Citation Nr: 1407294	
Decision Date: 02/20/14    Archive Date: 03/04/14

DOCKET NO.  11-23 232	)	DATE
	)
	)

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


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


REPRESENTATION

Appellant represented by: California Department of Veterans Affairs


INTRODUCTION

The Veteran served on active duty from May 1996 to October 2001.  The Veteran was discharged "Under Honorable Conditions" due to misconduct.  

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 Muskogee, Oklahoma, which determined the Veteran was not eligible for education benefits under Chapter 30, Title 38 of the United States Code.

In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS.  The Board has reviewed both the paper and electronic records in rendering this decision.  Records contained in VBMS include a February 2013 VA Form 21-22 appointing the California Department of Veterans Affairs as the Veteran's representative for claims pending before VA.


FINDINGS OF FACT

1.  The record reflects the Veteran's service for the May 1996 to October 2001 period of active duty was characterized as "under honorable conditions" and he was released due to misconduct.  

2.  The Veteran's DD Form 214 reflects a separation code of "JKK" and the narrative reason for separation was "misconduct."  

3.  The DD Form 214 also shows the separation authority as "AR 635-200, PARA 14-12c(2)," which is a pattern of misconduct due to a serious offense-here, abuse of illegal drugs

4.  The Veteran reenlisted in the Army on October 14, 1998.  

5.  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 criteria for education benefits under 38 U.S.C.A., Chapter 30, the MGIB, are not met.  38 U.S.C.A. §§ 3001, 3011, 3012 (West 2002); 38 C.F.R. §§ 21.7040, 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.


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 (MGIB), 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).

If the service requirements are met, then the individual must either continue on active duty; be discharged from service with an honorable discharge; or be released after service on active duty characterized by the Secretary concerned and honorable service and be placed on the retired list, Fleet Reserve/Fleet Marine Corps Reserves, or be placed on the temporary disability retired listed; or be released from active duty for further service in a reserved component of the Armed Forces after service on active duty characterized by the Secretary concerned as honorable service.  See 38 C.F.R. § 21.7042(a)(4).  

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 contends that he had the requisite service for MGIB benefits.  He contends that he had 30 months and 28 days of continuous and honorable active duty.  He also contends that because he was awarded the Army Good Conduct Medal it shows he met the three year honorable service criteria for MGIB benefits.  

In this case, there is no dispute as to the character of the Veteran's service.  His DD Form 214 indicates he had active duty from May 1996 to October 2001.  He was discharged "Under Honorable Conditions (General)," and under the reason for separation, "misconduct" was noted.  The separation authority was AR 635-200, Paragraph 14-12c(2), which signifies a pattern of misconduct due to commission of a serious offense by abuse of illegal drugs.  The separation code was "JKK," and this either signifies a character or behavior disorder or drug use.  

Also of record is his reenlistment document showing the date of reenlistment as October 14, 1998.  There is no evidence that his active duty for the period prior to October 14, 1998, was characterized as anything but honorable.  Nevertheless, he did not have 3 continuous years of honorable active duty during his first period of active duty as required for MGIB benefits.  The period of service prior to October 1998 included only 2 1/2 years of active duty.  Subsequent service was found to be under honorable conditions due to a pattern of misconduct due to a serious offense.  

The Board has considered the Veteran's argument that his award of the Army Good Conduct Medal shows that he had 3 years of honorable service to qualify for the MGIB benefit.  Despite his receipt of this medal, the Board notes that his period of service beginning October 1998 (at least) has been identified a under honorable conditions and his discharge was due to misconduct of a pattern of serious offenses.  Just because he received this medal does not show that his service was honorable for MGIB benefit purposes.  Additionally, there is no law or regulation providing that the Veteran's character of service designation is based upon the date of the incident of each misconduct, rather, the character of service is based upon that active duty period as a whole.  And as clearly noted on his DD Form 214, his active duty service is "Under Honorable Conditions (General)" based upon misconduct as described above.  As such, his argument has no merit.  

The Veteran has not contended that he has tried to change the character of his service.  Service department findings (i.e., the Army, Navy, and Air Force) are binding and conclusive upon VA for purposes of establishing an individual's service.  VA does not have the authority to alter the findings of the service department.  The Veteran's sole recourse is with the service department.  See 38 C.F.R. § 3.203(a) (2013); Spencer v. West, 13 Vet. App. 376, 380 (2000); Venturella v. Gober, 10 Vet. App. 340, 341 (1997); Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); Harvey v. Brown, 6 Vet. App. 416, 424 (1994).

The Board acknowledges the Veteran's assertion that he served his country honorably for part of his active duty.  There is no question that the bulk of the Veteran's service is worthy of respect; however, the Board is bound by the law and has a quite limited authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104; Harvey, 6 Vet. App. at 425.  Here, the Veteran has not met the service requirements of three years of continuous, honorable, active duty or one of the exceptions described above for both periods of active duty.  The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress."  Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)).

In sum, there is no dispute regarding the essential facts in this appeal.  The Veteran's period of service from May 1996 to no later than his reenlistment in October 1998 could be characterized as honorable, and from his October 1998 reenlistment to October 2011, his service is characterized as under honorable conditions, and the reason for separation was misconduct, and not a service-connected disability.  Simply put, he did not have three continuous years of honorable service during either period of active duty, and as no other exceptions apply, the Board finds that basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code is not warranted as the Veteran's claim cannot be substantiated as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law).



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