BVA9506246 DOCKET NO. 92-09 840 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the veteran has basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The veteran had active military service from August 22, 1985 to September 30, 1985 and from May 22, 1987 to May 15, 1989, and is currently a member of the United States Navy Reserve. This matter came to the Board of Veterans' Appeals (Board) originally on appeal from an October 1991 determination by the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA), denying the veteran's claim seeking entitlement to Chapter 30 educational benefits. In February 1994, the Board remanded the case to the RO for additional development of the record and due process considerations. The case is once again before Board for appellate review. As was noted in the Board's remand, the matter of equitable relief is not within the purview of the Board's jurisdiction. It is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in effect, that he should be eligible to receive educational assistance benefits under Chapter 30, Title 38, of the United States Code. Essentially, it is alleged that he should be entitled to such benefits based upon his second period of service. In this regard, the veteran asserts that he entered into a binding contract at the time of his enlistment in the United States Navy to receive VA educational benefits upon his separation from military service. He further alleges that he relied on the information provided to him by military recruiters for the United States Navy and, therefore, he should not be penalized because of their incorrect interpretation of VA regulations regarding eligibility to receive educational assistance benefits pursuant to Chapter 30, Title 38, of the United States Code. 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 file. 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 August 22, 1985 to September 30, 1985 and from May 22, 1987 to May 15, 1989. 2. The veteran's DD Form 214 and Department of Defense data indicate that the veteran was initially discharged from active duty on September 30, 1985, after serving 1 month and 9 days of an initial obligated term of 4 years. 3. The veteran's DD Form 214 shows that the separation reason was "Entry Level Status Performance and Conduct." The character of his discharge was described as uncharacterized. 4. Following the veteran's initial enlistment, he served for less than three years of continuous active duty in the Armed Forces after June 30, 1985. 5. The veteran was not discharged from his initial period of service 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. 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) (West 1991); 38 C.F.R. § 21.7042 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As pertinent to the present appeal, the governing criteria specify that an individual is eligible for educational assistance benefits under Chapter 30 of this title if he or she first enters on active duty after June 30, 1985, and serves for an initial obligated period of 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. A principal exception to this basic requirement is that the individual be 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, and that the character of the service be no less than honorable. 38 U.S.C.A. § 3011(a)(1)(A); 38 C.F.R. § 21.7042. The evidence of record establishes that the veteran initially served on active duty in the Armed Forces from August 22, 1985 to September 30, 1985, and received an uncharacterized discharge under the provisions of Army Regulation 635-200, paragraph 11-3a. The narrative reason for separation was: "Entry Level Status Performance and Conduct." He subsequently reenlisted in the Armed Forces on May 22, 1987 and was honorably released from active duty on May 15, 1989. Department of Defense data show the veteran's discharge from military service on May 15, 1989 as being for the convenience of the Government. Thereafter he entered the Selected Reserve. In January 1992, the veteran, accompanied by his accredited representative, appeared and presented testimony at a hearing on appeal at the RO. On that occasion, the veteran provided a detailed history of difficulties he encountered during his first period of military service in reference to basic training. He stated that he received an uncharacterized discharge after this period of service because he was considered to be "untrainable." The veteran further noted that he was told that he could reenlist in the Armed Forces after two years of probation. In this regard, he pointed out that he reenlisted in the United States Navy in May 1987 and served for 1 year, 11 months and 24 days, and was honorably discharged. He further stated that he was discharged from active duty prior to the expiration of his obligated term of service by reason of reduction of force. The veteran emphasized that he should be eligible to receive Chapter 30 educational benefits on the basis of the honorable discharge for his second period of service. Further, he testified that he was informed by his military recruiters that his prior military service in 1985 would not effect his eligibility to receive Chapter 30 educational assistance benefits. Additionally, the veteran stated that he contributed $100 a month to the Navy Sea College Program, and that military personnel assured him that he would be eligible to receive educational benefits from the VA. A complete transcript of the testimony has been placed in the Chapter 30 folder. In accordance with the Board's remand request of February 1993, the veteran's 201 file for his first period of service was secured and incorporated into the Chapter 30 folder. The Board observes that the veteran underwent psychiatric evaluation on September 10, 1985 due to emotional and adjustment difficulties. Mental status evaluation was within normal limits with no apparent psychiatric disorder. Community Mental Health Service concluded that the veteran was unable to adjust to military life, and rehabilitative efforts would not be successful. The service records show that the veteran was thereafter discharged due to a determination that he was considered to be untrainable at that time. The evidence of record shows that while the veteran first began his active duty after June 30, 1985, he served during his initial period for less than three years, and received an uncharacterized discharge. In order to be eligible to receive educational benefits pursuant to Chapter 30, an individual must continue on active duty or be discharged from service with an "honorable" discharge, after serving at least three years on continuous active duty after June 30, 1985 of his initial obligated period of active duty, unless discharged for a qualifying reason. The Board recognizes that the veteran reenlisted in the United States Navy for a second period of service from May 22, 1987 to May 15, 1989, and was honorably discharged. However, the governing legal criteria specifically preclude the Board's consideration of the second period of service. 38 U.S.C.A. § 3011(a)(3); 38 C.F.R. § 21.7042(a)(4). Consequently, as the veteran served less than two months during his initial period of service, and received an uncharacterized discharge, he is not entitled to Chapter 30 educational assistance benefits. The Board further acknowledges the veteran's contention that he signed a binding contract with the United States Navy at the time of his enlistment in May 1987 pertaining to his entitlement to Chapter 30 educational benefits. However, a contractual relationship involving his military service for education benefits would be between the veteran and the Department of the Defense. 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 given erroneous information concerning eligibility for Chapter 30 educational benefits by military recruiters. In this regard, the Board observes that the veteran was provided a response to some of his concerns by the Department of the Navy in February 1992. He was told that it appeared that he had been "improperly counseled" about his eligibility for Chapter 30 benefits when he entered the Navy. He was also provided advice about action he could take to change his Army discharge. 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 military personnel 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, pursuant to the governing law and regulatory provision, cited above, the veteran is not entitled to Chapter 30 educational assistance benefits. 38 U.S.C.A. § 3011(a)(1)(A); 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 in cases such as this in which the law is dispositive, the claim should be denied because of the absence of legal merit. ORDER Accordingly, the appeal is denied. N. R. ROBIN 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.