BVA9501255 DOCKET NO. 93-06 875 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Basic eligibility for disability pension benefits. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from September 18, 1943, to December 15, 1943. This case came before the Board of Veterans’ Appeals (Board) on appeal from a determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which found that the veteran did not have sufficient active service for eligibility for VA pension benefits. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he was inducted into the Army on August 18, 1943, and served until December 15, 1943, and therefore, that he has sufficient service for VA pension benefits. It is asserted that he should not be punished for not being called to active duty until September 18, 1943. Alternatively, he suggests that he may have had travel time which should be considered, and asserts that his active duty began on September 2, 1943. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran does not have basic eligibility for VA pension benefits. FINDINGS OF FACT 1. The veteran had verified active service from September 18, 1943, to December 15, 1943, a period of fewer than 90 days. 2. Service connection has not been established for any disability. CONCLUSION OF LAW Basic eligibility for VA pension benefits is precluded by law. 38 U.S.C.A. §§ 101(2), 1502, 1521 (West 1991); 38 C.F.R. §§ 3.3(a)(3), 3.6, 3.15, 3.203 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Both the veteran and the National Personnel Records Center (NPRC) have provided information relative to the precise dates of his service during World War II. The veteran contends that he was inducted on August 18, 1943, and was discharged on December 15, 1943, thus giving him more than the 90 days of active service required for VA pension benefits. A statement from the service department received in April 1946 indicates that the veteran served on active duty from September 18, 1943, to December 15, 1943. In August 1988, in conjunction with a prior claim for pension benefits, the NPRC submitted a Certification of Military Service stating that the veteran was a member of the Army from August 28 to December 15, 1943, but had active service from September 18 to December 15, 1943. Another service certification was received from the NPRC in March 1989. That statement reflects verified active service from August 28, 1943, to December 15, 1943. Additional verification was received from the NPRC in August 1989 to the effect that the veteran had 90 days or more of creditable active service. That certification also verified that there was no travel time to be credited to the veteran's period of active service. In an attempt to clarify the precise dates of the veteran’s service, the RO again requested that the NPRC review the veteran’s records and verify his dates of active service. In response, the NPRC, in August 1992, stated that its verification forms submitted in March and August 1989 were in error, and were to be disregarded. The NPRC verified that the veteran’s active service was from September 18, 1943, to December 15, 1943, and certified that the veteran did not have 90 days or more of creditable active service. The law authorizes payment of pension to a veteran who is permanently and totally disabled not due to misconduct and who served in the active military, naval or air service (1) for ninety days or more during a period of war, or (2) who was discharged or released from such service for a service-connected disability. 38 U.S.C.A. §§ 1502, 1521. Using the service dates as finally determined by the NPRC (and which agree with the dates initially provided by the service department in 1946), the veteran served only 89 days on active duty. Service connection has not been established for any disability for the veteran, and the Board notes that he has not argued that he was discharged for a service-connected disability. His service during 1943 qualifies as service during a period of war. Despite the veteran’s contention that he should not be penalized for not being called to active duty prior to September 18, 1943, the law is quite specific as the requirements for eligibility for VA pension benefits: a veteran must have active wartime service of 90 days or more. Here, the veteran had only 89 days of such service. The Board is bound by the law, and so is without recourse but to deny the veteran’s pension claim, since he simply does not meet the statutory criteria for eligibility. As to the veteran's reference to travel time, the Board notes that the NPRC has certified that he had no creditable travel time. Regarding his assertion that he began active duty on September 2, 1943, we note that NPRC has specifically certified that his active service commenced September 18, 1943, and that he had fewer than 90 days of active service. The VA is bound by the service department's certification of service. See Duro v. Derwinski, 2 Vet.App. 530 (1992). In a case such as this one, where the law and not the evidence is dispositive of the issue before the Board, the claim should be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). Accordingly, basic eligibility for VA pension benefits is denied. ORDER Basic eligibility for VA pension benefits is denied. D. C. SPICKLER Member, Board of Veterans’ Appeals The Board of Veterans Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals.