**Department of Memorandum**

**Veterans Affairs**

Date: October 28, 1999 [VAOPGCPREC 13-99]{.underline}

From: General Counsel (02)

Subj: Date of Claim in a Montgomery GI Bill Case

To: Under Secretary for Benefits (20/225B)

ISSUES:

1\. Does a liberalizing precedent opinion of General Counsel have the
effect of overruling previous final decisions of the VA agency of
jurisdiction?

2\. If the answer is affirmative, is VA obligated to award retroactive
educational assistance benefits based on new evidence received in
support of a claim finally denied before the liberalizing General
Counsel opinion was issued?

3\. May VA pay benefits under the Montgomery GI Bill (MGIB) when no
claim was filed by the veteran, but proof of enrollment in qualifying
training is submitted by or on behalf of the veteran?

DISCUSSION:

1\. The request for an opinion recites facts of a particular veteran's
case as a basis for the issues to be addressed. The veteran had
honorable active duty service in the Armed Forces from June 24, 1986, to
June 13, 1990. On the latter date he was issued an honorable discharge
certificate. Apparently, he immediately re-enlisted and served on active
duty until March 27, 1991, at which time he was issued a general
discharge for the entire period covering June 24, 1986, to March 27,
1991.

2\. The veteran filed a claim for MGIB benefits on June 13, 1991,
seeking to attend a technical school course, which was denied. The
denial was based on 38 U.S.C. § 3011(a)(3)(B), which requires that the
veteran have been "discharged from active duty with an honorable
discharge." The finder of fact apparently accepted as conclusive the
general discharge document, which covered the veteran's entire period of
service from 1986 to 1991, without considering the veteran's honorable
discharge certificate covering the initial period of enlistment from
1986 to 1990.

3\. In a 1992 opinion, we considered, in part, a case similar to the one
presented here with multiple periods of active duty. *See* VAOPGCPREC
10-92, paras. 14 et seq. (April 1, 1992). Recognizing the inherent
conflict between the periods of service covered by the two discharge
documents issued in that case, we recommended that the appropriate
service department be contacted for clarification. However, we also
advised that, if the confirmed facts showed that the honorable discharge
certificate was issued for the veteran's qualifying initial period of
enlistment, the veteran could be considered to have met the requirements
of section 3011(a)(3)(B) even though he had subsequent active duty
service that resulted in a "general" discharge. Further, our opinion
held that determination of the veteran's actual type and character of
discharge was solely within the purview of the Department of Defense
(DOD).

4\. In posing the instant inquiry, you reference an advisory opinion we
issued on September 22, 1992, as being relevant to this case. The issue
presented there was whether a discharge, prior to completion of the
individual's initial obligated enlistment period, issued for the purpose
of immediate reenlistment, could be considered a "Convenience of
Government" discharge for MGIB entitlement purposes. Consistent with the
principles enunciated in VAOPGCPREC 10-92, we answered the question in
the affirmative based on advice from DOD as to their policy on such
discharges.

5\. We believe the principles of both the above-mentioned opinions of
this office apply here. Accordingly, if DOD considers the entire period
of the veteran's active duty service from 1986 to 1991 to be covered by
the general discharge issued, then, notwithstanding the 1990 honorable
discharge certificate issued for the service period from 1986 to 1990,
the veteran would have no eligibility for MGIB benefits. However, if DOD
considers the veteran as having received an "honorable" discharge from
his initial period of active duty service, then the veteran would be
eligible for those benefits. (Note: The file before us indicates that
the latter is the case here, apparently following an upgrade of the
veteran's military records.)

6\. As to the effect of VAOPGCPREC 10-92 and the subsequent pertinent
advisory opinion on cases in which a final agency decision previously
had been made, your first question is answered in the negative. The 1991
regional office decision to deny benefits in this case was final when
not appealed by the veteran. Even if that claims decision is found, upon
further development of the facts, not to have accorded with our
subsequent 1992 opinions, the decision now may not be reconsidered on
that basis. This is consistent with our holding in VAOPGCPREC 25-95
(BVA's application of a subsequently invalidated regulation in a
decision does not constitute "obvious error" or provide a basis for
reconsideration of the decision.) *See also* VAOPGCPREC 9-94 (decisions
of the Court of Appeals for Veterans Claims invalidating VA regulations
or statutory interpretations do not have retroactive effect in relation
to a prior "final" adjudication of a claim, but should only be given
retroactive effect as they relate to a claim still open on direct
review.) Further, we would point out that, in any case, an advisory
opinion, by definition, is not binding and could not serve as a basis
for revising a final agency decision.

7\. We should clarify, as well, that the 1991 agency decision made in
this case cannot be reversed or revised using our 1992 precedent opinion
as evidence of Clear and Unmistakable Error (CUE) in rendering the
decision. Pursuant to 38 C.F.R. § 3.105, CUE does not apply where "there
is a change in law or \[VA\] issue, or a change in interpretation of law
or \[VA\] issue. . . ." Further, 38 C.F.R. § 20.1403(e), a regulation
applicable to revision of Board of Veterans Appeals (BVA) decisions
based on CUE, provides: "Clear and unmistakable error does not include
the otherwise correct application of a statute or regulation where,
subsequent to the Board decision challenged, there has been a change in
the interpretation of the statute or regulation." Therefore, a change in
legal interpretation is not a basis for CUE revision.

8\. In view of our response to your first question, no answer is
required to the second question. However, your final question is based
on a different set of facts and issues. For this purpose, it is assumed
that the veteran, consistent with the principles enunciated in
VAOPGCPREC 10-92, has been found eligible for MGIB benefits for course
pursuit after issuance of that opinion. The evidence of record indicates
that the veteran attended college in 1995 in pursuit of an associate
degree. He submitted no application for MGIB benefits for that college
enrollment, although, in 1999, VA apparently did receive a photocopy of
an enrollment certification covering that training. Given these facts,
you ask whether VA, based on such submissions, was obliged to approve
MGIB benefits for the veteran's 1995 enrollment.

9\. In the first instance, the law requires that "\[a\] specific claim
in the form prescribed by the Secretary . . . must be filed in order for
benefits to be paid or furnished to any individual under the laws
administered by the Secretary." 38 U.S.C. § 5101(a). Further, pertinent
VA regulation provides that a formal claim for educational assistance
must be filed "indicating the proposed place of training, the school or
training establishment, the objective of the program of education, and
such other information as the Secretary may require." 38 C.F.R.
§ 21.1030. (Note that this regulation and other provisions of subpart B
of part 21 of title 38, Code of Federal Regulations, expressly are made
applicable to MGIB applications, claims and associated time limits by 38
C.F.R. § 21.7030.)

10\. In the event an "informal claim" is received, VA will furnish
appropriate forms and instructions, as well as a description of required
supporting evidence, to enable the individual to perfect a formal claim
for the benefit. *See* 38 C.F.R. § 21.1031(a). However, educational
assistance regulations specifically provide that the mere act of
enrolling in an approved school is not an informal claim. 38 C.F.R. §
21.1029(d)(4). Moreover, as an extension of that principle, VA's receipt
merely of an enrollment document from a school would not constitute an
informal claim on behalf of the enrolled student. (Under VAOPGCPREC
83-90, the document, in any case, would have to have been submitted by
the veteran or his authorized representative, not by the school alone,
for purposes of an informal claim. *See also* *Fleshman v. West,* 138 F.
3d 1429 (Fed. Cir. 1998).

11\. If, however, a school enrollment document were submitted by the
veteran, under circumstances that would indicate to a reasonable person
"a desire on the part of the individual to claim or to apply for
VA-administered educational assistance" (38 C.F.R. § 21.1029(d)(2)),
that submission might be considered an informal claim. In that event, VA
would have a duty, as prescribed by the regulations cited in the
preceding paragraph, to notify the veteran of the requirements and time
limits for filing a formal claim, as well as to provide all appropriate
application forms and instructions.

12\. The materials presented to us do not provide sufficient facts to
enable analysis of either the nature of the veteran's submission or VA's
response thereto. Nevertheless, even assuming the veteran had MGIB
eligibility and submitted an informal claim in 1999, followed by a
timely filed formal claim, the veteran still could be awarded benefits
retroactive only for the period 1 year prior to the date of his informal
claim. (In this case, no earlier than May 11, 1998.) *See* 38 C.F.R. §§
21.7131(a)(1)(ii), 21. 1029(b). Therefore, in no event could the veteran
be paid for training received in 1995, based on the May 11, 1999,
submission of the VA Form 22-1999 enrollment certification.

CONCLUSIONS:

1\. A precedent VA General Counsel opinion that invalidates or
liberalizes an existing regulatory or statutory interpretation may have
retroactive effect in regard to a claim still open on direct review, but
can have no such effect on a finally adjudicated agency decision.

2\. In view of the preceding conclusion, it is unnecessary to address
the second inquiry.

3\. Under the facts given, potentially the earliest indication of the
veteran's intent to claim benefits for education he pursued in 1995
would be the submission in 1999 of an enrollment certification form.
Those facts, however, are insufficient to enable forming an opinion
about whether submission of the enrollment form constituted an "informal
claim" within the meaning of 38 C.F.R. § 21.1029(d)(2) and,
consequently, about the nature of VA's responsibility to act on that
submission. It does seem clear that the veteran, thereafter, did not
file a formal claim for his 1995 enrollment, as required by 38 U.S.C. §
5101(a). Nevertheless, even if he had, we find the provisions of 38
C.F.R. § 21.7131(a) would have precluded paying benefits based on that
claim. That regulation provides that no educational assistance benefits
may be paid for education/training received prior to a date 1 year
before a claim therefor is filed.

Leigh A. Bradley