Citation Nr: 1621463 Decision Date: 05/27/16 Archive Date: 06/08/16 DOCKET NO. 14-28 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Loan Center in Atlanta, GA THE ISSUE Entitlement to VA home loan benefits. (Pursuant to BVA Directive 8430 (May 17, 1999), a separate decision will be issued to address other claims in appellate status.) REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran has served on active duty in the U.S. Army from February 28, 1978 to May 23, 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 determination issued by a Department of Veterans Affairs (VA) Regional Loan Center (RLC). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed. Though the Veteran did not submit a request for a Board hearing regarding this appeal on his July 2014 Form 9, the Veteran was afforded a Board hearing regarding other issues on appeal in March 2016, and during this hearing, the Veteran was provided the opportunity to testify regarding the home loan benefits issue on appeal. See March 2016 Board hearing transcript at p. 12. Thus, the Veteran was afforded a Board hearing in March 2016 regarding this matter on appeal that was presided over by the undersigned Veterans Law Judge, and a copy of the transcript has been associated with the claims file. FINDING OF FACT The Veteran served on active duty for 24 days during peacetime and he was not discharged from active duty service due to a service-connected disability. CONCLUSION OF LAW The Veteran's military service does not meet threshold eligibility requirements for VA home loan benefits. 38 U.S.C.A. §§ 3701, 3702 (West 2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's Claims Assistance Act is inapplicable to matters of pure statutory interpretation such as this case. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). The Board notes, however, that the Veteran was provided a hearing before the Board in March 2016, in which the undersigned Veterans Law Judge explained the issue involved. See March 2016 Board hearing transcript at p. 4. The Veteran contends that he separated from service due to his service-connected disabilities. See e.g., March 2016 Board hearing transcript at p. 12-13. The Veteran also contends that because he had active service and received an honorable discharge from service, entitlement to home loan benefits is warranted. See e.g., July 2014 Form 9. As a preliminary matter, for purposes of eligibility for home loan benefits, the term "Veteran" is defined under 38 U.S.C.A. § 3701(b), and here, the Veteran is entitled to "Veteran" status for the purpose of home loan benefits under § 3701(b)(4) because he had active duty service. However, an award of home loan guaranty benefits is granted only to Veterans satisfying the basic entitlement criteria provided in 38 U.S.C.A. §§ 3701 and 3702. Here, the Veteran served honorably on active duty for 24 days during peacetime. See DD-214. Therefore, this Veteran may only be eligible for housing loan benefits if he was discharged from active duty service due to service-connected disability. 38 U.S.C.A. § 3702(a)(2). Here, the Veteran's service personnel records do not indicate that he was discharged from service due to a service-connected disability. See e.g., DD-214 (indicating honorable discharge and noting no disability severance pay). Instead, his service personnel records show that the Veteran's discharge was proposed because of the following reasons: Your inability to adjust to the stress of military training coupled with your demonstrated negative attitude marks you as a liability the Army can ill afford. Your moral courage and integrity is questionable in that you were untruthful when questioned about an incident witnessed by numerous other trainees. Your total disregard for others, lack of motivations, and demonstrated resistance to rehabilitation efforts make it highly unlikely that you would ever complete military training and become a productive soldier. ... Interview of [the Veteran], coupled with examination of his training record, reveal that his is grossly immature, and so concerned with his personal problems that he will not or cannot adjust to military life. Mental Health evaluation reveals that he is frustrated, suffers from depression, is impulsive, explosive, and that further efforts to train [the Veteran] would be non-productive. He has been afforded extensive guidance, counseling and remedial training in two different training units. All efforts have failed. See May 1978 Proposed Discharge Action. The Veteran contends that he separated from service because he could not overcome his injuries and that he wanted to get out of the military so he could receive care outside service. See e.g., March 2016 Veteran statement (reporting that he was threatened by his supervisors in-service for going to sick call so often); July 1998 RO hearing transcript at p. 2 (after being asked whether it was due to a disability that he was separated from service, the Veteran replied, "I chose to get out simply because when I was still in they told me the waiting time would be up to one year because they were so back logged before I could see anybody to have anything done [to treat his disability]"); August 2014 Veteran statement ("I told him that I wanted out of the Army because my injuries made it impossible for me to continue."). The Board acknowledges that the Veteran did have honorable active duty service and that he has service-connected disabilities, including major depressive disorder secondary to his service-connected right shoulder disability. See May 2014 rating decision codesheet. The Board also acknowledges that the May 1978 Proposed Discharge Action shows that the Veteran's depression was indeed a factor in the military's conclusion that he would be a non-productive soldier. However, 38 U.S.C.A. § 3702 clearly provides that eligibility for home loan benefits is warranted only if the Veteran was discharged due to service-connected disability. There is no provision that allows for eligibility for home loan benefits if a service-connected disability was a factor in the military's decision to discharge the Veteran for reasons other than disability. Here, the service personnel records show that the Veteran was released from service because the military concluded that he would not be a productive soldier, and there is no indication that he was discharged from service due to disability. Indeed, the Veteran elected to be released without a separation examination, and the Veteran's above statements show that he wanted to leave service because he wanted to seek immediate treatment outside the military. See May 1978 Discharge Form (the Veteran signed a statement in which he stated that he does not desire to submit a statement or rebuttal on his behalf and that he does not desire to have a separation medical examination). For these reasons, separation from active duty service due to a service-connected disability is not shown. The Board also acknowledges the Veteran's argument that because his service allegedly meets the requirements under 38 U.S.C.A. § 101(24)(i), he is entitled to a finding of "extenuating circumstances" for the grant of VA home loan benefits. However, this argument is without merit, as this section refers to the determination of whether the Veteran had active service, and VA has conceded that the Veteran had active military service. This section does not provide for equitable relief for entitlement to VA home loan benefits, and the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board also acknowledges the Veteran's argument that though his service personnel records show that he was discharged for reasons other than for a service-connected disability, he would have been discharged for a service-connected disability if he had been provided adequate medical care and if he had been offered a full Medical Board evaluation prior to discharge. See e.g., March 2016 Board hearing transcript at p. 12-13. The Veteran also contends that entitlement to home loan benefits is warranted because his in-service injuries were allegedly caused by an assault by a fellow soldier. See e.g., July 2014 Form 9. However, again, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). For the above discussed reasons, the evidence does not show that the Veteran was released from service due to service-connected disability, and eligibility for VA home loan benefits is denied as a matter of law. ORDER Entitlement to VA home loan benefits is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs