Citation Nr: 1311015 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-31 800A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to basic eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had service from April 1999 to July 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The claims file was then transferred to the RO in Cleveland, Ohio for the purposes of affording the Veteran a Board hearing. In February 2012, the Veteran testified before the undersigned at the RO. A transcript of the hearing is associated with the claims file. The issue of entitlement to basic eligibility for educational assistance under Chapter 30 of Title 38 of the United States Code (Montgomery GI Bill) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's DD Form 214 lists his July 2004 character of discharge from the United States Army as "Under Honorable Conditions (General)." 2. The Veteran's less than honorable discharge is a bar to his receipt of Chapter 33 educational benefits. CONCLUSION OF LAW 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 Supp. 2012); 38 C.F.R. §21.9520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). In the instant case, the appellant has been notified of the basis for the denial of his claim, and has been afforded ample opportunity to respond. The Board thus finds that any duties to notify and assist owed him have been fulfilled. As explained below, the claim is being denied as a matter of law. Hence, the duties to notify and assist provisions of the VCAA are not applicable. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that the duties imposed by the VCAA do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence). In the present appeal, the appellant contends that he has met the requirements for basic eligibility for educational assistance under Chapter 33, Title 38, of the United States Code. Although the Veteran filed for educational benefits under Chapter 33, his written and oral statements have all applied to the criteria needed to establish eligibility for educational assistance under Chapter 30, which has been referred to the RO above. Nevertheless, the Board will adjudicate his claim. The governing law specifies that 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 serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (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. See 38 U.S.C.A. § 3301; 38 C.F.R. § 21.9520(a). Under paragraph (b), a veteran is also eligible for benefits under 38 U.S.C. Chapter 33, if he or she 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. See 38 C.F.R. § 21.9520(b). A plain reading of 38 C.F.R. §21.9520(a)(2)-(4) clearly demonstrates that an honorable discharge from service is required for the Veteran to establish eligibility for educational assistance under 38 U.S.C. Chapter 33. However, subsection (a)(5) makes no mention of the need for an honorable discharge. Hence, the Board interprets the plain language of 38 C.F.R. §21.9520(a) to not require an honorable discharge when eligibility is based upon one of the exceptions set forth under subsection (a)(5)(i)-(iii). Here, the appellant's DD Form 214 reflects that he served on active duty from April 1999 to July 2004. However, the DD Form 214 reflects that his character of discharge was "Under Honorable Conditions (General)." The reason for the separation was "misconduct." The record also reflects that, in May 2001, the Veteran received an honorable discharge for the service he had already completed up until that time and immediately reenlisted, continuing his service until his subsequent discharge in July 2004. Thus, the evidence of record establishes that the Veteran does not meet the initial requirements for eligibility for educational assistance under Chapter 33. Specifically, for all of the service the Veteran completed after September 10, 2001, he received an Under Honorable Conditions (General) discharge. An "Honorable Discharge," and not an "Under Honorable Conditions" discharge, is required by law for the Appellant to be eligible for educational assistance under Chapter 33, Title 38, United States Code. Here, the evidence of record establishes that the appellant does not meet this requirement, and therefore he is not eligible for educational assistance on this basis. 38 U.S.C.A. § 3311; 38 C.F.R. § 21.9520. While the Veteran received an honorable discharge for service rendered prior to September 10, 2001, such service is not eligible for this particular educational assistance. While the Veteran has not challenged the character of his July 2004 discharge, the Board nonetheless notes that service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. Should the Veteran wish to challenge the character of his discharge, his sole recourse is with the service department. See 38 C.F.R. § 3.203(a) (2012); Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 10 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Harvey v. Brown, 6 Vet. App. 416, 424 (1994). The claims file contains no evidence that the Veteran was discharged from active service for a medical disorder that preexisted service and was not determined to be service-connected, or was discharged for hardship, or was discharged for a physical or mental disorder that interfered with his performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. Thus, the Veteran is not eligible for educational assistance under Chapter 33, Title 38, United States Code under these alternative bases. 38 U.S.C.A. § 3311; 38 C.F.R. § 21.9520. There is no question that much of the Veteran's service is worthy of respect; however, the Board is bound by the law and has a quite limited authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey, 6 Vet. App. at 425. The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Consequently, the Board finds that the Veteran's "Under Honorable Conditions (General)" discharge does bar his eligibility to Chapter 33 benefits for service rendered after September 10, 2001. As such, and as no other exceptions apply, the Board finds that basic eligibility for educational assistance benefits under Chapter 33, Title 38, United States Code is not warranted as the Veteran's claim cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). ORDER Entitlement to eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs