Citation Nr: 0813768	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  06-06 988A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, 
Wyoming


THE ISSUE

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


ATTORNEY FOR THE BOARD

T. Stephen Eckerman, Counsel 


INTRODUCTION

The appellant served on active duty from February 2001 to 
January 2005.  

This matter originally came before the Board of Veterans' 
Appeals (Board) on appeal from a July 2005 decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Cheyenne, Wyoming, that denied the benefits sought on appeal.  

A review of the appellant's substantive appeal, received in 
March 2006, shows that he requested a hearing before a Member 
of the Board (i.e., Veterans Law Judge) at the RO.  In April 
2007, the RO sent the appellant notice that a hearing was 
scheduled on May 7, 2007.  The appellant failed to appear for 
his scheduled hearing, and there is no record that a request 
for another hearing was ever made.  Without good cause being 
shown for the failure to appear, no further hearing can be 
scheduled and appellate review may proceed.


FINDING OF FACT

The appellant's only period of service, from February 27, 
2001 to January 21, 2005, resulted in his discharge under 
honorable conditions (general discharge); he was not place on 
the retired list, transferred to the Fleet Reserve, placed on 
the temporary disability retired list, or released for 
further service in a reserve component of the Armed Forces.  


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 (West 2002 & 
Supp. 2005); 38 C.F.R. § 21.7042 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may proceed with the issue on appeal at this time 
without reviewing the provisions of the Veterans Claims 
Assistance Act of 2000 (VCAA).  See 38 U.S.C. §§ 5103, 5103A; 
38 C.F.R. §§ 3.102, 3.159.  The United States Court of 
Appeals for Veterans Claims has held that, in a case where 
the law is dispositive of the claim, the claim should be 
denied for lack of legal merit under the law.  See Sabonis v. 
Brown, 6 Vet. App. 426 (1994).  That court has also held that 
the VCAA has no effect on an appeal where the law, and not 
the underlying facts or development of the facts, is 
dispositive in the matter.  See Manning v. Principi, 16 Vet. 
App. 534, 542 (2002).  

The appellant seeks payment of VA educational assistance 
benefits under the Montgomery GI Bill (MGIB), Chapter 30, 
Title 38, United States Code.  The appellant has been deemed 
ineligible for VA educational assistance benefits under the 
MGIB based upon the fact that he was given a general 
discharge from service instead of the honorable discharge 
that would qualify him for such benefits.  

The RO also found that the appellant did not complete an 
honorable period of service.

On the VA Form 9, submitted by the appellant in March 2006, 
he argues that he was discharged just 30 days short of four 
years of service, and that, "I believe that my performance 
and loyalty to my duties and the service far out-weigh the 
error in judgment which led to my discharge.  Furthermore, at 
the term of my discharge, I was informed by my First Sergeant 
and Commander, that after having been out of the service for 
6 months, that I could have my discharge status upgraded to 
Honorable, hence meeting the eligibility for the G.I. Bill.  
I have now been out 14 months."  

The appellant's DD Form 214, Report of Separation from Active 
Duty, indicates that he entered active duty on February 27, 
2001, and that he was separated from service on January 21, 
2005, a period just short of four years.  His DD Form 214 
further shows that his character of service was "under 
honorable conditions (general)."  The "narrative reason for 
separation" was "misconduct."  

The law is unfortunately clear.  The governing legal 
criteria, as pertinent to this particular case, specify that 
in order to be eligible to receive educational benefits 
pursuant to Chapter 30, an individual, after June 30, 1985, 
must first become a member of the Armed Forces, serve at 
least three years of continuous active duty in the Forces, 
and must be discharged with an "honorable" discharge.  38 
U.S.C.A.  § 3011(a)(3) (West 2002 & Supp. 2005); 38 C.F.R. § 
21.7042 (a)(4) (2007).  A "less than honorable" character 
of discharge (e.g., "under honorable conditions," 
"general," "bad conduct," or "undesirable") is not 
qualifying for Chapter 30.  See VA Adjudication Procedure 
Manual M22-4, Part V, 1.17(e).  

The Board observes that the character of the appellant's 
discharge as less than honorable from his only period of 
active service does not satisfy the basic eligibility 
requirement for Chapter 30 benefits.  38 U.S.C.A. § 3011(a); 
38 C.F.R. § 21.7042 (a)(ii).  The appellant was not 
discharged with an "honorable" discharge.  Based on this 
service, the appellant does not meet the basic eligibility 
requirements for Chapter 30 benefits.  38 C.F.R. § 21.7042 
(a)(ii).  

An alternative to meeting the aforementioned character of 
discharge requirement exists if the evidence shows the 
appellant's service is described as "honorable", and that 
the appellant was placed on the retired list, transferred to 
the Fleet Reserve or Fleet Marine Corps Reserve, placed on 
the temporary disability retired list, or released in a 
reserve component of the Armed Services.  38 U.S.C.A. § 3011 
(a)(3)(C),(D); 38 C.F.R. § 21.7042 (a)(4)(iii),(iv).  
Although the appellant's discharge was described as "under 
honorable conditions," the evidence does not show that he 
was placed on the retired list, transferred to the Fleet 
Reserve or Fleet Marine Corps Reserve, placed on the 
temporary disability retired list, or released in a reserve 
component of the Armed Services.  Accordingly, the appellant 
has not met the alternative to meeting the character of 
discharge requirement.

The Board has carefully considered the contentions advanced 
by the appellant in this case.  The legal criteria governing 
eligibility for educational assistance benefits under Chapter 
30, Title 38, United States Code are, however, quite 
specific.

The Board has carefully considered the appellant's arguments.  
Unfortunately, the Board is not free to deviate from the law 
as passed by Congress.  There is simply no legal basis to 
find the appellant eligible for educational assistance 
benefits under the MGIB, Chapter 30, Title 38, United States 
Code.  To the extent that the appellant believes that his 
superiors misrepresented the law, and/or disagrees with the 
character of his discharge, the service department's decision 
on such matters is conclusive and binding upon VA.  Thus, the 
appellant's only recourse lies within the relevant service 
department, not VA.   See e.g., Soria v. Brown, 118 F.3d 747, 
749 (Fed. Cir. 1997).  

As the disposition of this claim is based on the law, and not 
on the facts of the case, the claim must be denied based on a 
lack of entitlement under the law.  See Sabonis, 6 Vet. App. 
at 430.  

ORDER

Educational assistance under Chapter 30, Title 38, United 
States Code, is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs