Citation Nr: 1307622	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  10-43 520	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs National Education Center in
 Muskogee, Oklahoma


THE ISSUES

1. Entitlement to educational assistance under Chapter 30, Title 38, United States Code.

2. Entitlement to educational assistance under Chapter 33, Title 38, United States Code. 


ATTORNEY FOR THE BOARD

C. Lawson, Counsel



INTRODUCTION

The appellant had periods of service in the Naval Reserves between November 1995 to November 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2010 decisions by the Department of Veterans Affairs (VA) National Education Center in Muskogee, Oklahoma. 


FINDING OF FACT

The appellant did not serve on active duty.


CONCLUSIONS OF LAW

1.  The criteria for eligibility for educational assistance under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)) have not been met.  38 U.S.C.A. § 3011 (West 2002 and Supp. 2011); 38 C.F.R. § 21.7042 (2012).

2.  The criteria for eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) have not been met.  38 U.S.C.A. § 3311 (West 2002 & Supp. 2011); 38 C.F.R. §§ 21,9505, 21.9520 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants.  For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032 (2012).

The essential facts are not in dispute, and the case rests solely on the interpretation and application of the relevant law.  The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation.  See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-04, 69 Fed. Reg 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed).  There is no possibility that any additional notice or development would aid the appellant in substantiating either of his present claims.  38 U.S.C.A. §§ 5103, 5103A (West 2002); see Dela Cruz.  Thus, any deficiency of notice or of the duty to assist constitutes harmless error.

In March 2010, he filed a claim seeking educational assistance benefits.  Evidence shows that the appellant had service only in the Naval Reserves, with no service on active duty, and he does not claim otherwise.  

A. MGIB

An individual may establish eligibility for basic educational assistance under MGIB by showing that he first entered on active duty as a member of the Armed Forces after June 30, 1985.  38 U.S.C.A. § 3011(a)(1)(A); 38 C.F.R. § 21.7042(a)(1).  In the instant matter, the appellant did not serve on active duty.  Thus, he does not meet the criteria for any educational assistance under MGIB.  38 U.S.C.A. § 3011(a)(1)(A); 38 C.F.R. § 21.7042(a)(5).  As the law and not the evidence is dispositive, the claim for education benefits under MGIB must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

B. Post 9/11

The Post-9/11 GI Bill was enacted under Pub.L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2375.  See generally 38 U.S.C.A. §§ 3301-24 (West Supp. 2011); 38 C.F.R. § 21.9520.  Generally, to be eligible for educational assistance benefits under the Post-9/11 GI Bill, an individual must have served on active duty for a minimum of 90 aggregate days after September 10, 2001, excluding entry  level and skill training.  See 38 C.F.R. § 21.9520.  The service requirement is also met by an individual who serves a minimum of 30 continuous days of active duty, and after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability.  See 38 C.F.R. § 21.9520(b).

For Post-9/11 GI Bill purposes, 38 C.F.R. § 21.9505 defines "active duty" as 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.A. § 688, 12301(a) 12301(d), 12301(g), 12302, 12304 (West 2002 & Supp. 2011).  See 21.9505.

The appellant's service does not meet the minimum requirements for eligibility for educational assistance under the Post-9/11 GI Bill.  Specifically, the appellant does not have qualifying active duty service as defined in 38 C.F.R. § 21.9505.  His service after September 10, 2001 was in the in the Navy Reserves, and this service was not shown to be under a call or order to active duty under 10 U.S.C.A. §§ 688, 12301(a) 12301(d), 12301(g), 12302, 12304.  Under these circumstances, the appellant's claim of entitlement to educational assistance under the Post-9/11 GI Bill must be denied.  The appellant feels that he should be entitled to some type of education benefits and notes that he used some kind of education benefits in about 1996 or 1997.  However, a basis for entitlement to the benefits sought on appeal is not shown.  


ORDER

Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill), is denied.

Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 Bill), is denied.


____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs