Citation Nr: 0006212 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-11 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether the veteran has basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from November 1973 to October 1977, from March 1979 to February 1986, and from April 1986 to April 1996. This matter came to the Board of Veterans' Appeals (Board) on appeal from a decision letter dated in June 1997 from the Buffalo, New York Regional Office of the Department of Veterans Affairs (VA), denying the veteran's claim seeking entitlement to Chapter 30 educational benefits. The notice of disagreement with this determination was received in December 1997. A statement of the case was issued in April 1998. The veteran's substantive appeal was received in May 1998. A hearing before a member of the Board in Washington, D.C. was scheduled for October 22, 1998, but the veteran failed to report for this hearing. FINDINGS OF FACT 1. The veteran served on active duty from November 1973 to October 1977, from March 1979 to February 1986, and from April 1986 to April 1996. 2. The veteran was on active duty during the period beginning on October 19, 1984, and ending on July 1, 1985, but did not continue on active duty from that time for three years without a break in service. 3. The veteran was not discharged or released from active duty because of a service-connected disability, a preexisting medical condition not characterized as a disability, for hardship, for convenience of the Government after completing 30 months of a three-year enlistment, involuntarily for convenience of the Government as a result of a reduction in force, or for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct. CONCLUSION OF LAW The veteran does not meet the basic eligibility requirements to receive educational benefits pursuant to Chapter 30, Title 38, United States Code. 38 U.S.C.A. § 3011(a) (West 1991 & Supp. 1998); 38 C.F.R. §§ 21.7042(a)(1), 21.7044(a)(4) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As pertinent to the present appeal, the evidence of record shows that the veteran had remaining eligibility under Chapter 34, as of December 31, 1989 when that educational assistance program expired. See 38 U.S.C.A. § 3462(e) (West 1991). Nonetheless, under the law, an individual with remaining Chapter 34 eligibility, like the veteran, might be eligible for educational benefits under the Chapter 30 program if he meets the criteria set out in 38 U.S.C.A. § 3011(a) (West 1991 & Supp. 1998) and 38 C.F.R. § 21.7044(a) (1999). Significantly, the governing legal criteria specify that in order to be eligible to receive educational benefits pursuant to Chapter 30, an individual, after June 30, 1985, must continue on active duty in the Armed Forces for at least three years, unless discharged or released for a qualifying reason (a service-connected disability, a medical condition which preexisted service, hardship, the convenience of the Government if the individual completed not less than 30 months continuous active duty after that date, involuntarily for the convenience of the Government as a result of a reduction in force, or for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct). 38 U.S.C.A. § 3011(a) (West 1991); 38 C.F.R. § 21.7044(a)(4) (1999). The individual must have been on active duty at any time during the period beginning on October 19, 1984, and ending on July 1, 1985, and continued on active duty without a break in service. 38 C.F.R. § 21.7044(a)(6) (1999). The record reflects that the veteran enlisted to serve on active duty on November 1, 1973 and thereafter served until October 31, 1977. He reenlisted on March 2, 1979 and served until February 26, 1986. Finally, he reenlisted on April 1, 1986 and served until April 30, 1996. The Board notes that the law clearly provides that in order for individuals like the veteran to be eligible for educational benefits under the Chapter 30 program, they must have served on active duty at some point between October 19, 1984 and July 1, 1985, and served continuously from that latter point for three years, without a break in service. The Board observes that the veteran did not serve for three continuous years on active duty after June 30, 1985, as he was out of the service from February 26 to April 1, 1986. Additionally, there is no evidence, nor has it been contended, that the veteran was involuntarily separated from service or voluntarily separated with voluntary separation incentives as those terms are defined by statute. See 38 U.S.C.A. § 3018 (West 1991). Therefore, his service does not satisfy the basic eligibility requirement for Chapter 30 benefits. The Board has considered the veteran's argument (see his May 1998 substantive appeal) to the effect that he was not informed by the military at the time of his February 1986 discharge that a break in service would cause him to be in ineligible for Chapter 30 benefits. Further, the Board has considered the veteran's statement to the effect that he separated at that time in order to spend more time with his family, only to re-enlist after discussing future plans with his spouse, and that he has "met the intent of the law" (see his July 1998 letter). However, the bottom line is that under the governing law and regulatory provision, which are binding on the Board pursuant to 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 1998), the veteran is not entitled to Chapter 30 educational benefits. 38 U.S.C.A. § 3011(a) (West 1991 & Supp. 1998); 38 C.F.R. § 21.7044(a)(5) (1999). No exceptions to the controlling legal criteria have been provided in the Federal regulations, and the Board has no authority to overturn or to disregard this very specific limitation on the award of Chapter 30 educational benefits. 38 U.S.C.A. § 7104(a) (West 1991 & Supp. 1999). Under the circumstances of this case, the Board is without authority to grant the benefit sought on appeal. It is precluded by law. In Sabonis v. Brown, 6 Vet. App. 426 (1994), the Court held that in cases such as this in which the law is dispositive, the claim should be denied because of the absence of legal merit. ORDER Basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code is denied. D. C. Spickler Member, Board of Veterans' Appeals