Citation Nr: 1513251	
Decision Date: 03/27/15    Archive Date: 04/03/15

DOCKET NO.  13-14 141	)	DATE
	)
	)

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


THE ISSUE

Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill) 


ATTORNEY FOR THE BOARD

T. Wishard, Counsel


INTRODUCTION

The Veteran had active military service from December 2008 to April 2010. 

This matter comes before the Board of Veterans' Appeals (Board) from October and November 2012 decisional letters of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma.  

The issue of entitlement to educational assistance benefits under Chapter 33 has been raised by the record (See VA Form 22-1990), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action.


FINDINGS OF FACT

1.  The Veteran had 16 months of active service.

2.  The Veteran received a general discharge from service due to misconduct.  

3.  The Veteran was not discharged due to one of the reasons enumerated in 38 C.F.R. § 21.7042(a)(5).   


CONCLUSION OF LAW

The criteria for educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill) have not been met. See 38 U.S.C.A. §§ 3011(a)(3); 3311(c); 38 C.F.R. § 21.7042(a) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has duties under 38 C.F.R. §§ 21.1031 and 21.1032 to notify and assist claimants in substantiating a claim for VA education benefits, except when a claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit or if there is no reasonable possibility that any assistance VA would provide would substantiate the claim.  The claims file does not reflect that the appropriate notice was provided to the Veteran prior to the adjudication of her claim; such notice was provided to the Veteran in the 2013 statement of the case.  The Board finds that remand for additional notice and readjudication is not warranted.  The pertinent facts of the Veteran's claim are not in dispute; rather, the Veteran has asserted she is entitled to equitable relief.  The law as mandated by statute, and not the evidence, is dispositive of this appeal. No further action is required pursuant to the duties to notify and assist because it can have no effect on the appeal. 

A Veteran's election of Chapter 33 benefits precludes Chapter 30 benefits.  The Veteran has completed a VA Form 22-1990 in which she elected to apply for Chapter 33 benefits instead of Chapter 30 benefits, and understood that her election was irrevocable and may not be changed.  Nevertheless, as the issue on appeal was pending prior to her election of Chapter 33 benefits, the Board has adjudicated it.

In order to be entitled to Chapter 30 educational assistance, an individual must first become a member of the Armed Forces or first enter active duty as a member of the Armed Forces after June 30, 1985, and in the case of an individual whose obligated period of active duty is three years or more, serve at least three continuous years of 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. See 38 U.S.C.A. § 3011(a) (1) (A) (i); 38 C.F.R. § 21.7042(a) (1)- (2). 

The Veteran, whose service occurred after June 30, 1985, did not serve at least two years of continuous active duty in the armed forces; she served only 16 months.  Her DD 214 also reflects that she did not complete her full term of service.  An individual who does not meet the above service requirements may be eligible for basic educational assistance when he/she 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 Veteran was not discharged due to any of the above specified reasons.  The evidence reflects that the Veteran was discharged because of her own misconduct prior to completion of the required two or three years (depending on her enlistment obligation).  (See DD 214).  Thus, she is not entitled to Chapter 30 benefits.

In addition, another threshold requirement for basic eligibility for educational benefits under Chapter 30 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.  The appellant received a general discharge under honorable conditions due to misconduct, which precludes her from entitlement to VA benefits. 38 C.F.R. § 3.12(c).  VA has no authority to alter the claimant's discharge classification; the claimant's recourse is with the service department. 38 C.F.R. § 3.203(a); Harvey v. Brown, 6 Vet. App. 416 (1994). Spencer v. West, 13 Vet. App. 376, 380, (2000).

Based on the foregoing, the Board finds that the Veteran is not entitled to Chapter 30 education assistance benefits.  


ORDER

Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill) is denied.


____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs