Citation Nr: 0000756 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 94-25 932 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to VA education benefits under Chapter 30, Title 38, United States Code. WITNESSES AT HEARING ON APPEAL The veteran and an acquaintance ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from November 1985 to April 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1993 decision by the RO in Buffalo, New York. This case was before the Board in January 1997 when it was remanded to the RO. REMAND The veteran contends that she is entitled to VA education benefits under Chapter 30, Title 38, United States Code. First, she maintains that the three months that elapsed between her enrollment in the Delayed Entry/Enlistment Program in August 1985, and her entry onto active duty in November 1985, should be included in calculations pertaining to applicable minimum active duty service requirements. Second, she asserts that she should be found eligible for Chapter 30 benefits because she served on active duty for more than two years, followed by qualifying service in the Selected Reserve. Third, she says that she should be found eligible for benefits because she was discharged from service as a result of illness due to pregnancy. She says that her condition caused weight loss and nausea, symptoms which interfered with the performance of her duties. She also points out that $1200.00 was withheld from her service pay for enrollment in the Chapter 30 program, and says that she was not informed, prior to discharge, that early separation would make her ineligible for benefits. Title 38, United States Code, § 3011(a), provides, in part: (a) . . . [E]ach individual- (1) who- (A) after June 30, 1985, first becomes a member of the Armed Forces or first enters on active duty as a member of the Armed Forces and- (i) who . . . serves, as the individual's initial obligated period of active duty, at least three years of continuous active duty in the Armed Forces . . . or (ii) who serves in the Armed Forces and is discharged or released from active duty (I) for . . . a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as determined by the Secretary of each military department in accordance with regulations prescribed by the Secretary of Defense . . . ; [or] (II) for the convenience of the Government . . . in the case of an individual who completed not less than 30 months of continuous active duty if the initial obligated period of active duty of the individual was at least three years . . . * * * is entitled to basic educational assistance under this chapter. 38 U.S.C.A. § 3011(a)(1)(A) (West 1991). See also 38 C.F.R. § 21.7042(a) (1999). An individual also may establish eligibility for Chapter 30 benefits based on a combination of active duty in the Armed Forces, together with service in the Selected Reserve. Title 38, United States Code, § 3012(a), provides, in part: (a) . . . [E]ach individual- (1) who- (A) after June 30, 1985, first becomes a member of the Armed Forces or first enters on active duty as a member of the Armed Forces- (i) serves, as the individual's initial obligated period of active duty, at least two years of continuous active duty in the Armed Forces, . . . characterized by the Secretary concerned as honorable service; and (ii) . . . beginning within one year after completion of the service on active duty . . . , serves at least four years of continuous duty in the Selected Reserve during which the individual participates satisfactorily in training as required by the Secretary concerned . . . * * * is entitled to basic educational assistance under this chapter. 38 U.S.C.A. § 3012(a)(1)(A) (West 1991). See also 38 C.F.R. § 21.7042(b) (1999). In the present case, the Board is unable to determine whether the veteran is entitled to Chapter 30 benefits under the provision of the law governing discharges due to a physical condition not characterized as a disability, not the result of willful misconduct, which interferes with performance of duty. The veteran's DD Form 214 shows only that she was discharged due to "pregnancy", and computerized service department data indicate that her discharge was for the convenience of the Government. It is unclear from the record whether the Secretary of the Army determined that the veteran's pregnancy, and associated illness, constituted a physical condition, not characterized as a disability, and not the result of her own willful misconduct, which interfered with performance of duty. Consequently, a remand is required so that further information on this matter can be obtained. 38 C.F.R. § 19.9 (1999). The Board also notes that the veteran has asserted that she is entitled to Chapter 30 benefits based on service in the reserves following two or more years of active duty. The Board is unable to properly assess this theory, however, because the record does not contain evidence reflecting whether she served in the Selected Reserve, and if so, the date on which she entered the reserves, or how long she served therein. As a result, further development of this matter is also necessary. For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should contact the service department and ask it to provide as much information as possible regarding whether the veteran was discharged for pregnancy because the Secretary of the Army determined her pregnancy, and associated illness, to be "a physical . . . condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty . . . ." The service department should be asked to provide a citation to the Army regulation relied upon in discharging the veteran, and to provide the RO with a copy of such regulation. The service department should also be asked to verify the veteran's dates of active duty, and to provide the RO with a complete copy of the veteran's service records, to include all service medical records and service personnel records. The information obtained should be associated with the veteran's file. 2. The RO should contact the service department for purposes of ascertaining whether and on which date the veteran entered the Selected Reserve, and the period of time served therein. The information obtained should be associated with the veteran's file. 3. The RO should take adjudicatory action on the veteran's claim of entitlement to Chapter 30 education benefits. If the benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. The SSOC should contain, among other things, a summary of, and citation to, the Army regulation relied upon in discharging the veteran from active duty. After the veteran has been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until she receives further notice, but she may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (1999).