Citation Nr: 1618714 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 13-25 425A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1996 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) from a March 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been added to the record. The Board has adjudicated this matter as an original claim. Although the Veteran has previously been denied educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill), these earlier claims were based upon him attending different educational institutions over different periods of time. In September 2015, the RO issued a rating decision which, in pertinent part, denied entitlement to increased evaluations for the Veteran's service-connected left knee and lumbar spine disabilities; denied entitlement to service connection for migraines; and determined that new and material evidence had not been submitted to reopen the Veteran's claims of entitlement to service connection for bronchitis and impotence. In April 2016, the Veteran filed a notice of disagreement (NOD) contesting these issues. While the Board is cognizant of Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO just received the NOD and has continued to seek evidence in support of the Veteran's claims. Action by the Board at this time may serve to actually delay the RO's action on the appeal of these issues. As such, no action will be taken by the Board at this time, and these issues, which remain active before the RO, will be the subject of a later Board decision, if ultimately necessary. FINDINGS OF FACT 1. In May 1996, the Veteran enlisted in the Army for a period of three years. He subsequently served on active duty from May 1996 to February 1999, a period of 33 months. 2. In February 1999, the Veteran received an honorable discharge due to unsatisfactory performance. 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 (2014); 38 C.F.R. § 21.7042(a) (2015). 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 appropriate notice in this case was not provided to the Veteran prior to the adjudication of his claim; such notice was provided to the Veteran in May 2015. 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, and the law as mandated by statute, not the evidence, is dispositive of this appeal. Thus, no further action is required pursuant to the duties to notify and assist because it can have no effect on the appeal. The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing explain the issue and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the Veteran, and the Veteran testified as to why he believed his current discharge status should not prevent him from receiving VA benefits under the Montgomery GI Bill. The VLJ also informed the Veteran that VA has no authority to alter his discharge classification, and that his recourse is with the service department. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. 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). In May 1996, the Veteran enlisted in the Army for a period of three years. His report of separation, Form DD 214, reflects that he did not complete his full term of service. Specifically, he served on active duty from May 1996 to February 1999, a period of 33 months. In February 1999, he received an honorable discharge. His report of separation listed his separation authority as Army Regulation 635-200, Chapter 13, and listed the reason for separation as unsatisfactory performance. An individual who does not meet the above service requirements may be eligible for basic educational assistance when he or 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) for a medical condition which preexisted service on active duty and which VA determines is not service-connected; (3) discharge or release under 10 U.S.C.A. § 1173 (hardship discharge); (4) 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; (5) for convenience of the government after having completed at least 30 months of continuous active duty if serving at least a three-year enlistment; and (6) 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 honorably discharged after 33 months for unsatisfactory performance. This is confirmed by his Report of Separation, Form DD 214, as well as his service personnel records. Thus, he is not entitled to Chapter 30 benefits. The Veteran contends that his discharge from the service was for the convenience of the government. The Board, however, is bound by the service department's determination as to the reason for the Veteran's separation from the military and is not at liberty to change such determination. As noted above, the service department has clearly indicated that the reason for the Veteran's separation of service was unsatisfactory performance, and not the convenience of the government. While the Board sympathizes with the Veteran, VA has no authority to alter the Veteran'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. Accordingly, the appeal must be denied. ORDER Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill) is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs