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