Citation Nr: 0802897 Decision Date: 01/25/08 Archive Date: 02/04/08 DOCKET NO. 02-08 841A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to basic eligibility for VA educational assistance benefits under Chapter 32, Title 38, United States Code. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active duty for training from January 1969 to May 1969. He then served on active duty from April 1980 to April 1982 and from January 1983 to August 2001. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2001 RO administrative decision which determined that the veteran was not eligible for VA educational assistance benefits under either Chapter 30, Title 38, United States Code or Chapter 32, Title 38, United States Code. This appeal was previously before the Board in June 2004, when the Board found that the veteran did not have basic eligibility to VA educational assistance benefits under either Chapter 30 or Chapter 32. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2006 decision, the Court vacated that portion of the June 2004 Board decision which denied entitlement to basic eligibility to Chapter 32 educational assistance benefits and remanded it to the Board for further proceedings consistent with the Court's decision. The Court deemed the veteran's claim for Chapter 30 benefits to be abandoned. Therefore, the Board will only consider the veteran's claim for basic eligibility for Chapter 32. In January 2003, a hearing was held at the Waco, Texas RO, before the Veterans Law Judge signing this document. A transcript of the hearing testimony has been associated with the claims file. FINDINGS OF FACT 1. The veteran entered active duty in April 1980. 2. The veteran contributed $2700 to the Chapter 32 Veterans Education Assistance Program (VEAP) educational benefits program while he was on active duty. CONCLUSION OF LAW As the criteria for basic eligibility for educational assistance benefits under Chapter 32, Title 38, United States Code have been met, the claim for those benefits is granted. 38 U.S.C.A. §§ 3221, 3222 (West 2002); 38 C.F.R. §§ 21.5040, 21.5052 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks payment of VA educational assistance benefits. In his October 2001 application for such benefits, he indicated that he was applying for Chapter 30 benefits under the Montgomery GI Bill. The matter of entitlement to Chapter 30 benefits is not before the Board. However, it was also noted on his application that he made a lump sum payment of $2,700 on August 16, 2001. This was interpreted as a claim for entitlement to Chapter 32 benefits. The veteran essentially contends that his active duty service should make him eligible for VA educational assistance benefits. In this regard, it is noted that the veteran's DD Form 214, Report of Separation from Active Duty, indicates that he had active duty for training from January 23, 1969 to May 16, 1969. He entered active service from April 18, 1980 to April 17, 1982, and from January 19, 1983 until he was finally separated from active service on August 31, 2001. He has corroborated the accuracy of those dates. He has not alleged, either by statements or on his applications for educational assistance benefits, that he has had periods of active duty service in addition to period reflected on DD Form 214. The criteria for the Chapter 32 educational assistance benefits under VEAP are set forth in 38 U.S.C.A. § 3221 (West 2002). All veterans who entered active duty after January 1, 1977 and before July 1, 1985, are eligible to participate in VEAP by enrolling during one's period of active service. If one elects to enroll, one must generally participate for 12 consecutive months. Id. One who enrolls and participates in the program must agree to have a monthly deduction made from one's military pay of not less than $25.00 and no more than $100.00. The maximum total contribution allowed per person is $2,700. A participant is allowed to make the total contribution via a lump sum payment. 38 U.S.C.A. §§ 3222(a) and (e) (West 2002). The VA regulations which implement VEAP are at 38 C.F.R. § 21.5050. The regulation provides that, any otherwise eligible person desiring to participate must apply to the Service Department under which one serves, upon forms prescribed the Service Department and/or the Secretary of Defense. Further, no application to participate may be made prior to entry upon active duty, and each application must be submitted in sufficient time to permit the Service concerned to make the required deduction from the individual's military pay for at least one month prior to the individual's discharge or release from active duty. 38 C.F.R. § 21.5050 (2007). An individual may not make any contributions after the date of one's discharge. 38 C.F.R. § 21.5052 (2007). As the evidence shows that the veteran entered active duty in April 1980, i.e., after January 1, 1977, and before July 1, 1985, he meets the service requirements for an individual seeking eligibility for educational assistance benefits under Chapter 32. 38 C.F.R. § 21.5040(a), (f) (2007). The relevant issue is whether the veteran enrolled in and participated in the VEAP program pursuant to 38 C.F.R. § 21.5052. The veteran contends that he contributed a $2,700 lump sum payment in order to enroll in the Chapter 32 VEAP program shortly before his discharge from active service. He has submitted a DD Form 1131, Cash Collection Voucher dated August 16, 2001 as proof of this payment. The DD Form 1131 is proof that the veteran made a lump-sum payment of $2700 for educational assistance benefits under Chapter 32. While this form does not mention VEAP or Chapter 32, it does describe the purpose of the collection to be a "lump sum payment". The Board notes that it would be a great coincidence if a collection described as a lump sum payment and in the exact amount of the maximum contribution allowed for participation in VEAP was for any other purposes than enrollment in the Chapter 32 VEAP program. At this juncture, the Board notes that the evidence indicates that after the initial denial of Chapter 32 benefits, the RO suggested to the veteran that he seek a refund of his $2,700 payment from the service department. The veteran testified at the January 2003 hearing that he had received a refund of the $2,700. However, there is no indication that the veteran ever asked to be disenrolled from Chapter 32. Indeed, the record shows that the veteran continued to seek entitlement to basic eligibility to Chapter 32 benefits throughout this period. As the evidence shows that the veteran has established basic eligibility under 38 C.F.R. § 21.5040 and complied with the participation requirements under 38 C.F.R. § 21.5052, i.e., he did not contribute more than $2700, it is determined that the veteran has met the criteria for eligibility for educational assistance benefits under Chapter 32, Title 38, United States Code. As the veteran has been granted the benefit he was seeking (eligibility for educational assistance benefits under Chapter 32, Title 38, United States Code), it is determined that further assistance or notice under the Veterans Claims Assistance Act of 2000 (VCAA) is not required to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159 (2007). ORDER Eligibility for educational assistance benefits under Chapter 32, Title 38, United States Code is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs