Citation Nr: 1317346 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-50 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the Veteran's ending date for Montgomery GI Bill (MGIB) benefits is correct. ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1993 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In December 2011, the Board remanded the Veteran's claim for additional development, specifically to obtain information on the Veteran's Naval Reserve commitment. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). There was an issue regarding the Veteran's representative. Clarification was sought by the Board in February 2013. The letter (to the Veteran's last known address) was returned as undeliverable. There is no other basis the Board has for contacting the Veteran. The Board will proceed with the case. The Veteran is unrepresented in his appeal. FINDINGS OF FACT 1. The Veteran had active duty service from April 20, 1993 to April 25, 1995 2. The Veteran transferred from active duty to the reserves and received a general discharge effective May 15, 2000. 3. The Veteran's four years in the Selected Reserve began on April 26, 1995 after his transfer from active duty and his four-year-requirement ended on April 26, 1999. 4. The Veteran's delimiting period for receiving Chapter 30 educational benefits expired on April 27, 2009, 10 years after the date on which the veteran met the requirement for four years service in the Selected Reserve. CONCLUSION OF LAW April 27, 2009 is the correct delimiting date for the Veteran's period of eligibility for receiving VA educational benefits under Chapter 30. 38 U.S.C.A. §§ 3012, 3031 (West 2002); 38 C.F.R. §§ 21.7042, 21.7050 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Chapter 30 of Title 38, United States Code, sets forth provisions to allow for educational assistance for members of the Armed Forces after their separation from military service. See 38 U.S.C.A. §§ 3001, et seq. (West 2002). The law generally provides that educational assistance or supplemental educational assistance will not be provided to a veteran beyond ten years from the later of (i) the date of his last discharge or release from a period of active duty of 90 days or more of continuous service; (ii) the date of his last discharge or release from a shorter period of active duty if the discharge or release is because of a service-connected disability, a medical condition which preexisted such service and which VA determines is not service connected, hardship, or was involuntary for the convenience of the government after October 1, 1987, as the result of a reduction in force as determined by the Secretary of the military department concerned; or (iii) the date on which he meets the requirements for four years service in the Selected Reserves found in 38 C.F.R. § 21.7042(b) and 38 C.F.R. § 21.7044(b). See 38 U.S.C.A. § 3031(a) (West 2002); 38 C.F.R. § 21.7050(a) (2012). Eligibility for basic educational assistance under Chapter 30 based on a combination of service on active duty and service in the Selected Reserve is known as the "2x4" program. The individual must, after June 30, 1985, either first become a member of the Armed Forces, or first enter on active duty as a member of the Armed Forces. 38 U.S.C.A. § 3012(a)(1) ; 38 C.F.R. § 21.7042(b)(1). The individual before completing the service requirements must either complete the requirements of a high school diploma (or an equivalency certificate), or successfully complete (or otherwise receive academic credit for) 12 semester hours (or the equivalent) in a program of education leading to a standard college degree. 38 U.S.C.A. § 3012(a)(2); 38 C.F.R. § 21.7042(b)(2). The individual must serve at least two years of continuous active duty in the Armed Forces characterized by the Secretary concerned as honorable service. 38 U.S.C.A. § 3012(a)(1); 38 C.F.R. § 21.7042(b)(3). After completion of active duty service, the individual must serve at least four continuous years of service in the Selected Reserve. An individual whose release from active duty service occurs after December 17, 1989, must begin this service in the Selected Reserve within one year from the date of his or her release from active duty. During this period of service in the Selected Reserve the individual must satisfactorily participate in training as prescribed by the Secretary concerned. 38 U.S.C.A. § 3012(a)(1) ; 38 C.F.R. § 21.7042(b)(4). The individual must, after completion of all service described above, be discharged from service with an honorable discharge, placed on the retired list, or transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service. In the alternative, the individual may continue on active duty or in the Selected Reserve. 38 U.S.C.A. § 3012(a)(3); 38 C.F.R. § 21.7042(b)(5). If the veteran meets the requirements of 38 C.F.R. 21.7042(b), the ending date of eligibility for educational benefits is 10 years after the date on which the veteran met the requirement for four years service in the Selected Reserve. 38 C.F.R. § 21.7050(a)(1)(iii). In his application, the Veteran indicated that he had active duty service in the Navy from April 1993 to April 1995 and service in the Naval Reserve from August 1995 to May 1999. In subsequent statements he contended he was discharged from the Naval Reserve on April 12, 2000, and thus argues his entitlement period should run until April 2010. The RO concluded that the Veteran served four years in the Reserves beyond his release from active duty and therefore the ending date of his eligibility is April 27, 2009. The Veteran's enlistment document, DD Form 4, reflects that he enlisted in the Naval Reserve for eight years and his Enlistment Guarantee, Annex A to DD Form 4, reflects an agreement for two years of active service. His DD-214 shows honorable service with release from active duty on April 25, 1995 after two years and five days of active service. His reserve obligation termination date is listed as April 12, 2001. The Veteran's personnel records indicate he received a general discharge due to unsatisfactory participation in the Naval Reserve on May 15, 2000. His Statement of Service for Navy Reserve Retirement shows he received inactive duty training and annual training/active duty for training points though the period ending April 12, 2000. For the period ending May 15, 2000, his status was marked as "discharged." Thus, the Veteran served two years on active duty before transferring to the Selected Reserve, where he served five years. As determined by the RO, he meets the requirements of 38 C.F.R. 21.7042(b) for benefits under Chapter 30. Therefore, under 38 C.F.R. § 21.7050(a)(1)(iii), the ending date of eligibility is 10 years after the date on which the veteran met the requirement for four years service in the Selected Reserve. His four years in the Selected Reserve began on April 26, 1995 after his transfer from active duty and his four-year-requirement ended on April 26, 1999. Thus, his delimiting date is April 27, 2009, regardless of the fact that the Veteran continued to serve in the Reserves past that date. Notably, it is the Veteran's continuation in the Selected Reserves beyond the four years required by 38 C.F.R. 21.7042(b)(4) that permits his eligibility under 38 C.F.R. 21.7042(b)(5)(v) considering his general, rather than honorable, discharge from the Reserves. The Board has considered VA's duty to inform the Veteran of the evidence needed to substantiate his claim and to assist him in obtaining the relevant evidence, as required under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) [codified at 38 U.S.C.A. §§ 5103, 5103A (West 2002)]; 38 C.F.R. § 3.159 (2012). The VCAA is potentially applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet finally decided as of that date. However, the provisions of the VCAA are not applicable in cases, such as this, where the sole issue is extension of a delimiting date under Chapter 30 because a request for extension of a delimiting date is a not claim for a benefit as contemplated by 38 U.S.C. §§ 5100, et seq. Cf. Barger v. Principi, 16 Vet. App. 132, 138 (2002). Additionally, the VCAA is not applicable to cases where the law is determinative of the issue on appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER Entitlement to date beyond April 27, 2009 as the Veteran's period of eligibility to receive Chapter 30 educational assistance benefits is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs