Citation Nr: 0727010 Decision Date: 08/29/07 Archive Date: 09/11/07 DOCKET NO. 06-03 560A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the veteran has basic eligibility for educational assistance under Chapter 30, Title 38, United States Code. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had active service from July 1997 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a decision from the Department of Veterans Affairs (VA) regional office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. The veteran had active service from July 1997 to September 1999. 2. The veteran has an honorable discharge, with the separation reason given as "condition not a physical or mental disability," under paragraph 6203.2 of the MARCORSEPMAN (Marine Corps Separation and Retirement Manual), which relates to involuntary separations for the convenience of the government; the veteran's DD Form 214 also references separation code HFV1 of the MARCORSEPMAN, which refers to involuntary discharge - condition which interferes with the performance of duties (board waived). 3. There is no indication that the discharge condition resulted from willful misconduct. 4. The veteran was discharged for a physical or mental condition that was not characterized as a disability and interfered with the veteran's performance of his duty. CONCLUSION OF LAW The criteria for basic eligibility for educational assistance under Chapter 30, Title 38, United States Code, have been met. 38 U.S.C.A. §§ 3011, 5107(b) (West 2002); 38 C.F.R. § 21.7042 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 (VCAA) that became law in November 2000. The VCAA provides, among other things, that VA shall make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). In this regard, the Board observes that the record on appeal does not reflect that the veteran was notified of the VCAA as required by 38 U.S.C.A. § 5103(a). However, it is not clear that such notice is required in this case since the benefits sought are found in Chapter 30 of Title 38, United States Code. Simms v. Nicholson, 19 Vet. App. 453, 456 (2006) (holding that the VCAA applied only to the award of benefits under Chapter 51 of 38 U.S.C.A.; Barger v. Principi, 16 Vet. App. 132, 138 (2002) ("the notice and duty to assist provisions of the [VCAA]...are relevant to a different Chapter of Title 38 and do not apply to this appeal"). Therefore, the Board finds that no further action is necessary under the VCAA since it is the law, not the evidence, which is dispositive in this case. Furthermore, as the Board finds that a full grant of the benefits sought on appeal is warranted, any deficiencies in the required notice does not result in prejudice to the veteran's claim. The veteran contends that he has met the requirements for basic eligibility for educational assistance under Chapter 30, Title 38, of the United States Code. He does not dispute that he served less than his four year contracted term of service, or that the reason for his early discharge has been characterized as for the convenience of the government. Instead, he emphasizes that the underlying reason for this discharge was his low back condition, and that service connection has now been established for this disability. Except as provided in 38 C.F.R. § 21.7042(a)(5) the individual must (i) Serve at least three years of continuous active duty in the Armed Forces, or (ii) In the case of an individual whose initial period of active duty is less than three years, serve at least two years of continuous active duty in the Armed Forces. 38 C.F.R. § 21.7042(a)(2). Except as provided in 38 C.F.R. § 21.7042(a)(6), the individual before completing the service requirements of this paragraph must either (i) Complete the requirements of a secondary school diploma (or an equivalency certificate), or (ii) Successfully complete twelve semester hours in a program of education leading to a standard college degree. 38 C.F.R. § 21.7042(a)(3). After completing the service requirements of this paragraph the individual must (i) Continue on active duty, or (ii) Be discharged from service with an honorable discharge, or (iii) Be released after service on active duty characterized by the Secretary concerned as honorable service, and (A) Be placed on the retired list, or (B) Be transferred to the Fleet Reserve or Fleet Marine Corps Reserve, or (C) Be placed on the temporary disability retired list, or (iv) Be released from active duty for further service in a reserve component of the Armed Forces after service on active duty characterized by the Secretary concerned as honorable service. 38 C.F.R. § 21.7042(a)(4). An individual who does not meet the requirements of paragraph (a)(2) of this section is eligible for basic educational assistance when he or she is discharged or released from active duty (i) For a service-connected disability, or (ii) For a medical condition which preexisted service on active duty and which VA determines is not service connected, or (iii) Under 10 U.S.C.A. § 1173 (hardship discharge), or (iv) For convenience of the government (A) After completing at least 20 continuous months of active duty if her initial obligated period of active duty is less than three years, or (B) After completing 30 continuous months of active duty if her initial obligated period of active duty is at least three years, or (v) Involuntarily for the convenience of the government as a result of a reduction in force, as determined by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, or (vi) 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 in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy. 38 C.F.R. § 21.7042(a)(5). Many of the salient facts in this case are not in dispute. The veteran first entered active duty in July 1997. He was discharged after serving 25 months, 29 days of a four year enlistment contract. The veteran's DD Form 214 reflects that he received an honorable discharge, with the separation reason given as "condition not a physical or mental disability," under paragraph 6203.2 of the MARCORSEPMAN, which relates to involuntary separations for the convenience of the government. The veteran's DD Form 214 also references separation code HFV1 of the MARCORSEPMAN, which refers to involuntary discharge - condition which interferes with the performance of duties (board waived). There is also no indication that the low back condition that was responsible for the veteran's discharge resulted from willful misconduct. Following service, the veteran was service connected for a low back disability, effective the day following his separation from active service. The veteran's current claim for entitlement to Chapter 30 benefits was submitted in February 2005. The RO denied the veteran's claim on the basis that he had insufficient qualifying service, and did not qualify pursuant to any exceptions authorized by Congress. Basically, the Board finds that the most critical questions to consider with respect to the veteran's basic eligibility for Chapter 30 benefits are whether or not he was released from active duty prior to completing his qualifying service as a result of a service-connected disability under 38 C.F.R. § 21.7042(a)(5)(i), or alternatively, whether he was discharged for a physical or mental condition that was not characterized as a disability that interfered with the veteran's performance of duty, and thus entitles him to basic education assistance under 38 C.F.R. § 21.7042(a)(5)(vi). The Board will now examine both questions. As noted above, the veteran is currently service connected for disability associated with mechanical low back pain, but the Board finds that the applicable provision requires that a discharge result from a service-connected disability, and it is clear that the subject discharge resulted from a disability that was not yet service connected, and more importantly, was not found at that point to be a disability. However, with respect to the second question, the exception found at 38 C.F.R. § 21.7042(a)(5)(vi) applies when the veteran's discharge was for a physical or mental condition that was not characterized as a disability, did not result from the veteran's own will misconduct, and interfered with the veteran's performance of duty, and as was noted above, the veteran's DD Form 214 specifically describes the discharge disability as non-disabling, there is no indication of willful misconduct on the part of the veteran, and the separation code HFV1 is assigned to conditions that have been determined to interfere with the performance of duties. Accordingly, the Board finds that even if the veteran was discharged for the convenience of the government prior to completing his qualifying service, this discharge was for a physical or mental condition that was not characterized as a disability, did not result from the individual's own willful misconduct, and interfered with the individual's performance of duty, and that he is therefore eligible for Chapter 30 benefits under 38 C.F.R. § 21.7042(a)(5). ORDER Entitlement to basic eligibility for educational assistance under Chapter 30, Title 38, United States Code is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs