Citation Nr: 1519357 Decision Date: 05/05/15 Archive Date: 05/19/15 DOCKET NO. 12-20 866A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a benefit level in excess of 70 percent for educational assistance benefits under the provisions of Post-9/11 GI Bill (38 U.S.C., Chapter 33). ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2004 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In November 2014, the Board remanded this issue for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran's DD Form 214 lists his character of discharge from the United States Army as "Under Honorable Conditions (General)." 2. The DD Form 214 notes that the Veteran had continuous honorable active service from June 2004 to April 2006. CONCLUSION OF LAW The criteria for educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) at a level in excess of 70 percent have not been met. 38 U.S.C.A. §§ 3311 (West 2014); 38 C.F.R. § 21.9520, 21.9640 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to Veterans in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. There are some claims, however, to which the VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). Specifically, the VCAA has been held not to apply to claims that, as in this case, turned on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). 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). As such, no further action is required pursuant to the VCAA. In November 2014, the Board remanded the issue with directives to contact the Veteran about any attempts to upgrade the character of his discharge; to associate the Veteran's military personnel file with the record; to adjudicate the character of the Veteran's discharge for the period from April 1, 2006 to May 31, 2008; and to readjudicate the claim. In December 2014, VA sent a letter to the Veteran requesting information as to any character of discharge upgrade. The Veteran's military personnel file was associated with the record, and a supplemental statement of the case (SSOC) was issue in January 2015. The SSOC explained that VA has no authority to adjudicate the character of discharge. Accordingly, the Board finds that the RO substantially complied with the Board's remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Moreover, the Veteran was given notice of, and an opportunity to change, the character of the discharge finding by the service department. Therefore, there will be no prejudice to the Veteran by proceeding with this adjudication. Chapter 33 Educational Assistance Benefits Under the provisions of Chapter 33, an individual, other than one on active duty, who is pursuing a program of education at more than one-half time at an institution of higher learning located in the United States may receive a lump sum for established charges (tuition and fees) paid directly to the institution of higher learning, a monthly housing stipend and for the first month of each quarter, semester or term as applicable, a lump sum amount for books, supplies, equipment, and other educational costs. 38 U.S.C.A. § 3313; 38 C.F.R. § 21.9640 (2014). A veteran may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (1) continues on active duty; (2) is discharged from service with an honorable discharge; (3) is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) is released from service characterized as honorable for further service in a reserve component; or (5) is discharged or released from service for - (i) a medical condition that preexisted such service and is not determined to be service-connected; (ii) hardship, as determined by the Secretary of the military department concerned; or (iii) a physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. See 38 U.S.C.A. § 3311; 38 C.F.R. § 21.9520(a). A plain reading of 38 C.F.R. § 21.9520(a)(1)-(4) clearly demonstrates that an honorable discharge from service is required for a veteran to establish eligibility for educational assistance under 38 U.S.C. Chapter 33 unless he or she has completed 90 aggregate days of active service and is currently serving on active duty. Subsection (a)(5) makes no mention of the need for an honorable discharge. However, the Board interprets the plain language of 38 C.F.R. § 21.9520(a) to not require an honorable discharge when eligibility is based upon one of the exceptions set forth under subsection (a)(5)(i)-(iii). VA determines the amount of educational assistance payable for an approved program of education under Chapter 33 based on the aggregate length of creditable active duty service after September 10, 2001. See 38 U.S.C.A. §§ 3311, 3313; 38 C.F.R. § 21.9640. VA law and regulation provide that a Veteran who serves at least 36 months is paid at the 100 percent rate; who serves at least 30 continuous days and is discharged for a service-connected disability, is paid at the 100 percent rate; serves at least 30 months, but less than 36 months is paid at the 90 percent rate; serves at least 24 months, but less than 30 months is paid at the 80 percent rate; serves at least 18 months, but less than 24 months is paid at the 70 percent rate; serves at least 12 month, but less than 18 months is paid at the 60 percent rate; and who serves at least 6 months, but less than 12 months is paid at the 50 percent rate. 38 U.S.C.A. §§ 3311, 3313; 38 C.F.R. § 21.9640(a) (2014). The Veteran's DD Form 214 reflects that he served from June 1, 2004, to May 31, 2008; however, his period of "honorable" service was noted as June 1, 2004, to April 1, 2006. His ultimate character of discharge was Under Honorable Conditions (General). Thus, the "General Discharge" given to the Veteran with his limited honorable service from June 1, 2004, to April 1, 2006, qualifies the Veteran for a maximum benefit level of 70 percent for educational assistance benefits. The Veteran argued in his June 2012 notice of disagreement and August 2012 formal appeal that his copy of his DD Form 214 stated that he completed his first term of service, three years, and that this should enable an increase in his percentage of education benefits. That is, the Veteran asserts that his active time of honorable service should equal his first contract of three years. He stated that during his out-processing, civilian and military employees stated that his first enlistment was fulfilled honorably. He stated that he was later told during reenlistment that his first term of service was not completed yet. The Veteran, in essence, has raised the issue of the character of his discharge. The Board notes that service department findings (i.e., the Army, Navy, and Air Force) are binding on VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of 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). This was noted in the November 2014 Board remand and the January 2015 SSOC. Even though the DD Form 214 indicates that the Veteran completed his first term of service, the Board is bound by the finding reflected in the DD Form 214 as to the period of continuous honorable service, which is limited to June 2004 to April 2006. The Veteran has not provided any evidence of an upgraded character of discharge or additional periods of service deemed honorable by the service department for the Board to consider. In short, given the character and nature of the discharge as established by the service department and the dates of service deemed honorable by the service department, there is no legal basis to find the Veteran eligible for education assistance benefits under the Post-9/11 GI Bill in excess of 70 percent. The Board is bound by the law, and its decision is dictated by the controlling statutes and regulations. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the claim for higher benefits must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a benefit level in excess of 70 percent for educational assistance benefits under the provisions of Post-9/11 GI Bill (38 U.S.C., Chapter 33) is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs