Citation Nr: 1336735 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-10 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to basic eligibility for VA educational benefits under Chapters 30, Title 38, United States Code, and Chapters 1606 and 1607 of Title 10, United States Code. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 2003 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 administrative decision issued by the Department of Veterans Affairs (VA) Education Center at the Regional Office (RO) in St. Louis, Missouri. A review of the Veteran's substantive appeal, received in February 2009, shows that she requested a hearing before a Member of the Board (i.e., Veterans Law Judge) at the RO. On April 8, 2011, the RO sent the Veteran notice that a hearing was scheduled for April 27, 2011. The RO's April 8, 2011 notice was returned by the U.S. Postal Service as undeliverable. The Veteran failed to appear for her scheduled hearing, and there is no record that a request for another hearing was ever made. Without good cause being shown for the failure to appear, no further hearing can be scheduled and appellate review may proceed. The Board notes that the Veteran has been granted entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill). See April 2013 letter from St. Louis RO. FINDINGS OF FACT 1. The Veteran had less than 36 months of active duty service. 2. The claims file contains no official notice from a service department reflecting that the appellant is a member of the Selected Reserve or National Guard. 3. The claims file contains no official notice from a service department reflecting that the appellant is a member of the Ready Reserve that was activated under certain contingency operations on or after September 11, 2001. 4. The Veteran was not discharged due to a service-connected disability, a pre-existing medical condition, hardship, and/or physical or mental condition not characterized as a disability and not the result of misconduct that interferes with duty. 5. The Veteran was not involuntarily separated, did not participate in the Post-Vietnam Era Veterans' Educational Assistance Program and did not receive voluntary separation incentives. 6. The Department of Defense has determined that the Veteran is not eligible for MGIB-SR or REAP educational benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to educational assistance under the Montgomery GI Bill (MGIB), pursuant to Chapter 30, Title 38, United States Code, have not been met. 38 U.S.C.A. § 3011 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.7042, 21.7044 (2013). 2. The criteria for entitlement to educational assistance under the Montgomery GI Bill Selected Reserve (MGIB-SR), pursuant to Chapter 1606, Title 10, United States Code, have not been met. 10 U.S.C.A. §§ 16132, 16133 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.7520, 21.7540, 21.7550 (2013). 3. The criteria for entitlement to educational assistance under the Reserve Educational Assistance Program (REAP), pursuant to Chapter 1607, Title 10, United States Code, have not been met. 10 U.S.C.A. §§ 16161 16165 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.7520, 21.7540, 21.7550 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), with implementing regulations published at 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (now codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.316(a) (2013), describes VA's duty to notify and assist claimants in substantiating claims for VA benefits. In a case such as this, where the pertinent facts are not in dispute and the law is dispositive, there is no additional information or evidence that could be obtained to substantiate the claim, and the VCAA is not applicable. See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (citing Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that VCAA does not apply where there is extensive factual development in a case, reflected both in the record on appeal and the Board's decision, which indicates no reasonable possibility that any further assistance would aid the claimant in substantiating his claim). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Manning v. Principi, 16 Vet. App. 534 (2002); Mason v. Principi, 16 Vet. App. 129 (2002); Livesay v. Principi, 15 Vet. App. 165 (2001); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). As will be discussed in further detail below, the Veteran's claim is being denied solely because of a lack of entitlement under the law. Accordingly, the Board has decided the appeal on the current record without any further consideration of the VCAA. Legal Criteria The Montgomery GI Bill (MGIB) provides educational assistance benefits under the provisions of Chapter 30, Title 38, United States Code. This program provides assistance 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 or meeting certain other criteria for basic eligibility for educational assistance. 38 U.S.C.A. § 3011;38 C.F.R. §§ 21.7040, 21.7042 (2013). A threshold requirement for Chapter 30 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 30 educational assistance, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985, and in the case of an individual whose obligated period of active duty is three years or more, serve at least three continuous years of active duty. See 38 U.S.C.A. § 3011(a) (1) (A) (i); 38 C.F.R. § 21.7042(a) (1)- (2) (2013). Additionally, an individual may establish eligibility for basic educational assistance based on a combination of service on active duty and service in the Selected Reserve if an individual first become a member of the Armed Forces or first entered active duty as a member of the Armed Forces after June 30, 1985, and completed the requirements of a high school diploma and successfully completed 12 semester hours in a program of education leading to a standard college degree. 38 C.F.R. § 21.7042(b)(1)-(2) (2013). The Montgomery GI Bill-Selected Reserve (MGIB-SR) program (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, as well as the Army and Air National Guard. Educational benefits are available to a member of the Selected Reserve under Chapter 1606 when he or she enlists, reenlists, or extends an enlistment as a reservist so that the total period of obligated service is at least 6 years from the date of such enlistment, reenlistment, or extension. 38 C.F.R. § 21.7540 (2013). The Reserve components decide who is eligible for the program and VA makes the payments for the program. VA regulations provide that a determination of an individual's eligibility for MGIB-SR benefits is to be made by the Armed Forces. 38 C.F.R. § 21.7540(a) (2013). As in this case, a Guardsman, may initially become eligible when he or she enlists, reenlists, or extends an enlistment as a reservist so that the total period of obligated service is at least six years from the date of such enlistment, reenlistment, or extension; or when he or she is appointed, or is serving as a reserve officer and agrees to service 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. 10 U.S.C.A. § 16132; 38 C.F.R. § 21.7540(a)(1). An individual may also establish a higher payment rate for their benefit if they have a skill or specialty designated by the Secretary concerned and other applicable factors as delineated at 10 U.S.C.A. § 16131(h)(1). See 38 C.F.R. §§ 21.7631(g), 21.7636(b) (2013). Such higher payment is referred to as a "kicker." The Guardsman must also complete his or her initial period of active duty for training and must be participating satisfactorily in the Selected Reserve; must not have elected to have his or her service in the Selected Reserve credited toward establishing eligibility to benefits provided under Chapter 30, Title 38 of the United States Code; and must have met the requirements for a secondary school diploma (or an equivalency certificate) before applying for educational assistance. 38 C.F.R. § 21.7540(a)(2)- (5). Ending dates for eligibility are prescribed by 38 U.S.C.A. § 16133 and 38 C.F.R. § 21.7550. In essence, the ending date for eligibility is the date the individual is separated from the Selective Reserve. There are other provisions that relate to an extension of benefits because of a separation due to disability, etc., but these are not applicable in this case. Finally, the actual period of entitlement can be extended if the individual served on active duty pursuant to orders issued under sections 12301(a), 12301(d), 12301(g), 12302, or 12304 of Title 10 of the United States Code. 10 U.S.C.A. § 16133(b)(4); 38 C.F.R. § 21.7550(b). In addition to the above program, education benefits are also available to members of the Selected Reserve under Chapter 1607 of Title 10 of the United States Code. See 10 U.S.C.A. §§ 16161, 16166 (West Supp. 2012). The program, known as the Reserve Educational Assistance Program (REAP), extends benefits to any member of a Guard or Reserve unit who served on active duty after September 11, 2001, for a contingency operation and who served at least 90 consecutive days or more. Individuals become eligible as soon as they reach the 90-day point, regardless of duty status. The period of entitlement to benefits is 36 months. 10 U.S.C.A. §§ 16162, 16163. The individuals are entitled to the benefits while they remain a member of the Selected Reserve of the Ready Reserve, in the case of a member called or ordered to active service while serving in the Selected Reserve. See 10 U.S.C.A. § 16164(a)(1). Termination of assistance will occur when the member separates from the Ready Reserve as provided for under Section 16164(a)(1). See 10 U.S.C.A. § 16165(a)(2). There is an exception that allows for assistance to be provided to a member of the Selected Reserve who incurs a break in service in the Selected Reserve if the member continues to serve in the Ready Reserve during and after such a break in service. 10 U.S.C.A. § 16165(b). Except as otherwise provided, for a reservist, who became eligible for educational assistance before October 1, 1992, a reservist's period of eligibility expires effective the earlier of the following dates: (1) the last day of the 10-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) (2013). This generally results in educational assistance benefits ending the day of separation, if the individual leaves the Selected Reserves. However, if a reservist leaves the Selective Reserves, the reservist may still have the full 10 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) (2013). In addition, a reservist's 10-year period of eligibility may be extended under such circumstances as being called to active duty or for completion of a term of a program. 38 C.F.R. § 21.7550(b), (c) (2013). 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). Eligibility for REAP educational benefits is determined by the DoD and VA pays the benefits from funds contributed by DoD to each member entitled to educational assistance. 10 U.S.C.A. §§ 16162 [under certain circumstances eligibility for benefits of Veterans of the United State Coast Guard is determined by the Department of Homeland Security rather than by the DoD]. VA has no authority to determine eligibility for REAP educational benefits. Cf. 38 C.F.R. § 21. 7540(a) (2013). Analysis The Veteran asserts that she is entitled to educational assistance. She sates that she began Active Guard Reserved (AGR) duty on February 15, 2003, during which time she was authorized for benefits under Title 32, that she was on active duty from August 2003 to July 2004, during which time she was authorized for benefits under Title 10, and that she had additional AGR duty from July 2004 to December 2005, during which time she was authorized for benefits under Title 32. She states that she took an early discharge in December 2005 due to a twin pregnancy, and that at that time she was told by a "GI Bill representative" in St. Louis that she would retain benefits. See Veteran's notice of disagreement, received in September 2008; appeal (VA Form 9), received in February 2009. The claims folder contains a copy of the Veteran's orders, dated in February 2003,which informed the Veteran that she was ordered to full-time National Guard duty in an active guard/reserve status for the period from February 15, 2003 to February 14, 2006. The orders state that the basis for her period of service was 32 38 U.S.C.A. § 502(f). Another order shows that the Veteran was ordered to active duty on August 8, 2003. An order, dated June 30, 2004, states that she had been mobilized for Contingency Operation Enduring Freedom, and that she was to be released from active duty on July 14, 2004. An order, dated November 9, 2005, states that the appellant was discharged from the Army National Guard and as a reserve of the Army. The Veteran's discharges (DD Form 214's) include a discharge for the period from February 2003 to December 2005, and a discharge for the period from August 2003 to July 2004. The evidence of record shows that the Veteran had active duty service, including service in the active guard reserve, from February 15, 2003 to December 31, 2005. Therefore, in the case at hand the Veteran does not meet the criteria of at least three years of continuous active duty or at least two years for a period of active duty less than three years. Accordingly, the Veteran's claim for MGIB educational assistance benefits must be denied. Eligibility for Chapter 30 educational assistance may also be established based on involuntary separation, voluntary separation or participation in the Post-Vietnam Era Veterans' Educational Assistance Program. See 38 C.F.R. § 21.7045. As the evidence does not indicate that the Veteran was involuntarily separated, do not show that she participated in the Post-Vietnam Era Veterans' Educational Assistance Program and do not show that she received voluntary separation incentives, 38 C.F.R. § 21.7045 is not applicable in the instant case. In sum, the Veteran does not have the requisite service that would qualify her for educational assistance benefits under Chapter 30, Title 38, United States Code. The evidence of record also shows that the Veteran is not entitled to educational assistance benefits under Chapter 1606, as a member of the Selected Reserve. In this regard, she became ineligible for Chapter 1606 benefits when she was ordered to full-time National Guard duty in an active guard/reserve status starting February 15, 2003. The record reflects that she had additional active guard reserve duty from July 2004 to December 2005, but she did not file a claim for benefits during that time, and she is no longer a member of the Selected Reserve. Accordingly, the Veteran's claim for educational assistance benefits under Chapter 1606 must also be denied. The evidence of record shows that the Veteran left the Selected Reserves on December 31, 2005. At that time, she had served from February 26, 2000 to December 31, 2005, and had completed only 4 years of her 8-year service contract. The Veteran's eligibility for Chapter 1607 benefits ended the day of her separation from the Selected Reserves. Furthermore, the evidence does not show that she was discharged due to a disability, or that she returned to the Selected Reserve within one year of her discharge to complete the remainder of her 8-year service contract. Therefore, she is not eligible for a 10-year Chapter 1607 delimiting date extension, and her claim for educational assistance benefits under Chapter 1607 must also be denied. In September 2007, the DoD determined that the Veteran was ineligible for educational assistance under the MGIB, and under Chapters 1606 and 1607 of Title 10. See September 2007 DoD records. The DoD indicated that the Veteran lacked sufficient active duty for Chapter 30 benefits, and that her ACDUTRA (active duty for training) was not a basis for a grant of such benefits. The DoD further determined that her eligibility for Chapter 1606 benefits was suspended because she left the National Guard in 2005, and, similarly, that she would have lost any eligibility under Chapter 1607 because she left the National Guard in 2005. Since the DoD has not certified that the Veteran is eligible for educational assistance benefits, the appellant cannot be awarded MGIB, MGIB -SR or REAP benefits pursuant to Chapter 30, Chapter 1606 or 1607 of Title 10 by the VA as a matter of law. Indeed, VA is bound by the determinations of DoD in this matter and cannot award education benefits under these programs in the first instance. Accordingly, the Veteran's claims for MGIB, MGIB-SR and REAP educational assistance benefits must be denied. In Sabonis v. Brown, 6 Vet. App. 426 (1994), the United States Court of Appeals for Veterans Claims (Court) held that where the law and not the evidence is dispositive, the claim should be denied due to the lack of entitlement under the law. For the reasons discussed above, the appellant is not legally entitled to educational benefits and his claim must be denied. ORDER Entitlement to educational assistance benefits under Chapter 30 is denied. Entitlement to educational assistance benefits under Chapter 1606 is denied. Entitlement to educational assistance benefits under Chapter 1607 is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs