BVA9505064 
DOCKET NO.  93-07 762     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office and Insurance
Center in St. Paul, Minnesota

THE ISSUE

Basic eligibility for home loan guaranty benefits under Chapter
37, Title 38, United States Code.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Christopher P. Kissel, Associate Counsel

INTRODUCTION

This case comes before the Board of Veterans' Appeals (the Board)
on appeal from a decision of the St. Paul, Minnesota, Department
of Veterans Affairs Regional Office and Insurance Center (VARO).

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that his period of active duty in the
United States Army in 1991-92 entitles him to eligibility for VA
loan guaranty 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(s).
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 eligibility for home loan guaranty benefits under
Chapter 37, Title 38, U. S. Code, has been established.

FINDINGS OF FACT

1.  The appellant served on active duty from January 16, 1991 to
October 28, 1992, at which time he was discharged under the
authority of Army Regulation 635-200, Chapter 5, paragraph 5-15,
titled "Separation for the Convenience of the Government", for
failure to meet body fat standards.

2.  He served less than 24 months of continuous active duty and
less than the full period of active service to which he was
called or ordered to perform.

3.  The record discloses that he completed approximately 22
months of an obligated two year period of active duty.

4.  The U. S. Army's findings in this case with respect to the
appellant's type or classification of his release from service
are binding on VA.

CONCLUSION OF LAW

The criteria for home loan guaranty eligibility under Chapter 37,
Title 38, United States Code, are met.  38 U.S.C.A.
§§ 3011(a)(1)(A)(ii)(II), 5303A (b)(3) (F)(i) (West 1991); 38
C.F.R. § 3.203 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In order to be eligible for certain VA benefits, to include home
loan guaranty benefits, a servicemember must generally perform a
"minimum duty" requirement; either 24 months of continuous active
duty or the full period for which the servicemember was called or
ordered to active duty.  38 U.S.C.A. § 5303A (b)(1) (West 1991)
(emphasis added).  Notwithstanding any other provision of law,
any requirement for eligibility for or entitlement to any
benefits under Title 38, U. S. Code, or any other law
administered by VA that is based on the length of active duty
served by a person who initially enters such service after
September 7, 1980, is governed exclusively by the eligibility
requirements set forth under 38 U.S.C.A. § 5303A.

However, the basic eligibility requirements for VA benefits as
set forth under 38 U.S.C.A. § 5303A (b)(1) do not apply, in
pertinent part, to veterans seeking benefits under Chapter 37 who
were discharged or released from active duty for the convenience
of the Government, as described in section 3011(a)(1)(A)(ii)(II)
of Title 38, U. S. Code.  38 U.S.C.A. § 5303A (b)(3) (F)(i) (West
1991) amended by Veterans' Benefits Improvements Act of 1994,
Pub. L. 103-446 § 901, 108 Stat. 4675 (1994) (effective November
2, 1994).  Section 3011(a)(1)(A)(ii)(II) provides the following
criteria under which the above-cited exception to the minimum
active-duty requirements must be met:

[Individuals who were discharged or
released] for the convenience of the
Government, in the case of an individual
who completed not less than 20 months of
continuous active duty, if the initial
obligated period of active duty of the
individual was less than three years, or 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; ....

Review of the evidence of record discloses that the appellant had
active service in the United States Army from January 16, 1991 to
October 28, 1992, at which time he was discharged under the
authority of Army Regulation 635-200, Chapter 5, paragraph 5-15,
titled "Separation for the Convenience of the Government," for
failure to meet body fat standards.  See Certificate of Release
or Discharge from Active Duty, DD Form 214.  Total active service
was one year, nine months, and thirteen days.  His term of
enlistment was for two years.  In view of these findings, it is
clear that the appellant does not meet the minimum active duty
requirements under 38 U.S.C.A. § 5303A (b)(1).  His period of
active service was less than 24 months and he did not serve the
full two year enlistment period for which he was called or
ordered to perform.

However, as indicated above, subparagraph (3), clause (F)(i), of
the aforementioned statute, as amended by Public Law 103-446,
created an exception to the active duty requirement for home
guaranty benefits under Chapter 37 for individuals who were
discharged or released "for the convenience of the Government,"
as described in section 3011(a)(1)(A)(ii)(II) of Title 38, U. S.
Code.  The appellant's situation falls within this exception.  In
October 1992, he was discharged from the U. S. Army after
completing approximately 22 months of an obligated two year
period of active duty.  His discharge from such service was "for
the convenience of the Government," as described by Army
Regulation 635-200.  The U. S. Army's findings in this case with
respect to the appellant's type or classification of his release
from service are binding on VA.  38 C.F.R. § 3.203 (1994).  See
Duro v. Derwinski, 2 Vet.App. 530 (1992).

In view of the above, the Board concludes that the appellant is
eligible for VA home loan guaranty benefits pursuant to clause
(F)(i) of subparagraph (3) of 38 U.S.C.A. § 5303A (b), as amended
by the Veterans' Benefits Improvements Act of 1994.  It is the
clear intent of Congress that this veteran should be eligible for
these benefits under the limited exceptions to the minimum active
duty requirements of 38 U.S.C.A. § 5303A.

ORDER

Basic eligibility for home loan guaranty benefits under Chapter
37, Title 38, U. S. Code, is granted.

          KENNETH R. ANDREWS, JR.
          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.