BVA9505642 DOCKET NO. 89-04 926 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Basic eligibility for entitlement to Department of Veterans Affairs death pension benefits. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION This appeal arises from an April 1988 determination that the appellant was not eligible for Department of Veterans Affairs (VA) death pension benefits as her husband, who died in October 1985, did not have the required military service. This claim was remanded by the Board of Veterans' Appeals (Board) in April 1989. The case was returned to the Board in January 1995. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that her husband served on active duty from April 1944 to February 1964. She asserts that the record shows that he completed a course for enlisted medical technicians in 1948 and that the record contains a 1949 acknowledgment of receipt of property from an Air Force Base as well as enlisted man's passes that her husband received in 1948 and 1949. 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 preponderance of the evidence is against the appellant's claim for basic eligibility for entitlement to VA death pension benefits. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's claim has been obtained by the originating agency. 2. The National Personnel Records Center (NPRC) has verified only that the appellant's husband served on active duty from July 1947 to October 1949 and was given an undesirable discharge; it has not been shown that he had any active wartime service. CONCLUSION OF LAW Basic eligibility to VA death pension benefits is not established as the appellant's deceased husband did not have the qualifying military service. 38 U.S.C.A. §§ 1521(j),1541, 5107 (West 1991); 38 C.F.R. §§ 3.2, 3.3 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking VA death pension benefits. She can not be considered for such benefits unless her deceased husband had the requisite qualifying service, as provided by the governing law and regulations. 38 U.S.C.A. § 1541 states, in pertinent part, that death pension benefits will be paid to the surviving spouse of each veteran who met the service requirements prescribed in 38 U.S.C.A. § 1521(j). The latter statute provides, in pertinent part, that a veteran meets the service requirements if he served in the active military or air service for ninety days or more during a period of war. The appellant, who reported that she had married her now deceased husband in 1976, specifically asserts that he had served on active duty from April 1944 to February 1964. In support of her claim she has submitted records including a certificate showing that he completed a course for enlisted medical technicians in 1948, a 1949 acknowledgment of receipt of property from an Air Force Base, and enlisted man's passes issued to him in 1948 and 1949. Numerous requests were made to verify whether the appellant's husband had the requisite military service. Following a November 1987 VA request for information, the Puerto Rico Army National Guard advised the VA in January 1988 that the appellant's husband had never been a member of that organization. The NPRC certified in August 1990 that the appellant's husband had served in the Air Force from July 1947 to October 1949 and was issued an undesirable discharge. Further requests for verification of service beginning in April 1944 were sent to the NPRC. These requests met with negative results in November 1991 and February 1993. In a July 1993 report of contact, it was indicated that the originating agency had contacted the United States Army Finance Center and the United States Air Force Headquarters in Denver, Colorado. It was reported that the Army Finance Center had stated that the appellant's husband was not an Amy veteran. Air Force Headquarters related that a review of microfiche for the period from 1950 to 1964 did not reflect any member, under the service serial number or Social Security number of the appellant's husband, having any type of active duty. While the validity of the documents submitted by the appellant is not being questioned, they are dated in 1948 and 1949 and only serve to support the certification by the NPRC that her husband served from July 1947 to October 1949. Not only was this a period of peacetime service, but he was given an undesirable discharge. Neither the NPRC, Army nor Air Force was able to certify that he had any active wartime service. As the appellant's husband is not shown to have had served in the active military or air service for ninety days or more during a period of war, she is not eligible for VA death pension benefits. 38 U.S.C.A. §§ 1521(j),1541; 38 C.F.R. §§ 3.2, 3.3. The evidence is not so evenly balanced that there is doubt on any material issue. 38 U.S.C.A. § 5107. ORDER Basic eligibility for entitlement to VA death pension benefits is denied. JAMES R. ANTHONY 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.