Citation Nr: 1328636 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-37 114A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to basic eligibility for educational assistance under Chapter 1606, Title 10, United States Code (Montgomery GI Bill for Selected Reserve - MGIB-SR). ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The appellant served in the Army Reserve from May 2002 to May 2006, and then served in the Army National Guard from October 2008 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant was previously scheduled for an August 2010 Travel Board hearing but failed to appear, and absent a good cause justification, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2013). FINDING OF FACT The appellant was discharged from the Selected Reserve in May 2006, prior to the completion of his six year enlistment contract. He resumed his reserve duty more than one year thereafter, which period of service did not continue for this second six year enlistment. CONCLUSION OF LAW The criteria for basic entitlement to educational assistance benefits under Chapter 1606, Title 10, United States Code, have not been met. 10 U.S.C.A. §§ 16131, 16132, (West 2002 & Supp. 2013); 38 U.S.C.A. § 3012 (West 2002 & Supp. 2013); 38 C.F.R. §§ 21.7540, 21.7550, 21.7551 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). In this case, the Board decides the claim at hand on the basis that the legal criteria for basic eligibility for Chapter 1606 educational assistance benefits have not been met. There is no factual issue to resolve, or further factual case development which would be helpful in deciding this issue. Where the outcome of a case is governed by applicable law, without need for further factual inquiry, the VCAA has been held inapplicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); DelaCruz v. Principi, 15 Vet. App. 143 (2002). See also VAOPGCPREC 2-2004 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Accordingly, this claim may be fairly decided on the merits. The Montgomery GI Bill Selected Reserve (Chapter 1606, of Title 10, United States Code) is an educational assistance program for members of the Selected Reserve of the Army, Navy, Air Force, Marine Corps, and Coast Guard, and the Army and Air National Guard. The Reserve components determine eligibility for the program. 38 C.F.R. § 21.7540(a). VA makes the payments for the program. 38 C.F.R. §§ 21.7520, 21.7540. To be eligible for GI Bill Selected Reserve education benefits, a reservist (1) shall (i) enlist, reenlist, or extend an enlistment as a Reserve for service in the Selected Reserve so that the total period of obligated service is at least six years from the date of such enlistment, reenlistment, or extension; or (ii) be appointed as, or be serving as, a Reserve officer and agree to serve in the Selected Reserve for a period of not less than six years in addition to any other period of obligated service in the Selected Reserve to which the person may be subject; (2) must complete his or her initial period of active duty for training; (3) must be participating satisfactorily in the Selected Reserve; and (4) must not have elected to have his or her service in the Selected Reserve credited toward establishing eligibility to benefits provided under 38 U.S.C. chapter 30; and (5) must have the requirements for a secondary school diploma (or an equivalency certificate) before applying for educational assistance. 38 C.F.R. § 21.7540(a). If a reservist is serving in the Selected Reserve, but does not have a six year contract, he/she does not have a basic eligibility date. The basic eligibility date is the date on which service commences for the contracted six year period. Except as otherwise provided, for a reservist, who became eligible for educational assistance after September 30, 1992, a reservist's period of eligibility expires effective the earlier of the following dates: (1) the last day of the 14-year period beginning on the date the reservist becomes eligible for educational assistance; or (2) the date of separation from the Selected Reserve. 38 C.F.R. § 21.7550(a). However, if a reservist leaves the Selective Reserves, the reservist may still have the full 14 years to use his/her benefits if he/she is discharged from the Selected Reserve because of a disability that was not the result of misconduct or the reservist's unit was inactivated during the period from October 1, 1991, through December 31, 2001. 38 C.F.R. § 21.7550(d), (e). An individual's eligibility may be resumed after Reserve duty status ends if the individual returns to the Selected Reserve within one year. 38 U.S.C.A. § 3012. A period of eligibility may also be extended if the individual applies for an extension within a prescribed time period, and the individual was prevented from initiating or completing a program of education within the applicable time period, due to a physical or mental disability not the result of the reservist's own willful misconduct, and which was incurred in or aggravated by service in the Selected Reserve. 38 C.F.R. § 21.7551(a). Furthermore, Congress passed legislation in 1996 (Section 16131(i) of Title 10, United States Code) that authorizes the payment of "Kicker" benefits by the Selected Reserve components to persons entering those components. The Kicker can be paid to recipients of Chapter 1606 benefits or to recipients of Chapter 30 benefits, as an addition to any other benefit to which the individual is entitled. The individual Selected Reserve components determine eligibility to the Kicker. To be eligible for the Chapter 1606 Kicker, the claimant must meet the eligibility requirements for the basic Chapter 1606 program. However, because eligibility for the Kicker is based on either job position or unit membership, that eligibility can terminate without basic Chapter 1606 eligibility terminating. Kicker benefits can only be paid in conjunction with basic benefits. Therefore, when basic eligibility terminates, Kicker eligibility terminates also. The appellant in this case maintains that he is eligible for Chapter 1606 benefits based on his applicable reserve duty service, alleging that he was discharged in May 2006 prior to when his original six-year contract expired. He has submitted official documentation pertaining to his discharge which he states elucidates the reason for his discharge. He further indicates having been told at the time he resumed reserve duty service in October 2008 that he would again be eligible for Chapter 1606 benefits, including the additional receipt of a kicker. However, Department of Defense (DOD) records in this case are clear in providing that the appellant was discharged more than two years short of what would qualify as the full six-year term of his reserve enlistment contract in May 2006, and moreover, did not resume reserve duty in any capacity for more than a full-year thereafter, until late-2008. Consequently, the benefits under Chapter 1606 accruing out of the initial enlistment are no longer applicable. The reason for discharge is noted as did not complete obligation, and does not refer to any disability of service origin as the basis for separation. The Board is bound by the DOD's determination regarding whether the basic eligibility requirements for the benefit sought were met. See 38 C.F.R. § 21.7540(a). It is further observed that there is no contradictory information in the claims file, inasmuch as the documents proffered by the appellant do not clarify the reason for his original discharge, or suggest that a service-connected disability was the cause therein. While the appellant has since provided a copy of a second six-year enlistment contract dated June 2008, the record indicates this term of service began in October 2008 and concluded in January 2009, and does not provide circumstances under which there would be a second term of reserve service that qualifies for Chapter 1606 benefits under the law. Accordingly, the claim for Chapter 1606 educational assistance must be denied. Where, as here, the law and not the evidence is dispositive, the claim should be denied because of the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Basic eligibility for educational assistance under Chapter 1606, Title 10, United States Code is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs