only benefits that mr vellano received were improperly given to him by the secretary and those benefits were under chapter thirty three the key to this case is whether or not the statute prohibits duplicative payment of chapter thirty benefits which he has not yet received although the v a has found that he was eligible for receipt of those benefits under the interpretation relied upon by the veterans court the veterans court reads out the following language from section three thousand and thirty three a one that an individual entitled to educational a g i bill which is under chapter thirty and never paid and he was also determined eligible for chapter thirty three dollars benefits this statute only never having grant which are a lot of benefits under chapter thirty five honor i'm not sure that i would agree with that as it relates to this statute this is the only statute that the board and the court relied upon under this statute that is not a correct statement this that's wait so let me understand because i don't i don't understand this argument all suppose he is eligible for the montgomery time no your honor it does not this at based upon the language that i just read to judge laurie and as is clear and unambiguous in the language used by congress chapter thirty is not thirty isn't that what we're talking about mean i'm confused as to what we're what we're talking about what we're talking about the award of benefits and the language used in chapter thirty that talks about being assemblage by this chapter which i think is chapter thirty who is also eligible persistence under those other chapters may not receive assistance under two or more programs concurrently doesn't that say if you're eligible under thirty but also eligible under these others you can receive them concurrently that is probably just trying to establish a baseline here and not before we even get to your case them you don't even seem seem to agree that congress the veteran to be eligible under that is what i'm trying to ask you i'm trying to ask you a hypothetical not this case so i'm sorry i a person well i said that three or four times if a person is eligible under thirty and under thirty three and there's no dispute of his eligibility this statute prohibits concurrent receipt is that correct that is correct your honor i apologize ok it took an awful long time to get there now my question is do you think congress would have intended duplicative benefit when the v a makes some mistake congress i know the statute is not clear and you don't know that i agree but you think again let me just ask one more time if you don't want to answer we move on that given that congress intended to question your honor i do not believe that that is a reasonable inference of the intent of congress whatever this is judge jan what about the title of section three thousand and thirty three it says it erroneous lee due to some administrative error by the v a but he did in fact receive those educational assistance benefits under chapter thirty three he did your honor and he received those benefits because the secretary specifically solicited his participation in that program and he was never eligible under that program by the program's own terms and he  was he was determined to be eligible by the v a at least initially right at well actually in chronological order his application was under the mcgovern reed bill under chapter thirty and thirty three i guess it seems like what the veterans court was thinking was is that when it uses the term eligible in the statute i talking about v a determinations of eligibility and then when you look through the rest of the statute it's a provision that says  when an individual is eligible for more than one program of benefits the veteran shall elect you know which program to receive educational and may not receive assistance under two or more of such programs and i'm looking at the overall operational flow of the statue and it does seem like the v a has to st determine which programs of a veteran is eligible to receive benefits on in order for the veteran to elect which program under which he or she shall receive benefits so there just seems to be some operational flow here and then order for the veteran to elect one of the two or more programs he's eligible for to participate in the program that provided more benefits after participating in that program and being paid in that program the v a found that they had incorrectly determined his eligibility is my view that he can only be paid both when there is a finding a determination made by the secretary himself that he made an error in finding him eligible and paying him benefits under chapter secretary's concession of his own administrative error as cited in the brief there is a general counsel opinion that was binding on the board that said that if there was administratively error then there could not be an overpayment and a collection of the monies incorrectly paid by the secretary therefore we have a lack of technical eligibility and we have a waiver of the monies that were paid the only program that mr hall on has been eligible for he has never received benefit but the lower court did was to project that because he was found in  for the nd time to these benefits under chapter thirty that payment would result in a duplicative payment but it cannot be a to because of payment as a matter of law based upon the plain language of the statu tempus thirty the montgomery g i bill and chapter thirty three well you are actually in that section a one of the statutes states that an individual who is entitled to educational assistance under this chapter aka chapter thirty two is also eligible for assistance how do we understand what the meaning of the word eligible is this is what mr vaughan is briefing zeroes in on and your brief didn't really seem to engage with that question of how do we how are we supposed to think about the word eligible does it mean eligible in fact under the law or does it mean deemed eligible or found to be eligible by the v a either way you can see i'm adding a few words into the statute under either computing interpretation but if if i was just parachuting in and someone said you have to be eligible for educational assistance under thirty three dollars i would say ok what are those elements of eligibility to qualify for those and if i meet those elements that i'm eligible that is to say i'm eligible in fact why is it necessarily so that i shouldn't think of the word eligible as it's used in three thousand and thirty three in that way and  determined to be eligible for the top to thirty three benefits but i think the important the important point here is that he actually then received a chapter thirty three benefits and the driving force behind the statute is  sure if i could give you a percentage of the time or a number of occurrences in which it happens but the staff who i am just trying to figure out if this is some unfortunate bizarre glitch or then after that election maybe four weeks later the v a comes back and says oh sorry under the post nine hundred and eleven dollars bill you g i bill you only get i don't want this one anymore i want the other one month gummer e and and so i want to return this post nine hundred and eleven money and get the montgomery m education or training is to be pursued and the individual may choose to elect one program or the other not more than action in a different semester although i don't believe the statute allows for a veteran to change back and forth from one to the other and i believe that even if it was even if the desire to change election is due to v a administrative error because in my hypothetical the v a informed mr vellano well we'll give you sixty thousand for this post eleven g i bill benefits but then a few weeks later said sorry we we made a mistake i know you've elected for this and you expected sixty thousand but you're only getting seven here you go your thing he would be bound by that election  the question that you're asking here about election due to an administrative error in this case again it's not the election that's the driving force behind which benefits mr filani was eligible for  statute of entitlement and eligibility as somehow being different having different meanings the prohibition under the statute is when there is an eligibility under never entitle to payment under chapter thirty three dollars therefore the statute should be read to have the single purpose of prohibiting  when there is an eligibility under both programs and there was never eligibility under chapters thirty three by the secretary's own concession of administrative  other words they made a mistake there is no discussion in the statute about receipt and the secretary cannot rely upon his own regulation to infer that receipt is the standard when the standard outlined in the statute by congress is one of entitlement to which there was only entitlement to one of these programs most or for the questions happy to submit the matter