Citation Nr: A24051069 Decision Date: 08/28/24 Archive Date: 08/28/24 DOCKET NO. 221115-318508 DATE: August 28, 2024 ORDER Entitlement to Department of Veterans Affairs (VA) educational assistance benefits under Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill-Active Duty (MGIB-AD)) is denied. FINDING OF FACT The Veteran served on active duty from July 26, 1995, to August 29, 1995, which was one month and four days of net active service; his DD Form 214 indicates that this service was "uncharacterized" and the narrative reason for separation was that the Veteran "failed medical/physical procurement standards". CONCLUSION OF LAW The requirements for basic eligibility for Chapter 30 educational assistance benefits have not been met. 38 U.S.C. § 3011; 38 C.F.R. §§ 21.7042, 21.7045. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July to August 1995. This appeal before the Board of Veterans' Appeals (Board) arose from a November 2021 decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO determined that the Veteran was not entitled to educational assistance benefits under the MGIB-AD. The Board notes that the November 2021 decisional document is not of record. However, the record contains a written memorandum in which it is indicated that the Muskogee Education Office does not have copies of letters generated by the Benefits Delivery Network. However, using the denial code on the award dated November 29, 2021, the memorandum sets forth information that would have been included in the November 2021 letter, including the reasons for why the claim was denied. Thereafter, on October 4, 2022, the Veteran opted for higher level review. On October 6, 2022, the RO issued the higher level review decision that continued to deny the Veteran's claim of entitlement to basic eligibility for VA educational assistance benefits under the MGIB-AD. On November 15, 2022, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) in which he elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2021 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Also, this case has been advanced on the docket pursuant to 38 C.F.R. § 20.800. Entitlement to Chapter 30 VA Educational Assistance Benefits Regarding eligibility for educational assistance benefits under Chapter 30, the law provides that an individual may establish eligibility for basic educational assistance under Chapter 30 by satisfying certain service prerequisites. Under 38 U.S.C. § 3011(a)(1)(A) and 38 C.F.R. § 21.7042(a)(1), an individual may establish eligibility by showing that he or she first entered on active duty as a member of the Armed Forces after June 30, 1985. 38 U.S.C. § 3011(a)(1)(A); 38 C.F.R. § 21.7042(a). The individual also must demonstrate that he or she served at least three years of continuous active duty, or at least two years if the individual's initial obligated period of active duty was less than three years. 38 U.S.C. 3011(a)(1)(A)(i); 38 C.F.R. § 21.7042(a)(2). If an individual fails to meet the service requirements of 38 U.S.C. 3011(a)(1)(A)(i), he or she may still establish basic eligibility for Chapter 30 educational assistance if it is shown that the individual was discharged or released from active duty (1) for a service-connected disability, for hardship, or for a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as determined by the Secretary of each military department concerned; (2) for the convenience of the Government, if, in the case of an individual with an obligated period of service of two years, the individual completes not less than 20 months of continuous active duty under that period of obligated service, or, in the case of an individual with an obligated period of service of at least three years, the individual completes not less than 30 months of continuous active duty under that period of obligated service; or (3) involuntarily for the convenience of the Government as a result of a reduction in force, as determined by the Secretary of the military department concerned. 38 U.S.C. § 3011(a)(1)(A)(ii). Further, and of particular import to this case, the law provides that after completing the service requirements of 38 U.S.C.§ 3011(a)(1), an individual must: (1) continue on active duty, or; (2) be discharged from service with an honorable discharge, or; (3) be released after service on active duty characterized by the Secretary concerned as honorable service, and be placed on the retired list, or be transferred to the Fleet Reserve or Fleet Marine Corps Reserve, or be placed on the temporary disability retired list, or; (4) be released from active duty for further service in a reserve component of the Armed Forces after service on active duty characterized by the Secretary concerned as honorable service. 38 U.S.C. 3011(a)(3). Significantly, the Veteran's DD Form 214 documents that he was separated from service because he failed the medical/physical procurement standards and that he received an "uncharacterized" discharge from service. An "uncharacterized" discharge does not equate to an honorable discharge. See 38 C.F.R. § 3.12(l). Given the character of the Veteran's discharge in the instant case, he does not meet the eligibility requirements for Chapter 30 benefits under 38 U.S.C. § 3011(a)(3). Accordingly, there is no basis upon which to establish basic eligibility for Chapter 30 educational assistance benefits in this case. (Continued on the next page) ? In finding that the Veteran does not meet the eligibility requirements set forth above, the Board is aware that the law provides that an individual who fails to meet the eligibility requirements found in 38 C.F.R. § 21.7042 may nevertheless be eligible for Chapter 30 educational assistance if he or she meets certain requirements set forth in 38 C.F.R. § 21.7045 based upon involuntary separation, voluntary separation, or participation in the Post-Vietnam Era Veterans' Educational Assistance Program (VEAP), Chapter 32, Title 38, United States Code. The Board has considered the eligibility criteria set forth in 38 C.F.R. § 21.7045, but finds that it is not applicable to the facts of the Veteran's case. The Board sympathizes with the Veteran and understands that he is service-connected for multiple disabilities and evaluated as 100 percent disabled. However, 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 from service in August 1995, he does not meet the basic eligibility requirements for establishing entitlement to Chapter 30 educational assistance benefits and the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.