Citation Nr: 18160472
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-34 132
DATE:	December 26, 2018
ORDER
Entitlement to educational benefits, claimed as Montgomery GI Bill (MGIB) or 38 U.S.C. Chapter 30, is denied.  
FINDINGS OF FACT
1.  The Veteran had 4 months and 12 days of active duty service beginning on May 11, 1974, and additional active duty service from May 11, 1977, to June 29, 1977.  
2.  The Veteran does not meet the service dates requirements for educational assistance benefits. 
CONCLUSION OF LAW
The criteria for entitlement to MGIB educational benefits under 38 U.S.C. Chapter 30 have not been met.  38 U.S.C. §§ 3011, 3311 (2012); 38 C.F.R. § 21.7042(a), 21.7044, 21.7045 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had 4 months and 12 days of active duty service beginning on May 11, 1974, and additional active duty service from May 11, 1977, to June 29, 1977.  
The Veteran initially requested a Board hearing via videoconference in his August 2015 Substantive Appeal to the Board (VA Form 9).  However, in a June 2016 written statement, he withdrew the hearing request prior to the scheduled hearing.  Therefore, the request for a hearing is considered withdrawn.  See 38 C.F.R. § 20.702(e) (2017).
The Veteran applied for educational assistance benefits in a January 2015 Application for VA Education Benefits (VA Form 22-1990).  Specifically, he requested benefits under 38 U.S.C. Chapter 30, which is also known as the Montgomery GI Bill Educational Assistance Program (MGIB).  Unfortunately, as discussed in more detail below, the Board finds that he does not meet the eligibility requirements for the benefits that he has requested.
The active duty MGIB is found in 38 U.S.C. Chapter 30.  There are four categories of eligibility.  Category one is for those individuals who first entered active duty service after June 30, 1985, and did not decline the MGIB.  The Veteran’s DD214 and Department of Defense (DoD) records show that he first entered active duty in May 1974 and served for 4 months and 12 days.  He also had active duty service from May 11, 1977, to June 29, 1977.  Thus, he is not included in Category 1. 
Category 2 is for those individuals with remaining entitlement under the Vietnam Era GI Bill (38 U.S.C. Chapter 34), and who had certain dates of service.  The Veteran did not have active duty after October 19, 1984, which is the earliest required date for eligibility under Category 2.  Thus, he does not meet the criteria for Category 2.  Further, there is no evidence from his service records that he was a 38 U.S.C. Chapter 34 participant.
Category 3 is for those individuals who were involuntarily separated or separated under the Voluntary Separation Incentive or Special Separation Benefit program; the evidence does not support a finding that the Veteran meets this category. 
Category 4 is for former Veterans’ Educational Assistance Benefits (VEAP) participants who elected to convert to MGIB during the open window periods and for a small group of National Guard members who were given a brief opportunity to elect MGIB.  VEAP benefits are available for veterans who first entered active duty service after December 31, 1976 and before July 1, 1985.  As noted above, the Veteran first entered active duty service in May 1974.  The Veteran was not on active duty on or after October 9, 1996, and was not a VEAP participant before October 9, 1996.  Moreover, he does not fulfill the National Guard requirement because he did not serve on full-time active duty in the National Guard from October 9, 1996, with no prior active service.
The Vietnam Era GI Bill (VEGIB) allows for benefits for members who served on active duty after January 31, 1955, but before January 1, 1977.  The Veteran’s DD214 shows service in May 1977 and June 1977.  There was a 10-year delimiting date from the date of separation or December 31, 1989, whichever was earlier.  The program was terminated on December 31, 1989.  The Veteran did not meet the conversion requirements for remaining benefits after that date as he did not have active duty at any time during the period beginning on October 19, 1984.  38 C.F.R. § 21.7044.  Indeed, there is no evidence that he had any other periods of active duty subsequent to his discharge in June 1977.
Accordingly, the Board finds that the Veteran does not meet the required service requirements under the applicable provisions for entitlement to 38 U.S.C. Chapter 30 educational benefits as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) (2012) do not apply.
 
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Hodzic, Counsel 

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