Citation Nr: 0005542 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 94-13 697 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Whether the veteran has basic eligibility for educational assistance under Chapter 30 of Title 38, United States Code. ATTORNEY FOR THE BOARD K. Parakkal, Counsel INTRODUCTION The veteran had two periods of honorable active service. He served in the Navy from August 23, 1973, to October 26, 1985, and he served in the Coast Guard from November 18, 1985, to September 30, 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1993 RO decision which denied the veteran's claim for Chapter 30 educational assistance benefits based on his failure to meet basic eligibility requirements. In May 1996, the Board remanded the veteran's case to the RO for further development. FINDINGS OF FACT 1. The veteran did not first enter on active duty after June 30, 1985. 2. The veteran had remaining eligibility for Chapter 34 educational assistance as of December 31, 1989. 3. The veteran was on active duty during the entire period extending from October 19, 1984, to July 1, 1985. 4. After June 30, 1985, the veteran did not serve at least three years of continuous active duty, and he was not discharged or released from active duty because of a service- connected disability, a preexisting medical condition not characterized as a service-connected disability, for hardship, for convenience of the Government after completing 30 months of a three-year enlistment, involuntarily for convenience of the Government as a result of a reduction in force, or for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct. CONCLUSION OF LAW The veteran has not met the requirements for basic eligibility for educational assistance benefits under Chapter 30 of Title 38, United States Code. 38 U.S.C.A. §§ 3011, 3018A, 3018B, 5107 (West 1991); 38 C.F.R. §§ 21.7020, 21.7044 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran had two periods of honorable active service. He served in the Navy from August 23, 1973, to October 26, 1985, and he served in the Coast Guard from November 18, 1985, to September 30, 1993. In July 1985, while still in the Navy, the veteran wrote a letter to the Coast Guard, indicating that he was requesting enlistment as he wanted to work within the navigation, communication, and law enforcement field. A form, dated on September 26, 1985, entitled Enlistment Authorization or Rejection, shows that the veteran was authorized (provided he was otherwise qualified) for enlistment into the Coast Guard for a period of 60 days. In January 1988, the veteran signed a statement indicating that he understood that if he retired or left the service prior to June 30, 1988, he would forfeit significant education benefits. It was also noted that if he left service prior to June 30, 1988, he would not be able to convert the remaining months of his Vietnam Era G.I. Bill (as of December 31, 1989) to the Montgomery G.I. Bill (also known as Chapter 30 benefits). In October 1988, the veteran filed an application for Chapter 34 educational benefits. In the application, he indicated he had completed schooling until the 10th grade and had received his general equivalency degree (G.E.D.). In October 1993, the veteran filed an application for Chapter 30 educational benefits. In the application, he indicated that he had completed schooling until the 11th grade and had received his GED. A December 1993 VA Form 22-8945 entitled "Education Award" reflects that the veteran had 36 months of remaining Chapter 34 eligibility. In December 1993, the RO denied the veteran's claim for Chapter 30 educational benefits. In his notice of disagreement with the December 1993 RO decision, the veteran said it was unfair that he was being denied educational benefits as he had served his country for a total of 20 years. He appeared to indicate that, had it been possible, he would have enlisted in the Coast Guard immediately after his Navy discharge. He said he was not aware that by switching from the Navy to the Coast Guard that he would forfeit future educational benefits. In his February 1994 substantive appeal (VA Form 9), the veteran again indicated that he was not aware that by switching from the Navy to the Coast Guard that he would lose his educational benefits. He said he was repeatedly told that his educational benefits would be converted. II. Legal Analysis The veteran essentially contends that he is entitled to educational assistance benefits under Chapter 30 of Title 38, United States Code as he retired with a total of twenty years of active military service. After his discharge from the Navy, he said, he wanted to immediately enlist in the Coast Guard but was not permitted to do so. Further, he asserts that he was told by service personnel that his educational benefits would be protected when he separated from the Navy and entered the Coast Guard. An individual may be entitled to educational assistance under Chapter 30 if he first entered on active duty as a member of the Armed Forces after June 30, 1985, or if he was eligible for an educational assistance allowance under Chapter 34 as of December 31, 1989. 38 U.S.C.A. § 3011(a)(1); 38 C.F.R. § 21.7040. In the instant case, the veteran did not first enter active duty after June 30, 1985, rather, he first entered active duty in August 1973. Therefore, he does not qualify for Chapter 30 educational assistance benefits under 38 U.S.C.A. § 3011(a)(1)(A). Pursuant to 38 U.S.C.A. § 3011(a)(1)(B), veterans with remaining Chapter 34 eligibility may, under certain conditions, qualify for continued educational assistance under Chapter 30. Here, an Education Award (VA Form 22-8945) on file shows that the veteran did indeed have remaining Chapter 34 eligibility as of December 31, 1989. The law provides that certain individuals with Chapter 34 eligibility, like the veteran, may establish eligibility for educational assistance under Chapter 30, if all of the following six requirements are met: 1) the individual must have established eligibility for educational assistance under Chapter 34; 2) as of December 31, 1989, the individual must have Chapter 34 entitlement remaining; 3) the individual must complete the requirements of a secondary school diploma before January 1, 1990, or successfully complete the equivalent of 12 semester hours in a program leading to a standard college degree, which may be done at any time; 4) after June 30, 1985, the individual must have served at least three years of continuous active duty in the Armed Forces, or must be discharged or released from active duty for (a) a service-connected disability, (b) for a medical condition which preexisted service on active duty and which VA determines is not service-connected, (c) for hardship, (d) for convenience of the Government if the individual completed at least 30 months of active duty after June 30, 1985, (e) involuntarily for convenience of the Government as a result of reduction in force, or (f) 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 concerned; 5) upon completion of the requisite active duty service, the individual must continue on active duty, be discharged from active duty with an honorable discharge, be released after service on active duty characterized by the Secretary concerned as honorable service, or be released from active duty for further service in a reserve component; and 6) the individual must have been on active duty at any time between October 19, 1984, and July 1, 1985, and continued on active duty without a break in service. 38 U.S.C.A. § 3011; 38 C.F.R. § 21.7044. Applying the law to the facts of this case, the veteran meets the first two requirements for establishing eligibility for Chapter 30 benefits in that he had remaining months of Chapter 34 benefits as of December 31, 1989. As noted in the factual background, an Education Award on file shows that he had 36 months of remaining Chapter 34 eligibility as of December 31, 1989. 38 C.F.R. § 21.7044(a)(1) and (2). The veteran meets the third requirement as he received his GED, before January 1, 1990; evidence of this is his 1988 application for Chapter 34 benefits in which he indicated he had previously received his G.E.D. 38 C.F.R. § 21.7044(a)(3). The veteran meets the fifth requirement as he continued on active duty after having the requisite active duty service and was subsequently honorably discharged. 38 C.F.R. § 21.7044(a)(5). The veteran also meets the sixth requirement as he was on active duty during the entire period commencing on October 19, 1984, and ending on July 1, 1985. 38 C.F.R. § 21.7044(a)(6). The veteran does not, however, meet the fourth requirement which requires an individual to have served at least three years of continuous active duty in the Armed Forces after June 30, 1985. 38 C.F.R. § 21.7044(a)(4)(i). In this regard it is noted that as of June 30, 1985, he was serving on active duty in the Navy. However, on October 26, 1985, he was discharged from the Navy. There is no evidence which shows that he was discharged or released from active duty in the Navy because of a service-connected disability, a preexisting medical condition not characterized as a service- connected disability, for hardship, for convenience of the Government after completing 30 months of a three-year enlistment, involuntarily for convenience of the Government as a result of a reduction in force, or for a physical or mental condition not characterized as a disability and not the result of his own willful misconduct. 38 C.F.R. § 21.7044(a)(4)(ii). Rather, the record reflects that the veteran sought a discharge from the Navy and enlistment in the Coast Guard so that he could pursue his career goal of being within the field of navigation, communication, and law enforcement. Statutory provisions distinguish between "continuing on active duty without a break in service" during the period beginning on October 19, 1984, and ending July 1, 1985, from the requirement of three years of "continuous active duty" after June 30, 1985. The former is required to satisfy 38 U.S.C.A. § 3011(a)(1)(B) and 38 C.F.R. § 21.7044(a)(6), and the latter is required to satisfy 38 U.S.C.A. § 3011(a)(1)(B)(i) and 38 C.F.R. § 21.7044(a)(4). The veteran satisfies 38 U.S.C.A. § 3011(a)(1)(B) and 38 C.F.R. § 21.7044(a)(6) in that he served on active duty during the entire period commencing on October 19, 1984, and ending on July 1, 1985. Therefore, the pertinent question is whether the veteran's active duty in the Navy from August 23, 1973, to October 26, 1985, and active duty in the Coast Guard from November 18, 1985, to September 30, 1993, constitutes at least three years of "continuous active duty" after June 30, 1985. "Continuous active duty" means active duty without interruption. An interruption will only be found when an individual receives a complete separation from active duty. 38 C.F.R. § 21.7020(a)(6). Examples of service breaks that do not constitute interruptions are listed under 38 C.F.R. § 21.7020(a)(6)(ii)-(vi) and include stints at civilian educational institutions and service academies, among other things. Inasmuch as none of the listed examples are in any way applicable to the veteran's claim, it must be determined that the veteran's October 1985 separation from the Navy constitutes an interruption of active duty, and that his two periods of active duty in the Navy and Coast Guard do not constitute "continuous active duty" such as to satisfy the basic Chapter 30 eligibility requirement of three years of continuous active duty after June 30, 1985. While not specifically argued by the veteran, it could be argued that he is eligible for Chapter 30 benefits under 38 U.S.C.A. § 3011(a)(1)(B)(i), because he served on active duty continuously for three years at some point after June 30, 1985. Specifically, he served his second period of active duty from November 1985 to September 1993, which is more than 3 years after June 30, 1985. In this regard it should be noted that the provisions of 38 U.S.C.A. § 3011(a)(1)(B)(i), when read with 38 C.F.R. § 3011(a)(1)(B), require active service at any time during the period October 19, 1984, to July 1, 1985, without a break in service and continuous active duty for three years after June 30, 1985, or from July 1, 1985, to June 30, 1988; since the veteran did not have such service, his claim must fail. Notwithstanding any of the aforementioned provisions, an individual who was involuntary separated after February 2, 1991, or who separated pursuant to voluntary separation incentives under section 1174a and 1175 of Title 10 may be entitled to Chapter 30 benefits under 38 U.S.C.A. §§ 3018A or 3018B, provided certain criteria are met. The veteran, in this case, was neither discharged involuntarily or pursuant to voluntary separation incentives. In light of the foregoing, the veteran is not eligible for Chapter 30 benefits under 38 U.S.C.A. §§ 3018A, 3018B. The veteran relates that he was told that he would not forfeit any educational benefits when he separated from the Navy and enlisted in the Coast Guard. However, the Court of Veterans Appeals (redesignated on March 1, 1999, as the Court of Appeals for Veterans Claims) (hereinafter Court) has held that even where employees of the Federal Government provide inaccurate information regarding entitlement to benefits, "the remedy...cannot involve payment of benefits where the statutory eligibility requirements for those benefits are not met." Harvey v. Brown, 6 Vet. App. 416 (1994); see also OPM v. Richmond, 496 U.S. 414 (1990) (payment of Government benefits must be authorized by statute; therefore, erroneous advice by a Government employee cannot be used to estop the Government from denying benefits). The Board acknowledges and is sympathetic to the arguments advanced by the veteran that he had twenty years of service on active duty; however, the legal criteria governing service eligibility requirements for Chapter 30 educational assistance are clear and specific, and the Board is bound by them. Since payment of government benefits must be authorized by statute, and pertinent provisions of the statute provide that the veteran has not fulfilled basic service eligibility criteria, the veteran's assertions that his military service should confer Chapter 30 eligibility must fail. Based on the foregoing, the Board finds that the veteran has failed to establish that he is eligible for educational assistance benefits under Chapter 30. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to basic eligibility for educational assistance benefits pursuant to Chapter 30 of Title 38, United States Code, is denied. G. H. SHUFELT Member, Board of Veterans' Appeals