Citation Nr: 18147716 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 15-42 491A DATE: November 6, 2018 ORDER Basic eligibility to educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)) is granted. Basic eligibility to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is granted. FINDINGS OF FACT 1. The Veteran’s DD Form 214 listed her character of service as "Under Honorable Conditions (General)," and noted the narrative reason for her separation as “Misconduct.” 2. The record reflects it is at least as likely as not the Veteran’s pattern of misconduct which resulted in her discharge from service was due to her service-connected major depressive disorder. CONCLUSIONS OF LAW 1. The criteria for basic eligibility to educational assistance benefits under Chapter 30, (MGIB) have been met. 38 U.S.C. § 3011(a); 38 C.F.R. § 21.7042. 2. The criteria for basic eligibility to educational assistance under Chapter 33, (Post-9/11 GI Bill) have been met. 38 U.S.C. § 3311; 38 C.F.R. § 21.9505, 21.9520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 2006 to November 2008. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a June 2015 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Educational Center in Atlanta, Georgia. In February 2017, the Board remanded the current case for further development. The matter has now been returned to the Board for additional appellate consideration. Eligibility 1. Entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)) 2. Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) The Veteran is seeking educational assistance benefits under the MGIB or under the Post-9/11 GI Bill. As already noted, she served on active duty from October 2006 to November 2008. An individual may establish eligibility for basic educational assistance under MGIB by satisfying certain service prerequisites. An individual may establish eligibility by showing that she first entered active duty as a member of the armed forces after June 30, 1985. The individual must also demonstrate that she served at least three years of continuous active duty, or at least two years if the individual's initial obligated period of active duty was less than three years. 38 U.S.C. § 3011(a); 38 C.F.R. § 21.7042(a). After completing the service requirement, the individual must be discharged from the service with an honorable discharge. Alternatively, if the service requirements are not met, the individual may still be eligible for basic educational assistance if discharged or released from active duty service for a service-connected disability; for a medical condition which preexisted service on active duty and which VA determines in not service-connected; under 10 U.S.C. § 1173 (hardship discharge); or 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 military department in accordance with regulations prescribed by the Secretary of Defense. See 38 U.S.C. § 3011(a); 38 C.F.R. § 21.7042(a)(4). For eligibility to benefits under the Post-9/11 GI Bill, an individual must generally have served on active duty for a minimum of 90 days after September 10, 2001. See 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. The service requirement is also met by an individual who serves a minimum of 30 continuous days of active duty, 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(b). After completing the service requirement, the individual must be discharged from service with an honorable discharge, or have been discharged or released from service for a medical condition that preexisted such service and is not determined to be service-connected; hardship, as determined by the military department concerned; 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. See 38 C.F.R. § 21.9505. Initially, the Board notes the Veteran did not complete a total of three years of active service, and that her service personnel records reflect her original obligated period of active duty was for a period of six years (i.e., it was not a period of less than three years). As such, it does not appear she satisfied the service requirements for eligibility for MGIB educational assistance. She did have more than 90 days of active service after September 10, 2001. Thus, she does have the minimum service requirements for Post-9/11 GI Bill education benefits. Despite the foregoing, the Board notes the Veteran’s DD Form 214 listed her character of service as "Under Honorable Conditions (General)," and noted the narrative reason for her separation as “Misconduct.” VA is bound by the service department's certification as to a claimant's military service. 38 C.F.R. § 3.203. Accordingly, her claim for education benefits was denied below because she did not receive an honorable discharge. Nevertheless, the Board remanded the case in February 2017 to consider, in the first instance, whether her discharge from service was due to service-connected disability. In pertinent part, the Board noted in its February 2017 remand that the Veteran’s service personnel records contain a Notification Memorandum dated in October 2008, which recommended her discharge for minor disciplinary infractions. Such infractions included, but were not limited to, failing to report to her appointment place of duty, failing to follow orders, and making unauthorized purchases on her government travel card. It was recommended that she receive an Under Honorable Conditions, General discharge. In her response to the Notification Memorandum, the Veteran indicated that she had a rough time adapting to the Air Force, experienced problems at home, and had severe depression. She further indicated these things caused her to make “poor decisions” and that she sought help for her depression. Service connection has been established for major depressive disorder rated as 100 percent disabling effective November 6, 2008, the day following her discharge from service. The Board acknowledges that a May 2017 Supplemental Statement of the Case (SSOC) found that no change was warranted regarding the nature of the Veteran’s discharge for VA purposes. Among other things, it was noted that her military records showed that throughout her career she had multiple negative performance evaluations. However, the Board finds that the evidence of record reflects it is at least as likely as not the Veteran’s pattern of misconduct which resulted in her discharge from service was due to her service-connected major depressive disorder. In pertinent part, her service treatment records document in-service findings of adjustment disorder with depressed mood, and recurrent major depression. Moreover, various records date in 2007 and 2008 note such treatment and complaints related to incidents in-service that are consistent with her pattern of misconduct. The Board further notes that post-service medical records are also consistent with her in-service pattern of misconduct being due to her service-connected major depressive disorder. For example, a February 2009 VA psychiatric examination included findings of impulse control, noting that the Veteran had engaged in verbal altercations with superiors while in the military and indicated such behavior did not occur prior to her active service. She was also noted as having anxiety, which included experiencing significant stress while in the military. In addition, the Board reiterates her service-connected major depressive disorder has been recognized as 100 percent disabling since the day after her discharge from service, and such a rating is associated with psychiatric impairment resulting in total occupational and social impairment. See 38 C.F.R. § 4.130. Such impairment appears to be consistent with the in-service pattern of behavior noted in her service personnel records. The Board also notes the law mandates when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In addition, the Board finds no specific language which states that VA is bound by a service department determination that the Veteran was discharged for reason other than service-connected disability. The silence as to who determines the reason for discharge regarding a service-connected disability, to include in pertinent VA regulations, appears to be a deliberate omission - thus potentially demonstrating a legislative intent that VA is not bound by the military reason for decision as to whether a veteran was in fact discharged due a service-connected disability and allow a merits adjudication by VA. See generally Ventas, Inc. v. United States, 381 F.3d 1156, 1161 (Fed.Cir.2004) ("Where Congress includes certain exceptions in a statute, the maxim expressio unius est exclusio alterius presumes that those are the only exceptions Congress intended."); McCray v. McGee, 504 A.2d 1128, 1130 (D.C.1986) (quoting 2A Sutherland, Statutes and Statutory Construction § 47.23 (4th ed. 1984) for the proposition that, "when a legislature makes express mention of one thing, the exclusion of others is implied, because 'there is an inference that all omissions should be understood as exclusions'"). Therefore, the Board finds that the question of whether the Veteran was discharged due to a service-connected disability for purposes of establishing entitlement to educational benefits administered by VA is a factual one that it can determine in its role as a finder of fact. 38 C.F.R. § 19.4. In view of the foregoing, the Board finds that, for purposes of determining basic eligibility for educational benefits, the Veteran was discharged from active duty due to service-connected disability. Therefore, she satisfies the basic eligibility requirements for educational assistance benefits under MGIB and the Post-9/11 GI Bill. Accordingly, the benefit sought on appeal is allowed. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel