**§3.12a Minimum active-duty service requirement.**

\(a\) *Definitions*.

\(1\) The term "minimum period of active duty" means, for the purposes
of this section, the shorter of the following periods.

\(i\) Twenty-four months of continuous active duty. Non-duty periods
that are excludable in determining the Department of Veterans Affairs
benefit entitlement (e.g., see §3.15) are not considered as a break in
service for continuity purposes but are to be subtracted from total time
served.

\(ii\) The full period for which a person was called or ordered to
active duty.

\(2\) The term "benefit" includes a right or privilege but does not
include a refund of a participant's contributions under 38 U.S.C. Ch.
32.

\(b\) *Effect on Department of Veterans Affairs benefits*. Except as
provided in paragraph (d) of this section, a person listed in paragraph
(c) of this section who does not complete a minimum period of active
duty is not eligible for any benefit under title 38, United States Code
or under any law administered by the Department of Veterans Affairs
based on that period of active service.

\(c\) *Persons included*. Except as provided in paragraph (d) of this
section, the provisions of paragraph (b) of this section apply to the
following persons:

\(1\) A person who originally enlists (enlisted person only) in a
regular component of the Armed Forces after September 7, 1980 (a person
who signed a delayed-entry contract with one of the service branches
prior to September 8, 1980, and under that contract was assigned to a
reserve component until entering on active duty after September 7, 1980,
shall be considered to have enlisted on the date the person entered on
active duty); and

\(2\) Any other person (officer as well as enlisted) who enters on
active duty after October 16, 1981, and who has not previously completed
a continuous period of active duty of at least 24 months or been
discharged or released from active duty under 10 U.S.C. 1171 (early
out).

\(d\) *Exclusions*. The provisions of paragraph (b) of this section are
not applicable to the following cases:

\(1\) To a person who is discharged or released under 10 U.S.C. 1171 or
1173 (early out or hardship discharge).

\(2\) To a person who is discharged or released from active duty for a
disability adjudged service connected without presumptive provisions of
law, or who at time of discharge had such a service-connected
disability, shown by official service records, which in medical judgment
would have justified a discharge for disability.

\(3\) To a person with a compensable service-connected disability.

\(4\) To the provision of a benefit for or in connection with a
service-connected disability, condition, or death.

\(5\) To benefits under chapter 19 of title 38, United States Code.

\(e\) *Dependent or survivor benefits*:

\(1\) *General*. If a person is, by reason of this section, barred from
receiving any benefits under title 38, United States Code (or under any
other law administered by the Department of Veterans Affairs based on a
period of active duty, the person's dependents or survivors are also
barred from receiving benefits based on the same period of active duty.

\(2\) *Exceptions*. Paragraph (e)(1) of this section does not apply to
benefits under chapters 19 and 37 of title 38, United States Code. (38
U.S.C. 5303A)

\[47 FR 24549, June 7, 1982\]