Citation Nr: 1328533	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  13-06 802	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUE

Entitlement to eligibility for education benefits under the 
provisions of Chapter 30, Title 38, United States Code 
(Montgomery G.I. Bill).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel






INTRODUCTION

The appellant served on active duty from July 10, 1997 
through July 8, 2001.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2012 decision issued by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Louis, Missouri.  A timely Notice of Disagreement 
(NOD) was received from the appellant in May 2012.  After a 
Statement of the Case (SOC) was mailed to the appellant in 
December 2012, the appellant perfected his appeal the 
following month, via VA Form 9 substantive appeal.


FINDINGS OF FACT

1.  The appellant served on active duty from July 10, 1997 
through July 8, 2001. 

2.  The appellant's delimiting period for receiving Chapter 
30 education benefits expired on July 9, 2011. 

3.  The appellant's application for Chapter 30 education 
benefits was received on January 16, 2012 and the period of 
enrollment for which the appellant now seeks Chapter 30 
education benefits commenced on January 17, 2012, after the 
expiration of his 10 year period of eligibility.

4.  The appellant did not submit a timely request to extend 
the period of eligibility, nor has good cause for such an 
extension been shown.


CONCLUSION OF LAW

The criteria for eligibility for Chapter 30 education 
benefits have not been met.  38 U.S.C.A. §§ 3011, 3031 (West 
2002); 38 C.F.R. §§ 21.1033, 21.7042, 21.7050, 21.7051, 
21.7135(s) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  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); 38 C.F.R §§ 3.102, 
3.156(a), 3.159, 3.326(a) (2012). 

The question before the Board is whether the appellant meets 
the eligibility requirements for Chapter 30 education 
benefits in accordance with the Montgomery G.I. Bill.  The 
record includes service department verification of the 
appellant's service, pertinent records related to the 
appellant's enrollment and education, and the lay assertions 
and arguments expressed in the appellant's claims 
submissions and his representative's August 2013 informal 
hearing presentation.  Because the eligibility requirements 
in question are governed by law and regulations, the Board's 
review is essentially limited to interpreting the pertinent 
law and regulations.

Where, as in this case, the interpretation of the law is 
dispositive of the appeal, neither the duty to notify nor 
the duty to assist provisions of the VCAA is applicable.  
Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).

II.  Analysis

Appellants may establish eligibility for basic educational 
assistance under Chapter 30 by satisfying certain service 
prerequisites.  Under 38 U.S.C.A. § 3011(a)(1)(A)  and 38 
C.F.R. § 21.7042(a)(1), an individual may establish 
eligibility by showing that he or she first entered on 
active duty as a member of the armed forces after June 30, 
1985.  The individual also must demonstrate that he or she 
served at least three years of continuous active duty, or at 
least two years if the individual's initial obligated period 
of active duty was less than three years.  38 U.S.C.A. § 
3011(a)(1)(A)(1); 38 C.F.R. § 21.7042(a)(2). 

The governing legal criteria specify further that in order 
to be eligible for education benefits under Chapter 30, an 
individual, after June 30, 1985, must continue on active 
duty in the Armed Forces for at least three years, unless 
discharged or released for a qualifying reason (i.e., a 
service-connected disability, a medical condition which 
preexisted service, hardship, the convenience of the 
Government if the individual completed not less than 30 
months continuous active duty after that date, involuntarily 
for the convenience of the Government as a result of a 
reduction in force, or for a physical or mental condition 
not characterized as a disability and not the result of his 
own willful misconduct).  38 U.S.C.A. § 3011(a); 38 C.F.R. § 
21.7042(a)(5). 

Here, the appellant was enlisted after June 30, 1985 for a 
period of more than three years.  Accordingly, the appellant 
meets the foregoing basic requirement for eligibility for 
one month of education benefits for every month of service 
(in this case, 48 months of benefits), if he is determined 
otherwise eligible for that award.  For the reasons 
discussed below, however, the Board finds that he is 
otherwise disqualified from eligibility for the foregoing 
education benefits. 

Applicable to this case, the general rule regarding Chapter 
30 education assistance benefits is that VA will not provide 
basic educational assistance or supplemental educational 
assistance to an appellant beyond 10 years from the date of 
the appellant's last discharge or release from a period of 
active duty of 90 or more continuous days of service.  38 
U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). 

Exceptions to this general rule provide that the 10 year 
period can be extended if: 

(1) the individual was initially prevented from establishing 
eligibility for educational assistance due to the character 
of his discharge, but was later able to establish 
eligibility as a result of a change, correction, 
modification, or other corrective action by competent 
military authority;

(2) the individual was captured and held as a prisoner of 
war by a foreign government or power after his last 
discharge or release from active duty; 

(3) the individual was prevented from pursuing his chosen 
program of education before the expiration of the 10 year 
period because of a physical or mental disability not the 
result of his own willful misconduct;

(4) the individual was enrolled in an educational 
institution regularly operated on the quarter or semester 
system and the period of entitlement under 38 U.S.C.A. § 
3013 expired during a quarter or semester; or, 

(5) the individual was enrolled in an educational 
institution not regularly operated on the quarter or 
semester system and the period of entitlement under 38 
U.S.C.A. § 3013 expired after a major portion of a course 
was completed. 

38 U.S.C.A. § 3031(b), (c), (d), and (f); 38 C.F.R. §§ 
21.7050(f), (g); 21.7051(a); 21.7135(s).

VA must receive a claim for an extended period of 
eligibility by the later of:  (1) one year from the date on 
which a claimant's original period of eligibility ended, or 
(2) one year from the date on which a claimant's physical or 
mental disability no longer prevented him from beginning or 
resuming a chosen program of education.  38 C.F.R. § 
21.1033(c). 

VA may, for good cause, extend the time limit within which a 
claimant is required to act to perfect a claim or challenge 
an adverse VA decision.  VA may grant such an extension only 
when the following conditions are met: (1) when a claimant 
requests an extension after expiration of a time limit, she 
must take the required action concurrently with or before 
the filing of that request; and (2) the claimant must show 
good cause as to why she could not take the required action 
during the original time period and could not have taken the 
required action sooner.  38 C.F.R. § 21.1033(e)(1).

The appellant's only verified period of active duty service 
was from July 10, 1997 through July 8, 2001.  Therefore, 
under the regulations cited above, the appellant's 
delimiting date for entitlement to education benefits under 
Chapter 30 is July 9, 2011.  There is no evidence that the 
appellant used his education benefits prior to the 
delimiting date and he became ineligible for VA educational 
assistance after that date.  In that regard, the appellant 
did not initially seek education benefits prior to his 
January 2012 application,  Moreover, enrollment records in 
the claims file show that the period of enrollment for which 
the appellant now seeks education benefits commenced on 
January 17, 2012, well after passage of the delimiting date.

Also, the Board notes that the appellant's situation does 
not fall under any of the noted exceptions to extension of 
the 10 year time period.  In that regard, there is no 
evidence in the record of any character of discharge issues 
that might have delayed any attempt to establish eligibility 
for education assistance.  Indeed, there is no indication in 
the record that the appellant ever applied for education 
benefits prior to the expiration of his basic 10 year 
eligibility period.  Also, there is no evidence that the 
appellant was a prisoner of war, nor is there evidence that 
he already enrolled in either a semester or non-semester 
educational institution at the time of his application.  
Similarly, there is no evidence in the record that the 
appellant was delayed in pursuing his chosen class 
enrollment due to a physical or mental condition.  
Accordingly, he does not meet the criteria for any of the 
five exceptions noted above.

Further, the Board notes that the appellant has not 
expressly sought an extension of the 10 year eligibility 
period, much less, made any such request prior to or at the 
time of his application for education benefits.  
Nonetheless, even if a request for extension could be 
construed from the appellant's application, the appellant 
has not stated any cause for his late application.  For that 
reason, the 10 year eligibility period for education 
benefits also may not be extended based upon a showing of 
good cause.  38 C.F.R. § 21.1033(e)(1).

The legal criteria in this case are unambiguous and the 
pertinent facts are not in dispute.  In sum, the appellant 
did not submit a timely application for VA education 
benefits prior to his delimiting date of July 9, 2011, nor 
did he file a timely request to extend the delimiting date, 
nor has good cause for any such extension been shown.  
Unfortunately, the Board has no authority to create 
exceptions, or to overturn or to disregard this very 
specific limitation on the award of Chapter 30 education 
benefits.  38 U.S.C.A. § 7104(a) (West 2002); see Harvey v. 
Brown, 6 Vet. App. at 423 (holding that payments of money 
from the Federal Treasury are limited to those authorized by 
statute). 

Where, as here, the law and not the evidence is dispositive 
of the issue on appeal, the appellant's claim for education 
benefits under the provisions of Chapter 30 must be denied 
as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 
430 (1994).


ORDER

Entitlement to eligibility for Chapter 30 education benefits 
is denied.



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




 Department of Veterans Affairs