BVA9505391 DOCKET NO. 92-09 960 ) 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: The American Legion ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from March 1988 to April 1989 in the United States Coast Guard. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a decision letter dated May 23, 1991, from the Muskogee, Oklahoma, Regional Office (RO). The notice of disagreement was received in June 1991. The statement of the case was sent to the veteran in July 1991. The substantive appeal was received in December 1991. This case was previously before the Board and was remanded in April 1993, March 1994 and August 1994. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends he should be granted basic eligibility for Chapter 30 educational assistance benefits because of the type of discharge he received from the Coast Guard. He also asks that he be afforded the benefit of the doubt. 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 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 veteran does not have basic eligibility for educational assistance benefits under Chapter 30, Title 38, United States Code. FINDINGS OF FACT 1. The veteran served on active duty from March 1988 to April 1989, when he received an honorable discharge. The narrative reason for separation reported on his DD Form 214, Certificate of Release or Discharge from Active Duty, was "UNSUITABILITY." 2. Information provided by the United States Coast Guard in August 1993 shows the veteran's term of enlistment was four years. 3. The United States Coast Guard was asked in May and July 1993 whether the veteran's discharge was for a physical or mental condition not characterized as a disability but that does interfere with performance of duty, and in response said that his discharge was for unsuitability. 4. The United States Coast Guard has not reported that the veteran's discharge was for a physical or mental condition not characterized as a disability but that does interfere with his performance of duty. 5. The veteran was not discharged from service due to a service- connected disability, for a pre-existing medical condition not service-connected, for hardship, or for the convenience of the Government. CONCLUSION OF LAW The veteran has not met the basic eligibility criteria for entitlement to educational assistance benefits under Chapter 30, Title 38, United States Code. 38 U.S.C.A. § 3011(a)(1)(A) (West 1991); 38 C.F.R. § 21.7042(a)(5) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although the Board has considered his contentions, it concludes the veteran is not eligible for Chapter 30 educational assistance benefits. The legal criteria governing eligibility are quite specific, and require that veterans who first enter active duty in the Armed Forces after June 30, 1985, for a term of enlistment of four years must serve at least three years of continuous active duty to establish eligibility for Chapter 30 educational assistance benefits. 38 U.S.C.A. § 3011(a)(1)(A)(i) (West 1991). If the veteran is discharged prior to completing three years' continuous active duty as the result of a service-connected disability, a pre-existing medical condition, hardship, a physical or mental condition not characterized as a disability and not the result of the veteran's own willful misconduct that interferes with performance of duty as determined by the Secretary of each military department or the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, or for the convenience of the Government if he has completed not less than 30 months of continuous active duty of his initial obligated period, or involuntarily for the convenience of the Government as a result of a reduction in force, the veteran may retain eligibility for educational assistance. 38 U.S.C.A. § 3011(a)(1)(A)(ii) (West 1991). In this case, the veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, reflects that he was released from active duty characterized as honorable after serving one year, one month and five days with the U.S. Coast Guard. He did not serve on active duty for at least three years, and therefore does not satisfy the eligibility criterion in 38 U.S.C.A. § 3011(a)(1)(A)(i) (West 1991). The Board has also considered whether he might be eligible under 38 U.S.C.A. § 3011(a)(1)(A)(ii) (West 1991). The reason for separation identified on his DD Form 214 was "UNSUITABILITY." The veteran has no service-connected disabilities, nor is there any evidence to suggest he was discharged for a pre-existing condition deemed not service-connected, or for hardship. A VA Form 119, Report of Contact, shows that on July 9, 1993, VA personnel contacted the United States Coast Guard and asked whether the veteran's discharge was for a physical or mental condition not characterized as a disability but that does interfere with performance of duty. The Coast Guard's response on that date was that the veteran's discharge was for unsuitability due to ineptitude, and that he should contact the Commandant of the U.S. Coast Guard if he wanted to change the separation reason. A similar response, dated in August 1993, was also recorded on a VA Form 22-0569, Report of Contact with DOD: in May 1993 VA personnel contacted the Department of Defense and asked whether the veteran's discharge was for a physical or mental condition not characterized as a disability and not due to his own willful misconduct which interfered with his performance of duty. United States Coast Guard personnel responded on August 23, 1993, that the veteran's discharge was for unsuitability, and noted that the veteran should be told to contact the Commandant if he wanted to change the separation reason reported on his DD Form 214. The Board is bound by the determination of the service department regarding the separation reason reported on the veteran's DD Form 214. Unless and until the service department alters that separation reason such that the reason would be one of those enumerated in 38 U.S.C.A. § 3011(a)(1)(A)(ii)(I) (West 1991); 38 C.F.R. § 21.7042(a)(5) (1994), there is no basis for an allowance of the veteran's claim. The Board has also considered whether the veteran could be found eligible under 38 U.S.C.A. § 3011(a)(1)(A)(ii)(II)(III) (West 1991). However, the VA Form 22-0569, Report of Contact with DOD, contains a response dated in August 1993 that states that the veteran's discharge was not for the convenience of the Government. Therefore, the veteran clearly does not establish basic eligibility under 38 U.S.C.A. § 3011(a)(1)(A)(ii)(II)(III) (West 1991). When all the evidence is taken into account in this case there is no support for a finding that the veteran has basic eligibility at this time for educational assistance benefits under Chapter 30, Title 38, United States Code. 38 U.S.C.A. § 3011(a)(1)(A) (West 1991); 38 C.F.R. § 21.7042 (1994). Based on the foregoing, the Board concludes that the veteran does not have basic eligibility for Chapter 30 benefits, and the appeal must be denied. The positive and negative evidence is not in equipoise. Therefore, the doctrine of the benefit of the doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. E. M. KRENZER 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.