Citation Nr: 1314327 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-27 495A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a benefits payment rate higher than 40 percent for educational assistance under Chapter 33 (Post 9/11 GI Bill), Title 38 of the United States Code. ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had honorable active service from January 1, 1995, to December 10, 2001. He also had a period of active service from December 11, 2001, to September 21, 2007, which was dishonorable. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Atlanta, Georgia, that determined the Veteran's creditable active duty service toward the Chapter 33 (Post 9/11 GI Bill) education benefits was 91 days, warranting educational assistance at the 40 percent level. In his July 2010 Appeal to the Board Of Veterans' Appeals (VA Form 9), the Veteran indicated that he wished to be scheduled for either a Board hearing in Washington, DC, or a Board video conference hearing. In February 2011, the Veteran was notified that he had been scheduled for an April 12, 2011, Board hearing in Washington, DC. The Veteran failed to appear at the hearing as scheduled. In October 2011, he notified the Board that he did not wish to appear at a hearing, stating that he could not afford to attend this hearing. In March 2013, the Board again contacted the Veteran asking whether he preferred to be scheduled for a Board video conference hearing to be held at the RO closest to his domicile. The letter informed the Veteran that if he did not reply within 30 days of the date of the letter, it would be assumed that he did not want a hearing. The Veteran did not reply to this letter. As such, his appeal will be processed as if he withdrew the hearing request. 38 C.F.R. § 20.704 (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran's Armed Forces Of The United States Report Of Transfer Or Discharge (DD Form 214) shows that the Veteran's period of service from January 1, 1995, to December 10, 2001, was honorable. 2. The Veteran's DD Form 214 shows that the Veteran's period of service from December 11, 2001, to September 21, 2007, was dishonorable. 3. The Veteran had 91 days of creditable active duty service toward the Chapter 33 (Post 9/11 GI Bill) education benefits. 4. The Veteran was discharged following a court martial, not for a disability. CONCLUSION OF LAW The criteria for a benefits payment rate higher than 40 percent for educational assistance under Chapter 33 (Post 9/11 GI Bill), Title 38 of the United States Code, have not been met. 38 U.S.C.A. 3311, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.9505, 21.9520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. These provisions apply to the Post 9/11 GI Bill program. 38 C.F.R. § 21.9510 (2012). In this case, however, the essential facts are not in dispute; the case rests 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 2-2004 (2004), 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 Veteran in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); see Dela Cruz. Thus, any deficiency of notice or of the duty to assist constitutes merely harmless error. Chapter 33 Educational Assistance Congress enacted the Post 9/11 Veterans Educational Assistance Act of 2008 in June 2008. See Pub. L. 110-252, Title V, §§ 5002-5003, June 30, 2008. This represented a new program of education benefits designed for Veterans who served on active duty after September 11, 2001. The change in the law was effective from August 1, 2009. The provisions of the Act are codified at 38 U.S.C.A. §§ 3301 to 3324 (West Supp. 2012) with the implementing regulations found at 38 C.F.R. §§ 21.9500 to 21.9770 (2012). In July 2009, the Veteran elected to receive education benefits under Chapter 33 (Post 9/11 GI Bill), Title 38 of the United States Code, in lieu of Chapter 30 education benefits. In his Application For VA Education Benefits (VA Form 22-1990) dated in July 2009, the Veteran acknowledged that his election was irrevocable and may not be changed. By letters dated in October 2009, December 2009, and January 2010, the Veteran was informed that he had been awarded education benefits under the Post-9/11 GI Bill at the 100 percent level. This was predicated on the Veteran having active service from January 4, 1995, to September 21, 2007. In March 2010, the Veteran was notified that because his creditable service extended only from September 11, 2001, to December 10, 2001, or 91 days, since his period of service from December 11, 2001, to September 21, 2007, had been under less than honorable conditions. The basis for the amount of benefits a Veteran is supposed to receive, under the Post-9/11 GI bill, based on length of service is provided under 38 C.F.R. § 21.9640, which indicates that VA will determine the amount of educational assistance payable under 38 U.S.C. Chapter 33 as provided in this section. The Veteran served on active duty from January 1, 1995, to December 10, 2001. He also had a period of active service from December 11, 2001, to September 21, 2007, which was dishonorable. A Veteran may establish eligibility for educational assistance under 38 U.S.C.A. Chapter 33 based on active duty service after September 10, 2001, if the Veteran (a) serves a minimum of 90 aggregate days excluding entry level and skill training and, after completion of such service: (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; (b) 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; or (c)(1) after meeting the minimum service requirements in paragraph (a) or (b) of this section (i) an individual makes an irrevocable election to receive benefits under 38 U.S.C.A. Chapter 33 by relinquishing eligibility under either 38 U.S.C.A. Chapter 30, or 10 U.S.C. Chapter 106a, 1606, or 1607; (ii) a member of the Armed Forces who is eligible for educational assistance under 38 U.S.C. Chapter 30 and who is making contributions towards such educational assistance under 38 U.S.C. 3011(b) or 3012(c) makes an irrevocable election to receive benefits under 38 U.S.C. Chapter 33; or (iii) a member of the Armed Forces who made an election not to receive educational assistance under 38 U.S.C. Chapter 30 in accordance with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election to receive benefits under 38 U.S.C. Chapter 33. See also 38 U.S.C.A. § 3311 (West 2002 & Supp. 2012). Aggregate length of creditable active duty service after September 10, 2001, determines the percentage of maximum amounts payable. The table is as follows, in relevant part: At least 36 months warrants a 100 percent; At least 30 continuous days (Must be discharged due to service-connected disability) warrants a 100 percent; At least 30 months, but less than 36 months warrants a 90 percent; At least 24 months, but less than 30 months warrants an 80 percent; At least 18 months, but less than 24 months warrants a 70 percent; At least 12 months, but less than 18 months warrants a 60 percent; At least 6 months, but less than 12 months warrants a 50 percent; At least 90 days, but less than 6 months warrants a 40 percent. 38 C.F.R. § 21.9640(a) (2012). The Veteran had service countable for the Post 9/11 GI Bill from September 11, 2001, to December 10, 2001, a period of 91 days. The Veteran's DD Form 214 shows that the Veteran's period of service from December 11, 2001, to September 21, 2007, was dishonorable. As such, the service beginning on December 11, 2001, is not creditable for the purposes of education benefits under 38 U.S.C. Chapter 33. In order to warrant a higher percentage level, the Veteran's creditable service from beginning on September 11, 2001, would have to have exceeded six months. As such, the Board concludes that the criteria for a payment rate in excess of 40 percent are not met. The Board recognizes that in his notice of disagreement and VA Form 9, the Veteran indicated that he had been misled into electing Chapter 33 education benefits instead of Chapter 30 benefits, and that he would be amenable to changing his election back to Chapter 30 benefits. However, as indicated above, the July 2009 VA Form 22-1990 specifically stated that the election was irrevocable and may not be changed. The Veteran acknowledged this in signing the application. The statute governing the requirement that the stated election is irrevocable was written by Congress and is binding on VA. As such, the law is dispositive in this case and does not allow for the Veteran to subsequently revoke his election. See Sabonis v Brown, 6 Vet. App. 426 (1994). The Board finds that the preponderance of the evidence is against a determination that the Veteran had more than 91 days creditable service for Post 9/11 GI Bill education assistance benefits. Similarly, the preponderance evidence of record shows that he was discharged due to a court martial and not for a disability, much less a service-connected disability. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A benefits payment rate higher than 40 percent for educational assistance under Chapter 33 (Post 9/11 GI Bill), Title 38 of the United States Code, is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs