran had active service from March 1959 through April 
1962.  This matter comes before the Board of Veterans' 
Appeals (BVA or Board) on appeal from a June 1997 decision of 
the Department of Veterans Affairs (VA) Regional Office in 
St. Louis, Missouri (RO), which found the veteran ineligible 
for noservice-connected pension benefits. 

The Board initially notes that the veteran requested and was 
scheduled for a Travel Board Hearing in January 2000.  In 
correspondence forwarded to the Board in November 1999, it 
appears that the veteran withdrew his request for a Travel 
Board Hearing, as he indicated that he was unable to drive to 
the hearing and that he did not have anyone to drive him to 
the hearing.  Further, a notation in the claims file shows 
that the veteran did not appear for his January 2000 hearing 
and he did not file a request for postponement of the 
hearing.  Accordingly, pursuant to 38 C.F.R. § 20.704(d) 
(1999), the veteran's case will be processed as though his 
request for hearing has been withdrawn. 



FINDING OF FACT

The veteran did not serve in the active military, naval, or 
air service during a period of war.



CONCLUSION OF LAW

The eligibility criteria for nonservice-connected pension 
benefits have not been met. 38 U.S.C.A. §§ 101(29), 1521 
(West 1991); 38 C.F.R. §§ 3.2, 3.3 (1999).


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran seeks entitlement to nonservice-connected pension 
benefits on the basis that he is unable to work due to 
nonservice-connected disabilities.  A veteran who meets the 
service eligibility requirements outlined in 38 U.S.C.A. § 
1521(j) (West 1991) is entitled to pension benefits provided 
he is permanently and totally disabled from nonservice-
connected disability not the result of his own willful 
misconduct. 38 U.S.C.A. § 1521(a).

Under the provisions governing basic service eligibility, 
pension is payable to a veteran who served in the active 
military, naval, or air service for 90 days or more during a 
period of war; during a period of war and was discharged or 
released for a service-connected disability; for a period of 
90 consecutive days or more and such period began or ended 
during a period of war; or 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.A. § 1521(j).

The evidence in this case shows that the veteran's military 
service did not occur during any specified period of war.  
The beginning and ending dates of each war period beginning 
with the Indian War are set forth in 38 C.F.R. § 3.2 (1999).  
The law recognizes as wartime service February 28, 1961 to 
May 7, 1975, for veterans who served in the Republic of 
Vietnam during that time period; and August 5, 1964 to May 7, 
1975, for all other veterans of the Vietnam era.  38 U.S.C.A. 
§ 101(29); 38 C.F.R. § 3.2 (1999).  In this case, the veteran 
indicated in his application for nonservice-connected pension 
benefits, and his DD Form 214 shows, that he served on active 
duty from March 1959 through April 1962, but not in the 
Republic of Vietnam.  Accordingly, he did not serve in the 
active military, naval, or air service during a period of 
war, and is not eligible to receive pension benefits under 
the provisions of 38 U.S.C.A. § 1521.

While the Board acknowledges the veteran's contention that 
the definition of "wartime service" should be broadened to 
include his service, the Board notes that it has no authority 
to alter the legal criteria governing basic eligibility for 
pension benefits.  According to these criteria, there is no 
basis in law on which to grant the benefit sought.  As the 
disposition of this claim is based on the law and not on the 
facts of the case, the claim must be denied based on a lack 
of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 
426, 430 (1994).


ORDER

Eligibility for nonservice-connected pension benefits is 
denied.



		
	RAYMOND F. FERNER
	Acting Member, Board of Veterans' Appeals