Citation Nr: 1410187 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 11-02 928A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Basic eligibility for VA educational assistance benefits under Chapter 30 and/or Chapter 33 of Title 38, United States Code. ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The appellant served on active duty from October 2000 to July 2009, when he received a bad conduct discharge from service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Buffalo Education Center that denied eligibility for VA educational assistance benefits. The issue of whether the appellant was eligible for an unconditional discharge under conditions other than dishonorable after serving the full period for which he was obligated, under 38 C.F.R. § 3.13, has been raised by the appellant, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. FINDING OF FACT The appellant received a bad conduct discharge from a continuous period of military service from October 2000 to July 2009. CONCLUSION OF LAW The appellant does not have an honorable discharge, or service characterized as honorable by the service department; hence, basic eligibility to Chapter 30 or Chapter 33 educational assistance is not established. 38 U.S.C.A. §§ 3011, 3311 (West 2002 & Supp. 2013); 38 C.F.R. § 3.12. (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.1031, 21.1032 (2013). In this case, however, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law. Hence, the duties to notify and assist are not applicable to the claim. Beverly v. Nicholson, 19 Vet. App. 394 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002). A threshold requirement for basic eligibility for educational benefits under Chapter 30 (Montgomery GI Bill, or MGIB, or Chapter 33 (Post-9/11 GI Bill) is honorable service. 38 U.S.C.A. §§ 3011(a)(3); 3311(c). Specifically, an individual must be discharged from service with an honorable discharge, or be released from active duty, characterized as honorable by the service department, under specific circumstances. Id. The appellant received a bad conduct discharge, due to a general court-martial, which precludes him from entitlement to VA benefits. 38 C.F.R. § 3.12(c). He contends that such should not preclude him from receiving his educational benefits. Notably, he argues that he served his full enlistment period with honorable service before the court-martial. However, the service department has characterized the appellant's service as other than honorable. Service department findings (i.e., the Army, Navy and Air Force) are binding upon VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department. 38 C.F.R. § 3.203(a); see, e.g., Spencer v. West, 13 Vet. App. 376, 380, (2000). VA has no authority to alter the claimant's discharge classification-the claimant's recourse is with the service department. Harvey v. Brown, 6 Vet. App. 416 (1994). Moreover, VA's General Counsel has held, in a precedent opinion, that: An individual who completes his or her initial obligated period of active duty but, due to extension of service or reenlistment, does not at that time receive a discharge from such period by the military department concerned and who, thereafter, is discharged with other than an "honorable" discharge does not meet the discharge requirement of section 3011(a)(3)(B) for entitlement to chapter 30 education benefits. This is so, notwithstanding extrinsic evidence that indicates the veteran completed, though without honorable discharge, his or her initial obligated active-duty period and that the individual's performance of that duty during such period was characterized by the military department concerned as "honorable." VAOPGCPREC 10-92 (April 1992). Thus, in general, although entitlement to VA benefits requires military service to be other than dishonorable, the General Counsel determined that the statute's requirement of "honorable" service establishes a higher threshold than "other than dishonorable," for educational assistance under Chapter 30. As cited above, the same characterization of service as "honorable" as a requirement for Chapter 30 benefits is included in the law pertaining to Chapter 33 benefits as well. Thus, even if the Veteran is able to support his contentions concerning his earlier service, he would still not entitled to educational assistance under Chapter 30 or Chapter 33. To establish eligibility for VA educational assistance, the appellant's only recourse is to obtain an upgrade of his discharge through the service department. To initiate such a request, he must apply to the Board of Corrections for his branch of service, i.e., the Air Force. In this case, there is no legal basis on which the appellant's claim can be granted. As the law is dispositive in this case, the appeal is terminated due to absence of legal merit. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). ORDER Basic eligibility for VA educational assistance under Chapter 30 or Chapter 33 is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs