Citation Nr: 1122976 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 10-24 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance benefits under Chapter 1607, Title 10, United States Code (Reserve Educational Assistance Program (REAP)). ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to November 1974; he has reported 27 years of additional service with the U.S. Army Reserve/National Guard between 1980 and 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2010 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Education Center in Muskogee, Oklahoma, which denied the Veteran's claim for REAP education benefits. The Veteran disagreed with the RO's decision and perfected an appeal as to this issue. The Board further notes that the Veteran has claimed entitlement to educational benefits pursuant to three other VA programs, including Chapter 1606, Title 10, United States Code (also known as Montgomery GI Bill - Selected Reserve (MGIB-SR)); the Montgomery GI Bill (MGIB) (Chapter 30 of Title 38 U.S.C.); and the Post-Vietnam Era Veterans' Educational Assistance Program (VEAP) (Chapter 32 of Title 38 U.S.C.). The RO issued a decision with regard to these issues in May 2010, however, the Veteran has not filed an appeal. As such, the Board does not have jurisdiction to adjudicate these matters, and they are therefore referred to the RO for appropriate action. FINDING OF FACT The Department of Defense (DoD) has determined that the Veteran is not eligible for REAP educational benefits. CONCLUSION OF LAW The requirements for basic eligibility for educational benefits under REAP, pursuant to Chapter 1607, Title 10, United States Code, have not been met. 10 U.S.C.A. §§ 16161- 16165 (West 2002); 38 C.F.R. §§ 21.7540, 21.7550 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2010). However, because the law and not the evidence is dispositive in this case, the notice and duty to assist provisions of the VCAA are not applicable. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Mason v. Principi, 16 Vet. App. 129, 132 (2002) (because the law as mandated by statute, and not the evidence, "is dispositive of this claim, the VCAA is not applicable."). II. Entitlement to educational assistance benefits In this case, the Veteran claims entitlement to REAP educational assistance benefits under Chapter 1607 of Title 10 of the United States Code. This program provides educational assistance for members of the reserve components called or ordered to active service in response to a war or national emergency declared by the President or the Congress, in recognition of the sacrifices that those members make in answering the call to duty. 10 U.S.C.A. § 16161 (West 2002). Specifically, under Chapter 1607, Title 10, United States Code, education benefits are available to any member of a Guard or Reserve Unit who served on (or were called to) active duty after September 11, 2001, for a contingency operation and who served at least 90 consecutive days or more. A member remains entitled to educational assistance while serving (1) in the Selected Reserve of the Ready Reserve, in the case of a member called or ordered to active service while serving in the Selected Reserve; or (2) in the Ready Reserve, in the case of a member ordered to active duty while serving in the Ready Reserve (other than the Selected Reserve). 10 U.S.C.A. § 16163 (West 2002). Thus, individuals are eligible for benefits as long as they remain within their component; eligibility is lost once an individual leaves their component. See 10 U.S.C.A. §§ 16162, 16163 (West 2002). Alternatively, in the case of a person who separates from the Selected Reserve of the Ready Reserve after completion of a period of active service described in 10 U.S.C.A. § 16163, and completion of a service contract under honorable conditions, the person remains eligible for a 10-year period beginning on the date on which the person separated from the Selected Reserve. 10 U.S.C.A. § 16164(a)(2) (West 2002). That is, as of October 2008, new legislation was enacted that provides for a 10 year period of eligibility from the date that a claimant is separated from the Selected Reserves after meeting the specified active duty requirements, and provide that three specified eligibility criteria are met. See 10 U.S.C.A. § 16164(a)(2). Eligibility for REAP educational benefits is determined by the DoD and VA pays the benefits from funds contributed by DoD to each member entitled to educational assistance. 10 U.S.C.A. §§ 16162 (under certain circumstances eligibility for benefits of Veterans of the United State Coast Guard is determined by the Department of Homeland Security rather than by the DoD). VA has no authority to determine eligibility for REAP educational benefits. Cf. 38 C.F.R. § 21. 7540(a). In February 2010, the DoD determined that the Veteran was ineligible for REAP educational benefits under Chapter 1607 of Title 10. See January 2010 DoD records indicating disallowance of Chapter 1607 education awards. Since the DoD has not certified that the Veteran is eligible for educational assistance benefits, the Veteran cannot be awarded REAP benefits pursuant to Chapter 1607 of Title 10 by the VA as a matter of law. Indeed, VA is bound by the determinations of DoD in this matter and cannot award education benefits under this program in the first instance. The Board recognizes that the Veteran was previously awarded educational benefits pursuant to the MGIB following his completion of active service in 1974. The Veteran now wishes to be awarded financial assistance for the continuance of his studies, or to transfer those educational benefits to a dependent. See VA Form 9, June 2010. The Veteran argued that he completed annual training every year from 1980 to 2004, participated in annual training for the Intelligence Army Area Training School, and participated in annual training trips, to include six trips to Korea. He noted that he spent more time in annual training than many reservists who are currently in receipt of education benefits. The Veteran stated that, as a result of his years in the Army Reserve program, and his voluntary efforts, he is entitled to a second GI Bill award. The Veteran also expressed interest in transferring accrued educational benefits to a dependant. See id. In this case, the Board notes that the Veteran's contentions are incongruous with the requirements necessary to receive education benefits under the REAP program, as delineated above. Specifically, there is no evidence of record to demonstrate that the Veteran was called or ordered to active service in response to a war or national emergency declared by the President or the Congress. Further, even if the Veteran was not informed, or was misinformed, regarding eligibility requirements for REAP benefits, the Board cannot grant his claim on that basis. Shields v. Brown, 8 Vet. App. 346, 351 (1995). The Board also notes that VA does not have control over any actions taken or not taken by the service departments or the DoD. Moreover, the Veteran's lack of understanding of the VA education benefits system does not provide a legal basis for entitlement. While it is unfortunate, the United States Court of Appeals for Veterans Claims (Court), citing to an opinion from the U. S. Supreme Court, has held that everyone dealing with the Government is charged with knowledge of Federal statute and agency regulations. Morris v. Derwinski, 1 Vet. App. 260 (1991). The Board acknowledges the Veteran's arguments in support of his claim. However, the pertinent legal authority governing eligibility to REAP benefits is clear and specific, and the Board is bound by such authority. While the Board is sympathetic to the Veteran's claim, the Board does not have authority to grant benefits on an equitable basis. Moreover, the Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). The authority to award equitable relief is committed to the discretion of the Secretary of VA under 38 U.S.C.A. § 503(a) (West 2002), and the Board is without jurisdiction to consider that which is solely committed to the Secretary's discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). The Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. For the reasons explained above, the Veteran's claim for REAP benefits must be denied. This conclusion is compelled by the language of the applicable law and regulations. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Eligibility for educational assistance benefits under Chapter 1607, Title 10, United States Code (REAP), is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs