Citation Nr: 1126701 Decision Date: 07/18/11 Archive Date: 07/21/11 DOCKET NO. 09-30 350 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from May 1985 to May 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 determination by the VA RO and Education Center in Muskogee, Oklahoma. A personal hearing was held before the undersigned Veterans Law Judge in May 2010 and a transcript of that hearing has been included in the claims file. Additional pertinent evidence was received from the Veteran in May 2010. The Veteran has waived initial RO review of this evidence and the Board will consider it. 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. The Veteran had honorable active military service from May 29, 1985 to April 5, 1999, and from April 5, 1999 to May 31, 2008. 2. The Veteran was involuntarily separated from service on April 5, 1999, and reentered service on April 12, 2001. The Veteran's service dates were retroactively corrected by the service department to include this period. 3. The Veteran graduated from high school prior to April 1999, he participated in the Post-Vietnam Era Veterans' Educational Assistance Program (VEAP), he irrevocably elected MGIB benefits in March 1999, and he paid $1,200 at the time of his involuntary discharge in April 1999. 4. The Veteran's VA Form 22-1990, Application for VA Education Benefits, was received by VA on July 11, 2008. CONCLUSION OF LAW The criteria for basic eligibility for VA educational assistance under 38 U.S.C.A. Chapter 30 (Montgomery GI Bill) have been met. 38 U.S.C.A. §§ 3011, 3012, 3018A, 3018B, 3018C (West 2002 & Supp. 2010); 38 C.F.R. § 21.7042, 21.7045 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In general, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this decision, the Board grants entitlement to Chapter 30 education benefits which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Law and Regulations The Veteran seeks entitlement to education benefits under the Montgomery GI Bill (MGIB) (Chapter 30). Chapter 30 of Title 38, U.S. Code (Montgomery GI Bill) sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3001-3021 (West 2002 & Supp. 2010). VA will pay Chapter 30 educational assistance to an eligible Veteran while he is pursuing approved courses in a program of education. 38 C.F.R. § 21.7130. An individual must meet the requirements of 38 C.F.R. § 21.7042, 38 C.F.R. § 21.7044, or 38 C.F.R. § 21.7045 in order to be eligible for basic educational assistance under Chapter 30. See 38 C.F.R. § 21.7042. A threshold requirement for Chapter 30 educational assistance is the completion of certain requisite service. In general, to be entitled to Chapter 30 educational assistance, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985, and in the case of an individual whose obligated period of active duty is three years or more, serve at least three continuous years of active duty. See 38 U.S.C.A. § 3011(a) (West 2002 & Supp. 2010); 38 C.F.R. § 21.7042(a) (2010). Thus, in general, eligibility for benefits under the Montgomery GI Bill hinges upon a claimant first entering military service after June 30, 1985. See 38 C.F.R. § 21.7042(a)(1). The Veteran in this case began active service in May 1985. Therefore, the Veteran is not eligible for Chapter 30 education benefits under the criteria of 38 C.F.R. § 20.7042(a). The Veteran is also not eligible for these benefits under 38 C.F.R. § 21.7044, as the evidence does not show that the Veteran was eligible for education benefits under Chapter 34, as he did not serve between January 1955 and January 1977. An individual who fails to meet the eligibility requirements found in § 21.7042 nevertheless will be eligible for Chapter 30 educational assistance if he meets the requirements of 38 U.S.C.A. §§ 3018A, 3018B, 3018C; 38 C.F.R. § 21.7045. Eligibility under these provisions is based on involuntary separation, voluntary separation with receipt of separation incentives, or participation in the Post-Vietnam Era Veterans' Educational Assistance Program (VEAP). The Veterans Educational Assistance Program (VEAP), codified at Chapter 32, Title 38, United States Code, is available to Veterans who entered service after December 31, 1976 and before July 1, 1985. 38 U.S.C.A. § 3221 (West 2002); 38 C.F.R. § 21.5040 (2010). A Veteran establishes eligibility for educational benefits under Chapter 32 by enrolling in the program and participating during active service prior to July 1, 1985. Each person electing to participate in the program shall agree to have a monthly deduction made from the person's military pay in an amount ranging from $25 to $100, and the maximum total contribution allowed per person is $2,700. A lump sum payment may be made in lieu of the monthly payments. See 38 U.S.C.A. § 3222 (West 2002); 38 C.F.R. § 21.5052 (2010). The Board notes that in 1996 the Veterans' Benefits Improvements Act of 1996, Pub. L. No. 104-275, 110 Stat. 3322 (Oct. 9, 1996), extended eligibility for the Chapter 30 (MGIB) program to additional Chapter 32 (VEAP) participants. Under the provisions of Section 106 of Public Law 104-275, a Chapter 32 participant with money in the Chapter 32 fund could be eligible for Chapter 30 benefits if, in pertinent part, the individual was a VEAP participant on October 9, 1996. The Veterans Benefits and Health Improvement Act of 2000, Pub. L. No. 106-419, 114 Stat. 1822 (Nov. 1, 200), subsequently provided an additional year (beginning on November 1, 2000, and ending on October 31, 2001) for individuals to make an irrevocable election to enroll in Chapter 30; however, the individual must have participated in VEAP on or before October 9, 1996. See also 38 U.S.C.A. § 3018C (West 2002). Analysis Initially, the Board notes that the dates during which the Veteran had active duty service were retroactively changed by actions of the Board for Correction of Naval Records (BCNR) and the Marine Corps in 2000 and 2002. As discussed below, he was separated from active duty service on April 5, 1999, and then actually reentered active duty in April 2001, although his records were later corrected to show that he reentered active duty on April 5, 1999. A review of the file shows that the Veteran's first period of active duty service was from May 29, 1985 to April 5, 1999. His original DD Form 214 shows that his separation code was JGH1, and the narrative reason for separation was non-retention on active duty. His DD Form 214 reflects that the total amount withheld for MGIB was $1,200 as of April 5, 1999. A DD Form 215 dated on April 5, 1999 reflects that his separation code for the period of service ending on April 5, 1999 was changed to JGH3. His second DD Form 214 shows that he also had active duty service from April 5, 1999 to May 31, 2008. This form reflects that he contributed $1,800 toward the MGIB. The narrative reason for separation was sufficient service for retirement. The Veteran's VA Form 22-1990, Application for VA Education Benefits, was received by VA on July 11, 2008. He requested educational assistance under Chapter 30, MGIB. In a July 2008 letter, the RO noted that the Veteran served in the Marine Corps from May 29, 1985 to May 31, 2008, and denied his claim for MGIB eligibility on the basis that he did not elect the MGIB or contribute $2700 during the one-year open-door period of November 1, 2000 to October 31, 2001. The RO reiterated these findings in an August 2008 letter. In an August 2008 letter, the Veteran stated that prior to his separation, he received approval from the Defense Finance Account Office (DFAS) to make a payment into the MGIB, and he paid $1,800 into his MGIB account at the time of his separation from service. He enclosed photocopies of vouchers reflecting that he paid $1,800 toward the MGIB in mid-April 2008. In a September 2008 letter, the Veteran stated that he had a case pending with the Board for Correction of Naval Records (BCNR) and the Defense Finance Accounting Service (DFAS). He said he was already enrolled in the MGIB program during an open enrollment period. He related that during the period from November 2000 to October 2001 he was not a member of the Marine Corps, but instead was a civilian government employee in Onslow County, North Carolina. He said that prior to that time, he qualified for enrollment into the MGIB program because he was involuntarily discharged from service on April 5, 1999, and at that time, he had deposited money into the MGIB. He stated that when he returned to service, he was unaware of the 2000-2001 open enrollment period for the MGIB. He enclosed a letter from Onslow County reflecting that he was employed with the Onslow County Government from September 13, 1999 to May 11, 2001. The Veteran also enclosed a memorandum from the BCNR dated in April 2000. This memorandum shows that the Veteran sought a correction of Navy records to show that he was given remedial consideration for promotion to staff sergeant (pay grade E-6) for calendar year 1998. The BCNR found that in May 1998 he was erroneously assigned to a weight control program, and that the documents submitted to his promotion panel incorrectly listed his weight at a level that was above permissible standards. In February 1999, the Veteran requested remedial consideration for promotion to staff sergeant based on the removal of the erroneous remark pertaining to being in the weight control program. The BCNR found that this error was not removed from his record until April 22, 1999, and that he was never afforded the opportunity to be considered for promotion with a corrected record because he had been discharged from service on April 5, 1999. The BCNR determined that the Veteran was entitled to be considered for promotion in 1999 on the basis of his corrected record. A December 2000 letter to the Veteran from Headquarters, Marine Corps, reflects that the Veteran was selected for promotion. He was told that he could petition the BCNR for reinstatement on active duty. In an August 2002 memorandum, the BCNR corrected the Veteran's naval record to show that he was promoted to E-6 effective October 1, 1998. A DFAS form entitled Military Pay and Allowance Voucher dated in August 2001 reflects that the Veteran was reinstated back to active duty on April 12, 2001. DFAS documents also reflect that he was awarded separation pay in April 1999. In his September 2008 letter, the Veteran asserted that during service, four high-ranking military individuals forged documents and prevented him from being promoted to staff sergeant in 1998, which resulted in his discharge from service on the basis of non-retention on April 5, 1999. He stated that he enrolled in the MGIB at the time of the 1999 separation from service. He said that the BCNR later ordered the Marine Corps to bring him back on active duty and adjust his records with no time lost. He stated that he was reinstated back into the military on April 12, 2001, and that shortly thereafter, DFAS "extracted" his MGIB funds, and he did not learn of the 2000-2001 open enrollment period until after it had ended. In a July 2009 statement of the case, the RO determined that the Veteran served honorably on active duty from May 29, 1985 to May 31, 2008, that records from the Department of Defense showed that he participated in the VEAP program, and his VEAP contributions were refunded on August 13, 1996. The RO found that the evidence did not show that the Veteran elected MGIB benefits instead of VEAP benefits. In a July 2009 substantive appeal, the Veteran reiterated some of his assertions, and added that when he reentered active service in April 2001, DFAS took him off the MGIB program without his knowledge, and he discovered the discrepancy after the open enrollment date ended. In July 2009, the RO notified the Veteran that he was eligible for education benefits under the Post-9/11 GI bill. In August 2009, the Veteran submitted a letter and enclosed additional documents, including an August 2001 computer printout entitled Remark Summary, which reflects that a debit for MGIB of $1,200, dated on April 5, 1999, was posted to his account. At his May 2010 Board hearing, the Veteran submitted several pertinent documents, including a DD Form 2366, Montgomery GI Bill Act of 1984 (MGIB), signed by the Veteran and dated on March 31, 1999, showing that he enrolled in the MGIB "based on my initial entry on active duty after June 30, 1985." This document was signed by a witness. Additional documents included a May 2010 email to the Veteran from a DFAS military pay technician, reflecting that he had been given credit for a $1,200 contribution for MGIB effective April 5, 1999. Additional documents included an April 2010 MGIB printout reflecting that he had contributed $1,200 between the dates of April 5, 1999 to April 30, 1999, and the effective date of his election was April 30, 1999, and a Miscellaneous Military Pay Order dated on April 8, 1999 showing that a debit of $1,200 from the Veteran's final separation pay was authorized as a credit towards MGIB. He also submitted a printout from his credit union showing that he paid $1,800 to the MGIB education fund on April 17, 2008. After a review of all of the evidence of record, the Board finds that the Veteran entered service prior to June 30, 1985, that he was eligible for and participated in the VEAP (Chapter 32), that he irrevocably elected MGIB (Chapter 30) benefits in March 1999 and paid $1,200 at the time of his involuntary separation from service on April 5, 1999. He thus meets the requirements for basic eligibility for Chapter 30 education benefits under 38 C.F.R. § 21.7045(a) and (b) for the following reasons. The Veteran was on active duty on September 30, 1990 and after November 29, 1993 and was involuntarily discharged with an honorable discharge. 38 C.F.R. § 21.7045(a). The Veteran made an irrevocable election to receive educational assistance under 38 U.S.C. Chapter 30 rather than under 38 U.S.C. Chapter 32 before he was involuntarily separated on April 5, 1999, and he paid $1,200 upon separation in April 1999. 38 C.F.R. § 21.7045(b). See also 38 U.S.C.A. §§ 3018A, 3018B, 3018C. For these reasons, the Board concludes that the Veteran has established basic eligibility to MGIB educational assistance. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Basic eligibility for educational assistance under Chapter 30 of Title 38 of the United States Code (Montgomery GI Bill) is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs