In a recent case, the Court of Appeals for the Federal Circuit ruled that service in the state National Guard, including a period of active duty for training, without disability incurred or aggravated in line of duty, did not achieve “veteran” status for purposes of non-service-connected survivors pension and burial benefits. Perry v. Wilkie (Court of Appeals Federal Circuit 12:18:2020)
Terry L. Perry served in the Wisconsin Army National Guard from January 1977 to March 1977, including a period of active duty for training from February 1977 to March 1977.
Mr. Perry died of cardiac arrest in May 2014. Mr. Perry did not file a claim for service-connected disability during his lifetime, nor was any service-connection claim pending at the time of his death.
Vera Perry, the surviving spouse of Terry L. Perry, filed a claim for non-service-connected survivors pension and burial benefits based upon her husband’s service in the Wisconsin Army National Guard.
The Board of Veterans’ Appeals (BVA) held that Mrs. Perry was not eligible for non-service-connected death pension benefits because Mr. Perry did not have active duty service during a period of war nor did he have a service-connected disability, as required by the applicable statutes.
The BVA held that “active duty for training” does not qualify as active military, naval, or air service for death benefit purposes unless “the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty.” The BVA found that Mr. Perry did not attain veteran status, and that he “was not service-connected for any disability at the time of his death, and there is no evidence that his death was in any way related to his January to March 1977 military service.”
The BVA also denied Mrs. Perry’s request for non-service-connected burial benefits, on the ground that Mr. Perry had not served in the active military, naval, or air service, and did not have veteran status. The BVA stated that “the deceased must have obtained Veteran status to be eligible for burial benefits.” Mrs.Perry appealed to the United States Court of Appeals for Veterans Claims (Veterans Court).
On appeal, the Veterans Court affirmed. The Veterans Court explained that entitlement to non-service-connected death pension benefits has certain active wartime service requirements. A veteran meets the service requirements if such veteran served in the active military, naval, or air service— (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from such service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. Mr. Perry did not meet these requirements. Mrs. Perry again appealed.
The United States Court of Appeals for the Federal Circuit again affirmed. The Court found that the lower courts’ decisions were in accordance with the applicable statutes and regulations.
The case is annexed here –
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