Citation Nr: 0002724 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-09 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance benefits under Chapter 1606 (formerly Chapter 106), Title 10, United States Code, for enrollment from January 19, 1998 to May 15, 1998. ATTORNEY FOR THE BOARD L. J. Nottle, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from June 1987 to June 1990, and in the Selected Reserve of the United States Army (Selected Reserve) from June 1990 to November 1995. He reenlisted in the Selected Reserve in June 1997. His claim comes before the Board of Veterans' Appeals (Board) on appeal from a January 1998 determination of the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). REMAND The veteran served on active duty from June 1987 to June 1990. He then served in the Selected Reserve from June 1990 to November 1995, but separated prior to having fulfilled his initial six-year obligated period of service. The veteran reenlisted in the Selected Reserve in June 1997. He contends that he is entitled to Chapter 1606 educational benefits based on his second period of service in the Selected Reserve. He asserts that he specifically reentered the Selected Reserve for the purpose of continuing his education and receiving educational assistance under the Chapter 1606 program. The veteran believes it is an error to deny him benefits especially in light of the fact that, prior to reenlisting, he was sent a book indicating that Chapter 1606 benefits were guaranteed if he reenlisted and fulfilled all of his obligations as a member of the Selected Reserve. Educational benefits are available to members of the Selected Reserve under Chapter 1606, Title 10, United States Code. Specifically, an individual who after June 30, 1985, enlists, reenlists or extends an enlistment in the Selected Reserve for a period of not less than six years, or is appointed as a reserve officer and agrees to serve in the Selected Reserve for a period of not less than six years in addition to any other period of obligated service in the Selected Reserve and, before completing initial active duty for training has a high school diploma or its equivalent, is entitled to educational assistance under Chapter 1606. 10 U.S.C.A. § 16132 (West 1994). Regulations provide that a determination of an individual's eligibility for Chapter 1606 benefits is to be made by the Armed Forces. 38 C.F.R. § 21.7540(a) (1999). In this case, computer generated information for the Department of Defense (DOD) indicates that the veteran's date of basic eligibility for Chapter 1606 benefits is June 4, 1990, and his date of eligibility termination for Chapter 1606 benefits is November 22, 1995. However, according to a DD Form 2384-1, Nov 91 (Notice of Basic Eligibility) signed by the veteran in January 1998, based on the veteran's reenlistment in the Selected Reserve in June 1997, the veteran's date of basic eligibility for Chapter 1606 benefits was reported to be June 21, 1997. The RO, while noting this information explains in the March 1998 statement of the case that in accordance with DOD instructions 1322.17, paragraph 12, DOD policy considers membership continuous if a reservist reaffliates within one year from separation. The RO concluded that since the appellant left the Selected Reserve effective November 22, 1995, and did not join again until June 21, 1997, he is not entitled to educational benefits under the Chapter 1606 program after November 22, 1995. Based on the foregoing, and upon a review of the record, however, the Board finds the record as it currently stands to be inadequate for appellate review. First, the veteran was not provided with DOD instruction 1322.17, paragraph 12 in the statement of the case. The statement of the case must be complete enough to allow the appellant to present written and/or oral argument before the Board. See 38 C.F.R. § 19.29 (1999). Without such clear notice and information regarding the reasons and bases for the denial, the appellant is at a disadvantage in presenting an appeal. The basic dictates of due process therefore require remedial action before the Board may properly proceed with appellate review. The Board also notes that without such information in the record, it is unable to effectively review the veteran's appeal. A copy of the relevant DOD instruction should be provided to the veteran and associated with his VA education folder. Second, the Board notes that there does appear to be some conflict between the DOD computer generated eligibility date and the eligibility date reported on DOD Form 2384. Although, VA Education Procedures M22-4, Part VIII, Chapter 1, Paragraph 1.03(f) (May 12, 1997) states that "[a] separation from the Selected Reserve of more than one year terminates further eligibility to [chapter 1606]", that provision also concludes with the statement, "[r]emember, as stated above, only DOD and DOT have authority to make eligibility determinations for [chapter 1606]." The "stated above" reference points to a note at the beginning of the paragraph which once again states that "only DOD and DOT have authority to make eligibility determinations for chapter 1606." The note continues, "[t]his paragraph states VA's understanding of the law and DOD and DOT policy. . . VA does not have policy authority in this area." Thus, the above referenced law and administrative records make clear that eligibility determinations for Chapter 1606 benefits are ultimately the province of DOD, notwithstanding contrary VA interpretations of DOD policies. The Board recognizes that the VA's interpretation of DOD policy suggests that the veteran in this case is ineligible for the claimed benefits due to an earlier period of eligibility in the Selected Reserve; however, VA has no legal authority to determine eligibility for Chapter 1606 benefits or to correct an inaccurate DOD-verified eligibility date. The regulations clearly reflect that determinations of eligibility dates for Chapter 1606 benefits are within the sole purview of the Armed Forces. Given the unclear nature of the information in the record regarding the appellant's Chapter 1606 eligibility, clarification in that regard is therefore necessary. Thus, the RO should contact DOD to determine whether, in fact, the veteran's Chapter 1606 eligibility termination date is November 22, 1995, and to clarify whether he does or does not qualify for Chapter 1606 benefits by his reenlistment in the Selected Reserve in June 1997. Documentation regarding this contact should be associated with the record. Based on the foregoing, the case is REMANDED to the RO for the following action: 1. The RO should obtain formal written clarification from the Department of Defense as to all periods of active service and reserve service and the appellant's Chapter 1606 eligibility status. Appropriate written documentation of that inquiry and response should be associated with the record. 2. The RO should ensure that a copy of DOD instruction 1322.17, paragraph 12, is associated with the veteran's education folder. 3. The RO should then review the entire record and (if the appellant's claim remains denied) furnish the appellant with a comprehensive supplemental statement of the case clarifying the reason(s) for its determination regarding the appellant's claim. The supplemental statement of the case should clearly explain the bases for the RO's determination and clearly explain any changes in the bases for the RO's determination over the course of the appellant's appeal. The supplemental statement of the case should cite and discuss all applicable laws and regulations and should contain the provisions of DOD instruction 1322.17, paragraph 12. After affording the appellant a reasonable opportunity to respond, the case should be returned to the Board for appellate review. The purpose of this remand is to ensure that the appellant is afforded due process of law. The Board intimates no opinion as to the eventual determination to be made in this case. The appellant is free to submit additional evidence in support of his claim. S. L. KENNEDY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).