Citation Nr: 19142131 Decision Date: 05/31/19 Archive Date: 05/31/19 DOCKET NO. 18-14 764 DATE: May 31, 2019 ORDER The claim of entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), is denied. FINDING OF FACT The Veteran’s period of service from September 2014 to December 2018 was used to establish eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill (MGIB)). CONCLUSION OF LAW The criteria for basic eligibility for Chapter 33 educational assistance benefits are not met. 38 U.S.C. §§ 3301, 3311, 3313, 3322 (2012); 38 C.F.R. §§ 21.9505, 21.9520, 21.9640 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 2014 to December 2017. A review of the record shows that in August 2018, the Veteran filed an application for VA education benefits. Specifically, he applied, and was approved, for educational assistance benefits under Chapter 30. In December 2018, the Veteran submitted another application for VA education benefits, on which he stated he was seeking Chapter 33 benefits in lieu of receiving Chapter 30 benefits. In January 2018, the Veteran was denied Chapter 33 educational assistance benefits based on insufficient qualifying service after September 10, 2001. Specifically, it was determined that because the Veteran had only one period of service, which had previously been used to establish entitlement to Chapter 30 educational assistance benefits, that same period of service could not be used to establish entitlement to Chapter 33 educational assistance benefits. The Veteran disagreed with the Regional Office’s denial of Chapter 33 educational assistance benefits, stating that he was informed when he enrolled in school that he was supposed to select Chapter 30 in order to have his education costs covered by VA. Relevant to the instant claim, 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. Here there is no question that the Veteran served on active duty after September 10, 2001. The Board finds further that the Veteran meets the basic eligibility requirements for receipt of Chapter 33 educational assistance benefits, as set forth in 38 U.S.C. § 3311 and 38 C.F.R. § 21.9520 (b). Regardless, however, of whether the Veteran is eligible for educational assistance benefits the Post 9/11 GI Bill, the law provides that individuals entitled to educational assistance benefits under Chapter 33 who are also eligible for educational assistance under Chapter 30, among other programs, “may not receive assistance under two or more such programs concurrently, but shall elect (in such form and manner as the Secretary may prescribe) under which chapter or provisions to receive educational assistance.” 38 U.S.C. § 3322 (a). The law also prohibits duplication of eligibility based on a single event or period of service. 38 U.S.C. § 3322 (h)(1). Specifically, it is stated that “[a]n individual with qualifying service in the Armed Forces that establishes eligibility on the part of such individual for educational assistance under [chapter 33], chapter 30 or 32 of this title, and chapter 1606 or 1607 of title 10, shall elect (in such form and manner as the Secretary may prescribe) under which authority such service is to be credited.” Id. Regarding the Veteran’s desire to receive Chapter 33 educational assistance benefits in lieu for Chapter 30 benefits, the law provides that an individual who meets the minimum service requirements for basic eligibility for Chapter 33 educational assistance, and who is eligible for educational assistance under Chapter 30, may receive Chapter 33 educational assistance if he/she makes an irrevocable election to receive benefits under Chapter 33 in lieu of receiving such benefits under Chapter 30. 38 C.F.R. § 21.9520 (c)(1). An individual may make an irrevocable election to receive benefits under Chapter 33 by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) identification information (including name, social security number, and address); (ii) if applicable, an election to receive benefits under chapter 33 in lieu of benefits under, e.g., the MGIB; (iii) the date the individual wants the election to be effective; and (iv) an acknowledgement that the election is irrevocable (e.g., “I understand that my election is irrevocable and may not be changed.”). 38 C.F.R. § 21.9520 (c)(2). Although the Veteran has submitted numerous statements indicating his desire to receive Chapter 33 benefits in lieu of Chapter 30 benefits, none of the submitted written correspondence contains the necessary information listed in 38 C.F.R. § 21.9520 (c)(2). Accordingly, the Board finds that the Veteran has not properly executed an irrevocable election of Chapter 33 Post-9/11 GI Bill benefits in this case. Accordingly, because the Veteran’s period of service beginning in September 2014 was used to establish eligibility for receipt of Chapter 30 educational assistance benefits, that same period cannot be used to establish entitlement to Chapter 33 educational assistance benefits. 38 U.S.C. § 3322 (h)(1). In other words, without a properly completed VA Form 22-1990, there is no basis upon which the Veteran can elect to receive Chapter 33 educational assistance benefits in lieu of receiving such benefits under Chapter 30. While sympathetic to the Veteran’s claim in this case, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104. The eligibility requirements for educational assistance are prescribed by Congress and regulations enacted by the Armed Forces and VA and neither the RO nor the Board is free to disregard laws and regulations enacted for the administration of VA educational programs. See 38 U.S.C.§ 7104 (c); 38 C.F.R. § 20.101 (a); see also Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (holding that “the remedy for breach of an alleged obligation cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met”). The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, 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.