Citation Nr: 0007631	
Decision Date: 03/21/00    Archive Date: 03/28/00

DOCKET NO.  98-14 221	)	DATE
	)
	)



On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma



THE ISSUE


Whether the veteran is entitled to educational assistance 
benefits under Chapter 30, Title 38, United States Code, for 
periods of enrollment prior to February 9, 1997.



ATTORNEY FOR THE BOARD


L. J. Nottle, Counsel



INTRODUCTION

The veteran had active service from July 1991 to July 1995.  
His claim comes before the Board of Veterans' Appeals (Board) 
on appeal from an April 1998 determination of the Department 
of Veterans Affairs (VA) Regional Office in Muskogee, 
Oklahoma (RO).  The Board remanded this claim to the RO for 
additional development in September 1998.


FINDING OF FACT

On February 9, 1998, the RO received a trainee agreement and 
enrollment certification from Riverside County Sheriff's 
Department, and a letter from a sergeant at Ben Clark Public 
Training Center certifying the veteran's training from May 
1996 to April 1997.


CONCLUSION OF LAW

The evidence does not satisfy criteria for entitlement to 
educational assistance benefits under Chapter 30, Title 38, 
United States Code, for periods of enrollment prior to 
February 9, 1997.  38 C.F.R. § 21.7131(a) (1999); 38 C.F.R. 
§§ 21.4131(a), 21.7131(a) (1998).


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran had active service from July 1991 to July 1995.  
In April 1995, while still serving on active duty, he filed a 
VA Form 22-1990 (Application for Education Benefits), which 
did not reflect pursuit of any particular program of 
education.  No actual educational assistance award was made 
at that time.  In August 1995, the RO received another VA 
Form 22-1990 from the veteran, which reflected that the 
veteran had begun a program of education at Riverside 
Community College in July 1995.  A VA Form 22-1999-3 
(Enrollment Certification - Chapter 30) that was attached to 
this application verified the veteran's enrollment in an 
Associate degree program at Riverside Community College from 
July 1995 to December 1995.   Based on these documents, the 
RO awarded the veteran Chapter 30 educational assistance 
benefits at the full-time rate for the period of enrollment 
noted.

The RO received no additional correspondence from the veteran 
until February 9, 1998.  On this date, the RO received: a 
State of California, Department of Industrial Relations 
training agreement from the Riverside County Sheriff's 
Department (Department), which reflected that the veteran had 
begun an on-the-job training program on May 20, 1996; a VA 
Form 22-1999 (Enrollment Certification), which reflected that 
the veteran had trained at the Department from May 1996 to 
May 1997; and a letter from a sergeant at the Ben Clark 
Public Safety Training Center, which indicated that the 
veteran had completed the probationary period of his 
apprenticeship in May 1997, by completing 2,000 hours of 
training.  

In March 1998, the RO received a VA Form 22-1995 (Request for 
Change of Program or Place of Training) from the veteran.  
This document discloses that the veteran graduated from 
Riverside Community College in December 1995, and was 
participating in an apprenticeship on-the-job training 
program so that he could become a correctional deputy.  By 
letter dated April 1998, the RO informed the veteran that, 
although he was entitled to Chapter 30 educational assistance 
benefits for the training program he was pursuing, such 
benefits could not be paid for any periods of enrollment 
prior to February 9, 1997.  This appeal ensues from the RO's 
April 1998 decision.  

To determine the merits of the veteran's appeal, it is 
necessary to review the law and regulations governing the 
assignment of commencing dates for Chapter 30 benefits.  In 
this regard, the Board notes that, during the pendency of the 
veteran's appeal, the criteria for establishing commencing 
dates of an award of educational assistance benefits, to 
include Chapter 30 benefits, were amended, effective June 3, 
1999.  See 64 Fed. Reg. 23769-23773 (1999).  These revised 
regulations are now codified at 38 C.F.R. § 21.4131 (1999).  
The United States Court of Appeals for Veterans Claims (known 
as the United States Court of Veterans Appeals prior to March 
1, 1999) has held that where the law or a regulation changes 
after a claim has been filed or reopened, but before the 
appeal process has been concluded, the version most favorable 
to the claimant will apply, absent Congressional intent to 
the contrary.  Karnas v. Derwinski, 1 Vet. App. 308, 312-313 
(1991).  Inasmuch as Congress has not intended otherwise in 
this case, the Board must review both the former and revised 
criteria and determine whether either set of criteria provide 
a basis upon which to grant the veteran his claim.

Regulations in effect prior to June 3, 1999 provide that, in 
a case in which the veteran is entering or reentering into a 
program of training, including a reentrance following a 
change of program or educational institution, the commencing 
date of an award of Chapter 30 educational assistance 
benefits is the latest of the following dates: the date 
certified by the educational institution under paragraph (b) 
or (c); the date one year prior to the VA's receipt of the 
claimant's application or enrollment certification, whichever 
is later; the effective date of the course approval, or one 
year before the VA receives the approval notice, whichever is 
later; or, the date of a reopened application under paragraph 
(d).  38 C.F.R. §§ 21.4131(a), 21.7131(a) (1998).  In 
summary, the regulations in effect prior to June 3, 1999 
prohibited an award of educational assistance for any period 
earlier than one year prior to the date of receipt of the 
application or enrollment certification, whichever is later. 

According to amended regulations, in a case in which a 
veteran is entering or reentering into a program of training, 
including a reentrance following a change of program or 
educational institution, the commencing date of the award of 
educational assistance is the latest of the following dates: 
(i) the date the educational institution certifies under 
paragraph (b) or (c); (ii) one year before the date of the 
claim as determined by 21.1029(b); or (iii) the effective 
date of the approval of the course, or one year before the VA 
receives the approval notice, whichever is later.  38 C.F.R. 
§ 21.7131(a) (1999).

In this case, the RO received the veteran's initial claim for 
Chapter 30 educational assistance benefits in April 1995 and 
enrollment certification verifying enrollment in the 
educational program at issue on February 9, 1998.  Therefore, 
the earliest date that an award of educational assistance 
benefits could commence under the regulations in effect prior 
to June 3, 1999, is February 9, 1997, the date one year prior 
to the date of receipt of the veteran's claim for benefits 
and enrollment certification.

Applying the revised regulations yields the same result.  The 
earliest date that an award of educational assistance 
benefits could commence under the regulations in effect from 
June 3, 1999, is also February 9, 1997.  In a letter from the 
Ben Clark Public Safety Training Center, a coordinator 
certified that the veteran began to pursue training on May 
20, 1996.  This date is therefore the certification date 
under 38 C.F.R. § 21.7131(a)(1)(i).  See 38 C.F.R. 
§ 21.7131(c).  The RO received the veteran's initial claim 
for educational benefits on April 24, 1995; one year prior to 
this date is April 24, 1994.  This date is therefore the 
applicable date under 38 C.F.R. § 21.7131(a)(1)(ii).  
Finally, the RO received an undated trainee agreement signed 
by the veteran and a representative of the Riverside County 
Sheriff's Department on February 9, 1998; one year prior to 
this date is February 9, 1997.  This date is therefore the 
applicable date under 38 C.F.R. § 21.7131(a)(1)(iii).  As 
previously noted, under 38 C.F.R. § 21.7131(a)(1), the latest 
date of the three, which in this case is February 9, 1997, 
controls. 

The regulatory criteria governing commencement dates of 
awards of Chapter 30 educational assistance benefits are 
clear and specific, and the Board is bound by them.  Pursuant 
to these criteria, there is no basis upon which to grant the 
veteran Chapter 30 benefits for periods of enrollment prior 
to February 9, 1997.  As the law in this case is dispositive, 
the veteran's claim must be denied based on a lack of 
entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 
426, 430 (1994).



ORDER

The appeal is denied.



		
	S. L. KENNEDY
	Member, Board of Veterans' Appeals