Citation Nr: 1126433 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 09-08 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code. ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from August 2005 through April 2008. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2008 letter decision (as listed in the Statement of the Case mailed in January 6, 2009) issued by the above Department of Veterans Affairs (VA) Regional Office (RO), denying entitlement to education benefits under Chapter 30, Title 38, United States Code. The Board remanded the case in January 2011 for further additional development. The case now returns to the Board for further review. FINDINGS OF FACT 1. The Veteran first entered active service after June 30, 1985. 2. In the course of service the Veteran was found to have a physical condition not characterized as a disability and not the result of willful misconduct which nonetheless was found to interfere with his performance of duty and to necessitate his service separation. 3. The Veteran was discharged from service characterized as honorable. 4. The Veteran has completed the requirements of a secondary school diploma or an equivalency certificate. CONCLUSION OF LAW The criteria for basic eligibility for educational assistance under Chapter 30, Title 38, United States Code, have been met. 38 U.S.C.A. §§ 3011, 5107(b) (West 2002); 38 C.F.R. § 21.7042 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In this case, the Veteran is seeking benefits under Chapter 30. As the claim is being granted, any question as to the adequacy of notice is now moot. II. Basic Eligibility for Education Benefits under Chapter 30 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; (3) is discharged from active duty with an honorable discharge or is discharged from service characterized as honorable; and (4) has completed requirements of a secondary school diploma (or its equivalent. 38 U.S.C.A. § 3011(a) (West 2002 & Supp. 2010); 38 C.F.R. § 21.7042(a) (2010). However, an individual who does not meet the three-years-continuous service requirement may still be eligible for Chapter 30 benefits when he has been 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 pre-existed 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) discharge for the convenience of the Government; (5) discharge 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) (A) (ii) (West 2002 & Supp. 2010); 38 C.F.R. § 21.7042(a)(5) (2010). In this case, the Veteran was involuntarily separated from service after having completed two years, eight months, and two days of service, or just over 32 months. His DD Form 214 informs of service from August 2005 through April 2008, and lists as the reason for his involuntary separation "unsatisfactory performance." His DD Form 214 also informs of his having received a high school diploma or its equivalent, and of his having completed service characterized as honorable. Thus, all basic eligibility requirements for Chapter 30 education benefits under 38 C.F.R. § 21.7042(a) are met with the exception of the three-year length of service requirement. The Veteran's service personnel records were obtained. These reflect that the "unsatisfactory performance" by which the Veteran was found unsuitable for continued service and accordingly separated from service consisted of his failure to meet body fat and weight standards, and his repeated failure to pass the Army physical fitness test (APFT) (with failures to obtain passing scores in sit-ups and the two-mile run). He was separated from service on those bases. The Board finds each of these in-service failings - of weight, body fat, and failure to pass APFT requirements - to be well within the ambit of a physical condition not characterized as a disability and not the result of willful misconduct which nonetheless was found to interfere with his performance of duty and to necessitate his service separation. Specifically, in this case four physical conditions each separately qualify under these criteria: (1) overweight, (2) excess fat, (3) incapacity to perform sit-ups satisfactorily, and (4) incapacity to perform a two-mile run satisfactorily. The Board finds no evidence that any of these physical conditions were the result of willful misconduct. In view of the foregoing, the Board finds that the criteria of 38 U.S.C.A. § 3011(a) (1) (A) (ii) and 38 C.F.R. § 21.7042 (a) (5) (vi) are met, and the Veteran accordingly meets basic eligibility requirements for educational assistance benefits under Chapter 30, Title 38, of the United States Code, under that exception to the three-years-continuous-active-duty requirement for those benefits. ORDER Basic eligibility for education assistance benefits under Chapter 30, Title 38, United States Code, is granted. ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs