Citation Nr: 1339018	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  03-32 234A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Whether the Veteran is eligible for educational assistance under Chapter 30 of Title 38 of the United States Code (Montgomery GI Bill).

REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Dan Brook, Counsel








INTRODUCTION

The Veteran served on active duty from February 20, 1991 to May 31, 1991 and from December 1, 2003 to November 5, 2004.  He also had service in the National Guard and Reserves beginning in June 1978. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2003 decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied basic eligibility for educational assistance pursuant to Chapter 30, Title 38, and United States Code.  In September 2012, the case was remanded so that the Veteran could be scheduled for a Board hearing as he had requested one on his November 2003 Form 9.  A Board videoconference hearing was then scheduled for August 29, 2013.  The Veteran subsequently withdrew his request, however.  

The issue on appeal is limited to eligibility for education benefits under Chapter 30.  Thus, the Board is not making a decision on whether the Veteran may be eligible for any other type of education benefit, including whether he could be eligible for benefits under the Post 9/11 GI Bill.  See 38 C.F.R. § 21.9500 et seq.; http://www.gibill.va.gov/benefits/post_911_gibill/index.html.   If the Veteran is still seeking to further his education, he may want to investigate his eligibility for other VA educational benefits.    


FINDING OF FACT

The Veteran did not have at least two years of continuous active duty service and does not meet any of the exceptions to this minimum active duty requirement. 



CONCLUSION OF LAW

The legal requirements for eligibility for educational assistance under Chapter 30 of Title 38 of the United States Code (Montgomery GI Bill) are not met.  38 U.S.C.A. § 3011 (West 2002 & Supp. 2013); 38 C.F.R. § 21.7042 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
The notice and duties to assist provisions of the VCAA are relevant to a different chapter of Title 38, and do not apply to this appeal.  See Barger v. Principi, 16 Vet. App. 132, at 138 (2002).  In the instant case, the Veteran has been notified of the basis for the denial of his claim, and has been afforded ample opportunity to respond.  The Board thus finds that any duties to notify and assist owed him have been fulfilled.  Also, as explained below, the claim is being denied as a matter of law.  Hence, the duty to notify and assist provisions of the VCAA are not applicable.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001).  

II.  Analysis

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 for 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); 38 C.F.R. § 21.7042(a)(1).  Individuals attempting to establish eligibility based on active duty alone must have served a specific 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); 38 C.F.R. § 21.7042(a)(2).

Individuals attempting to establish eligibility through active duty and service in the Selected Reserve must serve at least serve at least two years of continuous active duty along with additional Selected Reserve service.  38 C.F.R. § 21.7042(b)(3).

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.  See 38 C.F.R. §§ 21.7042(a)(5), (b)(6).  However, none of these specified reasons are applicable to the Veteran's case.  Id.    

The Veteran's service personnel records show that he had two periods of active duty, one from February 20, 1991 to May 31, 1991 and one from December 1, 2003 to November 5, 2004.  Neither of these periods entailed continuous active duty for two years or more.  Thus, the Veteran is ineligible for Chapter 30 education benefits.  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).  As the disposition of this claim is based on 


the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Eligibility for educational assistance under Chapter 30 of Title 38 of the United States Code (Montgomery GI Bill) is denied.  



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs