Citation Nr: 1544625 Decision Date: 10/20/15 Archive Date: 10/29/15 DOCKET NO. 13-08 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The appellant had active military service from April 1977 to December 1980, and was discharged "under other than honorable conditions." Significantly, a July 1981 Administrative Decision found that the appellant's period of service from April 1977 to December 1980 was under conditions other than honorable and a bar to all VA benefits. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 administrative decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. With regard to representation, the appellant was previously represented by the Missouri Veterans Commission. In April 2015, he submitted a VA Form 21-22 in favor of the Vietnam Era Veterans Association (VEVA). However, while the form was signed by the appellant, it was not signed by VEVA and, in July 2015 correspondence, the Board informed the appellant that he must submit a counter-signed VA Form 21-22. Subsequently, the appellant submitted a new, counter-signed VA Form 21-22 electing American Red Cross as his representative. Notably, the appellant filed a claim for VA educational assistance benefits under 38 U.S.C.A. Chapter 30 (i.e., the Montgomery GI Bill, or MGIB) in May 2012. This claim was denied in August 2012 and the Veteran perfected an appeal of this decision in February 2013. Subsequently, in April 2013, the appellant indicated that his request for educational assistance benefits under the MGIB was in error and that he meant to submit a claim for VA educational assistance benefits under 38 U.S.C.A. Chapter 34 (Vietnam-era G.I. Bill). This claim was denied by administrative decision dated in May 2013. The appellant did not enter a notice of disagreement as to the May 2013 decision, nor has he submitted a claim for education benefits under any other program. In the appellant's September 2012 notice of disagreement, he asked for guidance on what type of VA education benefits for which he is eligible. The appellant is advised that, given his character of discharge, he would not be entitled to any VA education benefits. In the appellant's February 2013 substantive appeal, he requested a Board video-conference hearing before a Veterans Law Judge. Correspondence in the claims file dated in May 2013 indicates that that the appellant was incarcerated at Algoa Correctional Center at that time. In a March 2013 letter to the appellant it was noted that, in order to facilitate his request for a video-conference hearing, VA would need affirmation from the warden that the correctional center was able to provide the facilities and equipment to conduct a video-conference hearing. A May 2013 VA Form 8 indicated that no response was received from the warden with regard to facilitating a video-conference hearing. In an August 2015 letter to the appellant, the Board informed him that, due to his present incarceration and inability to travel to a VA facility in order to attend a hearing, his request for a Board hearing could not be accommodated. He was informed he could submit a written statement, have his representative submit written argument, or have his representative submit a motion to appear alone and personally present argument on his behalf. The Board further advised the appellant that the case would be held in abeyance for 30 days to allow for the submission of any additional evidence or argument. The appellant did not respond to the letter within 30 days. As such, the Board will now proceed with adjudicating this case. The Board notes that, in addition to the paper claims file, there are two separate paperless, electronic files associated with the appellant's claim: a Virtual VA file and a Veterans Benefits Management System (VBMS) file. A review of the documents in VBMS reveals the appellant's DD-214; service personnel records; July 1981 Administrative Decision regarding the appellant's character of discharge; VA Forms 21-22 dated in April 2002 (Missouri Veterans Commission), April 2015 (VEVA), and July 2015 (American Red Cross); July 2015 letter regarding the appellant's representation; and August 2015 letter regarding the appellant's Board hearing request. Notably, while the January 2013 statement of the case refers to an August 25, 2012, Chapter 30 denial, there is no such letter in the educational folder or the electronic files. The Board has attempted to obtain a copy of such denial through informal administrative procedures, but has been unsuccessful in this regard. However, the Board finds no prejudice to the Veteran in proceeding with a decision on his claim at this time since such record is essentially duplicative of those already of record as the January 2013 statement of the case explains the reasons and bases behind the August 25, 2012 administrative decision. FINDING OF FACT The appellant's period of service that ended on December 24, 1980, is characterized as under other than honorable conditions, which is not considered to be an honorable discharge for purposes of Chapter 30 eligibility. CONCLUSION OF LAW The appellant does not meet the basic eligibility criteria for entitlement to educational assistance under Chapter 30, Title 38, United States Code. 38 U.S.C.A. § 3011 (West 2014); 38 C.F.R. § 21.7042 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). When the interpretation of a statute is dispositive of the issue on appeal, neither the duty to notify nor the duty to assist provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Because the application of the law to the facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). The appellant contends that he has met the requirements for basic eligibility for educational assistance under Chapter 30, Title 38, of the United States Code (i.e., MGIB). In the appellant's September 2012 notice of disagreement, he argued that he met the criteria for education benefits because he was "discharged for convenience of the government ... after serving at least 30 months of an initial obligation of 3 years or longer." The appellant reported that he served 45 months of a 4 year obligation and was, thus, eligible. Furthermore, in June 2015 correspondence, the appellant indicated that his education benefits entitlement was secured under the provisions of the 1955 MGIB when, on September 10, 1976, he joined the United States Marine Corps under, what was then called, "the delayed entry program." These benefits, according to the appellant, never disappeared but were adopted in 2009 into the present MGIB. Therefore, the appellant believes that he has met the requirements for basic eligibility for chapter 30 benefits. In pertinent part, VA law and regulation, 38 U.S.C.A. § 3011 and 38 C.F.R. § 21.7042, provide that an individual may establish eligibility for basic educational assistance based on service on active duty under the following terms, conditions and requirements. The individual must, after June 30, 1985, either (i) first become a member of the Armed Forces, or (ii) first enter on active duty as a member of the Armed Forces. 38 C.F.R. § 21.7042(a)(1). Except as provided in 38 C.F.R. § 21.7042(a)(5) the individual must (i) serve at least three years of continuous active duty in the Armed Forces, or (ii) in the case of an individual whose initial period of active duty is less than three years, serve at least two years of continuous active duty in the Armed Forces. 38 C.F.R. § 21.7042(a)(2). Except as provided in 38 C.F.R. § 21.7042(a)(6), the individual, before completing the service requirements of this paragraph, must either (i) complete the requirements of a secondary school diploma (or an equivalency certificate), or (ii) successfully complete twelve semester hours in a program of education leading to a standard college degree. 38 C.F.R. § 21.7042(a)(3). After completing the service requirements of this paragraph the individual must (i) continue on active duty, or (ii) be discharged from service with an honorable discharge, or (iii) be released after service on active duty characterized by the Secretary concerned as honorable service, and (A) be placed on the retired list, or (B) be transferred to the Fleet Reserve or Fleet Marine Corps Reserve, or (C) be placed on the temporary disability retired list, or (iv) be released from active duty for further service in a reserve component of the Armed Forces after service on active duty characterized by the Secretary concerned as honorable service. 38 C.F.R. § 21.7042(a)(4). An individual who does not meet the requirements of paragraph (a)(2) of this section is eligible for basic educational assistance when he or she is discharged or released from active duty (i) for a service-connected disability, or (ii) for a medical condition which preexisted service on active duty and which VA determines is not service connected, or (iii) under 10 U.S.C.A. § 1173 (hardship discharge), or (iv) for convenience of the government (A) after completing at least 20 continuous months of active duty if his initial obligated period of active duty is less than three years, or (B) after completing 30 continuous months of active duty if his initial obligated period of active duty is at least three years, or (v) involuntarily for the convenience of the government as a result of a reduction in force, as determined by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, or (vi) 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 Transportation with respect to the Coast Guard when it is not operating as a service in the Navy. 38 C.F.R. § 21.7042(a)(5). The evidence includes the appellant's DD Form 214, Certificate Of Release Of Discharge From Active Duty, which reflects that he served from April 1977 to December 1980 with the discharge "under other than honorable conditions." An honorable discharge or honorable service is required for basic eligibility. Therefore, this does not constitute qualifying service. 38 C.F.R. § 21.7042(a)(4). Upon consideration of the foregoing, the Board finds that the appellant does not have the qualifying service necessary for basic eligibility for educational assistance benefits under Chapter 30 because the character of his period of active duty service is not considered to be honorable. Furthermore, even if his period of service were considered to be honorable, it took place prior to July 1, 1985. At this juncture, the Board notes that it has considered the appellant's contentions that he met the criteria for education benefits because he was "discharged for convenience of the government ... after serving at least 30 months of an initial obligation of 3 years or longer." However, the appellant's interpretation of the law is misguided. Significantly, the appellant's "under other than honorable conditions" is not a discharge for the "convenience of the government." A review of the July 1981 Administrative Decision shows that the appellant requested an administrative discharge for the good of the service to avoid trial by special court martial. He was referred for a special court martial for failure to go to his appointed place of duty, disobeying an order to attend a classroom lecture, assaulting a superior noncommissioned officer, and threatening a superior noncommissioned officer. The record also shows that he received five prior commanding officer's nonjudicial punishments, numerous counseling sessions, and a special court martial, all for unspecified reasons. Furthermore, regardless of when the appellant entered the military and regardless of the history of the MGIB, the fact that the appellant was discharged "under other than honorable conditions" makes him ineligible for any VA benefits. In reaching this decision, the Board notes that VA is bound by the findings of the service department on matters regarding character of discharge, and may not make its own character of discharge determination for a discharge that is less than honorable. See M-22-4, Part V, para. 1.17(e)(2), Note 1. The record indicates that the appellant has been provided with information as to how to seek a change in the character of discharge from the service department. The appellant is free to seek an upgrade in his character of discharge to honorable and to reapply for VA benefits if one is obtained. ORDER Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs