Citation Nr: 1311557	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  10-48 815	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to educational assistance under Chapter 1606, Title 10, United States Code, for benefits under the Montgomery GI Bill - Selected Reserve Educational Assistance Program.


ATTORNEY FOR THE BOARD

Jennifer R. White, Counsel


INTRODUCTION

The record indicates that the appellant has had service with the Naval Reserve. 

This case is before the Board of Veterans' Appeals  (Board) on appeal from a decision in July 2010 by a Regional Office (RO) of the Department of Veterans Affairs (VA). 

FINDING OF FACT

The Department of Defense has determined that the appellant is not eligible for MGIB-SR educational benefits.


CONCLUSION OF LAW

The criteria are not met for entitlement to educational assistance under Chapter 1606, Title 10, United States Code, MGIB-SR benefits.  10 U.S.C.A. § 1613; (West 2002); 38 C.F.R. § 21.7540 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant claimed entitlement to MGIB-SR educational assistance benefits under Chapter 1606 of Title 10 of the United States Code.  This program is an educational assistance program for members of the Selected Reserve of the Army, Navy, Air Force, Marine Corps, and Coast Guard, as well as the Army and Air National Guard.  Educational benefits are available to a member of the Selected Reserve under Chapter 1606 when he or she enlists, reenlists, or extends an enlistment as a reservist so that the total period of obligated service is at least 6 years from the date of such enlistment, reenlistment, or extension.  The Reserve components decide who is eligible for the program and VA makes the payments for the program.  VA regulations provide that a determination of an individual's eligibility for MGIB-SR benefits is to be made by the Armed Forces.  10 U.S.C.A. § 16132; 38 C.F.R. § 21.7540(a).

Department of Defense data records dated July 2010 show the appellant is not authorized benefits under Chapter 1606 because the appellant did not have a six year contract.  

Based upon the evidence of record, the Board finds the service department has verified that the appellant is not eligible for MGIB-SR education benefits.  The appellant has submitted no evidence otherwise indicating that the service department has determined that she is eligible for MGIB-SR.  In fact, the appellant indicated in her notice of disagreement received in July 2010 that she does not have a hard contract as an officer in the Navy.  Additionally, her Officer Appointment Acceptance and Oath of Office (Form NAVPERS 100/4/REV 1) indicates that her permanent grade is as an ENS (Navy Ensign), her type of duty is Inactive and her type of appointment is permanent.  The appellant has submitted no evidence of a six year obligation to the Navy Reserves.

The Board reiterates that in this instance, the determination is made by The Department of Defense.  This appellant, ostensibly, was not brought into the Naval Reserve under the MGIB-SR program.  She clearly does not meet the requirement of the six year contract which is signed on entry into this program.  Thus, her claim for educational benefits must be denied.

There is no indication that further development or an additional request for service department verification would substantiate the appellant's claim as to these matters. The Court has held that in cases such as this where the law is dispositive the claim should be denied because of the absence of legal merit.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Entitlement to educational assistance under Chapter 1606, Title 10, United States Code, for benefits under the Montgomery GI Bill - Selected Reserve Educational Assistance Program is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs