Citation Nr: 1339034 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 04-23 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to educational assistance under the provisions of Chapter 30, Title 38, United States Code. (The issues of (1) entitlement to service connection for bilateral hearing loss; (2) entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 (West 2002); and (3) entitlement to service connection for a dental disorder for treatment purposes are the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty in the Army from September 6, 1989 to May 18, 1992. This case comes to the Board of Veterans' Appeals (Board) on appeal from a Muskogee, Oklahoma, RO determination that denied the Veteran's claim for educational assistance under chapter 30, Title 38, United States Code. This case has a long procedural history. In December 2004, the Veteran presented testimony before a Veterans Law Judge. In a July 2005 decision, the Board denied the Veteran's claim for entitlement to educational assistance. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In January 2007, the Veteran and the Secretary of VA (parties) filed a joint motion to vacate the Board decision and remand it back to the Board for additional development. The Board attempted to complete that development by remanding the claim in July 2007, February 2009, May 2010 and October 2011. Each time the case came back to the Board, it remanded the claim again because it found that the remand instructions had not been completed. The claim was last remanded in January 2013 to allow the Veteran to present hearing testimony before the Board. This hearing was provided to the Veteran because the Veterans Law Judge who held the hearing with the Veteran in December 2004 was no longer working at the Board, and the Veteran is entitled to a new hearing. This hearing was held by the undersigned in May 2013. Not all the remand instructions from prior remands have been completed; however, the Board will address below why it finds that it can decide the issue now without such development. The Board has reviewed the Veteran's claims file and the record maintained in both the Virtual VA and VBMS paperless claims processing systems. FINDINGS OF FACT 1. The Veteran served on active duty from September 6, 1989 to May 18, 1992, a period of 32 months and 13 days. 2. The Veteran did not complete his obligated period of active duty or three years of continuous active duty. 3. The Veteran was not discharged or released from active duty because of a service-connected disability; sole survivorship; a preexisting medical condition not characterized as a disability; for hardship; for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct, but which interfered with his performance of duty; for convenience of the Government after completing 30 months of a three-year enlistment or 20 months of a two-year enlistment; or, involuntarily for convenience of the Government as a result of a reduction in force. CONCLUSION OF LAW The Veteran has not met the basic service eligibility requirements for entitlement to educational assistance under Chapter 30, Title 38, United States Code. 38 U.S.C.A. § 3011 (West 2002 & Supp. 2013); 38 C.F.R. § 21.7042 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031 and 21.1032 (2013). In this case, the issue does not involve whether the Veteran received proper notice, but rather whether the facts establish that the Veteran meets the criteria for entitlement to educational assistance under Chapter 30. As to the duty to assist in obtaining evidence in connection with the claim, the Board finds that such duty has been met. As stated above, the Board initially denied the Veteran's claim in July 2005 because it found that the Veteran did not meet the criteria for Chapter 30 educational assistance. It used facts on the Veteran's DD Form 214 to find that the Veteran was not eligible for educational assistance. The Veteran appealed the Board's decision to the Court. In the joint motion, the parties found that VA had not fulfilled its duty to assist on several matters. See motion on pages 3-5. For example, it found that the Board's reliance on an electronic mail regarding the Veteran's separation code without conducting any independent analysis was essentially improper and that it should have attempted to learn more about the Veteran's separation code. Id. on pages 3-4. It also found that part of VA's duty to assist "may have required VA to attempt to obtain relevant Army regulations, to include Army Regulation 635-200, cited as the authority" for the Veteran's separation. Id. on page 4. Finally, it found that VA had a duty to obtain the Veteran's entire service personnel records in an effort to ascertain the underlying basis for the Veteran's separation. Id. on pages 4-5. When the case came back to the Board, it attempted to obtain: (1) an explanation of the Veteran's separation code; (2) multiple Army regulations; and (3) the Veteran's service personnel records. The Board will address what has been obtained first. Then it will address what has not been obtained and explain why it finds that the records that were not obtained are not needed for the Board to make an informed decision. VA has obtained the Veteran's available service personnel records. The request to the National Personnel Records Center was for the Veteran's "entire personnel file." See January 2011 Request for Information. The Board has no reason to doubt whether all the records were submitted to VA. Stated differently, the Board finds as fact that all of the Veteran's available service personnel records are associated with the Veteran's claims file. Some are duplicative of evidence the Veteran had already submitted. Additionally, VA has obtained a copy of Army Regulation 635-200 that was effective back in May 1992, when the Veteran was discharged from service. The RO had obtained the current regulation; however, the regulation has changed since May 1992. The Board obtained a copy of the extant regulation, including the parts that are applicable to the Veteran's claim. In September 2013, it provided the Veteran a copy of these relevant parts and gave the Veteran 60 days to respond. The Veteran has responded. Thus, the Board finds that the Veteran has been provided notice of the Board's reliance on this regulation in connection with his claim. In the July 2007, February 2009, May 2010, and October 2011 remands, the Board requested information on the separation codes of KGF (which is shown on the Veteran's DD Form 214 and represents a bar to reenlistment) and LCR and JCR, (which, according to a VA employee and an "Information Paper" involve separations based upon weight). An explanation for these codes was not obtained in connection with the remands; however, the Board finds that they are not needed in order for the Board to make an informed decision. Initially, it must be noted that the RO attempted on several occasions to obtain an explanation of the separation codes but without success. The Veteran has submitted an "Information Paper," which subject is "Separation for Failure to Meet the Army's Body Composition/Weight Control Standards." This document shows that the separation codes of LCR/JCR were not effective until October 1, 1993, which post dates the Veteran's separation date. See Information Paper, #2, paragraph d. Thus, the Board finds that such codes were not available to the Veteran at the time of his service discharge and thus would not have been on his DD Form 214. The KGF separation code reflects the Veteran's discharge of a "locally imposed bar to reenlistment." See November 2004 Department of the Army, Board of Correction of Military Records (ABCMR), Record of Proceedings on page 4, item # 3. In other words, the Board finds that the Veteran's DD Form 214 accurately reflects the basis of the Veteran's separation and that he was not separated due to weight control. This conclusion will be addressed in more detail below. The Board's prior remands had asked for the following Army Regulations: 601-280, 140-111 and 600-9. The record shows that the RO obtained all three regulations; however, it obtained the regulations that were in effect from January 2006, February 2006 and November 2006, respectively. In other words, it did not obtain the regulations in effect in May 1992. However, the Board finds that such regulations are not needed in order for the Board to make an informed decision. Army Regulation 601-280 addresses "Army Retention Program;" 140-111 addresses "U.S. Army Reserve Reenlistment Program; and 600-9 addresses "The Army Weight Control Program." The Board does not find that such regulations would impact the decision. For example, the Board finds as fact that the Veteran was not discharged due to weight, which determination will be explained in more detail below. Thus, AR 600-9 is not pertinent to the determination made herein. Additionally, the Veteran's discharge indicates it was a bar to reenlistment, and thus ARs 601-280 and 140-111 would not be applicable to the type of discharge the Veteran received. Thus, the failure on the part of the RO to obtain these Army regulations in effect in 1992 does not impact the outcome of the claim. The Board also requested that the Veteran's records from the National Guard be obtained in case these records provided information for the basis if the Veteran's 1992 discharge. Records from the Veteran's National Guard service were obtained and have been associated with the claims file. As to the prior remands and the joint motion, the Board finds there has been substantial compliance with the joint motion and remand instructions for all the reasons laid out above. The Veteran submitted copies of his application to the ABCMR to change the reason for his separation. In denying the Veteran's claim in November 2004, the ABCMR noted the Veteran's military record did not include a "separation packet containing the specific facts and circumstances surrounding his separation processing." However, it noted that the DD Form 214 contained the authority and reason for his separation. The Board finds that in requesting the Veteran's "entire personnel file" from the NPRC, that such request would include all of the Veteran's available personnel records, to include those that would have related to his separation. The documents received from the NPRC included records from the Veteran's service in the National Guard. Thus, the Board finds it reasonable to conclude that all available records pertaining to the Veteran's service in both the Army and National Guard were sent to VA and that there are no outstanding service personnel records. In the September 2013 letter to the Veteran from the Board, it also provided the Veteran with a copy of Army Regulation 600-200 in effect in August 1991, which was entitled "Enlisted Personnel Management System." This version of the regulation was in effect as of September 1990, which would mean that the regulation did not change between September 1990 and August 1991 (the next amendments to the regulation were in 1996). The basis for the Board providing the Veteran with this regulation is because there is a document in the Veteran's service personnel records entitled, "Personnel Action," dated August 1991, which shows that the Veteran was reduced from an E3 to an E2 under "Chapter 6, A[rmy]R[egulation] 600-200, para[graph] 6-3a." Thus, the Veteran has been provided with a copy of the regulation, which regulation the Board is relying on as part of its finding of fact that the Veteran's discharge from service was not solely due to his weight. The Veteran was provided with two hearings before the Board; December 2004 and May 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer (which includes Veterans Law Judges) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's hearings, the retired Veterans Law Judge and the undersigned explained the issue involving educational assistance. See transcripts on pages 3 and 2, respectively. The Veteran explained to both judges why he felt that the DD Form 214 was misrepresentative of the type of discharge he had. He told both judges that he felt his discharge was due to weight issues. Neither judge suggested the submission of evidence that may have been overlooked; however, the Board does not find that this is prejudicial to the Veteran. Since the December 2004 hearing, a significant amount of development has been completed in connection with this claim. After the May 2013 hearing, the Board obtained the relevant Army regulations addressed above in order to help the Veteran understand the basis for his separation (again, which will be explained in more detail below). The Board finds that these actions satisfied the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 492. Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearings. The Board will now address the merits of the Veteran's appeal. Educational Assistance At the December 2004 personal hearing, the Veteran testified that he had a four-year contract with the Army as a combat engineer. He stated he had his pay reduced by $100 for 12 months due to the Montgomery GI Bill. The Veteran stated he was unsure why he was discharged from service, although he described it as involuntary. He testified he felt he was entitled to educational assistance because he paid into it and did the time under the rules and regulations that would allow him to receive this benefit. The Veteran noted he did not have his service record corrected at this time. He stated he felt the reason he was barred for reenlistment was because of his weight. The Veterans Law Judge asked the Veteran if he was told anything at the time of discharge as to why he was being discharged, and the Veteran stated he was overweight and could not get promoted, which is why he felt he was being discharged. He stated this was the only reason he could think of as to why they were discharging him. The Veteran asked that his record be looked at as a whole and to find out why he was discharged because he felt it was a mystery. At the May 2013 video conference hearing before the undersigned, the Veteran was asked by his representative why he was denied educational assistance. He stated he was barred to reenlisting because he was overweight. He stated that when he went to get his GI education benefits, he stated he was told he had not been in service for three years. The Veteran stated that VA had been unable to get his service personnel records. The Veteran has applied for basic educational assistance under the provisions of 38 U.S.C.A., 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. § 3011. 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). The evidence of record indicates that the Veteran first entered into active duty on September 6, 1989. Therefore, he has met the first requirement of 38 U.S.C.A. § 3011 and 38 C.F.R. § 21.7042. However, the Veteran has failed to satisfy the second requirement, as the evidence shows he did not serve for three years of continuous active duty, nor was his initial obligated period of active duty less than three years. Based on his discharge date of May 18, 1992, the Board calculates that he served 2 years, 8 months, and 13 days of his three-year enlistment, which is 32 months and 13 days. (This same calculation is in the joint motion, see joint motion on page 1, which would mean that such length of service is not in dispute.) As this time period is less than the three years of continuous active duty service required by law, entitlement to Chapter 30 educational assistance benefits may not be granted. 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). The Board has carefully reviewed all the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran was discharged or released for any of the above-noted reasons. The Veteran has not alleged, nor does the evidence show, that he was discharged for a service-connected disability, sole survivorship, a pre-existing medical condition not characterized as a disability, hardship, involuntarily as a reduction in force or for a physical or mental condition not characterized as a disability. Therefore, none of those criteria apply to the Veteran's service. The Veteran's main allegation involves his belief that he was discharged from service because of his weight, which is not a bar to Chapter 30 benefits. He is correct that a discharge due to weight in May 1992 is not a bar to Chapter 30 educational assistance, see Information Paper, Number 9, dated September 1999; however, the preponderance of the evidence is against a finding that the Veteran was discharged because of weight. The reasons for this conclusion will now be discussed. The Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) indicates that he was honorably discharged from the Army, under Army Regulation 635-200, paragraph 16-5b(1), and that the reason for his separation was "[l]ocally imposed bar to reenlistment." The form also noted that the Veteran's separation code was "KGF." Under Army Regulation 635-200 in effect in May 1992, the paragraph "16-5" was entitled "Voluntary separation of soldiers denied reenlistment." Paragraph 16-5b addressed "Locally imposed bars to re-enlistment" and subparagraph (1) addressed soldiers who perceived that they would be unable to overcome a locally imposed bar to reenlistment may request an immediate separation. Notably, under Army Regulation 635-200 in effect in May 1992, paragraph 5-15 was entitled, "Failure to meet Army body composition/weight control standards." It provided, "Soldiers who fail to meet the body composition/weight control standards set forth in AR 600-9 may be separated per this paragraph when such condition is the sole basis for separation." (Strikethrough and underline omitted; italics added.) Under subparagraph "b." it provided: Separation action under this paragraph will not be initiated against a soldier who meets the criteria for separation under other provisions of this regulation. For example, a soldier who, wholly apart from failure to meet the body fat/weight control standards, is an unsatisfactory performer will be processed for separation under the provisions of chapter 13. Thus, as laid out in this paragraph of the regulation, if there was another basis to discharge a soldier, other than a weight issue, the soldier would be discharged under another paragraph in this Army Regulation. In this case, there is evidence that shows the Veteran was having conduct issues during service. Thus, this lends credence to a finding that the Veteran was intentionally discharged under a paragraph that did not contemplate a weight issue, as required by paragraph 5-15 of Army Regulation 635-200. For example, a December 1990 service record shows that the Veteran was promoted from an E1 to an E2, effective January 1, 1991. However, a DA Form 4187, Personnel Action, dated August 1991 shows that the Veteran was reduced from an E3 to an E2 under Chapter 6, Army Regulation 600-200, paragraph 6-3a, effective July 29, 1991. That regulation (paragraph 6-3a) addresses "Misconduct" involving an "Article 15." Thus, this is documented evidence that the Veteran engaged in misconduct during service to cause him to be reduced in rank. Additionally, the DD Form 214 shows that the Veteran was discharged in May 1992 with the rank of an E1. This would indicate that he received a second demotion between July 1991 and May 1992. While there is no "Personnel Action" showing such a demotion, there is evidence in the service treatment records to substantiate a basis for an additional reduction. Specifically, a January 11, 1992, service treatment record shows that the Veteran was being seen because he had received an Article 15 "today" and felt it was unfair. The examiner wrote that the recent Article 15 was starting today and that the Veteran had just finished extra duty. The examiner noted the Veteran had had another Article 15 after Christmas for being late and one in Panama. The examiner spoke with the Veteran's squad leader who told the examiner the Veteran was in a chapter 14 and was not a bad person, but that he succumbed easily to peer pressure. Thus, in reading this medical record, it would indicate that the Veteran had had three (3) Article 15s, and two within one month of each other, since the Veteran stated he had just finished an Article 15 after Christmas with another one starting on January 11, 1992. In July 1991, the Veteran was an E2; however, at some point between July 1991 and May 1992, he was reduced to an E1. This would provide a basis as to why the Veteran's rank was an E1 at service discharge in May 1992, as documented in his DD Form 214. This shows by a preponderance of the evidence that there was another basis to discharge the Veteran, other than due to his weight. Also lending credence to a finding that the Veteran's discharge was not solely due to weight is the fact that the January 1992 Report of Medical Examination shows that the purpose of the examination was "Chapter 14." Under Army Regulation 635-200 in effect in May 1992, under paragraph 5-16 (the one after the paragraph addressing the body composition/weight control standards (5-15)), it notes that "a soldier who has established a pattern of misconduct will be processed for separation under the provisions of chapter 14." See subparagraph e. The Veteran was not discharged under chapter 14; however, this is further evidence tending to show that the Veteran engaged in misconduct during service, as his discharge was being considered under chapter 14. The Veteran has stated in various statements and at hearings that he does not understand why he was discharged from service; however, both the service personnel and treatment records show that the Veteran was having conduct issues during service, which caused him to receive at least three Article 15s and caused him to go from a rank of an E3 to an E1 between July 1991 and May 1992-a period of less than one year. Army Regulation 5-15 makes clear that if there is any other basis to discharge a soldier, other than based on body composition/weight control standards, that the soldier is to be discharged under the other provisions of this regulation. Because there is documented evidence in the service treatment and personnel records of the Veteran having engaged in misconduct during his period of service, the Board concludes that the Veteran's weight would not have been the sole basis for his discharge. As previously discussed, in January 2004, the Veteran submitted a request to the ABCMR to have his separation code amended. Such application was denied in November 2004, and the Veteran submitted a reconsideration request. Reconsideration was denied in July 2006 for essentially the same reason the Board concludes: that the Veteran's separation was not based upon the Veteran's weight. There, the ABCMR noted the July 1991 documented evidence of the Veteran being demoted to an E2 because of an Article 15 and the fact that the Veteran was demoted again, as evidenced by his DD Form 214 showing his rank at that time was an E1. See Record of Proceedings on pages 2-3 (item #s 4 and 5). The ABCMR concluded the following, in part: Under the provisions of Army Regulation 635-200, the applicant met the criteria for separation under the provisions of paragraph 16-5b(1). Therefore, under the provisions of paragraph 5-15a of this regulation, separation actions under paragraph 5-15 would not be initiated. Id. on page 4, item # 4. Like the Board, the ABCMR found that there was evidence in the Veteran's service records to indicate a basis for why he was not discharged solely due to weight. Thus, a review of the record does not show any evidence that the Veteran's reason for separation or separation code has since been amended, and the Veteran has presented no other documented evidence to contradict the record with regard to his separation reason as identified by the appropriate service department. Additionally, in reviewing the service treatment records, neither the Veteran nor medical professionals were commenting on the Veteran's weight when the Veteran was seen with multiple physical complaints. In the January 1992 Report of Medical Examination, when addressing the summary of defects and diagnoses, the examiner wrote several entries, but none of them had to do with weight. See item # 74. Thus, the Veteran's weight was not found to be a defect at that time. It is for all the reasons discussed above that the Board finds the Veteran's discharge was not solely based upon his weight; otherwise, he would have been discharged under Army Regulation 635-200, paragraph 5-15, in compliance with the regulation. As to the September 1999 Information Paper from the Army, pertaining to separation for failure to meet the Army's body composition/weight control standards, this paper indicates that the Army has always considered separations for weight as a separation for "cause" (i.e., not convenience of the government). The paper further indicates that in 1991 separations for weight were added to the eligible list of separations that qualified for educational benefits under Public Law 101-510, and that new separation codes were developed (i.e., LCR/JCR) to identify the new weight separation types. The paper indicates that those new separation codes were not established "until October 1993." See Information Paper, #2, paragraph d. Thus, such separation codes were not available to the Veteran at the time of his discharge in May 1992 and would not have appeared on his DD Form 214. The Board notes that after the Veteran was provided with the Army Regulations 600-200 and 635-200 by the Board in September 2013, he provided a written response. He reiterated his belief that he was barred for re-enlistment because of his being overweight during service. He stated that without his discharge packet, the basis of his discharge could not be verified. The Veteran argued that his reduction in rank during service had no bearing on his Chapter 30 educational assistance claim. He added that had he been discharged for conduct, his DD Form 214 would have shown a discharge code indicating that misconduct was involved. He stated he could not have received a bar to re-enlistment had he been discharged because of conduct. The Veteran explained that he had provided VA with evidence that he was discharged due to weight. The Board finds that all of these allegations have been sufficiently refuted based on the Board's review of all the records in the claims file. The Veteran states that VA does not have his separation packet. As noted above, VA has obtained the Veteran's service personnel records, which records tend to substantiate why the Veteran was not given a discharge based solely on weight. The Board cannot explain the Veteran's discharge as noted on its DD Form 214. Indeed, the ABCMR found that that the DD Form 214 was a document authenticated by the Veteran. (The reason for the January 1992 Report of Medical Examination would indicate that the Veteran was going to be discharged under Chapter 14, which is based on misconduct.) However, it does not need to provide an explanation for why the Veteran was not given a misconduct discharge. Rather, it has provided an explanation for why it believes that the Veteran's DD Form 214 accurately reflects that he was not discharged solely due to weight and thus not at the convenience of the government. The Veteran's statement that the reduction in rank has no bearing on his claim is incorrect, as it provided documented evidence that the Veteran had engaged in conduct that would cause his rank to be reduced. Again, Army Regulation 635-200 makes clear that if there is any other basis for discharging a soldier, other than involving weight, the soldier would be discharged under the other basis. This document provides a basis for why the Veteran was not discharged solely due to weight. The January 1992 treatment record is further evidence substantiating that the Veteran was not discharged solely because of weight issues. Accordingly, without a separation reason reflecting one of the seven reasons provided in 38 U.S.C.A. § 3011(a)(1)(A)(ii) and 38 C.F.R. § 21.7042(a)(5), the Veteran is not eligible for Chapter 30 education benefits on the basis of 38 C.F.R. § 21.7042(a)(5). Based on the foregoing, the Board finds that the Veteran has failed to meet basic service eligibility requirements provided by law. Therefore, he is not entitled to Chapter 30 educational assistance. 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 The Veteran's claim for entitlement to Chapter 30 educational assistance is denied. ______________________________________________ PAUL SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs