BVA9505289 DOCKET NO. 93-08 986 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Basic eligibility to receive educational assistance benefits pursuant to Chapter 30, Title 38, United States Code. ATTORNEY FOR THE BOARD Daniel J. McTavish, Associate Counsel INTRODUCTION The veteran served on active duty from February 21, 1986, to August 10, 1988. He served in the Selected Reserve from August 11, 1988, to October 26, 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal of an April 1992 determination by the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA), terminating the veteran's entitlement to Chapter 30 educational benefits, on the basis that he was not eligible for Chapter 30 benefits once his Selected Reserve service ended. The Board observes that, after the veteran terminated his Selected Reserve duty, an overpayment resulted. In a letter dated May 6,1992, the RO notified the veteran of that fact. The veteran requested a waiver of recovery of that overpayment, and in a decision dated March 23, 1993, that request for a waiver was denied. To date, the record does not show that the veteran has filed a notice of disagreement with the decision on waiver, and so that issue is not in appellate status. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that he is entitled to Chapter 30 educational assistance benefits. He asserts that he fulfilled his initial active duty obligation when he completed his Selected Reserve requirements in the Palace Chase program. He maintains that he was not counseled prior to separating from active duty or the Selected Reserve, that his benefits were being jeopardized. He argues that his Chapter 30 benefits should not have been terminated when he left the Selected Reserve in October 1991. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's Chapter 30 education folder. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record establishes that the veteran does not meet the basic eligibility requirements for Chapter 30 educational benefits. FINDINGS OF FACT 1. The veteran served on active duty from February 21, 1986, to August 10, 1988. 2. The veteran's DD Form 214 and Department of Defense data indicate that he was discharged from service for the convenience of the Government, after serving 29 months and 20 days of an initial obligated term of 4 years. 3. His DD Form 214 shows that he was honorably discharged from active duty and the narrative reason for separation was "VOLUNTEERED TO SERVE WITH USAFR." 4. The veteran completed less than 30 continuous months of his 4-year obligated service term prior to his honorable release. 5. The veteran was not discharged for a service-connected disability, for a medical condition preexisting service on active duty and determined not to be service connected, for hardship, for a physical or mental disorder not characterized as a disability and not resulting from his own willful misconduct but interfering with his performance of duty, or 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. 6. The veteran enlisted in the Selected Reserve on August 11, 1988. Department of Defense data reflect that the veteran was released from the Selected Reserve on October 26, 1991, after serving 3 years, 2 months and 15 days. 7. An Air Force administrative record shows that the reason for the veteran's release from the Selected Reserve was "RU-VOLUNTEER FOR REASSIGNMENT TO A[IR] R[ESERVE] P[ERSONNEL] C[ENTER]." 8. The veteran completed less than 4 years of continuous duty in the Selected Reserve. 9. The veteran was not discharged or released from service in the Selected Reserve for a service-connected disability, for a medical condition preexisting his becoming a member of the Selected Reserve and determined not to be service connected, for hardship, after 30 months of such service for the convenience of the Government, 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, or for a physical or mental disorder not characterized as a disability and not resulting from his own willful misconduct but interfering with his performance of duty. CONCLUSION OF LAW Basic eligibility to receive educational assistance benefits pursuant to Chapter 30, Title 38, United States Code, is precluded by law. 38 U.S.C.A. §§ 3011(a)(1)(A), 3012(a)(1)(A), (b) (West 1991); 38 C.F.R. § 21.7042 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As pertinent to the present appeal, the governing criteria, for Chapter 30 purposes, specify that after June 30, 1985, an individual must either serve for at least three years of continuous active duty in the Armed Forces in the event that the individual's initial obligated period of active duty is for three years or more, or must have been discharged following a shorter period of active service for a service-connected disability, for a medical condition which preexisted such service and determined by the Secretary not to be service connected, for hardship, for a physical or mental disorder not characterized as a disability and not the result of the individual's own willful misconduct but interfering with his/her performance of duty, for the convenience of the Government in the case of an individual who completed not less than 30 months of continuous active duty if his/her obligated period of active service was at least three years or more, or involuntarily for the convenience of the Government as a result of a reduction in force. 38 U.S.C.A. § 3011(a)(1)(A); 38 C.F.R. § 21.7042. The evidence of record establishes that the veteran served on active duty from February 21, 1986, to August 10, 1988, and was honorably discharged. The narrative reason for separation was: "VOLUNTEERED TO SERVE WITH USAFR." Department of Defense data show the veteran's discharge from military service on August 10, 1988 as being for the convenience of the Government. The Board observes that the veteran's initial obligated period of active duty was for a period of 4 years and that he was released from active duty after serving for 29 months and 20 days. Thus, his eligibility for Chapter 30 educational benefits must be determined on the basis of whether he was discharged under any other prescribed circumstances permitting eligibility. Significantly, the Board notes that while the veteran was discharged for the convenience of the Government, he did not complete 30 continuous months of active duty. Moreover, the evidentiary record currently certified to the Board fails to establish that the veteran was involuntarily discharged from active duty because of a reduction in force, for a service- connected disability, for hardship, for a medical condition which preexisted his service on active duty, or for a physical or mental condition that was not characterized as a disability. Consequently, as the veteran served fewer than 30 months, and none of the alternative statutory criteria discussed above is met, the Board concludes the veteran does not meet the minimum active duty service requirement for receiving Chapter 30 educational benefits. 38 U.S.C.A. § 3011; 38 C.F.R. § 21.7042. The veteran asserted that he fulfilled his original active duty commitment with the United States Air Force when he completed his Selected Reserve contract in the Palace Chase program. Data from the Department of Defense and AF Form 3027, the veteran's Selected Reserve Service Contract, reflect that the veteran became a member of the Selected Reserve on August 11, 1988, and was released from the Selected Reserve on October 26, 1991. He argued that his Reserve obligation ended on August 30, 1991, according to the Selected Reserve Service Contract, and he served beyond this date. The Board notes that the legal criteria governing eligibility for Chapter 30 educational assistance benefits for service in the Selected Reserve are specifically set out in 38 U.S.C.A. § 3012(a)(1)(A), (b) (West 1991); 38 C.F.R. § 21.7042(b) (1993). In particular, an individual who first entered active duty after June 30, 1985, must serve on active duty for at least two years of continuous active duty and serve at least four continuous years in the Selected Reserve. In this case, the veteran served on active duty for 2 years and 5 months. However, he did not serve in the Selected Reserve for at least 4 years; he served 3 years, 2 months and 15 days. Therefore, he does not satisfy the criteria establishing eligibility under 38 U.S.C.A. § 3012 (West 1991); 38 C.F.R. § 21.7042 (1993). However, he might be eligible if after completing active duty he serves in the Selected Reserve, then is discharged or released from service in the Selected Reserve for a service-connected disability, for a medical condition preexisting his becoming a member of the Selected Reserve and determined not to be service connected, for hardship, after 30 months of such service for the convenience of the Government, 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, or for a physical or mental disorder not characterized as a disability and not resulting from his own willful misconduct but interfering with his performance of duty. 38 U.S.C.A. § 3012(b)(1)(B)(ii) (West 1991); 38 C.F.R. § 21.7042(b)(7)(i) (1993). However, the evidence does not establish that the veteran was released from Selected Reserve for one of those permitted reasons. Therefore, he does not meet the eligibility criteria set out in that regulation. Finally, the Board notes that in correspondence contained in the record, the veteran reported that he elected to withdraw from the Selected Reserve program in the Fall of 1991 after he entered law school. Moreover, an Air Force document dated October 25, 1991 shows that the veteran's Selected Reserve status ended on October 26, 1991, when he volunteered for reassignment to the Air Reserve Personnel Center. It is thus apparent that his Selected Reserve status was not terminated by reason of inactivation of his unit, or by his involuntary ceasing to be designated as a member of the Selected Reserve. See 38 U.S.C.A. § 3012(b)(1)(B)(iii). The Board acknowledges the veteran's contention that there is an existing binding contract between himself and the United States Air Force as to his obligated service as well as his entitlement to Chapter 30 educational benefits. However, any contractual relationship in this regard is between the veteran and the service department. The veteran's entitlement to VA educational benefits must be determined on the basis of the controlling legal criteria which govern basic eligibility, not on his asserted contractual relationship with the service department. It is VA's responsibility to administer the educational program and make determinations as to basic eligibility. The Board has no authority to disregard the statute and regulations which govern Chapter 30 eligibility requirements. The Board also notes the veteran's assertion that he was not counseled on eligibility for Chapter 30 educational benefits prior to separating from active duty or the Selected Reserve. The United States Court of Veterans Appeals (Court) determined in Harvey v. Brown, 6 Vet.App. 416 (1994) that the remedy for breach of any obligation of the service department to provide accurate information about eligibility before and after discharge cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met. Although, we are sympathetic to the veteran's concerns, the governing law and regulatory provisions, cited above, mandate that an eligible individual have certain qualifying service, including 30 months of continuous service, with separation for the convenience of the Government, or at least two years of continuous active duty and service of at least four continuous years in the Selected Reserve. 38 U.S.C.A. §§ 3011(a)(1)(A), 3012(a)(1)(A), (b); 38 C.F.R. § 21.7042. Under the circumstances of this case, we are 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 cases in which the law is dispositive, such as this one, the claim should be denied because of the absence of legal merit. ORDER Accordingly, the appeal is denied. D. C. SPICKLER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.