Citation Nr: 1123522 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 10-23 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance benefits under the provisions of Chapter 1606, Title 10, United States Code (Montgomery GI Bill - Selected Reserve (MGIB-SR)). ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from May 2004 to December 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 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 MGIB-SR education benefits. The Veteran disagreed with the RO's decision and perfected an appeal as to this issue. FINDING OF FACT The Department of Defense (DoD) has determined that the Veteran's eligibility for Chapter 1606 education benefits was suspended on November 14, 2008, for unsatisfactory participation. CONCLUSION OF LAW The claim of entitlement to educational assistance benefits under the provisions of Chapter 1606, Title 10, United States Code, is without legal merit. 10 U.S.C.A. §§ 16132, 16133 (West 2002 & Supp. 2010); 38 C.F.R. §§ 21.7520, 21.7540, 21.7550, 21.7551 (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 The MGIB-SR program (Chapter 1606, of Title 10, United States Code) is an educational assistance program enacted by Congress. This program is for members of the Selected Reserve of the Army, Navy, Air Force, Marine Corps, and Coast Guard, and the Army and Air National Guard. The Reserve components decide who is eligible for the program, and VA makes the payments for the program. Chapter 1606 assists eligible persons to further their education after high school, providing educational assistance for people enrolled in approved programs of education or training. 38 C.F.R. §§ 21.7520, 21.7540. It is the first such program that does not require service in the active Armed Forces in order to qualify. Educational benefits are available to members of the Selected Reserve under the Montgomery GI Bill-Selected Reserve (Chapter 1606 of Title 10, United States Code). To be eligible for Chapter 1606 benefits, a reservist who is not a Reserve officer (1) shall enlist, reenlist, or extend an enlistment as a Reserve for service in the Selected Reserve so that the total period of obligated service is at least six years from the date of such enlistment, reenlistment, or extension; (2) must complete his or her initial period of active duty for training; (3) must be participating satisfactorily in the Selected Reserve; and (4) must not have elected to have his or her service in the Selected Reserve credited toward establishing eligibility to benefits provided under 38 U.S.C., Chapter 30. 38 C.F.R. § 21.7540(a) (2010). Furthermore, Congress passed legislation in 1996 (Section 16131(i) of Title 10, United States Code) that authorizes the payment of "Kicker" benefits by the Selected Reserve components to persons entering those components. The kicker can be paid to recipients of Chapter 1606 benefits or to recipients of Chapter 30 benefits, as an addition to any other benefit to which the individual is entitled. The individual Selected Reserve components determine eligibility to the kicker. To be eligible for the Chapter 1606 kicker, the claimant must meet the eligibility requirements for the basic Chapter 1606 program. However, because eligibility for the kicker is based on either job position or unit membership, that eligibility can terminate without basic Chapter 1606 eligibility terminating. Kicker benefits can only be paid in conjunction with basic benefits. Therefore, when basic eligibility terminates, kicker eligibility terminates also. A reservist's period of eligibility expires effective the earlier of the following dates: (1) the last day of the 10-year period beginning on the date the reservist becomes eligible for educational assistance; or (2) the date of separation from the Selected Reserve. 38 C.F.R. § 21.7550(a). The reservist may still use the full 10 years if he or she leaves the Selected Reserve because of a disability that was not caused by misconduct; the reservist's unit was inactivated during the period from October 1, 1991, through September 30, 1999; or, in certain instances, when the reservist is involuntarily separated. 38 C.F.R. § 21.7550(c), (d). Eligibility may be resumed after Reserve duty status ends if the individual returns to the Selected Reserve within one year. 38 U.S.C.A. § 3012. Once again, the Board notes that laws and regulations pertaining to educational assistance under Chapter 1606, Title 10, United States Code provide that a determination of an individual's eligibility for Chapter 1606 benefits is to be made by the Armed Forces. 38 C.F.R. § 21.7540(a). The Board notes that a reservist's period of eligibility expires effective the earlier of the following dates: (1) the last day of the 10-year period beginning on the date the reservist becomes eligible for educational assistance; or (2) the date of separation from the Selected Reserve. 38 C.F.R. § 21.7550(a). The reservist may still use the full 10 years if he/she leaves the Selected Reserve because of a disability that was not caused by misconduct, the reservist's unit was inactivated during the period from October 1, 1991, through September 30, 1999, or in certain instances when the reservist is involuntarily separated. 38 C.F.R. § 21.7550(c), (d). According to the DoD, the Veteran's eligibility for Chapter 1606 VA education benefits was suspended on November 14, 2008, due to unsatisfactory participation. Specifically, the Marine Corps Reserve reported that the Veteran left the Selected Reserves. There is no evidence of record to show that the Veteran was discharged from the Selected Reserve because of a disability that was not caused by misconduct; her unit was not inactivated during the period from October 1, 1991, through September 30, 1999; nor was she involuntarily separated. Id. As such, she was ineligible to receive further benefits from the date of separation from the Selected Reserve. Therefore, the claim for Chapter 1606 benefits must be denied because the Veteran's eligibility for education benefits under Chapter 1606 was suspended on November 14, 2008, when DoD determined that the Veteran's participation was unsatisfactory following her departure from the Select Reserve. See DoD Reply, April 2010. Further, even if the Veteran was not informed or was misinformed regarding eligibility requirements for MGIB-SR benefits, the Board cannot grant her 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 her claim. However, the pertinent legal authority governing eligibility to MGIB-SR 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). Therefore, while the Board is sympathetic to the Veteran's claim, it 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 MGIB- SR 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 Entitlement to educational assistance benefits under the provisions of Chapter 1606, Title 10, United States Code, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs