Citation Nr: 1124871 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 10-17 449 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Education Center (RO) in Muskogee, Oklahoma THE ISSUE Eligibility for education benefits under the Montgomery GI Bill, Chapter 30. ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 2007 to January 2009, when she was released from active duty to enter an officer training program. She did not complete her first full term of service. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 RO decision. FINDING OF FACT The Veteran did not serve at least two years of continuous active duty in the Armed Forces CONCLUSION OF LAW The Veteran has not established basic eligibility for VA education benefits. 38 U.S.C.A. § 3011(a) (West 2002); 38 C.F.R. § 21.7042(a) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that she should receive Chapter 30 education benefits while she is pursuing a course of education sponsored by the Reserve Officer Training Program. She asserts that the regulations governing eligibility for Chapter 30 benefits should not be applied to her situation. Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). However, the VCAA is not applicable to cases involving educational assistance under Chapter 30, Title 38 of United States Code. The provisions of the VCAA are relevant to Chapter 51 claims. See Barger v. Principi, 16 Vet. App. 132 (2002). The statute at issue in this matter is found in Chapter 30. Therefore, the VCAA does not control this matter. We observe, however, that the RO has explained to the Veteran the bases for the denial of her claim in a February 2009 letter, a March 2010 statement of the case, and has afforded the Veteran with the opportunity to present information and evidence in support of the claim. She has done so, presenting several pieces of written argument. Although she initially requested the opportunity to present sworn testimony in support of her claim during a hearing before a Veterans Law Judge, she notified the RO in a November 2010 telephone call that she no longer wished to appear at a hearing. Thus, her request for a hearing has been withdrawn. 38 C.F.R. § 20.702(e). Her appeal will thus be adjudicated without further delay based upon all the evidence presently of record. There is no indication that there is any existing evidence pertinent to the issue on appeal that has not been obtained. While we observe that the file does not currently contain the Veteran's original service contract, to verify the term of years of obligated service for which she signed up when she joined the Army, we find that a remand to obtain additional personnel records is not necessary in this case. The Veteran's DD Form 214, which contains information as to the length of her active service and her release from active duty to enter an officer training program, is of record. Furthermore, the Veteran does not contest any of this information and in her written submissions, acknowledges that she left active duty prior to completing the term of service for which she had initially contracted. Thus, this fact is sufficiently established for the record, and further delay is not warranted. History and analysis According to the Veteran's DD Form 214, she served on active duty from March 2007 to January 2009, encompassing a period of one year, ten months, and nine days. She had no prior active or inactive service. The form reflects that she contributed to the post-Vietnam era Veteran's' education assistance program during her service. She was released from active duty with an honorable discharge for the purpose of entering an officer training program. The Veteran submitted an application for VA education benefits in January 2009. The application does not reflect that she was participating in a Reserve Officer Training Program, although she submitted her DD Form 214 along with the application. She indicated that she was pursuing a bachelor's degree at Cameron University in Oklahoma. In February 2009, she submitted a request for a change of program or place of training, indicating that she was transferring to North Carolina University. As noted above, the RO determined that she did not have the requisite length of service to qualify for VA educational assistance and notified her in February 2009 that her application had been denied. The Veteran then perfected a timely appeal to the Board. The governing legal criteria, as pertinent to this particular case, specify that a Veteran is eligible for educational assistance benefits pursuant to Chapter 30 if he or she: (1) after June 30, 1985, first becomes a member of the Armed Forces; (2) serves at least three years of continuous active duty in the Armed Forces if the obligated period of service is three years or more; if the obligated period of service is less than three years, however, the Veteran must serve at least two years of continuous active duty in the Armed Forces, and (3) is discharged from active duty with an honorable discharge. 38 U.S.C.A. § 3011(a); 38 C.F.R. § 21.7042(a). However, an individual who does not meet the service requirements may be eligible for basic educational assistance when he is discharged or released from active duty for certain specified reasons. Those reasons include when an individual is discharged or released from active duty for (1) a service-connected disability; (2) for a medical condition which preexisted service on active duty and which VA determines is not service-connected; (3) discharge or release under 10 U.S.C.A. § 1173 (hardship discharge); (4) for convenience of the Government; (5) involuntarily for the convenience of the Government as a result of a reduction in force; or (6) 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. 38 U.S.C.A. § 3011(a)(1); 38 C.F.R. § 21.7042(a)(5). If the separation from active duty was for the convenience of the Government, to qualify for these benefits the claimant must still have served 20 months of continuous active duty for a two year obligation and 30 months of continuous active duty for a three-year or longer obligation. Id. In this case, the Veteran has not served at least two years of continuous active duty in the Armed Forces, so she does not meet the basic eligibility criteria. The Veteran argues that the VA should be lenient in interpreting this requirement, as she entered college in January to avoid having to be mobilized to Korea with the rest of her active duty unit. She also argues that because she has entered an officer training program with the commitment to return to active duty as an officer when her college program is completed, that she should be exempt from the requirements of the law. Unfortunately, her situation is not encompassed in the specified exceptions outlined above and the law does not allow for leniency in the interpretation of the basic eligibility criteria, as she argues. To some extent, the veteran appears to be raising an argument couched in equity. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 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 (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. Thus, while the Board sympathizes with any perceived economic hardship this decision may cause to the veteran, it is constrained to apply the law as Congress has created it and cannot extend benefits out of sympathy for a particular claimant. The benefit sought must be denied. Continued on next page ORDER The Veteran is ineligible for Chapter 30 education benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs