Citation Nr: 0810861 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 06-09 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Educational Center in Muskogee, Oklahoma THE ISSUE Entitlement to eligibility for educational benefits under Chapter 30, Title 38, United States Code. ATTORNEY FOR THE BOARD J. M. Macierowski, Associate Counsel INTRODUCTION The veteran served on active duty from April 2002 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office and Education Center in Muskogee, Oklahoma (RO). In his January 2006 substantive appeal, the veteran stated that if his claim for educational benefits could not be granted, he noted that he would like for those monies deducted from his paycheck towards the Montgomery GI Bill (MGIB) to be reimbursed, with interest. To that end, in an advisory opinion from VA's Office of General Counsel dated February 23, 1993, the General Counsel indicated that, where an individual did not meet the Chapter 30 eligibility criteria, the individual was not legally a Chapter 30 participant and reduction of his or his basic pay was contrary to statutory authority and erroneous. That notwithstanding, according to the General Counsel, VA does not have any control over the monies reduced from a veteran's basic pay nor the statutory authority to return that money. Instead, each specific branch of the Armed Forces is responsible for the restoration of funds. O.G.C. Advisory 13-93 (Feb. 23, 1993). Thus, the Board has no legal authority to refund the veteran's contributions. Rather, the veteran is advised that he should address this dispute directly to his service department, an entity separate from VA, and request a refund therefrom. FINDING OF FACT The veteran served on active duty from June 13, 1991, to August 23, 1992, and was discharged or released from active duty for the convenience of the Government, after completing 14 months of his obligated 4-year period of active duty. CONCLUSION OF LAW The requirements for basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code, have not been met. 38 U.S.C.A. §§ 3011, 3012 (West Supp. 2005); 38 C.F.R. §§ 21.1031, 21.7042 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION By an August 2005 decision letter, the RO informed the veteran that his claim for educational assistance under 38 U.S.C.A. Chapter 30 was denied because he did not meet the basic eligibility requirements under applicable VA law. In cases such as this, where the pertinent facts are not in dispute and the law is dispositive, there is no additional information or evidence that could be obtained to substantiate the claim, and VA's duties to notify and to assist are not applicable. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Manning v. Principi, 16 Vet. App. 534 (2002); Barger v. Principi, 16 Vet. App. 132 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In this case, the appellant contends that he is eligible for Chapter 30 educational assistance benefits based on service from June 1991 to August 1992. Specifically, he maintains that he paid in the full $1,200.00 contribution towards the MGIB, and seeks educational benefits towards an online master's degree in his field, as he was the recipient of a bachelor's degree while on a Reserve Officers Training Corps scholarship from 1992 to 1996. Chapter 30 of Title 38, U.S. Code sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3001-3012 (West Supp. 2005). A threshold requirement for Chapter 30 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 30 educational assistance, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985, and in the case of an individual whose obligated period of active duty is three years or more, serve at least three continuous years of active duty. See 38 U.S.C.A. § 3011(a) (1) (A) (i) (West Supp. 2005); 38 C.F.R. § 21.7042(a) (1)-(2) (2007). In this case, the evidence reflects that the veteran served 14 months of a four year obligation. Accordingly, he does not meet the requirements under the cited provisions. However, an individual who does not meet the service requirements may be eligible for basic educational assistance when he or he is discharged or released from active duty for certain specified reasons. These include when an individual is discharged or released from active duty for (1) a service- connected disability, (2) for a medical condition which preexisted service on active duty and which VA determines is not service-connected, (3) discharge or release under 10 U.S.C.A. § 1173 (hardship discharge), (4) for convenience of the Government, (5) involuntarily for the convenience of the Government as a result of a deduction in force, or (6) 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. See 38 U.S.C.A. § 3011(a) (1) (A) (ii); 38 C.F.R. § 21.7042(a) (5). In addition, an individual who is discharged or released from active duty for the convenience of the Government must complete not less than 20 months of continuous active duty of the obligated service in the case of an individual whose obligated period of service is two years, or complete not less than 30 months of continuous active duty under the period of obligated service in the case of an individual with an obligated period of service of at least three years. See 38 U.S.C.A. § 3011(a) (1) (A) (ii); 38 C.F.R. § 20.7042(a) (5) (iv). In this case, a July 2005 printout of information from the Department of Defense's personnel systems shows that the veteran served on active duty from June 13, 1991, to August 23, 1992, a total of 14 months and 11 days, and less than his total 48-month term of service. His separation code is "COG", or convenience of the Government. Service department findings are binding on VA for purposes of establishing service in the United States Armed Forces. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Accordingly, because the veteran was discharged or released from active duty for a purpose considered to be for the convenience of the Government, prior to completing 30 months of a 3-year or more enlistment, the preliminary requirements for Chapter 30 eligibility are not satisfied. While the Board acknowledges the veteran's contentions set forth in his notice of disagreement and substantive appeal, the eligibility requirements for Chapter 30 are prescribed by Congress. VA is not free to ignore laws enacted by Congress and the law in this case, and not the evidence, is dispositive of the veteran's appeal. See Sabonis, 6 Vet. App. at 430. As such, basic eligibility for educational assistance under Chapter 30, Title 38, U.S. Code, cannot be established in the present case. Where the law rather than the facts is dispositive, the benefit of the doubt provisions are not for application. 38 U.S.C.A. § 5107(b) (West Supp. 2005); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Basic eligibility for educational assistance under Chapter 30, Title 38 of the U.S. Code is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs