Citation Nr: 1124474	
Decision Date: 06/28/11    Archive Date: 07/06/11

DOCKET NO.  10-44 663	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill).


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

The appellant served on active duty from June 2004 to August 2008.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009 adverse determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.



FINDINGS OF FACT

1.  The appellant served on active duty from June 1, 2004, to May 31, 2008, to satisfy a four-year service obligation of the Reserve Officer Training Corps (ROTC) program; thereafter, he served on active duty from June 1, 2008, to August 15, 2008, a period of 76 days. 

2.  The appellant was discharged from service for the convenience of the Government, not because of a disability.

3.  The appellant did not complete a minimum of 90 aggregate days of active duty, or a minimum of 30 consecutive days followed by discharge due to service-connected disability.  

4.  The record does not contain a statement from the appellant acknowledging that he was making an irrevocable election for education benefits under the Post-9/11 GI Bill in lieu of benefits under another program.


CONCLUSION OF LAW

The appellant does not meet the basic eligibility requirements to receive educational benefits pursuant to Chapter 33, Title 38, United States Code.  38 U.S.C.A. § 3011 (West 2002); 38 C.F.R. §§ 21.9505, 21.9520 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

At the outset of this decision, the Board finds that the provisions of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100 to 5107 (West 2002)) are not applicable to this claim on appeal because the appeal turns on a matter of law and not on the underlying facts or development of the facts.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  The United States Court of Appeals for Veterans Claims (Court) found in Manning that the VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact.  See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error.

Legal Criteria 

An individual may establish eligibility for basic educational assistance under Chapter 33 by showing that he or she had active duty service after September 10, 2001, and: 

(a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service,- (1) Continues on active duty; (2) Is discharged from service with an honorable discharge; (3) Is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) Is released from service characterized as honorable for further service in a reserve component; or (5) Is discharged or released from service for- (i) A medical condition that preexisted such service and is not determined to be service-connected; (ii) Hardship, as determined by the Secretary of the military department concerned; or (iii) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct; 

(b) Serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability; or 

(c)(1) After meeting the minimum service requirements in paragraph (a) or (b) of this section- (i) An individual makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607; (ii) A member of the Armed Forces who is eligible for educational assistance under 38 U.S.C. chapter 30 and who is making contributions towards such educational assistance under 38 U.S.C. 3011(b) or 3012(c) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33; or (iii) A member of the Armed Forces who made an election not to receive educational assistance under 38 U.S.C. chapter 30 in accordance with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33. (2) An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following- (i) Identification information (including name, social security number, and address); (ii) If applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., ''I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill-Active Duty (chapter 30) program.''); (iii) The date the individual wants the election to be effective (e.g., ''I want this election to take effect on August 1, 2009.''). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and (iv) An acknowledgement that the election is irrevocable (e.g., ''I understand that my election is irrevocable and may not be changed.'').  38 C.F.R. § 21.9520.

The term "active duty" means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304.  Active duty does not include:

(1) Full-time National Guard Duty performed under 32 U.S.C. orders; 

(2) Any period during which the individual- (i) Was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; (ii) Served as a cadet or midshipmen at one of the service academies; or (iii) Served under the provisions of 10 U.S.C. 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; 

(3) A period of service- (i) Required by an officer pursuant to an agreement under 10 U.S.C. 2107(b); (ii) Required by an officer pursuant to an agreement under 10 U.S.C. 4348, 6959, or 9348; (iii) That was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or (iv) Counted for purposes of repayment of an education loan under 10 U.S.C. chapter 109; or 

(4) A period of Selected Reserve service used to establish eligibility under 38 U.S.C. chapter 30 or 10 U.S.C. chapter 1606 or 1607. 38 C.F.R. § 21.9505.

Factual Background and Analysis

According to the appellant's personnel records, he served on active duty in the Army from June 1, 2004, to May 31, 2008, to satisfy a four-year service obligation of the ROTC program; thereafter, he served on active duty from June 1, 2008, to August 15, 2008.

In his May 2009 claim for education benefits, he reported that he was commissioned as the result of a Senior ROTC scholarship program in May 2004.  He further stated that he was to begin classes for a Masters degree in September 2009.

In statements received in September 2009 and September 2010, the appellant essentially maintained that he is entitled to at least some education benefits as he had honorable combat service and was just 14 days short of the service requirements under Chapter 33.  He further stated that he would have stayed on active duty beyond August 15, 2008, had he known about the Post-9/11 GI Bill. 

While the Board fully understands the appellant's position, the legal criteria governing service eligibility for Chapter 33 benefits are clear and specific and the Board is bound by the law.  

The appellant received his commission in the Armed Forces after completing a program of educational assistance pursuant to 10 U.S.C.A. § 2107, commonly known as ROTC.  Therefore, his period of service from June 1, 2004, to May 31, 2008, to satisfy a four-year service obligation of the ROTC program is not considered active duty for purposes of Chapter 33 benefits.  38 C.F.R. § 21.9505(3).

Thereafter, the appellant served from June 1, 2008, to August 15, 2008, a period of 76 days.  Since he did not serve for at least 90 aggregate days of active duty, he is not eligible for Chapter 33 benefits under 38 C.F.R. § 21.9520(a).  Likewise, he was not discharged due to a service-connected disability; therefore, he is not eligible for Chapter 33 benefits under 38 C.F.R. § 21.9520(b).  Finally, the appellant did not make an irrevocable election to receive Chapter 33 benefits.  (To this point, he has specifically stated that he was unaware such benefits even existed at the time of his discharge.  Therefore, he is not eligible for Chapter 33 benefits under 38 C.F.R. § 21.9520(c).

In sum, the statutory and regulatory provisions that govern eligibility for educational assistance benefits under Chapter 33 are clear and the pertinent facts are not in dispute.  The appellant just does not have the requisite active service for Chapter 33 educational benefits and the Board has no authority to create an exception in this case.  Therefore, the Board must conclude that there is no legal basis for granting the benefit.  


ORDER

The Board having determined that the appellant does not meet the basic eligibility requirements for educational assistance benefits under Chapter 33, Title 38, United States Code, the appeal is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs