Citation Nr: 19190849 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 17-55 923A DATE: December 3, 2019 ORDER Entitlement to a retroactive award of educational assistance benefits pursuant to Chapter 30, Title 38, of the United States Code (Montgomery GI Bill), for enrollment prior to April 30, 2014, is denied. FINDINGS OF FACT 1. On April 30, 2014, the Board for Correction of Naval Records (Corrections Board) upgraded the Veteran’s discharge such that he became eligible for Chapter 30 educational benefits. 2. Where the eligibility of a veteran arises because the nature of the veteran’s discharge is changed by appropriate military authority, the commencing date of educational assistance will not be earlier than the date the nature of the discharge was changed. CONCLUSION OF LAW The criteria are not met for a retroactive award of education assistance benefits under the provisions of Chapter 30, Title 38, of the United States Code, for the period prior to April 30, 2014. 38 U.S.C. § 3031 (2012); 38 C.F.R. § 21.7131 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1990 to September 1992. He entered service with a four-year obligation. The Navy discharged him after less than three years and granted him an honorable discharge. Whether the Veteran is entitled to retroactive Chapter 30 educational benefits prior to April 30, 2014. The Veteran seeks retroactive Chapter 30 educational benefits for courses he took at the University of Phoenix from March 2007 to October 2008. The record shows that, prior to April 30, 2014, the Veteran was repeatedly denied Chapter 30 educational benefits. This was because he served less than three years of his four years of obligated period of active duty, and he was not discharged for any of the exceptions to the three-year requirement (e.g. a discharge for a service-connected disability, or involuntarily for convenience of the government as a result of a reduction in force). See 38 C.F.R. § 21.7042 (2018). In April 2013, the Veteran applied to the Board for Correction of Naval Records to have the reason for his separation changed. On April 30, 2014, the Corrections Board granted the Veteran’s application. The Veteran’s reason for separation was changed to “Secretarial Authority”, his separation code was changed to “JFF”, and his reentry code was changed to “RE-1J”. Based on these changes, the Veteran became eligible for Chapter 30 educational benefits even though he served less than three of his four years of obligated period of active duty. In March 2016, VA sent the Veteran a Certificate of Eligibility for Chapter 30 benefits. VA awarded him a 10-year period of eligibility, from April 30, 2014 to April 30, 2024. The Veteran requests that he be provided an earlier period of eligibility and that he be awarded retroactive benefits for the college courses he took in 2007 and 2008. On his February 2017 notice of disagreement, he asserted that, for over 23 years, he was discriminated against for being gay and denied the use of his GI benefits. He maintains that VA and the Department of Defense (DoD) violated laws based on discrimination and refused to allow veterans to obtain their benefits. He asks that the Board correct the wrong that the VA and DoD have done to him by providing the educational benefit he paid for, and deserved, on his discharge in 1992. The Board is unable to grant the Veteran’s claim. In cases where the eligibility of a veteran arises because the nature of the veteran’s discharge is changed by appropriate military authority, the commencing date of educational assistance will not be earlier than the date the nature of the discharge was changed. See 38 C.F.R. § 21.7131(g). In this case the nature of the Veteran’s discharge was changed by the Corrections Board on April 30, 2014. Unfortunately, the law and regulations do not provide for a commencement date prior to April 30, 2014. The Board sympathizes with the Veteran but is unable to grant his claim. The Board must follow the applicable law and regulations when deciding a claim for VA benefits. There is no provision for benefits based on the Veteran’s arguments of discrimination. The Board is without authority to grant the appeal on an equitable basis and instead is constrained to follow the specific provisions of the law. (Continued on the next page)   It is, however, pertinent to note that the Secretary of Veterans Affairs (Secretary) does have discretionary authority to grant equitable relief in certain circumstances. See 38 U.S.C. § 503(a); McCay v. Brown, 9 Vet. App. 183, 189 (1996). Although the Board may not act for the Secretary in the exercise of such authority, the appellant may petition the Secretary directly for consideration of equitable relief with respect to his claim. See 38 C.F.R. § 2.7. The Board is sympathetic to the appellant and his particular circumstances, but it is bound by the law. As there is simply no provision of law under which the Board may grant the Veteran’s claim for a commencement date prior to April 30, 2014 for the award of retroactive Chapter 30 benefits, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.