Decision Date: 07/21/95				Archive Date: 
07/25/95 
DOCKET NO.  93-02 008	)	DATE 
	) 
	) 
 
On appeal from the decision of the  
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma 
 
 
 
 
THE ISSUE 
 
Whether the veteran has basic eligibility for education 
assistance under Chapter 30, Title 38, United States Code.   
 
 
ATTORNEY FOR THE BOARD 
 
Michael E. Kilcoyne, Counsel 
INTRODUCTION 
 
AF Form 1613 shows that the veteran had active duty from 
January 1974 to August 1977, for brief periods in 1978, 
1979, 1980, 1981, 1982, 1985 and from April 1987 to the 
present.   
 
The matter before the Board arises from a January 1992 
decision by the aforementioned regional office (RO) which 
denied the benefit sought on appeal.  A notice of 
disagreement with that action was received in June 1992.  A 
statement of the case was issued in September 1992, and a 
supplemental statement of the case was issued later that 
month.  A substantive appeal was received in December 1994, 
and the case was received at the Board in March 1995.   
 
The Board notes that the veteran's substantive appeal was 
received more than one year from the date of notification of 
the pertinent decision, and more than 60 days from the 
statement of the case.  Under normal circumstances, this 
would render the appeal untimely, and require that the Board 
to reject the application for review on appeal.  38 U.S.C.A. 
§ § 7105, 7108 (West 1991).  However, the Board observes 
that on the notice of disagreement the veteran filed with 
the RO in June 1992, he listed a new home address.  The RO 
erroneously forwarded the statement of the case and 
supplemental statement of the case to the veteran's older, 
previous address.  In view of that, the Board concludes that 
the substantive appeal the veteran submitted in December 
1994 was timely, and will consider the present issue to be 
in proper appellate status.   
 
 
REMAND 
 
The Board notes that in a memorandum from the RO to the 
Board dated in April 1994, the RO indicated that the veteran 
had withdrawn his appeal, and that all benefits sought on 
appeal had been granted.  However, the claims file does not 
contain any written documentation from the veteran regarding 
that withdrawal, or evidence other than the April 1994 
memorandum that the benefits have been granted.  Under 38 
C.F.R. § 20.204 (1994) only the veteran can withdraw an 
issue and such withdrawal must be in writing from him.  
Moreover, the veteran's December 1994 substantive appeal 
suggests that the benefit he seeks has not been granted, and 
that he wishes to pursue an appeal.  These matters need to 
be clarified.   
 
In addition to the foregoing, there is a question regarding 
the veteran's periods of service.  On an Air Force Form 1613 
(Statement of Service), dated in June 1987, the veteran's 
active duty dates are listed essentially as set forth above.  
However, there is an entry which identifies the TAFMSD 
(Total Air Force Military Service Date) as April 30, 1983.  
The significance of this date is unclear, but it appears 
that the veteran's section commander considers April 1983 as 
the date the veteran entered service as he prepared a 
memorandum dated in February 1984 to that effect.  The 
veteran contends that April 30, 1983 may be considered the 
date he entered active military service for purposes of 
determining his entitlement to education benefits under 
Chapter 30.  Under these circumstances, the Board believes 
that if the veteran's claim has not been withdrawn or the 
benefit sought on appeal has not already been granted, the 
significance of the April 30, 1983 TAFMSD entry should be 
determined.    
 
In view of the foregoing, this case is remanded to the RO 
for the following: 
 
1.  Any written document from the veteran indicating his 
desire to withdraw his appeal should be associated with the 
claims file, or any documentation indicating that the 
benefits sought on appeal have been granted.   
 
2.  In the event the veteran has not withdrawn his appeal, 
or the benefit sought on appeal has not been previously 
granted, the RO should have the veteran's active duty 
certified by the service department.  The RO should 
determine the significance of a TAFMSD of April 30, 1983.  
Thereafter, the RO should review the evidence and enter its 
determination.  If the decision remains adverse to the 
veteran, he should be provided a supplemental statement of 
the case and given an opportunity to respond to it before 
the case is returned to the Board for further review.   
 
 
 
No action is required of the veteran until he is further 
informed.   
 
 
 
		 
	E. M. KRENZER 
	Member, Board of Veterans' Appeals 
 
 
The Board of Veterans' Appeals Administrative Procedures 
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 
___ (1994), permits a proceeding instituted before the Board 
to be assigned to an individual member of the Board for a 
determination.  This proceeding has been assigned to an 
individual member of the Board. 
 
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the 
Board of Veterans' Appeals is appealable to the United 
States Court of Veterans Appeals.  This remand is in the 
nature of a preliminary order and does not constitute a 
decision of the Board on the merits of your appeal.  38 
C.F.R. § 20.1100(b) (1994). 
 
 
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