Citation Nr: 1306896 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-36 648 ) 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 the National Call to Service Program (NCSP). ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran had active service from January 2008 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the education processing center at the Muskogee Regional Office (RO). In June 2011, the Board remanded the claim to the RO via that Appeals Management Center (AMC) in Washington, DC, for readjudication. In the June 2011 remand, the Board characterized the issue as entitlement to basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill). However, in his original claim, the Veteran sought educational benefits under the National Call to Service Program under Section 510, Title 10, United States Code (NCSP). The September 2009 RO decision denied educational benefits under the NCSP. In his November 2009 notice of disagreement, the Veteran reiterated that he was seeking benefits under the NCSP. The July 2010 statement of the case provided the Veteran with the laws and regulations concerning benefits under the NCSP. In his June 2010 VA form 9, the Veteran acknowledged that he had disenrolled from the Montgomery GI Bill (MGIB) at the beginning of his active service and argued that his disavowal of MGIB benefits did not disqualify him from benefits under the NCSP. As the Veteran has never asserted entitlement to educational benefits under the MGIB, the Board has recharacterized the issue in accordance with the Veteran's original claim. FINDINGS OF FACT 1. In November 2009, the Veteran signed a DD form 2963, in which he selected a bonus in the amount of $5,000 to be paid at the completion of active duty or reenlistment/extension on active duty as his incentive as a participant in the NCSP. 2. The Veteran's completion of DD form 2963 on November 19, 2009, was an irrevocable election to receive a $5,000 bonus as his NCSP incentive. CONCLUSION OF LAW An election to receive a $5,000 bonus and relinquishing eligibility for other education benefits under the NCSP may not be revoked. 10 C.F.R. § 510 (f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance There is no legal basis upon which the claim for further educational assistance benefits under the NCSP may be awarded. Sabonis v. Brown, 6 Vet. App. 426 (1994). The provisions of VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). Analysis In January 2008, the Veteran filled out DD form 3296, whereby he enlisted in the United States Army under the provisions of the NCSP. At the same time, he filled out DD form 2366, in which he stated that he did not desire to participate in the MGIB. He signified that he understood that he would not be able to enroll in the MGIB program at a later date. In August 2009, Veteran submitted two claims for educational benefits via VA form 22-1990. On one form, the Veteran applied for Chapter 33 Post-9/11 GI Bill benefits. On the other form, the Veteran applied for educational benefits under the NCSP. In a September 2009 letter, the Veteran was informed that his claim for educational benefits under the NCSP could not be approved. In a November 2009 notice of disagreement, the Veteran asserted that he qualified for NCSP benefits. In November 2009, the Veteran signed a DD form 2963, in which he selected a bonus in the amount of $5,000 to be paid at the completion of active duty or reenlistment/extension on active duty as his incentive as a participant in the NCSP. The Veteran signified that selection of the incentive was irrevocable. In a February 2010 letter, the Veteran was awarded education benefits under the Post-9/11 GI Bill at the 60 percent level. Review of the applicable statute shows that the National Call to Service Program lists several incentives: (e) Incentives.--The incentives specified in this subsection are as follows: (1) Payment of a bonus in the amount of $5,000. (2) Payment in an amount not to exceed $18,000 of outstanding principal and interest on qualifying student loans of the National Call to Service participant. (3) Entitlement to an allowance for educational assistance at the monthly rate equal to the monthly rate payable for basic educational assistance allowances under section 3015(a)(1) of title 38 for a total of 12 months. (4) Entitlement to an allowance for educational assistance at the monthly rate equal to 50 percent of the monthly rate payable for basic educational assistance allowances under section 3015(b)(1) of title 38 for a total of 36 months. (f) Election of incentive.--A National Call to Service participant shall elect in the agreement under subsection (b) which incentive under subsection (e) to receive. An election under this subsection is irrevocable. 10 U.S.C.A. § 510 (West 2002). The irrevocability criteria of 10 U.S.C.A. § 510 (f) have been met as the record contains a properly completed DD form 2963from the Veteran, which clearly indicated an irrevocable election to receive a $5,000 cash bonus incentive under the NCSP. As such are contained in the claims file, it is not necessary to further discuss the Veteran's entitlement to other educational assistance benefits under the NCSP, as he irrevocably elected to receive the $5,000 cash bonus instead of the educational benefits offered under the NCSP. Concerning other educational award options, the Veteran expressly declined enrollment in the MGIB under the provisions of Chapter 30 in January 2008. Concerning the provisions of Chapter 33, benefits under Post-9/11 GI Bill were previously awarded at the 60 percent level, and he has not disagreed with that decision. The Board is bound by the applicable law and regulations when determining entitlement to benefits. See Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). Therefore, the Board must find that the Veteran made an irrevocable election for a $5,000 cash incentive under the NCSP in lieu of educational benefits under the NCSP. [Parenthetically, the Veteran is advised that cash bonus incentives under the NCSP are not administered by the VA. To whatever extent the Veteran has not received his cash incentive under the NCSP, the Veteran is advised to contact the Department of Defense directly.] ORDER Entitlement to basic eligibility for educational assistance benefits under the National Call to Service Program is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs