Citation Nr: 1329657	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  07-36 046	)	DATE
	)
	)

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


THE ISSUE

Whether the Veteran has basic eligibility for educational 
assistance benefits under Chapter 30, Title 38, United 
States Code.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. Erdheim, Counsel

INTRODUCTION

The Veteran had active service from July 1996 to March 1999.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2007 decision of the VARO in 
Muskogee, Oklahoma, that denied the benefit sought.

The Veteran provided testimony on his own behalf at a video 
conference hearing before the undersigned Veterans Law Judge 
in April 2008.  A copy of the transcript of the proceedings 
is of record and has been reviewed.

The claim was remanded in August 2008, June 2010, May 2011, 
January 2012, and August 2012.


FINDINGS OF FACT

1.  The Veteran served on active duty from July 17, 1996, to 
March 19, 1999.  The Veteran was discharged with 2 years, 8 
month, and 3 days of service.  The term of enlistment was 4 
years.

2.  The Veteran's DD Form 214 reflects a separation code of 
"LHJ," and the narrative reason for separation was 
"unsatisfactory performance."

3.  The Veteran was not discharged due to a service-
connected disability, a pre-existing medical condition, 
hardship, voluntary for the convenience of the government 
after completing at least 20 months of an initial obligated 
period of less than three years, involuntarily for the 
convenience of the government as a result of a reduction in 
force, and/or physical or mental condition not characterized 
as a disability and not the result of misconduct that 
interferes with duty.



CONCLUSION OF LAW

The Veteran has not met the basic eligibility criteria for 
entitlement to educational assistance under Chapter 30, 
Title 38, United States Code.  38 U.S.C.A. § 3011 (West 
2002); 38 C.F.R. § 21.7042 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to provide the Veteran notification of the 
information and evidence necessary to substantiate the 
claims submitted, the division of responsibilities in 
obtaining evidence, and assistance in developing evidence, 
pursuant to the Veterans Claims Assistance Act of 2000 
(VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  
There are some claims, however, to which VCAA does not 
apply.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001).  
For example, it has been held not to apply to claims that 
turned on statutory interpretation.  Smith v. Gober, 14 Vet. 
App. 227, 231-32 (2000). 

The Board notes that the issue in this case turn on 
statutory interpretation.  See Smith, 14 Vet. App. at 231-
32.  Thus, because the law as mandated by statute, and not 
the evidence, is dispositive of this appeal, the VCAA is 
inapplicable.  Mason v. Principi, 16 Vet. App. 129 (2002); 
see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) 
(where application of the law to the facts is dispositive, 
the appeal must be terminated because there is no 
entitlement under the law to the benefit sought).  As such, 
no further action is required pursuant to the VCAA. 
Specifically, despite the Veteran's representative's 
assertions that the Board should obtain all paperwork 
related to the "facts and circumstances of the Veteran's 
discharge," there is simply no indication that such 
information is outstanding.  Rather, the RO received the 
Veteran's service treatment records, service personnel 
records, and records specifically pertaining to the 
Veteran's in-service psychiatric hospitalization.  Neither 
the service department nor the Department of Defense has 
stated or suggested that there exists any other records 
pertaining to the events of the Veteran's discharge.  Thus, 
the Board finds that any further attempts to obtain 
additional records would be futile.
The legal criteria governing eligibility for Chapter 30 
educational assistance benefits are specifically set forth 
in 38 U.S.C.A. § 3011(a)(1) and 38 C.F.R. § 21.7042.  In 
particular, under 38 U.S.C.A. § 3011(a)(1)(A) and 38 C.F.R. 
§ 1.7042(a)(1), eligibility may be established when an 
individual first entered into 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 obligated period of active duty is less than 
three years.  38 U.S.C.A. § 3011(a)(1)(A)(1); 38 C.F.R. § 
21.7042(a)(2).
The Veteran need not have served the requisite amount of 
time pursuant to 38 C.F.R. § 21.7042(a)(2) if an individual 
was discharged or released from active duty for any one of 
the following reasons: (i) For a service-connected 
disability, or (ii) For a medical condition which preexisted 
service on active duty and which VA determines is not 
service connected, or (iii) Under 10 U.S.C. 1173  (hardship 
discharge), or (iv) For convenience of the government (A) 
After completing at least 20 continuous months of active 
duty of an obligated period of active duty that is less than 
three years, or (B) After completing 30 continuous months of 
active duty of an obligated period of active duty that is at 
least three years, or (v) Involuntarily for the convenience 
of the government as a result of a reduction in force, as 
determined by the Secretary of the military department 
concerned in accordance with regulations prescribed by the 
Secretary of Defense or by the Secretary of Transportation 
with respect to the Coast Guard when it is not operating as 
a service in the Navy, or (vi) For a physical or mental 
condition that was not characterized as a disability and did 
not result from the individual's own willful misconduct but 
did interfere with the individual's performance of duty, as 
determined by the Secretary of each military department in 
accordance with regulations prescribed by the Secretary of 
Defense or by the Secretary of Transportation with respect 
to the Coast Guard when it is not operating as a service in 
the Navy.  38 C.F.R. § 21.7042(a)(5).

The Veteran served on active duty from July 17, 1996, to 
March 19, 1999.  The Veteran was discharged with 2 years, 8 
month, and 3 days of service.  The term of enlistment was 4 
years.  The Veteran's DD-214 states that he did not complete 
his first full term of service.

The Veteran served for less than 3 years on active duty.  
His term of enlistment was 4 years.  Thus, he did not serve 
for at least three years of continuous active duty to 
qualify per 38 U.S.C.A. § 3011(a)(1)(A)(1); 38 C.F.R. § 
21.7042(a)(2).

However, as noted above, the Veteran might still be eligible 
if he were discharged due to a service-connected disability, 
a pre-existing medical condition, hardship, physical or 
mental condition not characterized as a disability and not 
the result of misconduct and that interferes with duty; or 
for the convenience of the Government, with not less than 30 
months of continuous active duty if the obligated period of 
active duty of the individual was at least 3 years or not 
less than 20 months if the obligated period of active duty 
was 2 years; or was discharged involuntarily for the 
convenience of the Government as the result of a reduction 
in force.  38 U.S.C.A. § 3011(a)(1)(A)(ii); 38 C.F.R. § 
21.7042(a)(5).

The Veteran does not meet the cited criteria.  The Veteran's 
DD Form 214 reflects that the separation code was "LHJ," and 
the narrative reason for separation was "unsatisfactory 
performance."  The separation code is indicative of an 
involuntary discharge.  Information from the Department of 
Defense does not reflect that the discharge was for the 
convenience of the Government as the result of a reduction 
in force. There is no indication that the Veteran was 
discharged due to service-connected disability, a pre-
existing medical condition, or hardship, nor does he contend 
that such is the case. 

Rather, the Veteran contends that he was discharged for a 
mental condition that was not characterized as a disability 
and did not result from his own willful misconduct, but did 
interfere with his performance of duty.  Specifically, the 
Veteran contends that he experienced domestic problems 
following the birth of his first child, resulting in having 
to move back to the barracks when his wife took the child 
and went back the United States.  He contends that his wife 
then turned his family against him and he became suicidal 
and depressed, necessitating a psychiatric hospitalization.  
He contends that he could not focus or complete his duties 
because of these events and was discharged due to his 
psychiatric condition.

However, the service treatment records and service personnel 
records do not corroborate the Veteran's assertions that he 
was discharged due to his psychiatric condition.  Rather, 
the service treatment records demonstrate that in December 
1998, the Veteran was referred to the emergency room for a 
suicide risk.  He had stated that he would kill himself if 
he was made to stay at his unit.  He appeared uncooperative, 
reticent, distrusting, and depressed.  He was assessed to 
pose a significant suicide risk.  He refused to sign a 
consent form for admission because he wanted to return to 
the United States.  An admission note states that the 
Veteran had recently had an affair and when his wife found 
out, she left with his newborn son and went stateside.  He 
wanted to go stateside to handle his marital problems.  He 
stated that he had made a mistake and did not want to be 
admitted to the hospital.  He then stated that he had gone 
into shock when his wife delivered their son, felt scared, 
and decided to move into the barracks.  Mental status 
evaluation resulted in a finding of "rule/out suicidality, 
rule/out personality disorder."  Notes taken during his 
hospitalization reflect that he was "working on getting out 
of here and going to the states... [he] stated if he had to he 
will put on a show for the doctor."  Five days later, he was 
discharged to his unit, with no medications.  He was to be 
provided with a form so that he could request leave.  He 
denied any suicidal or homicidal ideations at that time.  He 
had a follow-up appointment scheduled.  The discharge 
diagnosis was adjustment disorder with mixed features.  On 
January 1999 separation examination, it was noted that the 
Veteran had suffered from depression and was currently being 
treated with Paxil.  

Service personnel records do not reflect that the Veteran 
was separated from service due to a psychiatric disability.  

In this case, the Board finds that the Veteran does not have 
the requisite active service for Chapter 30 educational 
benefits.  Despite his contentions that he meets the 
regulatory criteria because his psychiatric hospitalization 
and adjustment disorder was the reason for his discharge, 
his service separation papers do not reflect that to be the 
case.  Specifically, the Veteran was not separated from 
service due to his psychiatric disability.  Moreover, a 
review of his service treatment records and service 
personnel records do not corroborate his statements.  While 
he was hospitalized for five days due to suicidal ideation, 
he was discharged to duty with instructions to follow-up 
with a mental health clinic.  He was also to obtain a note 
to grant him leave.  These records do not show that his 
psychiatric disorder or hospitalization led to his 
discharge.  Rather, he was discharged for unsatisfactory 
performance, which he has testified was due to failing 
physical testing requirements.  Whether he desired to 
separate from service due to his familial trouble, the 
service documents do not demonstrate that he had a mental 
condition that interfered with his performance of duty, as 
he was discharged to duty following hospitalization, he was 
not further hospitalized, and there was no evidence of any 
further psychiatric treatment other than that he was taking 
an anti-depressive.  Such does not equate to a finding of a 
"mental condition that was not characterized as a disability 
and did not result from the individual's own willful 
misconduct but did interfere with the individual's 
performance of duty."  The Board emphasizes that the fact 
that there may be evidence of the presence of a psychiatric 
disorder during service is not sufficient to meet the 
requirements that are applicable in this case.  Instead, it 
must be shown that the mental disorder resulted in the 
discharge, and that standard has not been met in this case.  
The Board has no authority to create exceptions, or to 
overturn or to disregard this very specific limitation on 
the award of Chapter 30 educational benefits.  38 U.S.C.A. § 
7104(a).  Therefore, the Board concludes that there is no 
legal basis for a grant of those benefits, and the Veteran's 
claim must be denied.  38 U.S.C.A. § 3011; 38 C.F.R. §§ 
21.7042, 21.7044, 21.7045; Sabonis, 6 Vet. App. 426 (where 
the law is dispositive, the claim should be denied on the 
basis of the absence of legal merit).

Furthermore, eligibility for Chapter 30 educational 
assistance may also be established, notwithstanding any 
other provision of law, for an individual who is 
involuntarily separated with an honorable discharge after 
February 2, 1991, and who meets other statutory criteria, 
under 38 U.S.C.A. § 3018A.  The evidence, however, does not 
show that the Veteran elected to receive educational 
assistance prior to his separation.  38 U.S.C.A. § 
3018A(a)(5). 

The Board observes that eligibility for Chapter 30 
educational benefits may also be established based a 
combination of service on active duty and in the Selected 
Reserve.  See 38 U.S.C.A. § 3012(a)(1)(A); 38 C.F.R. § 
21.7042(b).  However, in this case, the Veteran has not 
completed 12 semester hours in a program of education 
leading to a standard college degree before applying for 
educational assistance.  38 C.F.R. § 21.7042(b)(2)(ii).  
Therefore, his eligibility may not be established under 
these statutory and regulatory provisions. 

ORDER

Basic eligibility for educational assistance benefits under 
Chapter 30, Title 38, United States Code is denied.



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




 Department of Veterans Affairs