Citation Nr: 21024618 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-00 797 DATE: April 23, 2021 ORDER As the character of the Veteran’s discharge from active duty service constitutes a bar to eligibility for VA educational assistance benefits under Chapter 33, Title 38, U.S.C. (also known as the Post-9/11 GI Bill), the appeal is denied.   FINDING OF FACT The Veteran received a general discharge under honorable conditions following his active duty service from October 2010 to June 2015 by reason of misconduct. CONCLUSION OF LAW The criteria for entitlement to Chapter 33 educational assistance benefits are not met. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520 . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2010 to June 2015. The case is on appeal from a September 2016 decision. In his December 2016 VA Form 9, the Veteran elected an in-person Board hearing in Washington D.C. Accordingly, the Veteran was scheduled for a March 2021 hearing. See November 2020 Board notification letter. However, the Veteran was deemed a no-show for this hearing. To date, the Veteran has not requested that his hearing be rescheduled. As such, the Board finds that the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Eligibility for VA educational assistance benefits under the Post-9/11 GI Bill. 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.  38 U.S.C. § 3311; 38 C.F.R. § 21.9520. A veteran may establish eligibility for Chapter 33 educational assistance benefits based on active duty service after September 10, 2001, if he or she: (a) 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. A plain reading of 38 C.F.R. § 21.9520(a)(1)-(4) clearly demonstrates that an honorable discharge from service is required for a Veteran to establish eligibility for educational assistance under Chapter 33 if he or she has completed 90 aggregate days of active service and continues serving on active duty, or if release from service characterized as honorable for further service in a reserve component. However, 38 C.F.R. § 21.9520(a)(5) makes no mention of the need for an honorable discharge. Hence, the Board interprets the plain language of 38 C.F.R. § 21.9520(a) to not require an honorable discharge when eligibility is based upon one of the exceptions set forth under 38 C.F.R. § 21.9520(a)(5)(i)-(iii). In this case, as reflected on the Veteran’s DD Form-214, the Veteran received a general discharge, under honorable conditions. The separation authority is listed as MILPERSMAN 1910-146 (Separation by Reason of Misconduct–Drug Abuse). The Veteran acknowledges that the character of his discharge is general, under honorable conditions. See September 2016 statement in support of claim. A general discharge under honorable conditions is not the same as an honorable discharge. As discussed, an honorable discharge is a prerequisite to establishing eligibility for Chapter 33 educational assistance benefits unless an individual was discharged for one the reasons stated in 38 C.F.R. § 21.9520(a)(5). Here, there is no evidence that the Veteran was discharged for a medical condition, for hardship, for a service-connected disability, or for a physical or mental condition that interfered with his performance of duty and did not result from his own misconduct. Thus, the exceptions to the honorable discharge requirement under 38 C.F.R. § 21.9520(a)(5) are not applicable to the present case. The Board further points out that service department’s findings are binding and conclusive on VA for purposes of establishing the character of discharge or release, and VA does not have the authority to alter these findings. Accordingly, because the Veteran did not receive an honorable discharge from service in June 2015, he does meet the basic eligibility requirements for establishing entitlement to Chapter 33 educational assistance benefits. (Continued on the next page)   The Board understands that the Veteran may believe he is entitled to Chapter 33 educational assistance benefits. However, 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 it is the law, and not the evidence, what is dispositive in this case, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). If the Veteran wishes to apply for an upgrade of his discharge, he may do so by completing the documentation required by the corresponding service department. In sum, for the reasons set forth above the Board finds that entitlement to VA educational assistance under the Post 9/11 G.I. Bill is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pagan-Diaz, William 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.