Citation Nr: 1228705 Decision Date: 08/21/12 Archive Date: 08/30/12 DOCKET NO. 96-27 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to basic eligibility for educational assistance under Title 38, United States Code, Chapter 34, to include conversion of such benefits to educational assistance under Title 38, United States Code, Chapter 30. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The Veteran served on active duty from December 1962 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1995 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. The Veteran testified before a Decision Review Officer in April 1997. A transcript of that proceeding has been prepared and incorporated into the evidence of record. This claim came before the Board in March 2005 and January 2012. On both occasions, the Board determined that additional evidentiary development was required prior to the adjudication of the Veteran's claim. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Coast Guard from December 1962 through January 1988. 2. The Veteran is not eligible for conversion of his Chapter 34 active duty educational benefits to Chapter 30 benefits. 3. The Veteran is not eligible for Chapter 30 benefits on a direct basis. CONCLUSION OF LAW The requirements for basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code, to include conversion of Chapter 34 benefits, have not been met. 38 U.S.C.A. §§ 3011, 3012 (West 2002 & Supp. 2011); 38 C.F.R. §§ 21.7042, 21.7044 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Board notes that the notice and duty to assist requirements, as established by the VCAA, do apply to education cases. See 38 C.F.R. §§ 21.1031, 21.1032 (2011). The Veteran was not provided with notice as normally required by regulation. However, VA's General Counsel has held that the notice and duty to assist provisions of the VCAA are inapplicable where, as here, undisputed facts render a claimant ineligible for the benefit claimed and further factual development could not lead to an award. See VAOPGCPREC 5-2004. The evidence is such that the Veteran cannot establish entitlement to education benefits under either of the programs addressed. Accordingly, no further duty to provide notice or assistance is required in this case. II. The Merits of the Claim The Veteran seeks to establish entitlement to educational assistance under Chapters 30 and/or 34, Title 38, United States Code (hereinafter Chapters 30 and 34, respectively). Relevant Law and Regulations In general, an individual may be entitled to educational assistance under Chapter 30 if he first entered on active duty as a member of the Armed Forces after June 30, 1985. As shown by the above evidence, the Veteran does not meet this criterion as he first entered on active duty in December 1962. See 38 U.S.C.A. § 3011(a)(1)(A), 3012(a)(1)(A) (West 2002 & Supp. 2011); 38 C.F.R. § 21.7042 (2011). However, under the law, an individual who was eligible for educational assistance benefits under Chapter 34 as of December 31, 1989, may be able to establish eligibility under Chapter 30 if certain conditions are met. Specifically, a Veteran is entitled to convert remaining benefits under Chapter 34 to eligibility under Chapter 30, based solely on active duty, if the Veteran: (B) as of December 31, 1989, is eligible for educational assistance benefits under chapter 34 of this title and was on active duty at any time during the period beginning on October 19, 1984, and ending on July 1, 1985, continued on active duty without a break in service and- (i) after June 30, 1985, serves at least three years of continuous active duty in the Armed Forces; or (ii) after June 30, 1985, is discharged or released from active duty: (I) for a service-connected disability, for a medical condition which preexisted such service on active duty and which the Secretary determines is not service connected, for hardship, or for a physical or mental condition that was not characterized as a disability, as described in subparagraph (A)(ii)(I) of this paragraph; (II) for the convenience of the Government, if the individual completed not less than 30 months of continuous active duty after that date; or (III) involuntarily for the convenience of the Government as a result of a reduction in force, as determined by the Secretary of the military department concerned in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy; or (C) as of December 31, 1989, was eligible for educational assistance benefits under chapter 34 of this title and- (i) was not on active duty on October 19, 1984; (ii) reenlists or reenters on a period of active duty after October 19, 1984; and (iii) on or after July 1, 1985, either- (I) serves at least three years of continuous active duty in the Armed Forces; or (II) is discharged or released from active duty: (aa) for a service-connected disability, by reason of a sole survivorship discharge (as the term is defined in section 1174(i) of Title 10), for a medical condition which pre-existed such service on active duty and which the Secretary determines is not service-connected, for hardship, or for a physical or mental condition that was not characterized as a disability, as described in subparagraph (A)(ii)(I) of this paragraph; (bb) for the convenience of the Government, if the individual completed not less than 30 months of continuous active duty after that date, or (cc) involuntarily for the convenience of the Government as a result of a reduction in force, as determined by the Secretary of the military department concerned in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy. See 38 U.S.C.A. § 3011(a)(1)(B), (C) (West Supp 2011); 38 C.F.R. § 21.7044(a) (2011). This is commonly referred to as a Category IIA individual. See Veterans Benefits Administration Education Manual, M22-4, Part 5, Chapter 1, Subchapter II, Paragraph 1.06. In addition, a Veteran with a combination of active and Selected Reserve service can qualify for conversion of their Chapter 34 benefits to Chapter 30 benefits if the following conditions are met: (B) as of December 31, 1989, is eligible for educational assistance under chapter 34 of this title and was on active duty at any time during the period beginning on October 19, 1984, and ending on July 1, 1985, continued on active duty without a break in service and (i) after June 30, 1985, serves at least two years of continuous active duty in the Armed Forces, subject to subsection (b) of this section, characterized by the Secretary concerned as honorable service; and (ii) after June 30, 1985, subject to subsection (b) of this section and beginning within one year after completion of such two years of service, serves at least four continuous years in the Selected Reserve during which the individual participates satisfactorily in training as prescribed by the Secretary concerned; or (b)(1)(A) The requirement of two years of service under clauses (1)(A)(i) and (1)(B)(i) of subsection (a) of this section is not applicable to an individual who is discharged or released, during such two years, from active duty in the Armed Forces: (i) for a service-connected disability, (ii) for a medical condition which preexisted such service on active duty and which the Secretary determines is not service connected, (iii) for hardship, (iv) in the case of an individual discharged or released after 20 months of such service, for the convenience of the Government, (v) involuntarily for the convenience of the Government as a result of a reduction in force, as determined by the Secretary of the military department concerned in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, (vi) for a physical or mental condition that was not characterized as a disability, as described in section 3011(a)(1)(A)(ii) (I) of this title, or (vii) by reason of a sole survivorship discharge (as that term is defined in section 1174(i) of title 10). See 38 U.S.C.A. § 3012 (a)(1)(B), (b)(1)(A) (West 2002 & Supp. 2011); 38 C.F.R. § 21.7044(b) (2011). This is commonly referred to as a Category IIB individual. See M22-4, Part 5, Chapter 1, Subchapter II, Paragraph 1.06. Analysis The evidence of record shows that the Veteran was originally eligible for educational assistance benefits under Chapter 34 based on his period of active duty beginning in December 1962. In August 1988, the Veteran applied for Chapter 34 benefits and was conditionally denied because the requested program, Truck Driver Training, at Blanton Jr. College, was not approved for VA benefits. The denial letter was issued on September 14, 1988, and instructed the Veteran to use the bottom of the letter to apply for a different course or program of education. The Veteran did not reapply for benefits. Educational assistance under Chapter 34 was terminated for all eligible Veterans effective December 31, 1989. See 38 U.S.C.A. § 3462(e) (West 2002 & Supp. 2011). The Veteran had remaining eligibility under Chapter 34 as of December 31, 1989. He was on active duty during the period from October 19, 1984, to July 1, 1985. However, he did not serve three years of continuous active duty in the Armed Forces after July 1, 1985. Nor was he discharged from service, prior to completion of the three years of continuous active duty, for any of the recognized reasons. The same is true as the Veteran did not serve two years of continuous active duty after July 1, 1985. He was not discharged from service, prior to completion of the two years of continuous active duty, for any of the recognized reasons. Further, he did not serve in the Selected Reserve as required. Thus, he does not satisfy the criteria for conversion of his Chapter 34 benefits to Chapter 30 benefits. See Kelly v. Derwinski, 3 Vet. App. 171, 172-73 (1992). The Board acknowledges the Veteran's statements in his VA Form 9, in which he stated that he should not be penalized for retiring several months early. While the Board is sympathetic to the Veteran's situation, the Board is bound by the applicable law and regulations when determining a claim for VA benefits. In the present case, the law itself, and not the Veteran's interpretation, is binding. Based on the foregoing, the Board finds that the Veteran is not eligible for educational assistance benefits under Chapter 30 or Chapter 34. Accordingly, as the disposition of his claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to educational assistance benefits under Chapter 30 (to include conversion of Chapter 34 benefits), Title 38, United States Code (Montgomery GI Bill), is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs