Citation Nr: 1745530 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 02-20 363A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to educational assistance benefits under 38 U.S.C.A. Chapter 30 (otherwise known as the Montgomery GI Bill (MGIB)). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had service in the Marine Corps Reserves from June 3, 1998, to November 30, 1998. As will be further discussed below, the Department of Defense has determined that this service was active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 determination issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Education Center in Muskogee, Oklahoma. Jurisdiction over the Veteran's case was subsequently transferred to the RO in Atlanta, Georgia. In May 2007, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. This case was most recently before the Board in December 2015, where it remanded the claim for further development. The RO continued the denial of the Veteran's claim, as reflected in the April 2017 Supplemental Statement of the Case (SSOC), and returned the claim to the Board for further appellate review. The Board finds that there was substantial compliance with its December 2015 remand instructions, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT While the Veteran first became a member of the Armed Forces after July 1, 1985, he did not complete a period of active duty service; the Department of Defense has determined that the Veteran did not complete an initial period of ACDUTRA. CONCLUSION OF LAW The criteria for entitlement to educational assistance benefits under 38 U.S.C.A. Chapter 30 (MGIB) have not been met. 38 U.S.C.A. §§ 503, 3011, 7104 (West 2014); 38 C.F.R. §§ 21.7040, 21.7042 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2016). However, despite statutory and regulatory duties, these provisions are not applicable to the Veteran's claim of entitlement to Chapter 30 education benefits, because resolution of the claim is as a matter of law and there is no dispute of fact. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001). II. Entitlement to Chapter 30 Benefits The Montgomery GI Bill educational assistance benefits, under the provisions of 38 U.S.C.A. Chapter 30, is a program that provides assistance in the readjustment of members of the Armed Forces to civilian life after their separation from military service. 38 U.S.C.A. § 3001. The program is available to individuals who meet certain criteria of basic eligibility, including active duty during certain prescribed dates or meeting certain other criteria for basic eligibility for educational assistance. 38 U.S.C.A. §§ 3011, 3012; 38 C.F.R. §§ 21.7040, 21.7042. A threshold requirement for Chapter 30 educational assistance is the completion of certain requisite service. In order to be entitled to Chapter 30 benefits, 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. See 38 U.S.C.A. § 3011 (a)(1)(A)(i); 38 C.F.R. § 21.7042 (a) (1)-(2). In this case, the Veteran's DD-214 shows that he served in the Marine Corps Reserves from June 3, 1998, to November 30, 1998. Historically, the record demonstrates that the Veteran injured his right hip (femoral neck) during basic training and, effective November 30, 1998, he was discharged for temporary retirement and placed on the Temporary Disability Retirement List (TDRL). A May 2013 email from the Department of Defense confirms that the Veteran was discharged prior to completing initial active duty training (IADT) with the Marine Corps Reserve. Additionally, the email also indicated that the Veteran was never eligible for Chapter 30 because he was not on an active duty enlistment contract. An April 2015 email from the Department of Defense indicates that the Veteran's period of service from June 3, 1998 to November 30, 1998 was not a period of active duty, but instead was a period of ACDUTRA. Furthermore, the email also indicates that the Veteran did not and was not required to pay $1200.00 towards Chapter 30 benefits, because his enlistment was for the Marine Corps Reserve and, consequently, he was not eligible to participate in Chapter 30. Based on a review of the evidence, the Board concludes that the Veteran is not entitled to education benefits under Chapter 30 because he has not served any period of active duty. The Veteran's DD 214 indicates that he completed a period of active duty from June 1998 to November 1998, however, the Veteran's contract is a Marine Corps Reserves contract and not an active duty contract. The Veteran's enlistment contract, Department of Defense correspondence, and his own contentions show that the Veteran's service was a period of ACDUTRA and not active duty. Significantly, the DD 214 does not indicate that any primary specialty was assigned, which would be a prerequisite for a Reservist to begin active duty. The Board is sympathetic to the Veteran's claim, but the facts in this case are not in dispute, and application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, as the Veteran did not complete a period of active duty, Chapter 30 education benefits must be denied. ORDER Entitlement to educational assistance benefits under 38 U.S.C.A. Chapter 30 (otherwise known as the Montgomery GI Bill (MGIB)) is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs