Citation Nr: 1124908	
Decision Date: 06/30/11    Archive Date: 07/06/11

DOCKET NO.  10-36 622	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to the Post-Vietnam Era Educational Assistance Program (VEAP) benefits under 38 U.S.C.A. Chapter 32.


ATTORNEY FOR THE BOARD

Shamil Patel, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1977 to January 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal.

It appears in a statement received in June 2010 that the Veteran may be claiming service connection for a psychiatric disorder.  This matter is referred to the RO for indicated action including referral to the appropriate agency of original jurisdiction.


FINDING OF FACT

The Veteran had 21 days of active service and did not make VEAP contributions during service.


CONCLUSION OF LAW

The requirements for eligibility for educational assistance under the Post-Vietnam Era Educational Assistance Program (Chapter 32) have not been met.  38 U.S.C.A. §§ 3202, 3222 (West 2002); 38 C.F.R. §§ 21.5040, 21.5050, 21.5052 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

A.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases.  If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied.  There are some claims, however, to which VCAA does not apply.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001).  For example, it has been held not to apply to claims that turned on statutory interpretation.  Smith v. Gober, 14 Vet. App. 227, 231-232 (2000).

The Board notes that the issues in this case turn on statutory interpretation.  See Smith, 14 Vet. App. at 231-232.  Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is inapplicable.  Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought).  As such, no further action is required pursuant to the VCAA.

B.  Eligibility for Educational Assistance

The criteria for Chapter 32 educational assistance benefits under VEAP are set forth in 38 U.S.C.A. §§ 3202, 3221; 38 C.F.R. § 21.5040.

For Chapter 32 purposes, an "eligible veteran" means, in part, a veteran who entered military service on or after January 1, 1977, and before July 1, 1985; and either served on active duty for a period of more than 180 days and was discharged under conditions other than dishonorable, or was discharged for a service-connected disability.  38 U.S.C.A. § 3202(1)(A).

In this case, the Veteran's Form DD-214 reflects that he had 21 days of honorable active service between December 1977 and January 1978.  This fact is not contested by the Veteran.  See August 2010 VA Form 9.  There is also no indication that the Veteran was discharged due to a service-connected disability.  Therefore, the Veteran's length of service is insufficient for purposes of VEAP eligibility.

Moreover, all veterans who entered active duty after December 31, 1976 and before July 1, 1985 are eligible to participate in VEAP by enrolling during one's period of active service.  If one elects to enroll, one must generally participate for 12 consecutive months.  Pertinent regulations provide that, any otherwise eligible person desiring to participate must apply to the Service Department under which one serves, upon forms prescribed by the Service Department and/or the Secretary of Defense.  Further, no application to participate may be made prior to entry upon active duty, and each application must be submitted in sufficient time to permit the service concerned to make the required deduction from the individual's military pay for at least one month prior to the individual's discharge or release from active duty.  An individual may not make any contributions after the date of one's discharge.  One who enrolls and participates in the program must agree to have a monthly deduction made form one's military pay of not less than $25.00 and no more than $100.00.  The maximum total contribution allowed per person is $2,700.00.  A participant is allowed to make the total contribution via a lump sum payment.  38 U.S.C.A. § 3222(a),(e); 38 C.F.R. § 21.5050, 21.5052.

The RO indicated that the relevant banking records do not reflect VEAP payments from the Veteran during service.  This fact is also not contested by the Veteran.  See VA Form 9.  Without the requisite payments, the Veteran is not eligible to participate in VEAP.

The Veteran's length of service, and lack of VEAP payments during service, renders him ineligible for Chapter 32 educational assistance.  Since the Veteran's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law.  Sabonis, 6 Vet. App at 426.  Thus, the Board is unable to provide a legal remedy.


ORDER

Entitlement to VEAP benefits under 38 U.S.C.A. Chapter 32 is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs