Citation Nr: 20004787 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-33 233 DATE: January 21, 2020 ORDER Entitlement to refund of contributions made to the Post-Vietnam Era Veterans' Educational Assistance Program (VEAP) under Chapter 32, United States Code is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran made contributions to VEAP that are currently available for refund. CONCLUSION OF LAW The criteria for refund of contributions made to VEAP have not been met. 38 U.S.C. §§ 3221, 3222, 3223; 3, 32258 C.F.R. §§ 21.5041, 21.5052, 21.5060, 21.5064. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1978 to March 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 determination by the education center located at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2019. A transcript of that hearing is of record. This case was previously before the Board in January 2019 and May 2019, at which time it was remanded for further development. In pertinent part, the Veterans service personnel records were added to the claims folder per the remand directives, and personnel at the Department of Defense (DOD) were contacted to verify whether the Veteran contributed to VEAP. In addition, the Defense Finance and Accounting Service (DFAS) was also contacted to verify whether he made such contributions, but DFAS replied that only the Veteran or a family member is entitled to such information. The Veteran testified at his July 2018 hearing that he had previously contacted DFAS but was unsuccessful. Accordingly, the Board finds that the remand directives have been substantially accomplished to the extent possible, and it will proceed with adjudication of the merits of this appeal. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 1. Entitlement to refund of contributions under VEAP The Veteran claims entitlement to a refund of contributions made to VEAP, an educational assistance program under Chapter 32 that was established specifically for veterans who entered active military service after January 1, 1977 and before July 1, 1985. See 38 U.S.C. § 3221. The program requires that eligible participants contribute up to $2,700 of their active duty pay, which is then matched by the government on a 2-for-1 basis. See 38 U.S.C. § 3222; 38 C.F.R. § 21.5052. Contributions to VEAP may be refunded when the participant has disenrolled from the program. Refunds will be provided on the date of the participant's discharge or release from active duty except that refunds may be made earlier in instances of hardship or other good reasons under regulations prescribed jointly by VA and DOD. 38 U.S.C. § 3223. Nonvoluntary disenrollment from VEAP will occur when a veteran has not utilized all of his or her entitlement benefits within the 10-year period stated in 38 C.F.R. § 21.5041, and at the end of one year thereafter has not filed a claim for educational assistance allowance as provided in 21.5030(c). 38 C.F.R. § 21.5060. A disenrolled individual will be refunded all contributions made by him or her to the fund. 38 C.F.R. § 21.5064(a). The amount of the contributions refunded upon disenrollment shall be limited to the amount of his or her contributions not utilized to receive benefits as of the date of disenrollment, less any outstanding debts resulting from overpayments of educational assistance allowance. Id. If a participant is discharged or released from active duty under dishonorable conditions, the participant is automatically disenrolled and any contributions refunded within 60 days from the date of discharge or VA's receipt of such discharge, whichever is later. 38 U.S.C. § 3225. Here, the Veteran’s DD Form 214 reflects he was discharged under other than honorable conditions, with the narrative reason noting misconduct. He has not challenged the character of his discharge, nor is that issue presently before the Board. As such, it appears he would have been automatically disenrolled from VEAP if he had been a participant. Moreover, there is no evidence he used such benefits within the 10 years period stated in 38 C.F.R. § 21.5041. The Board further notes that the Veteran’s DD Form 214 includes a checked box to reflect he had contributed to VEAP. In addition, he testified at his July 2018 hearing that he remembers his Leave and Earnings Statements (LES) during service did show deductions for VEAP contributions. However, he did not recall the exact amounts of those contributions, did not have copies of his LES, and his efforts to obtain such documents were unsuccessful. He also testified that he was provided with a refund application at the time of his separation from service. Despite the foregoing, the Board notes that personnel from DOD were contacted regarding the Veteran’s purported VEAP contributions, and responses received in June 2015 and August 2019 reflect it had no evidence the Veteran had a VEAP account. The record reflects the Veteran’s name, social security number, and dates of service were provided as part of the 2015 request. His name and social security number were also provided as part of the 2019 request, and the DOD reply notes that a search showed his social security number was not found which meant no VEAP account. There is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The presumption of regularity may be overcome only by the submission of "clear evidence to the contrary." Id. at 309. Applying the presumption to this case, the Board must conclude that if there was an existing VEAP account for the Veteran it was have been discovered as part of the aforementioned searches by DOD personnel. (Continued on the next page)   The Board also notes that a review of the Veteran’s service personnel records does not contain any evidence which otherwise reflects he made VEAP contributions, to include specific amounts thereof. Additionally, as noted above, the Veteran has reported that his efforts to obtain evidence from official sources in support of his having made VEAP contributions have been unsuccessful, to include requests to DFAS. The record does not indicate any other official source which may be contacted to verify whether the Veteran currently has a VEAP account. The Board is sympathetic to the Veteran in this case, and acknowledges that his DD Form 214 does identify him as being a VEAP contributor. Nevertheless, in light of the DOD replies that he had no VEAP account, the Board must conclude that preponderance of the evidence is against finding he made contributions to VEAP that are currently available for refund. Consequently, the benefit sought on appeal must be denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Kitlas 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.