Citation Nr: 21000188 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-10 581A DATE: January 4, 2021 ORDER Entitlement to education benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied. FINDINGS OF FACT 1. The Veteran had a single period of active duty from June 2007 to July 2011 from which he received a discharge under conditions other than honorable. 2. The Veteran enlisted into the Marine Corps in June 2007 from a Delayed Entry/Enlistment Program (DEP); this was not an intervening enlistment or reenlistment for which he was unconditionally discharged or released from active duty. 3. The Veteran does not have qualifying active service after September 10, 2001, for entitlement to Post-9/11 GI Bill benefits. CONCLUSION OF LAW The criteria for entitlement to education benefits under the Post-9/11 GI Bill have not been met. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the United States Marine Corps from June 2007 to July 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 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 via videoconference before the undersigned Veterans Law Judge in January 2019. A transcript of that hearing is of record. This case was previously before the board in December 2019, at which time the Board remanded the matter on appeal to obtain the Veteran’s complete service personnel records, ask the Department of Defense (DoD) or other appropriate entity to verify whether the Veteran has had the character of his discharge upgraded, readjudicate the Veteran’s claim, and issue a supplemental statement of the case (SSOC) if the benefit was denied. The record reflects that there was substantial compliance with the Board’s December 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to Education Benefits Under the Post-9/11 GI Bill is Denied. The Veteran contends that he is entitled to Chapter 33 education benefits because he had sufficient qualifying active duty after September 10, 2001, as his character of discharge should be considered honorable for a four-year term during a period of his active duty from June 2007 to July 2011. 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. § 3311; 38 C.F.R. § 21.9520(a). Under paragraph (b), 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). The record shows that the Veteran received one Certificate of Release or Discharge from Active Duty (DD Form 214), which shows that from June 11, 2007, to July 19, 2011, he received a discharge under conditions other than honorable for this active service. Specifically, the Veteran’s service personnel records show that a January 2011 charge sheet charged him with wrongful possession of “spice,” and that this offense occurred in September 2010. Further, the record, including multiple service personnel records from 2011, reflects that he accepted the discharge of under conditions other than honorable in lieu of trial by general court martial, which is considered under dishonorable conditions pursuant to 38 C.F.R. § 3.12(d)(1). The narrative reason for separation on the Veteran’s DD Form 214 reflects an “in lieu of trial by court-martial.” As noted in its December 2019 decision, the Board acknowledges that a June 2013 Administrative Decision determined that the Veteran’s discharge was not a bar to VA benefits because the offense which was the basis for this discharge was not considered willful and persistent misconduct. However, the Administrative Decision in question was made by the VA compensation and pension service, for purposes of compensation benefits, which are governed by different regulations than the education benefits at issue on appeal. Moreover, within the Administrative Decision is a finding that it was applicable regarding the payment of VA benefits and healthcare benefits under Title 17. In other words, the Administrative Decision by its own terms does not apply to education benefits administered by VA. The Board further notes that for purposes of establishing entitlement to education benefits under the Post-9/11 GI Bill, the service department’s determination as to the character of discharge is binding on VA. Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that, pursuant to 38 C.F.R. § 3.203, “service department findings are binding on VA for purposes of establishing service in the U.S. Armed Forces.” Spencer v. West, 13 Vet. App. 376, 380 (2000) (quoting Duro v. Derwinski, 2 Vet. App. 530, 532 (1992)); see 38 C.F.R. § 3.12. VA has no authority to alter the Veteran’s discharge classification. See Harvey v. Brown, 6 Vet. App. 416, 424 (1994) (stating that “any disagreement a veteran may have regarding the assigned discharge classification must be raised with the [Service Department], not VA). Initially, the Board notes that during the January 2019 Board hearing, the Veteran testified that he submitted paperwork years ago to have the character of his discharge upgraded, but he did not follow-up on its status. As noted above, on remand, the Agency of Original Jurisdiction (AOJ) attempted to verify with the appropriate records repository regarding whether the Veteran had successfully upgraded his character of discharge with the appropriate service department. As explained to the Veteran in the September 2020 SSOC, his service personnel records do not contain documentation, including DD Form 149 and/or DD Form 293, showing that his character of discharge for the period from June 2007 to July 2011 was upgraded from under conditions other than honorable. Thus, while the Board is sympathetic to the Veteran’s contentions made during the January 2019 Board hearing that he attempted to upgrade his character of discharge, it is bound by the finding reflected in the Veteran’s DD Form 214, as well as his personnel records, which do not show that such an upgrade occurred. The proper course for the Veteran, if he believes there is a reason to dispute the DoD’s determination or the content of military records in regard to his character of discharge designation, is to pursue such a disagreement with the DoD. See Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Nonetheless, the Veteran and his attorney have contended, including in the April 2015 Substantive Appeal to the Board (VA Form 9), the January 2019 Board hearing testimony, and in an October 2020 statement, that the Veteran should have had an unconditional discharge under 38 C.F.R. § 3.13(c) because he initially joined for four years, which changed and extended to five years. As such, he maintains he should have had an honorable discharge for his first four years, and that the discharge under conditions other than honorable conditions was for the last year of service, i.e., the fifth year he was in service. A discharge to reenlist is a conditional discharge if it was issued prior to the date the person was eligible for discharge under the point or length of service system, or under any other criteria in effect. 38 C.F.R. § 3.13(a)(2). Except as provided in 38 C.F.R. § 3.13(c), the entire period of service under the circumstances in 38 C.F.R. § 3.13(a) constitutes one period of service and entitlement will be determined by the character of the final determination of such period of active service. 38 C.F.R. § 3.13(b). Even though no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service under the following conditions: (1) the person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service; (2) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. § 3.13(c). After a thorough review of the record, including the Veteran’s service personnel records, the Board determines that 38 C.F.R. § 3.13(c) is not applicable to the Veteran’s case. Specifically, the Veteran’s enlistment contract indicates that he first enlisted in the Marine Corps Reserve beginning June 15, 2006, for an eight-year term, and that he enlisted in the Delayed Entry/Enlistment Program (DEP) for four years. DEP entry is a nonpay status and is not credible for pay purposes upon entry into pay status. The time, however, is counted toward fulfillment of military service obligation or commitment. The enlistment document (DD Form 4/1) specifically notes that the Veteran understood that he would be ordered to active duty as a Reservist unless he reported to the appropriate place by May 28, 2007, for enlistment in the Regular component of the United States Marine Corps for not less than four years. Thereafter, the Veteran’s DD Form 4/3 shows that his request to be discharged from the DEP and enlisted in the Regular Component of the United States Marine Corps for a period of five years, effective June 11, 2007, was granted. As noted above, the Veteran was issued only one DD Form 214, which characterized this service as “under other than honorable conditions.” The narrative reason for separation was in lieu of trial by court-martial. This evidence shows that the Veteran in fact had one period of active service with an other than honorable discharge as the final determination for such service. Any discharge for reenlistment on June 11, 2007, was a conditional discharge under 38 C.F.R. § 3.13(a)(2). In the October 2020 statement, the Veteran’s attorney contended that the Veteran had met the requirements of 38 C.F.R. § 3.13(c), so that his first four years of active duty after May 28, 2007, should be considered as under conditions other than dishonorable. The attorney contended that the Veteran should be found eligible for Post-9/11 GI Bill benefits because he served the entire four-year term of service that he was obligated to complete at the time of his entry into service on May 28, 2007, and that on May 28, 2011, he competed this initial four-year commitment. The attorney contended that the Veteran’s service would have come to an end on that date but for his intervening enlistment, and he would have been eligible to receive a discharge under conditions other than dishonorable at that time. Contrary to the contentions of the Veteran and his attorney, 38 C.F.R. § 3.13(c) requires that three conditions be met for an unconditional discharge or release from active service. As applicable here, at the time of reenlistment on June 11, 2007, the Veteran had not fulfilled his four-year term of enlistment as required under 38 C.F.R. § 3.13(c)(1). Therefore, under 38 C.F.R. § 3.13(b), the Veteran’s active service from June 11, 2007, to July 19, 2011, constituted one period of active service with a discharge that was under other than honorable conditions. Moreover, even if the Board were to assume that 38 C.F.R. § 3.13(c) is applicable to the Veteran’s case, the record shows that the offense to which the Veteran eventually accepted the discharge of under conditions other than honorable in lieu of trial by general court-martial, as well as the charge for such an offense, occurred within the four-year period after June 11, 2007. The Board understands that the Veteran may believe he is entitled to Post-9/11 GI Bill educational assistance benefits. However, as noted above, the Board is bound by the laws and regulations that apply to veterans’ claims. 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 can be granted. As the disposition of this matter is based on the law, and not the facts of the case, the Veteran’s appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit-of-the-doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hodzic, 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.