Citation Nr: 1100084 Decision Date: 01/03/11 Archive Date: 01/11/11 DOCKET NO. 09-26 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether the Veteran is eligible for educational assistance benefits under the provisions of Chapter 30, Title 38, of the United States Code (Montgomery GI Bill). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August to December 1999 and in the U.S. Navy from January to November 2000. This appeal to the Board of Veterans' Appeals (Board) is from a January 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO in Los Angeles, California, now has jurisdiction, and that office certified the appeal to the Board. As support for her claim, the Veteran testified at a hearing at the RO in June 2010 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). FINDINGS OF FACT 1. The Veteran's initial period of active duty service in the U.S. Army from August to December 1999 was uncharacterized, although a December 1999 memorandum shows she was discharged due to failure to adapt to the military. 2. Her second period of active duty service in the U.S. Navy from January to November 2000 was under honorable conditions, but she received a general discharge because of a personality disorder diagnosed during this subsequent period of service that was manifested by suicidal ideation and a general inability to perform her duties satisfactorily. 3. She was separated from the Navy with less than three years of service. The personality disorder is not considered a disability under VA regulations, is not due to her willful misconduct, and interfered with her performance of duty. CONCLUSION OF LAW The criteria are met for eligibility for receiving educational assistance benefits under the provisions of Chapter 30, Title 38, of the United States Code (Montgomery GI Bill). 38 U.S.C.A. §§ 3011, 5107(b) (West 2002); 38 C.F.R. § 20.7042 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Here, though, the Board need not discuss whether there has been VCAA compliance because the claim is being granted, regardless. See, e.g., 38 C.F.R. § 20.1102 (2010) (harmless error). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran contends that she has met the requirements for basic eligibility for educational assistance under Chapter 30, Title 38, of the United States Code. She does not dispute that she served less than her contracted term of service. Instead, she essentially argues that her discharge meets one of the exceptions to the general rule for eligibility in that it was: (1) involuntary, (2) due to hardship, or (3) due to a physical or mental condition that interfered with the performance of her duties and did not result from misconduct. The Veteran initially served in the U.S. Army from August to December 1999. That service was uncharacterized, however, a December 1999 memorandum of proposed discharge shows it was due to failure to adapt to the military. She had a subsequent period of active duty service from January to November 2000 in the U.S. Navy. That additional service was under honorable conditions but ended on account of a personality disorder. Basic educational assistance benefits under the provisions of Chapter 30, Title 38, of the United States Code (Montgomery GI Bill or Chapter 30 benefits) are available if certain requirements are met. The GI Bill provides, among other benefits, an educational assistance program to help in the readjustment of members of the Armed Forces to civilian life after their separation from military service. 38 U.S.C.A. § 3001. The program is available to individuals who meet certain criteria of basic eligibility, including active duty during certain prescribed dates or meeting certain other criteria for basic eligibility for educational assistance. 38 U.S.C.A. § 3011; 38 C.F.R. §§ 21.7040, 21.7042. To be eligible for Chapter 30 benefits, an individual must have first become a member of the Armed Forces or first entered on active duty as a member of the Armed Forces after June 30, 1985. 38 U.S.C.A. § 3011(a)(1)(A); 38 C.F.R. § 21.7042(a)(1). In the case of this particular Veteran, she entered active duty in August 1999 (in the Army) and again later in January 2000 (in the Navy), so meets this preliminary requirement. The individual also must have served an obligated period of active duty. In the case of an individual with an obligated period of service of three years or more, the individual must have completed at least three years of continuous active duty; or in the case of an individual whose initial obligated period of service is less than three years, served at least two years of continuous active duty. 38 C.F.R. § 21.7042(a)(2). The Veteran's current claim of entitlement to Chapter 30 benefits was submitted in January 2009. The RO denied her claim on the basis that she had insufficient qualifying service and did not satisfy any exceptions authorized by Congress. Based on electronic communications with the Department of Defense and a review of her DD Form 214s, the RO correctly determined that she did not have the requisite three years of continuous service. On the other hand, the RO incorrectly determined that her separation - when also considering her second period of service in the Navy (so not just her service in the Army), did not meet any of the exceptions set forth in 38 C.F.R. § 21.7042(a)(5). According to 38 C.F.R. § 21.7042(a)(5), an individual need not have served the requisite amount of time if he or she was discharged or released from active duty for any one of the six following reasons: (i) for a service-connected disability; (ii) for a medical condition which preexisted service on active duty and which VA determines is not service connected; (iii) under 10 U.S.C. 1173 (hardship discharge); (iv) for convenience of the government (A) after completing at least 20 continuous months of active duty of an obligated period of active duty that is less than three years, or (B) after completing 30 continuous months of active duty of an obligated period of active duty that is at least three years; (v) involuntarily for the convenience of the government as a result of a reduction in force, as determined by the Secretary of the military department concerned in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy; or (vi) for a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as determined by the Secretary of each military department in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy. Here, as the record is clear that the Veteran did not serve for at least three years on active duty during either period of service, the Board finds that the critical question to consider with respect to her basic eligibility for Chapter 30 benefits is whether she was released from active duty prior to completing her qualifying service under one of these mentioned exceptions in 38 C.F.R. § 21.7042(a)(5). And after considering all the relevant evidence, the Board disagrees with the RO's decision denying her eligibility so is granting her appeal. There is no indication from her service personnel records (SPRs) and service treatment records (STRs) that the Veteran was discharged or released from active duty for a service-connected disability, or for a pre-existing non-service-connected disability, pursuant to 38 C.F.R. § 21.7042(a)(5)(i) and (ii). For instance, she testified that she was discharged because of her physical disabilities affecting her knee and back, as well as becoming pregnant. But the records concerning her service simply do not mention any of these conditions as cause for her early discharge, let alone that any of these conditions pre-existed her service. Rather, her STRs show she was recommended for administrative separation by a Navy psychiatrist in October 2000 due solely to a diagnosed personality disorder. This recommendation made no mention of any physical conditions, including any newly discovered pregnancy. There also is no pregnancy discharge denoted on her DD Form 214. As well, there is no indication she was discharged for hardship pursuant to 38 C.F.R. § 21.7042(a)(5)(iii). Also, there is no indication she was separated for the convenience of the government on a voluntary basis, pursuant to 38 C.F.R. § 21.7042(a)(5)(iv), since she had not served continuously for at least 20 continuous months of active duty of an obligated period of active duty that is less than three years. Instead, she had been in continuous service in her term with the Navy for only eleven months. Further, there is no indication there was any issue of force reduction involved in her discharge, which precludes the application of 38 C.F.R. § 21.7042(a)(5)(v), for involuntarily discharge for the convenience of the government as a result of a reduction in force. It appears the first period of service in the Army, especially when viewed in isolation, did not establish eligibility for GI Bill benefits. As mentioned, that initial period of service from August to December 1999 was uncharacterized, though a December 1999 memorandum of proposed discharge shows it was due to failure to adapt to the military. Such a discharge would not meet any of the exceptions in 38 C.F.R. § 21.7042(a)(5), but the Veteran testified during her recent hearing that she is not relying on that initial period of service to establish her eligibility, rather, her subsequent service in the Navy, which concluded under different circumstances. And, indeed, the Board finds there is sufficient evidence during the second period of service to establish qualification under the last exception of 38 C.F.R. § 21.7042(a)(5). That is, the Veteran had a mental condition that was not characterized as a disability and did not result from her willful misconduct, but did interfere with her performance of duty. Her DD Form 214 concerning her service in the Navy from January to November 2000 shows a Separation Code of JFX (i.e., Personality Disorder), and the Narrative Reason for Separation as "Personality Disorder." The Separation Authority listed on the DD Form 214 is "MILPERSMAN 1910-122." See MILPERSMAN 1910-122 (August 21, 2009) (referring to U.S. Military Personnel Manual, Separation Codes for Enlisted Personnel, "Separation by Reason of Convenience of the Government - Personality Disorder(s)"), available at Navy Personnel Command, Bureau of Naval Personnel website, at http://www.npc.navy.mil/ReferenceLibrary/MILPERSMAN/1000MilitaryP ersonnel/1900Separation/1900_1910_299/1910_122.htm. The Navy's personnel regulation of MILPERSMAN 1910-122 sets forth the provisions of when a soldier is to be separated because of a personality disorder. Specifically, members may be processed for separation based on a clinical diagnosis of a personality disorder when: (1) the disorder is so severe that the member's ability to function effectively in the Navy environment is significantly impaired; and (2) the impairment interferes with the member's performance of duty, or poses a threat to the safety or well-being of the member or others, and the member has not responded to leadership and counseling. Id. However, separation for personality disorder is not appropriate nor should it be pursued when separation is warranted on the basis of unsatisfactory performance or misconduct. Id. The regulation also sets forth that a diagnosis of personality disorder must be established by a psychiatrist or PhD-level psychologist. Id. The Veteran's service treatment records show that in July 2000 she received emergent psychiatric evaluation for suicidal ideation related to stresses at work. A clinical psychologist assessed for diagnoses on Axis I occupational problem and on Axis II personality disorder, not otherwise specified. This psychologist that conducted this mental status evaluation in July 2000 went on to conclude that "[the Veteran] is deemed unsuitable for continued military service based on the above diagnosis. The evaluation reveals difficulty adapting, emotional instability, and behavioral problems, especially in stressful situations that most people would be able to handle." Indeed, this psychologist remarked that the personality disorder was so severe as to significantly impair the Veteran's effective functioning in the military environment. The Veteran continued to receive psychiatric evaluations in September 2000, with complaints of work-related stress, and there was reaffirmation of this diagnosis of personality disorder. She eventually was admitted as an inpatient for psychiatric hospitalization from September 30, 2000 to October 10, 2000, on account of suicidal ideation. An October 2000 psychiatrist's evaluation report then found she was unsuitable for military service due to the personality disorder. The evaluating psychiatrist strongly recommended expeditious administrative separation on the basis of chronic adjustment problems, hospitalization due to impulsivity, suicidal ideation, history of suicidal gesturing, and the diagnosed personality disorder. The psychiatrist remarked that "[w]hile this member is not imminently suicidal or homicidal, the member's retention in the Navy presents a continuing danger of harm to self or others. The member's conditions are of such severity that the ability to function safely and effectively in the military environment is significantly impaired." That October 2000 psychiatrist's findings clearly satisfy the requirements for involuntary separation due to the personality disorder under MILPERSMAN 1910-122. So this evidence, on the whole, clearly established the Veteran was separated from her second period of service due to the personality disorder that was not considered to be a disability or due to her willful misconduct, but that clearly interfered with her ability to perform her duties satisfactorily. Thus, the Board finds that the exception set forth in 38 C.F.R. § 21.7042(a)(5)(vi) has been met, and that she resultantly is eligible for Chapter 30 benefits. ORDER The appeal to establish eligibility for receiving educational assistance benefits under the provisions of Chapter 30, Title 38, of the United States Code (Montgomery GI Bill), is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs