Citation Nr: 1509168	
Decision Date: 03/03/15    Archive Date: 03/17/15

DOCKET NO.  13-03 912	)	DATE
	)
	)

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


THE ISSUE

Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill).


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from August 2007 to March 2012.  He received the Combat Action Ribbon among other decorations.

This appeal to the Board of Veterans' Appeals (Board) arose from an August 2012 decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma that determined the Veteran is ineligible for the benefits sought on appeal.

FINDING OF FACT

The Department of the Navy characterized the Veteran's discharge from the U.S. Marine Corps as Under Honorable Conditions.


CONCLUSION OF LAW

The criteria for basic eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post 9/11 GI Bill) have not been met.  38 U.S.C.A. §§ 3301, 3311 (West 2014); 38 C.F.R. §§ 21.1032(d)(1), 21.9500, 21.9520 (2014).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Secretary, VA, has proscribed specific duties to assist for claims of entitlement to educational benefits.  See 38 C.F.R. § 20.1032.  The evidence of record shows the Veteran's claim is governed solely by his eligibility.  Hence, by the terms of applicable regulation, no assistance was due the Veteran.  See 38 C.F.R. § 20.1032(d)(1); see also Sabonis v. Brown, 6 Vet. App. 426 (1994).  Nonetheless, the Board notes that the AOJ provided the Veteran with forms that will assist him with his service department.


Applicable Legal Requirements

An individual may establish eligibility for educational assistance under Title 38 U.S.C.A., Chapter 33, based on active duty service after September 10, 2001, if he or she--

(a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service,--

 (2) Is discharged from service with an honorable discharge.
38 C.F.R. § 21.9520


Analysis

The AOJ was advised by the Veteran's service component, and the Veteran's DD Form 214 so reflects, that his discharge was general under honorable conditions.  The Veteran does not dispute this fact, though he asserts it was a mistake on the part of his service component.  As noted, the Veteran must seek corrective action or relief from the service department and the RO provided him with the forms needed to request correction from that entity.  

A general discharge under honorable conditions does not satisfy the requirement for an honorable discharge.  Carr v. Brown, 5 Vet. App. 2 (1993).  The Veteran's current discharge renders him legally ineligible for the educational benefits he seeks.  38 C.F.R. § 21.9520(

Service department determinations as to a Veteran's service are binding on VA where service department certification is required.  See 38 C.F.R. § 3.203(c) (setting out the types of evidence required to establish periods of service and character of discharge).  The service department's decision on such matters is conclusive and binding on VA.  See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992).

In this case, the law, rather than the facts, is dispositive.  As the Veteran is not legally entitled to educational assistance benefits under the Post 9/11 GI Bill, his claim must be denied.  See Sabonis, 6 Vet. App. at 430.



ORDER

Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs