Citation Nr: 20003130 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-24 644 DATE: January 14, 2020 ORDER Payment of education benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from November 2011 to December 2012; she had no other periods of active duty, to include period(s) of reenlistment. 2. The Veteran had already received benefits under Chapter 30, Title 38, United States Code (Montgomery GI Bill (MGIB)) based on her period of active duty from November 2011 to December 2012 when she applied for benefits under Chapter 33; effective August 1, 2011, the law explicitly prohibits the payment of benefits under Chapter 33 and Chapter 30 based upon the same active duty period(s). CONCLUSION OF LAW The criteria for payment of education benefits under Chapter 33 (Post-9/11 GI Bill) have not been met. 38 U.S.C. §§ 3301, 3311, 3322; 38 C.F.R. § 21.9520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 2011 to December 2012. She was discharged from service due to disability. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In her May 2016 substantive appeal, the Veteran indicated that she wanted to appear at a Board hearing at the RO. The Board’s electronic database (the Veterans Appeals Control and Locator System (VACOLS)) reflects that a hearing was scheduled for June 2019, but that she asked that the hearing be canceled. 38 C.F.R. § 20.704(e). Payment of education benefits under Chapter 33 (Post-9/11 GI Bill) The governing law specifies that an individual may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 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. See 38 U.S.C. §§ 3301, 3311; 38 C.F.R. § 21.9520(a). A veteran is also eligible for benefits under 38 U.S.C. Chapter 33 if he or she 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(b). In this case, the Board does not dispute the Veteran had service after September 10, 2001, as her period of active duty originated in November 2011. The RO denied her claim because it was determined that she had only one period of service, such period had previously been used to establish entitlement to Chapter 30 (MGIB) educational assistance benefits, and the same period of service could not be used to establish separate entitlement to benefits under Chapter 33 (Post-9/11 GI Bill). The Veteran has disagreed with the denial of Chapter 33 educational assistance benefits, indicating that she would like to relinquish her Chapter 30 eligibility in favor of establishing eligibility under Chapter 33. She maintains that she was misinformed about her ability to switch from Chapter 30 to Chapter 33 benefits, and that she should not be penalized as a result. Although sympathetic to the Veteran’s circumstances, the Board is bound by the law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Pertinent to this case, the law prohibits duplication of eligibility based on a single event or period of service. 38 U.S.C. § 3322(h)(1). Specifically, the law provides 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. In this case, the record reflects that the Veteran had no period(s) of active duty other than from November 2011 to December 2012, to include period(s) of reenlistment. Because this period of active duty was used to establish eligibility for receipt of Chapter 30 educational assistance benefits, that same period cannot be used to establish separate entitlement to Chapter 33 educational assistance benefits. 38 U.S.C. § 3322(h)(1). This prohibition was due to amendments enacted by Congress which were made effective August 1, 2011. See Post-9/11 Veterans Educ. Assistance Improvements Act of 2010, Pub. L. No. 111-377, § 111, 124 Stat. 4106, 4120-21 (Jan. 4, 2011). As with the prohibition itself, the Board cannot ignore the effective date mandated by law. In short, the prohibition was already in effect when the Veteran entered into active service in November 2011. Regarding the Veteran's contention that she was misinformed, the Board acknowledges that the record includes correspondence provided by VA in November 2014 to the effect that she would be able to switch to Chapter 33 benefits after exhausting her Chapter 30 benefits. That fact notwithstanding, there is no provision in law that would allow for a grant of the benefit sought on that basis. See, e.g., McTighe v. Brown, 7 Vet. App. 29, 30 (1994); Walker v. Brown, 8 Vet. App. 356, 359 (1995). Nor can benefits be granted on the basis of her lack of understanding of the legal criteria for eligibility. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (everyone dealing with the government is charged with knowledge of federal statutes and lawfully promulgated agency regulations). In regard to the Veteran's contention that she was informed that she could switch between the Chapter 30 and 33 programs, the Board observes that the law does provide 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). However, that is not an option in situations such as the Veteran's, where the 38 U.S.C. § 3322(h) prohibition applies to determinations of eligibility based upon the same period of service. The Board notes that the Veteran’s accredited representative observed in a December 2019 written brief that it was not clear whether the Veteran had been informed of her potential entitlement to benefits under Chapter 31 (vocational rehabilitation), and if she desired a course of education that she might be eligible for such under that chapter. However, review of the record reflects that the Veteran did file a claim for Chapter 31 (vocational rehabilitation) benefits, but in March 2017 she withdrew that claim and stated that she would re-apply at a later date. In any event, the issue of entitlement to Chapter 31 benefits is not presently before the Board for review. In light of the foregoing, the Board finds that the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Kitlas, 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.