Citation Nr: 1218293 Decision Date: 05/23/12 Archive Date: 05/31/12 DOCKET NO. 08-28 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to basic eligibility for VA educational assistance under 38 U.S.C.A. Chapter 30 (Montgomery GI Bill). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active military service from April 2005 to November 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a April 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that during the course of his appeal, the Veteran requested that he be scheduled for a hearing before a traveling Veterans Law Judge at the RO. However, in early April 2008, he was notified that a hearing was scheduled for April 28, 2008. He failed to report for the hearing. He has not explained his absence or requested to reschedule the hearing. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2011). REMAND The Veteran seeks Chapter 30 educational assistance benefits under the Montgomery GI Bill (MGIB). The Veteran argues that he is eligible for Chapter 30 educational assistance benefits because his service involved an unfortunate series of circumstances, and he was misled by military personnel as to his eligibility. Specifically, he states that he had to have surgery for a knee injury during his first year of service. The following year, his wife left him, and he reinjured his knee. While he was recuperating in Virginia, his wife told him that she had lied about a miscarriage a year earlier, and that she had had an abortion at that time. She also confessed to having an affair. He began "drinking to deaden the pain of the severe depression," and he did not seek treatment for some time, since he was in law enforcement. He later sought treatment at a service hospital, and was diagnosed with alcohol dependence, a knee injury, "physical limitation," and "geographical separation from family." He requested a transfer from his ship because it did not have an AA (alcoholics anonymous) program. His best option was to separate from service, and he was told by his command that he was eligible for the MGIB because he had over 30 months of service. The governing legal criteria 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; and (3) is discharged from active duty with an honorable discharge. 38 U.S.C.A. § 3011(a) (West 2002 & Supp. 2010); 38 C.F.R. § 21.7042(a) (2011). However, an individual who does not meet the service requirements 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) for the convenience of the Government; (5) 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) (2011). In this case, the Veteran's discharge (DD Form 214) indicates that the narrative reason for separation was "unsuitability." The Veteran's service treatment records, and his personnel file, are not currently associated with the claims file. The available evidence does not indicate the basis for the service department's finding of unsuitability that resulted in his separation. Therefore, there is a possibility that it was due to "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 C.F.R. § 21.7042(a)(5). To the extent that the Veteran has reported his separation was related to abuse of alcohol in some way, this is not dispositive of the issue. Because evidence contained within the education folder provided to the Board does not include sufficient records from the service department which show the reason for the Veteran's separation, apart from "unsuitability," a remand is in order to obtain additional service records. On remand, the Veteran's personnel file, and his service treatment reports, should be obtained. In addition, the RO's April 2008 decision is not associated with the claims file. On remand, this should be obtained. Accordingly, the case is REMANDED for the following action: 1. Associate the April 2008 decision denying the benefits sought on appeal with the claims file. 2. Contact the United States Coast Guard (USCG) Personnel Service Center, Personnel Services Division, Military Records, in Topeka, Kansas and obtain all of the Veteran's service records. This should include his entire service personnel record, service treatment records, and any other documents pertaining to the Veteran's separation from service. Associate the records with the claims file. Alternatively, if any of the records are unavailable or shown to be at another storage facility, for example the National Personnel Records Center (NPRC), a request should be made to the appropriate storage facility. All efforts to obtain records should be fully documented, and the facilities must provide a negative response if records are not available. The Veteran should also be so notified and allowed opportunity for response. 3. The AMC/RO must ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is incomplete, appropriate corrective action should be undertaken. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the Chapter 30 claim on appeal. If the benefits sought on appeal remain denied, furnish the Veteran an appropriate supplemental statement of the case and give him an appropriate time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2011). Department of Veterans Affairs