Citation Nr: 1752927	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  14-01 542	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Education Center in Muskogee, Oklahoma


THE ISSUE

Entitlement to education benefits under Chapter 33, Title 38 of the United States Code, Post 9/11 GI Bill.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1989 to June 2003.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision issued by the Department of Veterans Affairs (VA) Muskogee Education Center.  The Veteran testified before the undersigned in a March 2016 hearing.  A hearing transcript is of record.


FINDINGS OF FACT

The Veteran's last period of service, which ended in June 2003, is characterized as "under honorable conditions;" he did not have an honorable discharge or other circumstances of release for Chapter 33 eligibility.


CONCLUSION OF LAW

The criteria for educational benefits under the Chapter 33 Post-9/11 GI Bill have not been met.  38 U.S.C.A. §§ 3301-24; 38 C.F.R. § 21.9520 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran asserts that he is entitled to education benefits under Chapter 33 because he had over 90 days of service after September 10, 2001 and his character of discharge should be considered honorable service.

VA is to provide claimants with notice and assistance in substantiating a claim.  
See 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).  However, the U.S. Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify is implicated.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  In this case, the law is dispositive of the issue of entitlement to education benefits, and the duties of notice and assistance are not implicated.  

Turning to the applicable law, an individual may be eligible for educational assistance under 38 U.S.C. chapter 33 based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level skill training and, (1) continues on active duty; (2) is discharged from service with an honorable discharge; (3) is released from service characterized as honorable and placed on the retire list, temporary disability retired list, or transferred to a Reserve fleet or component; or (4) is discharged or released from service for: a medical condition that preexisted such service and is not determined to be service-connected, hardship, or a physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct.  38 U.S.C. § 3311(c); 38 C.F.R. § 21.9520(a).  An individual may also be eligible for Chapter 33 education benefits if he or she serves a minimum of 30 continuous days and is discharged under other than dishonorable conditions due to a service-connected disability.  38 C.F.R. § 21.9520(b).

An individual who is eligible for educational assistance under Chapter 30 may make an irrevocable election to receive benefits under Chapter 33 after meeting the minimum service requirements in paragraphs (a) or (b) of this section.  38 C.F.R. § 21.9520(c).

Based on the record, the Board finds that the criteria for Chapter 33 education benefits have not been met.  See 38 C.F.R. § 21.9520.

The evidence shows that for the relevant period of service, the Veteran did not have an honorable discharge and did not have circumstances that could allow for benefits based on honorable service.  The Veteran served on active duty with the Coast Guard for 14 years.  The relevant period Under Chapter 33 concerns service after September 10, 2001.  The Veteran's DD 214 shows he served from September 11, 2001 to June 16, 2003, more than 90 days.  His character of discharge from this period was "under honorable conditions."  The DD 214 notes the reason for discharge was misconduct.

As noted above, the law sets out various means by which to qualify for Chapter 33 benefits after obtaining 90 days active duty service after September 10, 2001.  One way to qualify is by having an honorable discharge.  The Veteran's discharge was under honorable conditions, not honorable.  The Court has held that, pursuant to 38 C.F.R. § 3.203, "service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces."  Spencer v. West, 13Vet. App. 376, 380 (2000) (quoting Duro v. Derwinski, 2 Vet. App. 530, 532 (1992)); 38 C.F.R. § 3.12.  VA has no authority to alter the Veteran's discharge classification.  See Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (stating that "any disagreement a veteran may have regarding the assigned discharge classification must be raised with the [Service Department], not VA).  As such, the Veteran's character of discharge, under honorable conditions, is binding on VA.  38 C.F.R. § 3.202.  

Even without an honorable discharge, an individual may qualify if his or her service is characterized as honorable and the discharge or release was predicated on a preexisting medical condition, hardship, or a physical or mental condition not resulting from misconduct.  The Veteran has not alleged that he was released from active duty due to any medical condition or hardship.  Instead, his DD 214 shows that the nature of his discharge was the result of misconduct.  Alternatively, an individual could qualify for Chapter 33 benefits by continuing on active duty or transferring to a retired list or the Reserves.  Here, the Veteran is no longer on active duty and there is no indication that he was transferred to a retired list or the Reserves.  He was discharged in June 2003.  Under "command to which transferred" and reserve obligation term, his DD214 reads NA (not applicable).  

The Board notes the Veteran's contention that he should be considered as having an honorable discharge because he had honorable service.  Discharge under honorable conditions is not equal to honorable discharge.  The statute and regulation make a distinction between honorable discharge and honorable service.  See 38 U.S.C. § 3311(c); 38 C.F.R. § 21.9520(a).  Eligibility through honorable service requires certain circumstances as discussed above.  See id.  The Veteran did not have those circumstances.  The Board has also considered the Veteran's assertion that he should be eligible for Chapter 33 education benefits because he received benefits under Chapter 30 Montgomery GI Bill.  The Board notes, however, that receipt of benefits under Chapter 30 does not automatically qualify the Veteran for benefits under Chapter 33.  The regulation states that an individual may make an irrevocable election to receive Chapter 33 benefits only after he or she meets the minimum service requirements of that section.  38 C.F.R. § 21.9520.     

The Veteran did not have an honorable discharge and the evidence does not show any of the circumstances that would allow for Chapter 33 education benefits with service characterized as honorable.  See 38 C.F.R. § 21.9520(a),(b).  Therefore, he does not meet the service requirements, and Chapter 33 benefits are barred as a matter of law.  See id.
 

ORDER

Education benefits under Chapter 33, Title 38 of the United States Code, Post 9/11 GI Bill are denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs