Citation Nr: 1754139	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-00 533	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a refund of $1,200 of contributions to the 38 U.S.C. Chapter 32 "Post-Vietnam Veterans Education Assistance Program" (VEAP).


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Catherine Cykowski, Counsel







INTRODUCTION

The Veteran served on active duty in the Army from September 1987 to September 1990.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  


FINDINGS OF FACT

1.  The Veteran first entered active service after July 1, 1985 and made a $1,200 VEAP contribution.

2.  The Veteran has been disenrolled from VEAP participation.

3.  The Veteran was not eligible for transfer into the Montgomery G.I. Bill education assistance program.

CONCLUSION OF LAW

A refund of a $1,200 contribution to the VEAP is warranted.  38 U.S.C. §§ 3011, 3012, 3221, 3222, 3223, 3452, 5107 (West 2014); 38 C.F.R. §§ 3.102, 21.5030, 21.5040, 21.5041, 21.5052, 21.5060, 21.5064, 21.7040, 21.7045 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Analysis of Claim

The Post-Vietnam Era Veterans' Educational Assistance (VEAP), under 38 U.S.C.A. Chapter 32 (Chapter 32 benefits) is available to service members who entered military service between January 1, 1977, and June 30, 1985, and who enrolled at that time in the program for at least 12 consecutive months and agree to a monthly deduction from their pay.  38 U.S.C.A. §§ 3221(a), 3222(a); 38 C.F.R. 
§§ 21.5040 (a), 20.5052(a). 

Nonvoluntary disenrollment from VEAP will occur when a veteran has not utilized all of his or her entitlement benefits within the 10-year period stated in 38 C.F.R. 
§ 21.5041  (in this case 10 years after the Veteran separated from service), and at the end of one year thereafter has not filed a claim for educational assistance allowance as provided in 21.5030(c).  38 C.F.R. § 21.5060.

A disenrolled individual will be refunded all contributions made by him or her to the fund.  38 C.F.R. § 21.5064 (a).  The amount of the contributions refunded upon disenrollment shall be limited to the amount of his or her contributions not utilized to receive benefits as of the date of disenrollment, less any outstanding debts resulting from overpayments of educational assistance allowance.  Id.  

The Veteran's delimiting date for participation in VEAP is 10 years after the Veteran separated from a period of service longer than 90 days.  38 C.F.R. 
§ 21.5041 (a)(1).  

VA shall grant an extension of the applicable delimiting period, provided: (1) the veteran applies for an extension within one year from the date of which his eligibility ended; and (2) the veteran was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a mental or physical disability that did not result from the veteran's willful misconduct. It must be clearly established by medical evidence that such a program was medically infeasible.  38 U.S.C.A. § 3031; 38 C.F.R. § 21.7051 (a).
The Veteran served on active duty in the Army from September 1987 to September 1990.  The Veteran's DD Form 214 reflects that he contributed to the Post-Vietnam Era Veterans Educational Assistance Program (VEAP).

In July 2013, the Veteran submitted a claim for a refund of educational contributions to the VEAP contributions under Chapter 32.  The Veteran indicated that he is seriously injured and unable to attend school due to his physical and mental conditions.  

The Veteran separated from service in September 1990; therefore, his delimiting occurred in September 2000.  The evidence does not show, and the Veteran has not asserted, that he applied for an extension and was prevented from completing his chosen program within ten years of September 1990, due to a disability.

A transfer of VEAP to Montgomery G.I. Bill benefits is legally allowed but only in certain circumstances for those individuals with VEAP eligibility on active duty on October 9, 1996.  The election must have been made prior to October 9, 1997.  38 C.F.R. § 21.7045 (d), (e). 

The Veteran's period of active service ended in September 1990.  The Veteran submitted an election of Montgomery G.I. Bill benefits (Chapter 30) in May 2010.  He did not meet the requirements for a transfer from the VEAP program to the Montgomery G.I. Bill under § 21.7045, as he was not on active duty on October 9, 1996, and his election was received after October 9, 1997.  Therefore, his election of the Montgomery G.I. Bill was not valid.   

In light of the foregoing, the Board finds that the evidence supports the Veteran's claim for a refund of $1,200 of VEAP contributions.   Accordingly, the claim is granted.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. 


ORDER

A refund of a $1,200 contribution to the VEAP is granted.



____________________________________________
BRADLEY W. HENNINGS 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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