Citation Nr: 1124945 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 10-27 300A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Basic eligibility for educational assistance benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill Program). ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2005 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran was released from active duty with the U.S. Marine Corps in May 2009, and his character of service was general (under honorable conditions). 2. The Veteran's discharge from active duty does not meet any of the exceptions set forth under 38 C.F.R. § 21.9520(a)(5), nor does the evidence show that he was discharged under other than dishonorable conditions due to a service-connected disability. 3. The Veteran's less than honorable discharge is a bar to his receipt of Chapter 33 educational benefits. CONCLUSION OF LAW The criteria for eligibility for educational assistance benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) have not been met. 38 U.S.C.A. §§ 3311 (West Supp. 2010); 38 C.F.R. §21.9520 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset of this decision, the Board finds that the provisions of the Veterans Claims Assistance Act of 2000 (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 facts. See also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Sabonis v. Brown, 6 Vet. App. 426 (1994). Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. In the present appeal, the Veteran contends that he has met the requirements for basic eligibility for educational assistance under Chapter 33, Title 38, of the United States Code. He disputes the reasons underlying the denial of his claim and maintains that he should have received an honorable discharge from the U.S. Marine Corps. The governing law specifies that an individual may establish eligibility for educational assistance under 38 U.S.C. chapter 33 based on active duty service after September 10, 2011, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (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. See 38 U.S.C.A. § 3301 (West Supp. 2010); 38 C.F.R. § 21.9520(a) (2010). Under paragraph (b), a Veteran is also eligible for benefits under 38 U.S.C. chapter 33, if he or she 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. See 38 C.F.R. § 21.9520(b) (2010). A plain reading of 38 C.F.R. §21.9520(a)(2)-(4) clearly demonstrates that an honorable discharge from service is required for the Veteran to establish eligibility for educational assistance under 38 U.S.C. Chapter 33; subsection (a)(5) sets forth several exceptions to the above provision. The Veteran's current claim for entitlement to Chapter 33 benefits was submitted and received in December 2008. By letter issued in July 2009, the RO denied the Veteran's claim on the basis that he did not receive an honorable discharge. The evidence of record at the time of the RO's decision includes information from the Department of Defense, which reflects that he was discharged under honorable conditions (general), and the reason for his separation was that his term of service had expired. In his March 2010 Notice of Disagreement (NOD), the Veteran contests the reasoning behind the July 2009 denial of his claim, and notes that while he did have one infraction while on active duty, his overall service was worthy of an honorable discharge. In support of his contentions, the Veteran supplied various statements from fellow servicemen which attested to the Veteran being an excellent soldier and noted that while the Veteran was charged with an offense, he subsequently exhibited exceptional behavior and served in several leadership positions. However, a review of the evidence of record reflects that, the Veteran was discharged from active service in May 2009 under honorable conditions (general). The Veteran may be entitled to an upgrade to his discharge, but there is no evidence of record that indicates that the Veteran has received an upgrade of his discharge by the appropriate service Board of Corrections for Military Records. As such, the Board notes that the character of the Veteran's discharge from his last period of service has not been upgraded by the appropriate service department, and the Board makes no findings as to propriety of any upgrade of his discharge, merely that an upgrade of the character of his discharge has not been awarded by the appropriate body of jurisdiction. Therefore, the evidence establishes that the character of the Veteran's discharge was and remains less than honorable. In addition, his separation does not fall under any of the exceptions listed under 38 C.F.R. §21.9520(a)(5). The evidence of record does not show that the Veteran's separation from service was due to a pre-existing medical condition, any type of hardship, or a physical or mental condition which interfered with his performance of duty but was not characterized as a disability and did not result from the Veteran's own misconduct. Furthermore, the Veteran has not asserted that there were any performance issues due to any physical or medical condition or hardship. The Board also notes that the record does not show that the Veteran was discharged due to a service-connected disability. Consequently, the Board finds that the Veteran's general discharge does bar his eligibility to Chapter 33 benefits. For the foregoing reasons, the Board finds that eligibility for education assistance benefits under Chapter 33, Title 38 of the United States Code (Post-9/11 GI Bill benefits) is not warranted. ORDER Eligibility for educational assistance benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs