Citation Nr: 21026360 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-34 440 DATE: April 30, 2021 ORDER Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill Program) greater than the 70 percent level is denied. FINDING OF FACT The Veteran’s aggregate length of creditable active duty service after September 10, 2001 for educational assistance benefits under Chapter 33 (Post-9/11 GI Bill) purposes was at least 18 months but less than 24 months excluding entry level and skills training. CONCLUSION OF LAW The criteria for entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill Program) greater than the 70 percent level have not been met. 38 U.S.C. §§ 3301, 3311, 3313; 38 C.F.R. §§ 21.9505, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 2006 to October 2008 and from October 2008 to June 2011. 1. Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill Program) greater than the 70 percent level. A May 2018 notification letter calculated the Veteran’s service at 591 days of creditable active duty service and informed the Veteran that he was entitled to Chapter 33 (Post-9/11 GI Bill) benefits at the 70 percent rate. The Veteran asserts that he should be entitled to Post-9/11 GI Bill benefits at the 100 percent rate. Specifically, the Veteran contends that his period of service from October 2008 to June 2011, which was originally designated as discharge under less than honorable conditions, was upgraded by the Army service department to a general discharge under honorable conditions and should be considered in aggregate with his prior service period to determine the rate of Chapter 33 (Post-9/11 GI Bill) eligibility. Initially, the Board notes that the Veteran’s basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits is not in dispute. Rather, the dispute in this case is the percentage rate he is entitled to for such benefits. The amount of educational assistance payable under 38 U.S.C. Chapter 33 is calculated in accordance with a table measuring the aggregate length of creditable active duty service after September 10, 2001. 38 U.S.C. §§ 3311 (b)(3), 3313; 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is 40 percent with at least 90 days, but less than 6 months, of creditable active duty; 50 percent with at least 6 months, but less than 12 months, of creditable active duty service; 60 percent with at least 12 months, but less than 18 months, of creditable active duty service; 70 percent with at least 18 months, but less than 24 months, of creditable active duty service; 80 percent with at least 24 months, but less than 30 months, of creditable active duty service; 90 percent with at least 30 months, but less than 36 months, of creditable active duty service; and 100 percent with at least 36 months of creditable active duty service or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 C.F.R. § 21.9640 (a). In this case, as reflected on the Veteran’s most recent DD Form 214, the Veteran received a general discharge, under honorable conditions. The narrative reason for separation was listed as “In Lieu of Trial by Court-Martial”. The record shows that the Veteran was originally discharged under less than honorable conditions after being convicted of several instances of willful disobedience and one instance of wrongful use of a controlled substance, among other charges. A general discharge under honorable conditions is not the same as an honorable discharge. As noted supra, 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). Therefore, his period of service from October 2008 to June 2011, not being creditable, could not be counted when calculating the percentage of educational benefits. Based on the Veteran’s creditable service, the Regional Office (RO) awarded Post-9/11 GI Bill education benefits at a 70 percent rate. 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) do not apply in this case. In his substantive appeal, the Veteran asserted that his second period of active service should be considered for purposes of the calculation of education benefits. While the Board is sympathetic with the Veteran, the fact remains that for the purposes of calculating education benefits only honorable service can be counted. For that reason, the period of service from October 2008 to June 2011 is ineligible. As discussed earlier, the Veteran’s current DD Form 214 reflects only that he was generally discharged under honorable conditions. Service department 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 for his period of service from October 2008 to June 2011, he does meet the basic eligibility requirements for establishing entitlement to Chapter 33 educational assistance benefits for that period. Thus, only his initial period of service can be counted for purposes of benefits. Because that period is at least 18 months but less than 24 months, he is entitled to a 70 percent rate. The Board has examined whether or not the Veteran could be considered to have been discharged due to a service-connected disability because he is service-connected for posttraumatic stress disorder (PTSD) with opiod use, and he began to use opioids during service. Even assuming arguendo that his drug use was a result of his PTSD (which was later deemed service-connected), the fact remains that he was not discharged just for PTSD or drug use, but because he also failed to report, willfully disobeyed a commissioned officer and a noncommissioned officer, and violated a lawful general regulation. Therefore, the Board cannot find the Veteran’s discharge was as a result of a service-connected disability. The Board understands that the Veteran may believe he is entitled to Chapter 33 educational assistance benefits at the 100 percent rate. However, it is bound by the laws and regulations that apply to the claims before it. 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 at a 100 percent rate can be granted. Unlike the Secretary, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of the law. 38 U.S.C. §§ 503, 511, 512(a), 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board’s decision in this matter does not prohibit the Veteran from requesting equitable relief directly from the Secretary. However, based on the record before it and for the reasons explained above, the Board must find that the Veteran is not eligible to receive educational assistance benefits at the 100 percent rate as a matter of law, and the claim is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.