Citation Nr: 1804566 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-24 517A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Eligibility for Post-9/11 GI Bill educational assistance benefits pursuant to 38 U.S.C.A. Chapter 33. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran had a period of active service with the U.S. Navy from August 2009 to November 2012. Her tenure of service was discharged "under other than honorable" conditions due to misconduct. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT The Veteran was discharged from her period of active service, from August 2009 to November 2012, under "other than honorable conditions." CONCLUSION OF LAW The criteria for entitlement to benefits under the Post-9/11 GI Bill have not been met. 10 U.S.C.A. § 2171 (West 2014); 38 U.S.C.A. § 3322 (West 2014); 38 C.F.R. §§ 21.9505, 21.9520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Copies of compliant VCAA notices were located in the claim's file. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As there is no allegation that the May 2017 hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Eligibility for Post 9/11 GI Bill Benefits In order to be an eligible individual for Post 9/11 GI Bill benefits, a Veteran must have served after September 10, 2001, and meet the required service requirements. 38 C.F.R. §§ 21.9505, 21.9520 (2017). Minimum service requirements are met if the Veteran: (a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service,- (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 retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) Is released from service characterized as honorable for further service in a reserve component; or (5) Is discharged or released from service for: (i) A medical condition that preexisted such service and is not determined to be service connected; (ii) Hardship, as determined by the Secretary of the military department concerned; or (iii) 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; or (b) Serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. See 38 C.F.R. § 21.9520 (2017). In this case, the Veteran was not discharged from service due to a service-connected disability. Therefore 38 C.F.R. § 21.9520 (b) does not apply. At issue in this case is whether the Veteran's period active of service meets the minimum requirements for basic eligibility under 38 C.F.R. § 21.9520 (a) (2017). Review of the record indicates that the Veteran had a period of active service from August 2009 to November 2012. However, the certificate of release or discharge from active duty form for that period of service notes that she was discharged under other than honorable conditions. The narrative reason for separation was misconduct (drug abuse). The applicable regulation provides that the Veteran's discharge must be honorable for the minimum service requirements to be met. 38 U.S.C.A. § 21.9520 (a)(2) (2017). Accordingly, the Veteran's period of service does not meet the minimum eligibility requirements. The Board notes that in May 2014 administrative decision, VA determined that the Veteran's tenure of service from August 2009 to November 2012 was deemed dishonorable for VA purposes. In support of this determination the decision, the adjudicator noted that the Veteran was charged with violation of Uniform Code of Military Justice (UCMJ), Article 92- Failure to Obey an Order or Regulation, for absence without leave on August 2, August 12 and August 28, 2012. On September 13, 2012, she received a non-judicial punishment for violations of UCMJ, Article 86 - Unauthorized Absence and was fined one-half pay per month for one month. In a Court memorandum, dated October 25, 2012, the reduction in rate and forfeiture of one half month's pay punishment was suspended. However, this action was later vacated due to additional misconduct. On November 27, 2012, the Veteran received a subsequent non-judicial punishment for violation of UCMJ, Article 86 for Absence without Leave. For the aforementioned infraction, she received 15 days restriction and 15 days extra duty with forfeiture of $60.00. In the same month, an evaluation report noted the prior violations and recommended discharge. The decision noted that the Veteran's record revealed a pattern of persistent and willful misconduct with no compelling circumstances asserted in defense of her actions. Further, the record contains no evidence that the Veteran was mentally defective or unable to distinguish right from wrong at the time each offense was committed. Accordingly, the Veteran's tenure of service from August 2009 to November 2012 was deemed dishonorable for VA purposes. On review of the evidence of record, the Board finds that the Veteran is ineligible for Post-9/11 GI Bill educational assistance benefits. As previously noted, eligibility for Post-9/11 GI Bill educational assistance benefits is controlled by 38 C.F.R. § 21.9520 (a)(2) (2017) and 38 U.S.C.A. § 3311 (c)(1) (West 2014) which specifically require an honorable discharge. Pursuant to a May 2014 administrative decision, the Veteran's character of discharge was adjudicated as dishonorable for VA purposes and the Board is bound by VA's determination. Although the Veteran's "other than honorable discharge" is not considered to be a bar to VA pension, compensation, and dependency and indemnity compensation benefits, the "other than honorable" discharge remains a bar to receiving Post-9/11 GI Bill educational assistance benefits. Because the minimum service requirements are not met, entitlement to basic eligibility for educational assistance under the Post-9/11 GI Bill is denied. 38 U.S.C.A. § 21.9520 (a)(2) (2014). ORDER Entitlement to basic eligibility for educational assistance under the Post-9/11 GI Bill is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs