Citation Nr: 21028091 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-08 787 DATE: May 10, 2021 ORDER Basic eligibility for educational assistance benefits under the Post 9/11 GI Bill, Chapter 33, Title 38 U.S. Code is granted. FINDING OF FACT The Veteran served at least 30 continuous days on active duty and was discharged from service under conditions other than dishonorable due to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to Chapter 33 educational assistance benefits have been 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 August 2009 to May 2014 and he received an under honorable conditions discharge. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 denial of Chapter 33 educational assistance benefits by the Department of Veterans Affairs (VA) Regional Office (RO) and Education Center in Muskogee, Oklahoma. In February 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is associated with the Veteran's electronic claims file. In the instant case, the Veteran is seeking to establish entitlement to 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 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. 38 C.F.R. § 21.9520(a). Alternatively, a veteran may establish eligibility for Chapter 33 educational assistance benefits if he or she served a minimum of 30 continuous days on active duty and, after completion of such service, was discharged or released from active duty under other than dishonorable conditions due to a service-connected disability. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(b). The provisions of 38 C.F.R. § 21.9520(a) are not applicable in this case, as that section requires an honorable discharge. The Veteran's DD-214 reflects the Veteran received an under honorable conditions (general) discharge. This provision, therefore, does not provide the Veteran with any benefits. The Board finds, however, that entitlement to educational benefits under Chapter 33 is warranted. This is because the Board finds that the Veteran was discharged under other than dishonorable conditions after more than 30 days due to a service-connected disability. 38 C.F.R. § 21.9520(b). The issue here concerns the circumstances surrounding the Veteran's discharge, i.e., whether the Veteran was discharged due to a service-connected disability. The Veteran is currently in receipt of service-connected compensation at the 70 percent rate for a depressive disorder. (Continued on the next page) The Board acknowledges that the Veteran's DD-214 reflects the reason for discharge is a "condition not a disability," rather than a medical discharge. However, the regulation requires not that the Department of Defense (DoD) found that the Veteran's depressive disorder was a disability, but that a condition is service connected, a determination over which VA has sole province. VA's determination does not disturb nor even address DoD's characterization of discharge. And here, it is clear that the reason for discharge was at least in part due to the Veteran's depressive disorder. An April 2014 Recommendation for Administrative Separation Memo found that the Veteran had a depressive disorder, that he had a chronic history of depression, and that his symptoms were not expected to show significant improvement. Separation was recommended and he was separated form service the next month. As such, the Veteran, having served at least 30 days in service and being discharged under other than dishonorable conditions due to a subsequently service-connected disability, has established eligibility for basic educational assistance under Chapter 33. 38 C.F.R. § 21.9520(b). Accordingly, the appeal is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.