Citation Nr: 1534175 Decision Date: 08/10/15 Archive Date: 08/20/15 DOCKET NO. 12-17 796A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to educational assistance benefits under Chapter 1606, Title 10, United States Code (Montgomery GI Bill for Selected Reserves). ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Appellant served on periods of active duty for training (ADT) and inactive duty training (IADT) in the Army Reserve from August 2006 to October 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Education Center in Buffalo, New York. The Board remanded the appeal in January 2015 so the Agency of Original Jurisdiction (AOJ) could associate a copy of a September 2010 administrative decision with the record, secure a copy of Department of Defense (DOD) determinations as to the Appellant's eligibility for Chapter 1606 educational assistance benefits, and to verify the Appellant's Reserve service status. The September 2010 administrative decision has been reconstructed and associated with the record. Updated Chapter 1606 DOD data confirms that eligibility for DOD Chapter 1606 educational assistance was suspended in January 2008 and terminated in August 2014. The AOJ reported that this information was confirmed by the United States Army Human Resources Command (HRC) Point of Contact, who informed the AOJ that their office would not have documentation of the suspension period as this information was located at the former Army Reserve Unit level and was received by the DOD as a data/system generated suspension code. The AOJ issued a February 2015 letter to the Appellant, requesting that he provide the address of the last unit with which he was performing monthly drills so that they could be contacted regarding the Chapter 1606 eligibility. To date, no response was received. The Board finds that the AOJ substantially complied with the Board's remand request in obtaining a copy of the September 2010 decision, obtaining DOD verification confirming Chapter 1606 eligibility status and updated reserve status, as well as a basis for such a finding based on a review of electronic data received from the Appellant's former Army Reserve unit. Accordingly, the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Appellant became eligible for Montgomery GI Bill-Selected Reserves (Chapter 1606) educational benefits effective February 22, 2007. 2. Eligibility was suspended in January 2008 due to unsatisfactory participation in the Selected Reserves. 3. The Department of Defense (DOD) has determined that the Appellant is not eligible for educational assistance benefits under Chapter 1606. CONCLUSION OF LAW The requirements for basic eligibility for Chapter 1606 educational assistance benefits have not been met. 10 U.S.C.A. §§ 16131, 16132, 16133 (West 2014); 38 U.S.C.A. §3012 (West 2014); 38 C.F.R. §§ 21.7540, 21.7550, 21.7551 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2014). For educational assistance claims, the regulations delineating the specific notification and assistance requirements are set forth in 38 C.F.R. §§ 21.103 and 21.1032 (2014). Under 38 C.F.R. § 21.1031(b), "if a formal claim for educational assistance is incomplete, or if VA requires additional information or evidence to adjudicate the claim, VA will notify the claimant of the evidence and/or information necessary to complete or adjudicate the claim and the time limit provisions of § 21.1032." In connection with the claim on appeal, the Appellant has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any duties to notify and assist the Appellant. As discussed above, the Board finds that the AOJ substantially complied with the Board's January 2015 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). The AOJ has received updated May 2015 Chapter 1606 DOD data for the Appellant verifying that eligibility for Chapter 1606 educational assistance was suspended in January 2008 and that eligibility was terminated in August 2014. The Board notes that the RO attempted to, but was not able to secure any documentation to support DOD's determination as to eligibility for Chapter 1606 benefits, as such records were stated to be with the former Army Reserves Unit. The Board finds that in the absence of applicable documentation as to Chapter 1606 eligibility, the DOD and the Adjutant General Directorate, U. S. Army Human Resources Command (HRC) were able to verify the Appellant's eligibility status based on a review of pertinent electronic data, which is of record. In a February 2015 letter, the Appellant was requested to provide additional information with regard to his unit assignment so that they could be contacted with regard to his Chapter 1606 eligibility. To date, no response was received from the Appellant. The current appeal is being denied as a matter of law. The laws and regulations pertaining to educational assistance under Chapter 1606, Title 10, United States Code provide that a determination of an individual's eligibility for Chapter 1606 benefits is to be made by the Armed Forces. 38 C.F.R. § 21.7540(a). Accordingly, the Board finds that further discussion of VA's duties to notify and assist the Appellant is not necessary. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). Law and Analysis The Appellant seeks educational assistance under the provisions of Chapter 1606, Title 10, United States Code. Laws and regulations pertaining to educational assistance under Chapter 1606, Title 10, United States Code provide that a determination of an individual's eligibility for Chapter 1606 benefits is to be made by the Armed Forces. 38 C.F.R. § 21.7540(a). Educational benefits are available to members of the Selected Reserve of the Army, Navy, Air Force, Marine Corps, and Coast Guard, and the Army and Air National Guard, under Chapter 1606. The Reserve components determine who is eligible for the program. Chapter 1606 assists eligible persons to further their education after high school. It provides educational assistance for people enrolled in approved programs of education or training. It is the first such program that does not require service in the active Armed Forces in order to qualify. 38 C.F.R. §§ 21.7520, 21.7540. To be eligible for Chapter 1606 benefits, a reservist who is not a Reserve officer (1) shall enlist, reenlist, or extend an enlistment as a Reserve for service in the Selected Reserve so that the total period of obligated service is at least six years from the date of such enlistment, reenlistment, or extension; (2) must complete his or her initial period of active duty for training; (3) must be participating satisfactorily in the Selected Reserve; and (4) must not have elected to have his or her service in the Selected Reserve credited toward establishing eligibility to benefits provided under 38 U.S.C. Chapter 30. 38 C.F.R. § 21.7540(a). Benefits may be extended where the veteran is called to active duty under Title 10 for a period of active duty plus four months. 38 C.F.R. § 21.7550(b). A veteran's eligibility may be resumed after Reserve duty status ends if the veteran returns to the Selected Reserve within one year. 38 U.S.C.A. § 3012. The record shows that the Appellant served on periods of ADT or IADT in the Army Reserve from August 2006 to October 2007. The DOD verified in September 2010, July 2011, and April 2013 that the Appellant became eligible for Montgomery GI Bill-Selected Reserves (Chapter 1606) educational benefits effective February 22, 2007, but eligibility was suspended in January 2008. The DOD and the HRC determined in July 2011, September 2011, and February 2013 correspondence that the Appellant was not eligible for educational assistance benefits under Chapter 1606. July 2011 correspondence shows that suspension of eligibility was due to unsatisfactory participation in the Selected Reserves, determination still pending. An updated report from the DOD dated in May 2015 also shows that eligibility for Chapter 1606 educational assistance was suspended in January 2008 due to unsatisfactory participation, and eligibility was terminated in August 2014 due to the Appellant's discharge. The Appellant contends in his July 2012 substantive appeal that his unsatisfactory participation dating in January 2008 was due to the receipt of erroneous orders. He contends that although he may have been absent between transfers, he committed to serve the remainder of his contract and performed all necessary duties. While the Appellant contends that he served the remainder of his six-year contract and performed satisfactorily, he has not submitted any documentation in support of his lay assertion. The Board finds that the Appellant is not eligible for educational assistance under the provisions of Chapter 1606, Title 10, United States Code. Correspondence from the DOD shows that that the Appellant was not eligible for Chapter 1606 education benefits during the relevant period on appeal. The Board finds that information provided by the DOD, showing that the Appellant was not eligible for Chapter 1606 benefits, was based on a review of pertinent electronic data records, and that this information was, in turn, provided to the DOD by the relevant Armed Forces service department, in this case the Appellant's former Army Reserves Unit. The DOD records are presumed to be accurate in this case. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 (1926) (holding that is presumed that government officials "have properly discharged their official duties."); see also Woods v. Gober, 14 Vet. App. 214, 220 (2000) (The presumption of regularity attaches to "all manner of VA processes and procedures."). VA is charged with administering the law as it is written, and as noted above, governing legal criteria specifically exclude an award of benefits absent the establishment of eligibility by DOD. DOD has determined that the appellant is not eligible for Chpater 1606 education benefits. VA has no authority to overturn this determination. For these reasons, the Board finds that the Appellant is not eligible for Chapter 1606 educational benefits. The Board notes that the proper course for the Appellant, if he believes there is a reason to dispute the report of the service department or the content of military records, is to pursue such disagreement with the service department, in this case, his former Army Reserves Unit. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). For the reasons discussed above, the Board finds that the Appellant is not entitled to benefits under Chapter 1606, Title 10, United States Code. The appeal is denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Basic eligibility for VA educational assistance benefits under 38 U.S.C.A. Chapter 1606 is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs