Citation Nr: 18160331
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-29 826
DATE:	December 26, 2018
ORDER
Entitlement to Montgomery GI Bill (Chapter 30) education benefits is denied.
FINDINGS OF FACT
1.  The Veteran submitted a November 2013 VA 22-1990 indicating he decided to irrevocably elect Chapter 33 benefits in lieu of Chapter 30 benefits. 
2.  A Department of Veterans Affairs (VA) Regional Office (RO) properly converted the Veteran’s remaining education entitlement from the Chapter 30 program to the Chapter 33 program based upon the Veteran’s request.
CONCLUSION OF LAW
The election of educational benefits under the Post-9/11 GI Bill (Chapter 33) program, in lieu of benefits under the Montgomery GI Bill (Chapter 30) program, submitted in November 2013 was irrevocable and may not be rescinded.  38 U.S.C. §§ 3301-3324; 38 C.F.R. §§ 21.9500, 21.9520.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Entitlement to Montgomery GI Bill (Chapter 30) education benefits.
The Veteran had some educational entitlement under both programs (Chapter 30 and Chapter 33).  An individual may make an irrevocable election to receive educational assistance under the provisions of 38 U.S.C.A. Chapter 33, instead of educational assistance under the provisions of Chapter 30.  
Under 38 C.F.R. § 21.9520 (c)(2), an individual may make an irrevocable election to receive benefits under Chapter 33 by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that meets the required specifications.  
The Veteran submitted a November 2013 VA Form 22-1990 indicating he wanted to convert his Chapter 30 benefits to Chapter 33 benefits.  The top of the form indicates that the applicant acknowledges that the election is irrevocable and cannot be changed. 
The Veteran’s application to convert his Chapter 30 benefits to Chapter 33 benefits was granted.  The Veteran was provided a December 2013 letter explaining that he was now receiving benefits under Chapter 33.  
In February 2015 the Veteran applied for Chapter 30 benefits.  The RO provided the Veteran with a March 2015 letter indicating his application had been granted.  However, according to the May 2015 Statement of the Case, the RO later discovered that the initial award letter had been sent in error. The Veteran was not eligible to receive Chapter 30 benefits due to his November 2013 irrevocable election of Chapter 33 benefits.   
The Board finds that the Veteran’s claim for Chapter 33 benefits was on a properly completed VA Form 22-1990; thus, the Veteran made an irrevocable election to convert to Chapter 33 benefits.  See 38 C.F.R. § 21.9520 (c)(2).  
The Board acknowledges the Veteran’s contention that when he originally made his election he was told by the Air Force that when he took an early retirement that any “time requirement --- anything that was…owed to the government prior to that was waived.” See May 2017 Board hearing. However, the Veteran does not state that he was informed that the VA 22-1990 was revocable.  Moreover, the Board notes the VA 22-1990 clearly states the election is irrevocable and cannot be changed.  
In addition, the Veteran contends that he was told by a VA representative following his February 2015 application for Chapter 30 benefits that he would be able to revoke his election because he had not yet used any of his Chapter 33 benefits. The Veteran also contends that because the RO initially sent him a letter granting Chapter 30 benefits VA should be bound by this administrative error. 
However, the Board notes that “erroneous advice given by a government employee cannot be used to estop the government from denying benefits.” McTighe v. Brown, 7 Vet. App. 29, 30 (1994); see also Walker v. Brown, 8 Vet. App. 356, 359 (1995).  Moreover, the eligibility requirements for educational benefits are established by statute and regulation, and that neither the Board nor the regional office is free to ignore those laws. See 38 U.S.C. § 503 (The law does provide for equitable relief when there has been administrative error); Owings v. Brown, 8 Vet. App. 17 (1995) (where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute), aff’d 86 F.3d 1178 (Fed. Cir. 1996).
Therefore, while the Board is sympathetic to the Veteran’s contentions, especially considering the inflexible nature of the statutory and regulatory provisions governing his claim, the Board is without authority to grant his claim on an equitable basis and instead is constrained to follow the specific provisions of the law. See 38 U.S.C. § 7104 (2012); Moffitt v. Brown, 10 Vet. App. 214, 225 (1997).
 
In sum, the Veteran made an election of Chapter 33 benefits which he now wishes to rescind. However, under the governing law and regulation, he may not do so, as his election was irrevocable. 38 C.F.R. § 21.9650.
 
S. L. Kennedy
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Biggins, Associate Counsel 

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