Citation Nr: 1124896 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 10-36 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 25, 1999, to September 17, 1999, and from June 30, 2002, to April 8, 2003 in the Army National Guard (ARNG). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Department of Veterans Affairs (VA) Regional Office's (RO) Education Center in Muskogee, Oklahoma, which denied eligibility to educational assistance under the Post-9/11 GI Bill. FINDING OF FACT The Department of Defense (DoD) has determined that the Veteran is not eligible for educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). CONCLUSION OF LAW The criteria for basic eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post 9/11 GI Bill) have not been met. 38 C.F.R. § 21.9520 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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 fact. See also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. Analysis The Veteran contends that he is entitled to VA educational assistance under the Post-9/11 GI Bill. An individual may establish eligibility for educational assistance under 38 U.S.C. chapter 33 based on active duty service after September 10, 2001, if he or she-- (a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service,-- (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; (b) 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; The Veteran must meet the minimum service requirements in paragraph (a) or (b) of this section in order to qualify for Chapter 33 benefits. 38 C.F.R. § 21.9520 (2010). Active duty means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. Active duty does not include- (1) Full-time National Guard Duty performed under 32 U.S.C. orders; (2) Any period during which the individual- (i) Was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; (ii) Served as a cadet or midshipmen at one of the service academies; or (iii) Served under the provisions of 10 U.S.C. 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; (3) A period of service-- (i) Required by an officer pursuant to an agreement under 10 U.S.C. 2107(b); (ii) Required by an officer pursuant to an agreement under 10 U.S.C. 4348, 6959, or 9348; (iii) That was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or (iv) Counted for purposes of repayment of an education loan under 10 U.S.C. chapter 109; or (4) A period of Selected Reserve service used to establish eligibility under 38 U.S.C. chapter 30 or 10 U.S.C. chapter 1606 or 1607. In this case, correspondence from DoD indicated the Veteran did not have any qualifying period of service for post-9/11 educational benefits. The record reflects that the Veteran's period of service from June 2002 to April 2004 was performed under Title 32 of the United States Code not under Title 10. Furthermore, the service department determined that the Veteran eligibility for Chapter 1606 benefits had terminated in April 2005 when he separated from active duty and did not reaffiliate within 12 months. With regard to Chapter 1607 and Chapter 33 benefits, the service department determined that the Veteran had no qualifying period of service while with the Army National Guard (ARNG). The Board is bound by the service department's determination of the nature of the Veteran's service, and is not at liberty to change such determination. Service department determinations as to a Veteran's service are binding on VA where service department certification is required. See 38 C.F.R. § 3.203(c) (2010) (setting out the types of evidence required to establish periods of service and character of discharge). The service department's decision on such matters is conclusive and binding on VA. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Veteran's active service included National Guard duty under Title 32. Thus, by law, the Veteran is not eligible for Chapter 33 education benefits. The Veteran does not dispute the facts regarding the nature of his service determined by DoD. Rather, as reflected in his written statements, including his March 2010 notice of disagreement with the October 2009 decision letter, he argues that he received a certificate of eligibility from VA. As noted by the RO in the June 2010 statement of the case, a July 2009 Certificate of Eligibility for Post-9/11 GI Bill for 36 months of full time benefits was sent in error. Notably, the Veteran has not set forth any arguments as to how he meets the eligibility requirement for educational assistance benefits under the Post-9/11 GI Bill. In this case, the law, rather than the facts, is dispositive. As the Veteran is not legally entitled to educational assistance benefits under the Post 9/11 GI Bill, his claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs