Citation Nr: 1334181 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-10 083A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether basic eligibility exists for educational assistance pursuant to Chapter 30 (Montgomery GI Bill or MGIB), Title 38, United States Code. ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from May 2002 to August 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a decision by the Education Center at the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which determined the Veteran was not eligible for education benefits under Chapter 30, Title 38 of the United States Code. The Board remanded the claim in March 2009 for further development. The case has since been returned to the Board for adjudication. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. The Veteran was commissioned as an officer in the United States Air Force in May 2002, after graduating from the Air Force Academy 2. The Veteran voluntarily separated from service in August 2006, and he did not elect Chapter 30 benefits or pay the required $1200 prior to his voluntary discharge. 3. The Veteran did not receive any voluntary separation incentives prior to his discharge. 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 & Supp. 2012); 38 C.F.R. § 21.7042 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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. Remand As noted above, the Veteran's claim was remanded in March 2009 to obtain verification of his participation in any voluntary separation incentives prior to his separation from the Air Force. The May 2013 Supplemental Statement of the Case referenced receipt of a July 2009 Air Force Shaping Services and Benefits Table Chart. Although this chart is not associated with the claims folder, the Board finds that the receipt of additional evidence and signed documents are sufficient to decide the claim as a matter of law and for the reasons discussed below. Given the inclusion of multiple pre-separation documents, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its March 2009 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria The Veteran has applied for basic educational assistance under the provisions of 38 U.S.C. Chapter 30 (Chapter 30), also known as the Montgomery GI Bill, which provides, inter alia, an educational assistance program to assist in the readjustment of members of the Armed Forces to civilian life after their separation from military service. 38 U.S.C.A. § 3001. The program is available to individuals who meet certain criteria of basic eligibility, including active duty during certain prescribed dates and not preceding certain prescribed dates, or meeting certain other exceptional criteria. See 38 U.S.C.A. § 3011; 38 C.F.R. §§ 21.7040, 21.7042, 21.7045. Specifically, in pertinent part, to be eligible for Chapter 30 benefits, an individual must have first become a member of the Armed Forces or first entered on active duty as a member of the Armed Forces after June 30, 1985. 38 U.S.C.A. § 3011(a)(1)(A). The individual also must have served an obligated period of active duty. In the case of an individual with a three-year period or more of obligated service, the individual must have completed not less than three years of continuous active duty. If the obligated period of service is less than three years, however, the Veteran must serve at least two years of continuous active duty in the Armed Forces. 38 U.S.C.A. § 3011(a)(1)(A)(i). However, an individual who does not meet the above service requirements may be eligible for basic educational assistance when he is discharged or released from active duty for certain specified reasons. Those reasons include when an individual is discharged or released from active duty for (1) a service-connected disability; (2) by reason of a sole survivorship discharge (as that term is defined in 10 U.S.C.A. § 1174(i); (3) for a medical condition which preexisted service on active duty and which VA determines is not service-connected; (4) discharge or release under 10 U.S.C.A. § 1173 (hardship discharge); (5) 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 the military department; (6) for convenience of the Government having completed at least 20 months of continuous active duty if serving a two-year enlistment (7) involuntarily for the convenience of the Government as a result of a reduction in force. 38 U.S.C.A. § 3011(a)(1)(A)(ii); 38 C.F.R. § 21.7042(a)(5). Factual Background and Analysis The Veteran has applied for basic educational assistance benefits under the provisions of Chapter 30. He contends that Chapter 30 benefits were part of his separation incentives. It is important to note that eligibility for Chapter 30 educational assistance benefits is precluded for an individual who, after December 31, 1976, receives a commission as an officer in the Armed Forces upon graduation from a service academy, including the United States Air Force Academy. 38 U.S.C.A. § 3011(c)(2) and 38 C.F.R. § 21.7044(c)(1)(iii). In this case, the Veteran was commissioned as an officer in the United States Air Force in May 2002, after graduating from the Air Force Academy. As such, under the law he is precluded from establishing basic eligibility for educational assistance under Chapter 30 because he received a commission as an officer in the Armed Forces upon graduation from the United States Air Force Academy after December 31, 1976. 38 U.S.C.A. § 3011(c) and 38 C.F.R. § 21.7044(c). The Veteran does not dispute this determination. Rather, as part of his April 2007 Substantive Appeal, he acknowledged that he was aware he would not be eligible for educational assistance due to having graduated from a service academy, but contended he was eligible for an exception due to the fact he separated as a result of the "Force Shaping" initiative in 2006; that he was discharged pursuant to applicable voluntary separation incentives. He further contends that he was informed that certain benefits were granted as a result of this incentive program, regardless of whether one was a commissioned officer. Under 38 U.S.C.A. §§ 3018A, 3018B and 38 C.F.R. § 21.7045, Chapter 30 benefits may be available to certain individuals who were involuntarily separated after February 2, 1991, or who were separated pursuant to voluntary separation incentives under 10 U.S.C.A. §§ 1174a (the Special Separation Benefits program) and 1175 (the Voluntary Separation Incentive Program), despite having graduated from a service academy and receiving a commission after December 31, 1976. The Veteran was discharged after February 2, 1991. However, the record does not reflect that this discharge was "involuntarily" as defined by 10 U.S.C.A. § 1114 as required by statute. Rather, an August 2007 response from the United States Department of Defense (DOD) reported that his separation was voluntary. Moreover, the Veteran himself has never contended that his separation was involuntary, but that he participated in a qualified voluntary separation program. Thus, he is not eligible for Chapter 30 benefits under 38 C.F.R. § 21.7045 and 38 U.S.C.A. § 3018A. As such, the only avenue for him to be entitled to Chapter 30 benefits is under 38 C.F.R. § 21.7045 and 38 U.S.C.A. § 3018B due to voluntary separation. For the reasons listed below, the Board finds that there is no evidence of record to support his contention that he received voluntary separation incentives under 10 U.S.C.A. § 1174a or § 1175. The Veteran's DD Form 214 shows the reason for his separation is listed under AFI 36-3207 and was described as "Miscellaneous/General Reasons." The separation code was "MND," which means separation in lieu of serving in a lower grade than reserve grade or by request; or in lieu of unqualified resignation. In an April 2006 pre-separation checklist, the Veteran was asked to check yes or no for any services or benefits he wished to receive following his separation. The Veteran checked a boxed marked "No" as to whether he wished to have any educational benefits, including MGIB. Finally, he signed and acknowledged the form showing no request for education benefits. Simply put, the Veteran has not submitted any evidence to the contrary showing that he was told he would receive Chapter 30 education benefits. Moreover, there are no service documents showing any incentive or allowance for Chapter 30 educational benefits. In fact, the Veteran specific declined any education benefits in the April 2006 pre-separation checklist. The Board finds that even if the Veteran had voluntary separation incentives and had requested Chapter 30 education benefits, he would still not be entitled to them. Notably, there is no evidence of record, nor does the Veteran contend, that he contributed the $1200 to qualify him for Chapter 30 benefits. See 38 U.S.C.A. §§ 3018A, 3018B; 38 C.F.R. § 21.7045 (2013). Although the Board empathizes with the Veteran, there simply is no legal basis to find him eligible for Chapter 30 educational assistance under the Montgomery GI Bill. The regulatory criteria and legal precedent governing eligibility for the receipt of Chapter 30 educational assistance benefits are clear and specific, and the Board is bound by these criteria. It is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of the law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant]. As the disposition of this claim is based on the law, the Veteran's claim for education benefits under Chapter 30, Montgomery GI Bill, must be regarded as legally insufficient because the requisite elements for eligibility to qualify for this benefit have not been satisfied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). (CONTINUED ON NEXT PAGE) ORDER Basic eligibility for educational assistance pursuant to Chapter 30, Title 38, United States Code is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs