Citation Nr: 25005174 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 17-26 650 DATE: April 16, 2025 ORDER Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied. FINDING OF FACT The Veteran received an under honorable conditions (general) discharge from the United States Air Force. CONCLUSION OF LAW The criteria for eligibility for educational assistance benefits under the Post-9/11 GI Bill have not been met. 38 U.S.C. §§ 3301, 3311; 38 C.F.R. § 21.9520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2014 to September 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 decision letter from the Department of Veterans Affairs (VA) Muskogee Regional Office (RO). A May 2017 VA Form 9 requested a hearing before the Board. A June 2024 letter informed the Veteran a videoconference hearing with a Veterans Law Judge was scheduled for August 2024. The Veteran did not appear for the hearing. The Veteran did not provide good cause or request to reschedule his hearing. Therefore, the Board will proceed with adjudication of the appeal. Entitlement to educational assistance benefits under the Post-9/11 GI Bill The Veteran seeks educational benefits under the Post-9/11 GI Bill, which was established for individuals who served on active duty after September 10, 2001. 38 C.F.R. § 21.9500. The governing law specifies that an individual may establish eligibility for educational assistance under 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. 38 U.S.C. § 3301; 38 C.F.R. § 21.9520(a). Under paragraph (b), an individual is also eligible for benefits under 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. 38 C.F.R. § 21.9520(b). For purposes of establishing entitlement to education benefits under Chapter 33, the service department's determination as to the character of discharge is binding on the Board. The United States Court of Appeals for Veterans Claims 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)); 38 C.F.R. § 3.12. VA has no authority to alter the Veteran's discharge classification. 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"). Turning to the merits of the present appeal, the Veteran's DD-214 shows he served active duty in the Air Force from January 2014 to September 2015. His character of service was under honorable conditions (general). The narrative reason for separation was misconduct, minor infractions. This finding is consistent with personnel records indicating the Veteran received an under honorable conditions (general) discharge. Pursuant to 38 C.F.R. § 21.9520, eligibility for basic educational assistance under Chapter 33 is predicated on an honorable discharge. A general discharge under honorable conditions does not satisfy the requirement of an honorable discharge for Chapter 33 education benefits. See Carr v. Brown, 5 Vet. App. 2 (1993). The evidence does not show 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 under 38 C.F.R. § 21.9520 (a) and (b) do not apply. The Board notes that service department (Air Force) findings are binding on VA for purposes of establishing an individual's service. VA has no authority to alter a veteran's discharge classification. Harvey v. Brown, 6 Vet. App. 416, 424 (1994). Nothing in the record indicates the service department upgraded the character of the Veteran's discharge from under honorable conditions (general). The Board recognizes the Veteran's contention that he served honorably and should be entitled to Chapter 33 educational assistance benefits. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler 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.