Citation Nr: 18155649 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-18 660 DATE: December 4, 2018 ORDER Entitlement to a benefits payment rate of 100 percent for educational assistance under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) is denied. FINDINGS OF FACT 1. The Veteran had creditable active duty service for Post-9/11 GI Bill purposes from November 15, 2010 to April 4, 2013, for a total of 28 months and 20 days of qualifying active duty service. 2. The Veteran’s period of service from April 4, 2013 to January 26, 2015 is not considered honorable, for purposes of calculating education benefits under the Post-9/11 GI Bill. CONCLUSION OF LAW The criteria for a benefits payment rate of 100 percent for educational assistance under the Post-9/11 GI Bill have not been met. 38 U.S.C. §§ 3301, 3311, 3313, 5107 (2012); 38 C.F.R. §§ 3.102, 21.9505, 21.9640 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 2010 to April 2013 and from April 2013 to January 2015, at which time he was discharged under honorable conditions. Based on his creditable period of honorable active duty service—that is, the 28 months and 20 days of service from November 2010 to April 2013—he was granted educational assistance under the Post-9/11 GI Bill at an 80 percent rate. He contends that a significant portion of his second period of service should be considered honorable and, thus, entitle him to a 100 percent rating. The Post-9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. A veteran may establish eligibility for Chapter 33 educational assistance benefits based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (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. 38 C.F.R. § 21.9520 (a); see 38 U.S.C. § 3311. A plain reading of 38 C.F.R. § 21.9520 (a)(1) to (4) clearly demonstrates that an honorable discharge from service is required for a veteran to establish eligibility for educational assistance under Chapter 33 unless he or she has completed 90 aggregate days of active service and is currently serving on active duty. However, 38 C.F.R. § 21.9520 (a)(5) makes no mention of the need for an honorable discharge. Hence, the Board interprets the plain language of 38 C.F.R. § 21.9520 (a) to not require an honorable discharge when eligibility is based upon one of the exceptions set forth under 38 C.F.R. § 21.9520 (a)(5)(i) to (iii). Once an individual is found eligible for educational assistance benefits under Chapter 33, VA must determine the rate at which such benefits are payable. 38 U.S.C. § 3311 (2017); 38 C.F.R. § 21.9640 (2017). The aggregate length of creditable active duty service after September 10, 2001, determines the percentage of maximum amounts payable under the Post-9/11 GI Bill. The regulations provide the following percentages: 40 percent for at least 90 days, but less than 6 months, of creditable active duty service; 50 percent for at least 6 months, but less than 12 months, of creditable active duty service; 60 percent for at least 12 months, but less than 18 months, of creditable active duty service; 70 percent for at least 18 months, but less than 24 months, of creditable active duty service; 80 percent for at least 24 months, but less than 30 months, of creditable active duty service; 90 percent for at least 30 months, but less than 36 months, of creditable active duty service; and 100 percent for at least 36 months of creditable active duty service. 38 C.F.R. § 21.9640. In this case, as reflected on the Veteran’s DD Form 214, the Veteran received a general discharge, under honorable conditions. The narrative reason for separation was listed as “Misconduct (Serious Offense)”. The record shows that the Veteran was discharged under honorable conditions after being convicted of driving under the influence (DUI). A general discharge under honorable conditions is not the same as an honorable discharge. As noted supra, an honorable discharge is a prerequisite to establishing eligibility for Chapter 33 educational assistance benefits unless an individual was discharged for one the reasons stated in 38 C.F.R. § 21.9520 (a)(5). Therefore, his second period of service, not being creditable, could not be counted when calculating the percentage of educational benefits. Based on the Veteran’s creditable service, the Regional Office (RO) awarded Post-9/11 GI Bill education benefits at an 80 percent rate. Here, there is no evidence that the Veteran was discharged for a medical condition, for hardship, for a service-connected disability, or for a physical or mental condition that interfered with his performance of duty and did not result from his own misconduct. Thus, the exceptions to the honorable discharge requirement under 38 C.F.R. § 21.9520 (a) do not apply in this case. The Veteran asserts, in statements to VA and his testimony before the undersigned at a September 2015 hearing, that the period from his April 2013 re-enlistment until his September 2014 arrest should be considered “honorable” for purposes of the calculation of education benefits. He noted that, prior to his DUI arrest, he was a model soldier who was never in trouble and had been scheduled to go before a promotion board in September of that year. However, for the purposes of calculating education benefits, only honorable service can be counted and for that reason, the period of service from April 2013 to January 2015 is ineligible. The Veteran’s DD Form 214 shows that he was generally discharged under honorable conditions. Service department findings are binding and conclusive on VA for purposes of establishing the character of discharge or release, and VA does not have the authority to alter these findings. Accordingly, because the Veteran did not receive an honorable discharge from for his period of service from April 2013 to January 2015, he does meet the basic eligibility requirements for establishing entitlement to Chapter 33 educational assistance benefits for that period. Thus, only his initial period of service can be counted for purposes of benefits. Because that period is more than 24 months but less than 30 months, he is entitled to an 80 percent rate. At his Board hearing, the Veteran and his representative seemed to imply that he should be considered as discharged due to a service-connected disability, because he is service-connected for depression and he began to experience depression and increased alcohol use during service. Even if the Board assumes, for the sake of argument, that his alcohol use was a result of his depression (which was later deemed service-connected), the fact remains that he was not discharged for depression or for alcohol use, but because he broke the law. The sole reason for his discharge was misconduct – due to a conviction for DUI. While one could make an argument the increased alcohol use was because of depression, the serious offense of driving while intoxicated does not naturally follow as a consequence of such a situation, but was the result of decisions/choices the Veteran made. The DUI conviction cannot logically be considered part of the service-connected disability picture. The Board understands that the Veteran may believe he is entitled to Chapter 33 educational assistance benefits at the 100 percent rate. However, it is bound by the laws and regulations that apply to the claims before it. 38 U.S.C. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). Those laws and regulations reflect that there is no legal basis on which the Veteran’s claim for eligibility for payment of Chapter 33 educational assistance benefits at a 100 percent rate can be granted. Unlike the Secretary, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of the law. 38 U.S.C. §§ 503, 511, 512(a), 7104 (2012); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board’s decision in this matter does not prohibit the Veteran from requesting equitable relief directly from the Secretary. However, based on the record before it and for the reasons explained above, the Board must find that the Veteran is not eligible to receive educational assistance benefits at the 100 percent rate as a matter of law, and the claim is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel