Citation Nr: 1429455 Decision Date: 06/30/14 Archive Date: 07/03/14 DOCKET NO. 11-31 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to eligibility for education benefits under the provisions of Chapter 30, Title 38, United States Code (Montgomery G.I. Bill). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from January 1983 through December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran has perfected a timely appeal of this decision. The Veteran testified during a July 2012 Board hearing that was held at the Seattle RO. A transcript of this testimony is associated with the claims file. FINDINGS OF FACT 1. The Veteran served on active duty from January 24, 1983 through December 15, 1992. 2. The Veteran's delimiting period for receiving Chapter 30 education benefits expired on December 16, 2002. 3. The Veteran's application for Chapter 30 education benefits was received in 2011 and the period of enrollment for which the Veteran now seeks Chapter 30 education benefits commenced on March 27, 2011, after the expiration of his 10 year period of eligibility. 4. The Veteran did not submit a timely request to extend the period of eligibility, nor has good cause for such an extension been shown. CONCLUSION OF LAW The criteria for eligibility for Chapter 30 education benefits have not been met. 38 U.S.C.A. §§ 3011, 3031 (West 2012); 38 C.F.R. §§ 21.1033, 21.7042, 21.7050, 21.7051, 21.7135(s) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The question before the Board is whether the Veteran meets the eligibility requirements for Chapter 30 education benefits in accordance with the Montgomery G.I. Bill. The record includes service department verification of the Veteran's service, pertinent records related to the Veteran's enrollment and education, and the lay assertions and arguments expressed in the Veteran's claims submissions and during his July 2012 Board hearing. Because the eligibility requirements in question are governed by law and regulations, the Board's review is essentially limited to interpreting the pertinent law and regulations. Where, as in this case, the interpretation of the law is dispositive of the appeal, neither the duty to notify nor the duty to assist provisions of the VCAA is applicable. De la Cruz v. Principi, 15 Vet. App. 143, 149 (2001). II. Analysis Appellants may establish eligibility for basic educational assistance under Chapter 30 by satisfying certain service prerequisites. Under 38 U.S.C.A. § 3011(a)(1)(A) and 38 C.F.R. § 21.7042(a)(1), an individual may establish eligibility by showing that he or she first entered on active duty as a member of the armed forces after June 30, 1985. The individual also must demonstrate that he or she served at least three years of continuous active duty, or at least two years if the individual's initial obligated period of active duty was less than three years. 38 U.S.C.A. § 3011(a)(1)(A)(1); 38 C.F.R. § 21.7042(a)(2). The governing legal criteria specify further that in order to be eligible for education benefits under Chapter 30, an individual, after June 30, 1985, must continue on active duty in the Armed Forces for at least three years, unless discharged or released for a qualifying reason (i.e., a service-connected disability, a medical condition which preexisted service, hardship, the convenience of the Government if the individual completed not less than 30 months continuous active duty after that date, involuntarily for the convenience of the Government as a result of a reduction in force, or for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct). 38 U.S.C.A. § 3011(a); 38 C.F.R. § 21.7042(a)(5). Here, the Veteran was enlisted after June 30, 1985 for a period of more than three years. Accordingly, the Veteran meets the foregoing basic requirement for eligibility for one month of education benefits for every month of service (in this case, 119 months of benefits), if he is determined otherwise eligible for that award. For the reasons discussed below, however, the Board finds that he is otherwise disqualified from eligibility for the foregoing education benefits. Applicable to this case, the general rule regarding Chapter 30 education assistance benefits is that VA will not provide basic educational assistance or supplemental educational assistance to an appellant beyond 10 years from the date of the appellant's last discharge or release from a period of active duty of 90 or more continuous days of service. 38 U.S.C.A. § 3031(a); 38 C.F.R. § 21.7050(a). Exceptions to this general rule provide that the 10 year period can be extended if: (1) the individual was initially prevented from establishing eligibility for educational assistance due to the character of his discharge, but was later able to establish eligibility as a result of a change, correction, modification, or other corrective action by competent military authority; (2) the individual was captured and held as a prisoner of war by a foreign government or power after his last discharge or release from active duty; (3) the individual was prevented from pursuing his chosen program of education before the expiration of the 10 year period because of a physical or mental disability not the result of his own willful misconduct; (4) the individual was enrolled in an educational institution regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired during a quarter or semester; or, (5) the individual was enrolled in an educational institution not regularly operated on the quarter or semester system and the period of entitlement under 38 U.S.C.A. § 3013 expired after a major portion of a course was completed. 38 U.S.C.A. § 3031(b), (c), (d), and (f) ; 38 C.F.R. §§ 21.7050(f), (g); 21.7051(a); 21.7135(s). VA must receive a claim for an extended period of eligibility by the later of: (1) one year from the date on which a claimant's original period of eligibility ended, or (2) one year from the date on which a claimant's physical or mental disability no longer prevented him from beginning or resuming a chosen program of education. 38 C.F.R. § 21.1033(c). VA may, for good cause, extend the time limit within which a claimant is required to act to perfect a claim or challenge an adverse VA decision. VA may grant such an extension only when the following conditions are met: (1) when a claimant requests an extension after expiration of a time limit, he or she must take the required action concurrently with or before the filing of that request; and (2) the claimant must show good cause as to why he or she could not take the required action during the original time period and could not have taken the required action sooner. 38 C.F.R. § 21.1033(e)(1). In this case, the RO has verified with the service department that the Veteran's only period of verified active duty service was from January 24, 1983 through December 15, 1992. In his August 2011 Notice of Disagreement, the Veteran alleged that his true date of separation from service was May 21, 2004. As support of his allegation, he attached a copy of a Reserve Order issued by the Air Reserve Personnel Center which indicates that the Veteran was honorably discharged from service in the Air Force reserves on May 21, 2004. An attached certificate of Honorable Discharge reflects the same. Nonetheless, the Veteran testified during his Board hearing that he had not returned to active duty since being separated in December 1992. He elaborated that he was separated from service early in 1992 as part of a reduction in force and subsequently elected to join the Air Force selective reserve; however, apparently was never mobilized to active duty during his reserve service. Therefore, under the regulations cited above, the Veteran's delimiting date for entitlement to education benefits under Chapter 30 is December 16, 2002. There is no evidence that the Veteran used his education benefits prior to the delimiting date (indeed, the Veteran acknowledged in his testimony that he did not apply for education benefits at any time prior to his 2011 application) and he became ineligible for VA educational assistance after that date. Moreover, information provided by the Veteran on his 2011 application indicates that the period of enrollment for which the Veteran was seeking education benefits commenced on March 27, 2011, well after passage of the delimiting date. Also, the Board notes that the Veteran's situation does not fall under any of the noted exceptions warranting extension of the 10 year time period. In that regard, there is no evidence in the record of any character of discharge issues that might have delayed any attempt to establish eligibility for education assistance. The Veteran testified during his hearing that he did not file an earlier application for education benefits simply because he was preoccupied with gaining assignment to a desirable Air Force reserve unit. Also, there is no evidence that the Veteran was a prisoner of war, nor is there evidence that he already enrolled in either a semester or non-semester educational institution at the time of his application. Similarly, there is no evidence in the record that the appellant was delayed in pursuing his chosen class enrollment due to a physical or mental condition. Accordingly, he does not meet the criteria for any of the five exceptions noted above. Further, the Board finds that the Veteran has not expressly sought an extension of the 10 year eligibility period, much less, made any such request prior to or at the time of his 2011 application for education benefits. Nonetheless, even if a request for extension could be construed from the Veteran's application, the Veteran has not stated good cause for his late application. For that reason, the 10 year eligibility period for education benefits also may not be extended based upon a showing of good cause. 38 C.F.R. § 21.1033(e)(1). The legal criteria in this case are unambiguous and the pertinent facts are not in dispute. In sum, the appellant did not submit a timely application for VA education benefits prior to his delimiting date of December 16, 2002, nor did he file a timely request to extend the delimiting date, nor has good cause for any such extension been shown. Unfortunately, the Board has no authority to create exceptions, or to overturn or to disregard this very specific limitation on the award of Chapter 30 education benefits. 38 U.S.C.A. § 7104(a) (West 2002); see Harvey v. Brown, 6 Vet. App. at 423 (holding that payments of money from the Federal Treasury are limited to those authorized by statute). Where, as here, the law and not the evidence is dispositive of the issue on appeal, the Veteran's claim for education benefits under the provisions of Chapter 30 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to eligibility for Chapter 30 education benefits is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs