Citation Nr: 0021787	
Decision Date: 08/17/00    Archive Date: 08/23/00

DOCKET NO.  99-08 333A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Entitlement to basic eligibility for educational assistance 
under Chapter 30, Title 38, United States Code.  


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Carolyn Wiggins, Counsel


INTRODUCTION

The veteran served on active duty from February 1995 to 
November 1997.

This appeal arises from a determination by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Muskogee, 
Oklahoma.


FINDING OF FACT

The veteran's initial obligated period of service was for 3 
years; he served as a member of the Armed Forces from 
February 16, 1995, to November 20, 1997, a period of 2 years, 
9 months, and 5 days; his premature separation was due to 
failure of alcohol rehabilitation.


CONCLUSION OF LAW

The criteria for basic eligibility for educational assistance 
under Chapter 30, title 38, United States Code, have not been 
met.  38 U.S.C.A. § 3011 (West 1991); 38 C.F.R. § 21.7042 
(1999).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Relevant Laws and Regulations.  In order to be eligible for 
Chapter 30 educational assistance, the law specifies that 
after June 30, 1985, an individual must first become a member 
of the Armed Forces or first enter on active duty as a member 
of the Armed Forces and serve for at least three years of 
continuous active duty in the Armed Forces, in the event that 
the individual's initial obligated period of active duty is 
for at least three years, or have served at least two years 
of continuous active duty in the case of an individual whose 
initial period of active duty is less than three years, or 
must have been discharged following a shorter period of 
active service under one of several sets of prescribed 
circumstances. 38 U.S.C.A. § 3011(a)(1)(A); 38 C.F.R. 
21.7042(a).

Such circumstances require that an individual be discharged 
after June 30, 1985, for one of the following reasons:  for a 
service-connected disability; for a medical condition 
preexisting service and determined not to be service 
connected; for hardship; for a physical or mental disorder 
not characterized as a disability and not the result of the 
individual's own willful misconduct but interfering with his 
performance of duty; for the convenience of the Government, 
in the case of an individual who completed not less than 20 
months of continuous active duty if the initial obligated 
period of active duty of the individual is less than three 
years, or in the case of an individual who completed not less 
than 30 months of continuous active duty if the initial 
obligated period of active service of the individual was at 
least three years; or, involuntarily for the convenience of 
the Government as a result of a reduction in force. 38 
U.S.C.A. § 3011(a); 38 C.F.R. 21.7042(a).

Factual Background.  A DA Form 3286-66, dated in February 
1995, reflects that the veteran's enlistment in the Regular 
Army was for 3 years.  The veteran's DD Form 214 reveals that 
he served from February 16, 1995, to November 20, 1997.  
Under the remarks section it states, "Member has not 
completed first full term of service."  The form reflects 
that the "Narrative Reason for Separation" was "ALCOHOL 
REHABILITATION FAILURE."

In November 1998 the veteran submitted a copy of the DA Form 
3286-66 which he had signed in February 1995.  He highlighted 
the following language on this form:

If I fail to complete my term of 
enlistment and separation or discharge 
was at the convenience of the government, 
I must have completed at least 20 months 
if my initial term was less than 3 years 
and at least 30 months if 3 or more 
years.

A REPORT OF CONTACT WITH DOD, VA Form 22-0569, reflects that 
an official at the RO contacted the Department of Defense 
(DOD) in November 1998 to request clarification as to the 
reason for separation, which was listed as Alcohol 
Rehabilitation Failure on the DD 214 but as OTH on "DMDC."  
The following was entered in remarks section:  "Can reason 
for separation be considered COG, RIF, CIWD?"  The form was 
annotated to indicate that the correct separation reason was 
OTH.

In a statement received in May 1999 the veteran reported that 
he was granted an honorable discharge by his battalion 
commander and that he should be qualified for the GI Bill 
because he completed 33 months of honorable service.  He 
stated that he had been informed prior to his release from 
service that as long as he had served over 30 months and was 
honorably discharged he would receive his education benefits.  
He enclosed a copy of a statement he had written to his 
battalion commander.

The veteran testified before the undersigned Member of the 
Board in February 2000 that he believed he was eligible for 
educational assistance because he had completed more than 30 
months of service.  He based this on information set out in 
DA Form 3286-66.  He testified that the reason for his 
discharge was alcohol or drug rehabilitation failure.  He had 
completed a rehabilitation program and was doing fine until 
his father had a stroke and he "fell off the bandwagon and 
then [] came up hot on the urinalysis."  He stated that the 
battalion commander initially gave him a less than honorable 
discharge, but that after he wrote a memorandum to the 
battalion commander, the battalion commander reversed his 
initial decision and he was given an honorable discharge.


Analysis.  The veteran's initial obligated period of active 
duty was for 3 years.  The veteran was separated from the 
service after 2 years, 9 months, and 5 days.  There are 
exceptions to the requirement of three years continuous 
service.  A review of the evidence reveals that the veteran 
does not meet any of the exceptions.  He was not separated 
from the service prior to the end of the term of his 
enlistment for any of the reasons set out in 38 U.S.C.A. 
§ 3011(a) and 38 C.F.R. § 21.7042(a).  He was separated for 
alcohol rehabilitation failure.

For the reasons stated above, the veteran does not meet the 
basic eligibility requirements for Chapter 30 educational 
benefits under 38 U.S.C.A. § 3011(a) and 38 C.F.R. § 
21.7042(a).  

In this case there is no dispute as to any controlling fact, 
but only to the law and its meaning.  The record clearly 
reflects that the reason for the early termination of the 
veteran's service was due to rehabilitation failure, and it 
is not contended otherwise.  The veteran has highlighted 
language on DA Form 286-66 which he signed in February 1995 
which indicates that if he fails to complete his term of 
enlistment and separation or discharge was at the convenience 
of the government, he will be eligible for Chapter 30 
education benefits if he has completed at least 30 months of 
service.  (Emphasis added.)  However, as is clearly shown 
above, the veteran's separation from service was not at the 
convenience of the government, but rather because of the 
veteran's use of an illegal drug after he had completed a 
drug or alcohol rehabilitation program.  In a case such as 
this one, where the law and not the evidence is dispositive, 
the claim should be denied or the appeal to the Board 
terminated because of the absence of legal merit or the lack 
of entitlement under the law.  Sabonis v. Brown, 6 Vet. 
App. 426, 430 (1994).  


ORDER

Basic eligibility for educational assistance under Chapter 
30, title 38, United States Code, is denied.


		
	Gary L. Gick
	Member, Board of Veterans' Appeals