Citation Nr: 1124148 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 10-26 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Basic eligibility for Montgomery GI Bill (MGIB) education benefits under Chapter 30. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 2003 to November 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran basic eligibility for MGIB education benefits under Chapter 30. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran had a 4-year enlistment obligation to serve in the United States Navy, of which he served a total of 2 years, 5 months, and 20 days, after which he was given a general discharge from active duty (under honorable conditions). 3. The Veteran did not serve a minimum of 3 years of continuous active duty out of his obligated 4-year period of active duty. CONCLUSION OF LAW The Veteran is not eligible for Montgomery GI Bill education benefits under Chapter 30. 38 U.S.C.A. § 3011; 38 C.F.R. §§ 21.7042(a)(2)(i), (5) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board observes that the record on appeal does not reflect that the Veteran was notified of the Veterans Claims Assistance Act of 2000 (VCAA) as required by 38 U.S.C.A. § 5103(a). However, it is apparent that such notice is not required in this case since the benefits sought are found in Chapter 30 of Title 38, United States Code. See Simms v. Nicholson, 19 Vet. App. 453, 456 (2007) (holding that the VCAA applied only to the award of benefits under Chapter 51, Title 38, United States Code); Barger v. Principi, 16 Vet. App. 132, 138 (2002) (the notice and duty to assist provisions of the [VCAA]. . . are relevant to a different Chapter of Title 38 and do not apply to this appeal). In addition, as will be explained below, it is the law, and not the evidence, that is dispositive in this case. The United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the VCAA can have no effect on the appeal. Manning v. Principi, 16 Vet. App. 534 (2002); Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2002) (VCAA not applicable where law, not the factual evidence, is dispositive). Therefore, the Board finds that no further action is necessary under the VCAA since it is the law, not the evidence, which is dispositive in this case. The pertinent facts of the case are not in dispute. The Veteran's service record reflects that he entered active duty in the United States Navy in May 2003, with an obligation in his enlistment contract to serve 4 years. He was ultimately given a general discharge from active duty in November 2005 after having served for only 2 years, 5 months, and 20 days. His DD 214 reflects that his character of service was general "under honorable conditions" and that the reason for his discharge was because of a "pattern of misconduct." In September 2009, the Veteran filed for Chapter 30 MGIB education benefits. In written statements submitted in support of his claim, the Veteran acknowledged the less-than-exemplary character of his military service. However, he submits current college transcripts reflecting that he has since become an excellent student who has maintained a grade point average above 3.5 points. He contends that his efforts to turn his life around and pursue a higher education in order to become a more productive individual, a valuable contributor to the benefit of society, and a good provider for his family should be recognized by VA by allowing his claim for education benefits in the interests of equity. The requirements for basic eligibility to Chapter 30 MGIB education benefits are listed in 38 U.S.C.A. § 3011 and 38 C.F.R. § 21.7042 and, in pertinent part, are as follows: Eligibility based solely on active duty. An individual may establish eligibility for basic educational assistance based on service on active duty under the following terms, conditions and requirements. (1) The individual must after June 30, 1985, either (i) First become a member of the Armed Forces, or (ii) First enter on active duty as a member of the Armed Forces; (2) Except as provided in paragraph (a)(5) of this section, the individual must (i) If his or her obligated period of active duty is three years or more, serve at least three years of continuous active duty in the Armed Forces; or (ii) If his or her obligated period of active duty is less than three years, serve at least two years of continuous active duty in the Armed Forces; 38 C.F.R. § 21.7042(a) The facts of the case clearly demonstrate that the Veteran has not met the basic eligibility requirement listed above. His military service obligation was for an enlistment period of 4 years, of which he only served for less than 2-1/2 years, therefore failing to fulfill the minimum service requirement of 3 years as specified in 38 C.F.R. § 21.7042(a)(2)(i). To the extent that the Veteran contends that the exception to the above requirement as provided in 38 C.F.R. § 21.7042(a)(5) may be applicable to the facts of his individual case, the pertinent exception provides that an individual who does not meet the requirements of paragraph (a)(2) of this section is eligible for basic educational assistance when he or she is discharged or released from active duty (i) For a service-connected disability, or; (ii) For a medical condition which preexisted service on active duty and which VA determines is not service connected, or; (iii) Under 10 U.S.C. 1173 (hardship discharge), or; (iv) For convenience of the government (A) After completing at least 20 continuous months of active duty of an obligated period of active duty that is less than three years, or (B) After completing 30 continuous months of active duty of an obligated period of active duty that is at least three years, or; (v) Involuntarily for the convenience of the government as a result of a reduction in force, as determined by the Secretary of the military department concerned in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, or; (vi) 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, as determined by the Secretary of each military department in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy. 38 C.F.R. § 21.7042(a) The Board finds no evidence that would support the application of any of the exceptions listed above in 38 C.F.R. § 21.7042(a)(5). The Veteran's DD-214 states that the reason for his separation was due to a "pattern of misconduct" and not for the convenience of government or for any medical reasons, including medical reasons that might indicate discharge due to a service-connected disability. In view of the foregoing discussion, the Board finds that the Veteran lacks qualifying service to be eligible for MGIB education benefits under Chapter 30. As the disposition of this matter is based on the law, and not the facts of the case, his appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) (West 2002) are not for application. The Board acknowledges the Veteran's evident regret for the less-than-exemplary character of his military service as well as his commendable efforts to improve himself through the pursuit of higher education. The Board also recognizes the Veteran's laudable post-service achievements as an excellent student. However, the governing regulations do not provide for the exemption of the Veteran from having to fulfill the minimum service required to be eligible for Chapter 30 MGIB education benefits on the basis of equity. While sympathetic to the Veteran, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant]. ORDER Basic eligibility for Montgomery GI Bill education benefits under Chapter 30 is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs