BVA9501684 DOCKET NO. 93-05 303 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Basic eligibility to receive educational assistance benefits pursuant to Chapter 30, Title 38, United States Code. WITNESSES AT HEARINGS ON APPEAL The veteran, his mother and his father ATTORNEY FOR THE BOARD Anna Bryant, Counsel INTRODUCTION The veteran had active military service from January 6, 1989 to August 27, 1990. This matter came to the Board of Veterans' Appeals (Board) originally on appeal from a November 1991 determination by the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA), denying the veteran's claim seeking entitlement to Chapter 30 educational benefits. In July 1993, the Board remanded the case to the RO for additional development of the record. The case is once again before Board for appellate review. In an administrative letter in November 1994, the veteran was informed that the member who chaired his personal hearing in May 1993, was no longer at the Board. The veteran was accorded the opportunity to be scheduled for another hearing before a member of the Board. However, in December 1994 correspondence, the veteran essentially indicated that he did not think that another hearing was necessary. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in effect, that he should be eligible to receive educational assistance benefits under Chapter 30, Title 38, of the United States Code. Essentially, he alleges that prior to enlistment, he entered into a binding contract with the United States Army to receive VA educational benefits upon his separation from military service. The veteran maintains that he was honorably discharged from active duty prior to the expiration of his obligated term of service by reason of hardship. In this regard, he asserts that he was assured by the military personnel at the time of his discharge that he would receive "full benefits." 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 claims 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 January 6, 1989 to August 27, 1990. 2. The veteran's DD Form 214 and Department of Defense data indicate that the veteran was discharged from service for the convenience of the Government, after serving 19 months and 22 days of an initial obligated term of 4 years. 3. The veteran's DD Form 214 shows that he was honorably discharged from active duty and the separation reason was "Defective or Unfilled Enlistment or Reenlistment Agreement." 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. 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 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As pertinent to the present appeal, the governing criteria 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 January 6, 1989 to August 27, 1990, and was honorably discharged under the provisions of Army Regulation 635- 200, paragraph 7-16a (1). The narrative reason for separation was : "Defective or Unfilled Enlistment or Reenlistment Agreement." Department of Defense data show the veteran's discharge from military service on August 27, 1990 as being for the convenience of the Government. In May 1992, the veteran was accorded a personal hearing on appeal before a VA hearing officer at the RO. At that time, the veteran provided a detailed history of difficulties he encountered during military service in regard to the completion of training programs. He stated that after attempting approximately three different Military Occupational Specialties (MOS), he was told that there were no vacancies for another MOS and as a last choice, he accepted discharge. The veteran further noted that he was informed by military personnel that he would be eligible to receive all benefits pursuant to his original contract with the Army due to a reduction in force at that time. A complete transcript of the testimony is of record. On the occasion of a hearing on appeal before a member of the Board in May 1993, the veteran testified that he entered into a contract with the United States Army wherein if he was unable to complete his initial choice of schooling through no fault of his own, and another MOS was not available, that he would receive an honorable discharge with complete benefits. He stated that while he completed three MOS's, he did not receive the schooling that he desired, and, consequently, accepted discharge after completion of 19 months and 22 days of service. The veteran emphasized that his original contract with the Armed Forces guaranteed that if he did not get the training he wanted, he would receive the benefits contracted for at the time of his enlistment. He further stated that he was discharged from active duty prior to the expiration of his obligated term of service by reason of hardship. A complete transcript of the testimony has been placed in the Chapter 30 folder. A Report of Contact dated July 19, 1993, reflects that a representative of the Department of Defense (DOD) for the United States Army was contacted by telephone in order to clarify the veteran's reason for discharge. On that occasion, it was reported by the DOD representative that the veteran's discharge for "Defective or Unfilled Enlistment or Reenlistment Agreement" does not qualify as a "Hardship" discharge nor does it qualify the veteran for Chapter 30 educational benefits. It was noted that he was eligible for a full refund of Chapter 30 educational contributions and could contact the U.S. Army Education Incentives Office regarding a refund. 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 19 months and 22 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. While it is clear from the veteran's testimony that he believes that his discharge was a "hardship" discharge, it is equally clear from the record that the veteran's discharge was not determined to be a discharge for hardship by the Secretary of the Army. See 38 U.S.C.A. § 3011(a)(1)(A)(ii)(I). Consequently, as the veteran served fewer than 30 months, and none of the alternative statutory criteria discussed above are met, the Board concludes the veteran does not meet the minimum service requirement for receiving Chapter 30 educational benefits. The Board acknowledges the veteran's contention that there is an existing binding contract between himself and the United States Army as 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 at the time of his separation from military service. 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 Army 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. 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 cases in which the law is dispositive, 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.