UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O . 11-1828

D A V I D A. M A

Y S , A P P E L L

A N T ,
V

. E R I C K. S H I

N S E K I S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

. On Appea l from the B oard of Veter ans' Appea ls (De cided June 22, 2012) David A. May

s , Pro se.
W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; Leslie C. Rogall , Deputy Assistant Gene ral Counsel; and Michae l G. Imbe r , all of Washington, D.C., wer e on the brief for the a ppellee.

Be fore KASOL D, Chief Judge , and DAV I S, and SCHOEL EN, Judge s.
S C HO E L E N, Judge : Appellant David A. May s pro se appea ls an April 5, 2011, Boa rd o f Veter ans' Appea ls (B oard) decision in which the Boa rd found there was no entitlement to elig ibilit y for educational benef

its under chapte rs 30 and 32, title 38, U.S. Code, and chapte rs 1606 and 1607, title 10, U.S. Code. Record of Procee dings (R.) at 141-47. This appea l is timely , and the Court has jurisdiction to review the Boa rd' s decision pursuant to 38 U.S.C. §§ 7252(a). F or the re asons that follow, the Court will aff irm t h e Boa

rd' s deter mination that the appellant is not elig ible for educational benef

its under Chapters 30, 32, 1606, a nd 1607.

I. BACKG ROUND The appellant was a member o f t h e R eserve Offic ers' Training Corps (ROTC) from September 1971 until May 1973 at the Tuskeg ee I nstitut e in Tuskeg ee, Alabama

. R. at 57. I n 1974,
upon completion of his underg radua te deg ree , the appellant signe d an "A pplication for I nitial Delay from Entry on Active Duty Wit h Supplemental Active Duty /ACDUTRA And Reserve Participation Ag ree ment" that soug ht a delay from en t ry on active duty until September 1977 so that he couldattend dental school. R. at 15-16

. T h e U. S

. Army approve d the appellant's delay ed entry in J une

1974. R. at 53. I n J anuar y 1975, the appellant signe d a "Supplementa l Active Duty and Reserve Participati o n Agr eement for Delay ed Offic ers Apply ing For Additional Educa tional Delay Fr om Entry On Active Duty To Pursue Course of Study L eading To A Deg ree in Medicine, Dentistry , or Veter inary Medicine." R. at 18. The U.S. Army approve d this application for rene wal of his educational delay

from ac tive duty

in May 1975. R. at 17. The appellant' s DD For

m 214, Certifica te of Release or Dischar g e from Active Duty , indicates that he serve d on active duty in the U.S. Army from J uly 31, 1978, to J uly 30, 1980. R. at 102. The DD For

m 214 also shows that he had more than four y ear s of inactive service prior to 1978 and n o o ther active service

. Id. I t also indicates that the appellant did not contribute to the PostVietnam Era

Veter ans' Educa

tional Assistance Prog ram. Id. I n Dec ember 1981, the appellant filed an application for educa tional benef

its. R. at 57; see also R. at 13. The reg ional office (RO) denied the appellant' s claim beca use under chapte r 34, title 38, U.S. C o d e, the appellant had to have enter ed active duty befor e J anuar y 1, 1978, and the appellant did not enter active duty until J uly 31, 1978. R. at 56. I n J anuar y 1982, the appellant wrote

a letter to VA asser

ting that he believed he was entitled to educational benef its beca use he contra cted with the U.S. Army

for his dela

y ed entry into a ctive duty in 1974. R. a t 54- 55. He a lso ex plained that the ag ree ment require d that he had to repor t any status chang es to the "Commanding Offic er of the Reserve Component" and that he could have been "c alled to duty at any time during [hi s] dental training ." Id. I n Fe bruar

y 1982, VA responde d to the appellant' s letter and explained that "[a]lthough y ou may have met the requirements for an active dut y commitment, y ou did not meet the re q u i reme nt of entra nce on active duty prior to J anuar y 2, 1978. There fore , y our claim for educational assistance under Chapte r 34 had to be disallowed." R. at 52. Be fore a hear ing at the RO in J une 1982, the appellant arg ued that he was entitled to Chapter 34 benef its be cause his June 1974 order s used the phra se " as if being order ed to a ctive duty at this time." R. at 34. He also explained that when he inproce ssed at For t Br ag g , North Carolina, no one explained his entitlement to education benef its had chang ed b ec ause of hi s delay ed entry and that if someone had explained it to him, he would have "g ladly contributed" to his education benef its so

2that he wo u l d h av e been entitled to educational benef its under Chapter 32. R. at 34-35. VA subsequently notified the appellant that the evidenc e, including his testimony at the hear ing, did not

war rant a chang e to the denia l of educ ational bene fits under Chapter 34. R. at 33. I n Aug ust 1982, VA issued a Statement of the Case (SOC) that co n t i nued denial of the appellant' s claim for entitlement to educational benef its beca use he had not enter ed active duty until J uly 1978. R. at 11-14. The SOC conc luded: The evidenc e shows that the veter an was g rante d a delay from entry on active duty [on] J une 30, 1974, to allow him to pursue his study of [d] entistry

. He did n o t en t er active milit ary service until J uly 30, 1978. Since the vete ran did not ente r active milit ary service prior to J anuar

y 1, 1978, he does not have qualify ing service for educational benef its under Title 38, United States Code, Chapter 34, a nd his claim remains de nied.
R. at 14. L ater in Aug ust 1982, the appellant filed an appea l to the Boa rd, arg uing that he was entitled
to Chapter 34 benef

its beca u s e h i s d el ay ed entry contra ct was "initiated prior to the J anuar y 1978 deadline." R. at 10. He also noted that acc ording to Army Reg ulation 601-110, he was "de signa ted
as a g ain to the Arme d For ces a t the time [ he] rece ived his commission." Id

. The Boa rd issued a decision in April 1983 stating that elig ibilit y for educational a ssistance under Chapter 34 is predic ated "on the finding that the person seeking such benef its be g an serving

on active duty prior to J anuar y 1, 1978. There fore , since a condition specific ally set forth in the law has not been satisfied, this Boa rd has no other leg al rec ourse but to deny the appellant' s claim." R.
at 6. I t continued that "[w]hile he could have been called to active duty at any time during his delay status, he was not called to active duty until J uly 1978." Id. There fore , t h e Bo ar d conclude d that "[s]i nce the veter an did not beg in active duty until J uly 1978, he is not elig ible for educational assistance under Chapter 34, Title 38, United S tates C ode." R. at 7. That dec ision became final. The appellant filed another application for VA educational be nefits in J anuar y 2009. R. at 211-12. L ater

that month, the RO denied the a ppellant' s claim findi ng that he was not eligible f or educational benef

its pursuant to the Montgome ry G.I

. Bill (3 8 U. S.C. chapte r 30), the Veter ans' Educa tional Assistance Progr am (38 U.S.C. chapte r 32), Montgome ry G.I

. Bill-Selec ted R eser ve (10 U.S.C. chapte r 1606), or the Reserve Educa tional Assistance Prog ram (10 U.S.C. chapte r 1607). R. at 208-09. I n Fe bruar

y 2009, the appellant filed a Notice of Disag ree ment with the denial of his

3claim and stated that beca use he was commissioned as a second lieutenant i n 1 973, he should be "g randf ather ed" in for an e arlier

active duty

date. R. at 204-05. I n Marc h 2009, the RO issued an SOC that continued the denial of the appellant' s claim for e ducational be nefits. R. at 195-202. I n April 2009, the appe llant submit ted his Substantive Appea l to the Boa rd arg uing that he should be entitled to educa tional benef

its under the Vietnam-e ra G.I

. Bill, chapte r 34, beca use upon g r aduation he was assig ned to be commissioned as a second lieutenant "if the doctor[] al prog ram was not completed" and that but for an annual "r eser ve st atus update" he was require d to complete, he would have been sent to active duty

. R. at 187. VA then issued the "Ce rtification of Appea l," which listed the issue as " [d] enial of e ducation bene fits under Chapter 30, 32, 1606, 1607." R. a t 171. I n October 2010, the appellant submitt ed a written arg ument and "pr o p o s e d o r d e r " e xplaining that beca use he ha d "c ontrac ted" with the Army prior to 1978 he shoul d be entitl ed to educational benef its an d s h ould be "g randf ather ed" into the Vietnam-era G.I

. Bill, and "[i] n order to be 'made whole' " he should be g iven the " equivalent of three y ear s['] reimbursement." R. at 164-65. On October 26, 2010, the appellant testified befor e a Boa rd hear ing. R. at 1 5 1 -6 2

. The appellant aff

irmed that the issue befor e the Boa rd was "e ntitlement t o education benef its under Chapters 30, 32, 1606 and 1607." R. at 152. He ex plained that when he enter ed active dut y afte r dental school he was told t h at h e had to contribute $100 a mont h to be eligible for benef its. R. at 153. Howeve r, he asser

ted, h e d i d not believe that the contribution require ment applied to him beca use whe n he sig ned his " orig inal contra ct" he wa s not require d to contribute. R. at 154. On April 5, 2011, the Boa

rd issued the decision on appea l, which denied the appellant' s claim for e ntitlement to educational bene fits under chapter s 30 and 32, title 38, U.S. C ode, and c hapter s 1606 and 1607, title 10, U.S. C o d e. R. at 141-49. The Boa rd found that "the Veter an can only establish entitlement to benef its available at the time tha t he serve d." R. a t 146. The Boa rd found that the appellant beg an active duty service in J uly 1978 and that he did not contribute to an educational assistance prog ram. R

. at 1 46-47. The Boa rd then detailed the require ments of the differ ent ty

pes of educational assistance prog rams and conclude d that the appellant was not elig ible for e ducational be nefits under any of t he progr ams beca use "the applicable law a

nd reg ulations as written pre clude a

g rant of be nefits, eve n on an equitable basis." R. a t 147.

4II. ANALYSIS A. Educa tional Be nefits Under

Chapter 34 Throug hout the appellant' s brief and reply brief, he arg ues that the decision of the Boa rd in April 1983 was c lear ly

err oneous in its denial of educa tional benef its under Chapter 34. See R. at 4-7. The appellant asser

ts that his active duty date should rela te back to one of two differ ent dates. First, he arg ues that his active duty date should date back to the date that he signe d a contra ct to join ROTC. Appellant' s Br ief (B r.) at 3, Reply Br

. at 1-5. Alterna tively , he arg ues that he enter ed active duty when he completed ROTC and signed the delay ed entr ance ag ree ment. Appellant' s Br . at 5. During his testimony befor e the Boa rd in October 2010, the appellant aff irmed that the issue

was "e ntitlement to educa tion benef its under Chapters 30, 32, 1606 and 1607." R. at 152. Howeve r, throug hout his testimony he arg ued that he should have been g rante d benef its under Chapter 34 when he first a pplied for them in 1983. See R. a t 151-62. During the hea ring , the hea

ring office r eve n stated that "the case will turn on whether or not y ou had entitlement to the ear lier prog ram and I have
to look into that to see what the statute require [d] at that time." R. at 158. I n his reply brief, the appellant sum m arized his arg ument as "[t]he question befor e this Court is: [w] as the denial of benef its clearly err oneous g iven the eva luation of all the evide nce." Reply Br . at 2. I t is well established that the Boa rd is require d to a djudicate all issues rea sonably raised by

a liberal rea ding of the rec ord, including "a ll documents and oral testimony in the rec ord prior to the Boa rd' s decision." Br a n non v. W est , 12 Vet.App. 32, 34 (1998); see also Robinson v. Peak e , 21 Vet.Ap p
. 5 4 5 , 5 52-56 (2008), aff' d sub nom. Robinson v. Shinseki , 557 F.3d 1355 (F ed. Cir. 2009). I f such a revie w "r easona bly reve als that the claimant is seeking a particul ar b en ef i t , the Boa rd is require d to adjudicate the issue of the claimant' s entitlement to such a benef it or, if
appropr iate, to rema

nd the issue to the [R O] for development and adjudication of the issue; howeve r, the Board may not simply ignor e an issue so rai s ed

. " B rannon , 12 Vet.App. at 34. Howeve r, t he "C o u rt requires that an appellant plead with some particula rity the alleg ation of err or so that th e Court is able to revie w and assess the validity of t he appellant' s arg uments. " C o ke r v. N icholson , 19 Vet.A p p
. 4 3 9 , 4 4 2 (2006). I n Fugo v. Brown , 6 Vet.App. 40 (1993), the Court held that for a claimant "to rea sonably raise C UE [ cl ear and unmistakable err or] there must be some deg ree of specific ity as to what the alleg ed err or is and, unless it is the kind of err or
. . . that, if true, would be

5CUE on its fac e, persua sive rea sons must be g iven as to why the result would have been manifestly

differ ent but for the a lleg ed er ror." Id. at 44. The appellan t h as previously asser ted t hat he is entitled to Chapter 34 benef its. Howeve r, it is not until he submitt ed his brief and his reply to this Court that he specifie d his various theories why he was entitled to Chapter 34 benef its, a nd subsequently why he believed that there was CUE in t h e 1 9 83 Boa

rd decision. See Appellant' s Br

. at 3 (ac tive duty date should be date that service member signs contra ct to enter ROTC); Appellant' s Br

. at 5 (ac tive duty date should be g radua tion date) ; R. at 155, 161 (VA repr esenta tives wer e biased in making their decision); R. at 165 (he should be "g randf

ather ed" in). Be cause the April 1983 Boa rd decision beca

me final, th e ap p el l ant may challeng e the decision only throug h a motion to revise that decision on the basis of CUE. See Cook v. Principi , 318 F.3d 1334, 1339 ( Fe d. Cir. 2002) (en banc) (an appellant g ener ally can attempt to

overc ome the fi n al i t y of a prior final decision of the RO or Boa rd in one of two way s: (1) by a reque st for a revision of an RO or Boa rd decision based on CUE, or (2) by a claim to reope n based
upon new and materia l evidenc e). The Court has no jurisdiction to consider a particula r claim of CUE in the first instance. See 38 U.S.C. § 7252(a); Andre v. Principi , 301 F.3d 1354, 1361 (F ed. Cir. 2002) (holding that "e ach ' specific ' asser tion of CUE constitutes a claim that must be the subject of a decision by the [Board] befor e the Veter ans Court can exercise jurisdiction over it"); Russell v. Principi , 3 Vet.App. 310, 315 (1992) (en banc) (noting that the "ne cessa ry jurisdictional ' hook' for this Court to act is a decision of the [Board] on the specific issue of ' clea r and unmistakable err or' ")

. Acc ording ly , to the extent that the appellant believes that there is CUE in the 1983 Boa rd decision, the appropr iate proce dure is to file a motion for revision of the decision at the Bo ar d

. 3 8 C

. F.R. § 20.1404 (2011). B. A pril 2011 Boa

rd De cision 1. Active Duty Date The appellant asser

ts that his active duty date should re l at e back t o the date that he si g ned

a contra ct to jo i n ROTC (1972) or the date he completed ROTC and signe d the delay ed entra nce ag ree ment (1974). Appellant' s Br

. at 3, 5; Reply Br

. at 1-5. To the extent that Mr. May s makes these

asser tions in support of his contention that he is entitled to educational bene fits under Chapter 34, the Boa rd denied such entitlement in its April 1983 decision. That decision is not befor e the Court

6and, as note d above, may be challeng ed only throug h a mot ion to revise tha t decision on the basis

of CUE. Cook , supra
. Even assuming that the appellant' s active duty beg an in 1972 or 1974, based on the following analy sis, the Boa

rd' s deter mination that the appellant was not entitled to educa tional benef

its under Chapters 30, 32, 1606, and 1607 is not clea rly err oneous. Gilbert v. De rwinski , 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948)) (" ' A finding is "c lear ly

err oneous" when althoug h there is evidenc e to support it, the revie wing court on the entire evidenc e is left with the definite and firm conviction that a mistake has been committed.'" ); see also R. at 142. 2. Educational Benefits Under Chapter 30 Chapter 30 educa

tional be nefits are available to a veter an who "f irst be comes a member of the Armed For ces or first en t ers on active duty as a member of the Armed For ces" afte r J une 30, 1985. 38 U.S.C. § 3011(a) (1)( A); 38 C.F.R. § 21.7130 (201 1 ). C h ap ter 30 benef its are also

av ai l ab l e to some veter ans who previously wer e entitled to Chapter 34 benef its. The Chapter 3 4 educational benef

its prog ram, known as the Vietnam-e ra G.I

. Bill, was ended for all elig ible veter ans eff ective Dec ember 31, 1989. 38 U.S.C. § 3 4 6 2 (e ). Veter ans who had Chapter 34 elig ibilit y

rema ining on Dec ember 31, 1989, could attempt to establish elig ibilit y for educational assistance by showing that they serve d on active duty at any time betwee n October 19, 1984, and J uly 1, 1985, and continued on active duty without a brea k in service for three y ear s afte r J une 3 0 , 1985, or wer e discharg ed afte r J une 30, 1985, for a service -conne cted disability , pree x isting medical condition not

rec og nized as a disability , hardship, or convenie nce of the Gover nment. 38 U.S.C. § 3011(a) (1)( B)

. Additionally , a veter an who was elig ible for Chapter 34 educational benef its as of Dec em b er 3 1, 1989, but was n o t on active duty on October 19, 1984, could m aintain eligibility by ree nlisti ng or

ree ntering a period of active duty afte r October 19, 1984, and on or afte r J uly 1, 1985, either having

serve d at least three y ear s of continuous active duty , or having been discharg ed afte r J une 30, 1985, for a service -c o n n ecte d disability , pree x isting medical condition not rec og nized as a disability , hardship, or c onvenienc e of the Gover nment. 38 U.S.C. § 3011(a)(1) (C). The appellant' s Substantive Appea l to the Boa rd states that he is appea ling his "[e]ntitl ement
to education benef

its under Chapter 30, Title 38, United S tates C ode." R. at 175. He also asser ts in his brief that he met the "ba sic obliga ted contra cted elig ibilit y criter ia for the rec eipt of educational

7assistance benef its pursuant to Chapter[] 30, Title 38, United States Code." Appellant' s Br . at 12. The Boa rd found that the appellant completed his active duty serv i ce i n J u l y 1980, which

m ea n t t hat he was not elig ible for Chapter 30, Montgome ry G.I

. Bill benef its under 38 U. S

. C

. § 3011(a) (1)( A). The Court ag ree s.

"' Statutory interpre tation beg ins with the lang uag e of the statute, the plain meaning of which we de rive fr om its text and structure .' " Myore v. Nicholson , 489 F.3d 1207, 1211 (F ed. Cir. 2007) (quotin g Mc E n tee v. M.S.P.B. , 404 F.3d 1320, 1328 (F ed. Cir. 2005)); see Sharp v. Shinseki , 23 Vet.App. 267, 271 (2009); see also McG ee v. Peak e , 511 F.3d 1352, 1356 (F ed. Cir. 2008); Gardner

v. Derwinski , 1 Vet.App. 584, 586 (1991) (" De t er m i ning a statute' s plain meaning require s examining t he specific langua g e at issue and the overa ll structure of t he st atute." (citi n g Bethesda Hosp. Ass'n v. Bowen , 485 U.S. 399, 403-05 (1998)) ), aff' d sub nom. Gardner v. Brown , 5 F.3d 1456 (F ed. Cir. 1993), aff'

d , 513 U.S. 115, 115 (1994). "When a court revie ws an ag ency ' s construction of the statute which it administers.

. . . [f] irst, alway s, is the question whether Congr ess has direc tly spoken to the prec ise question at i s s u e. " Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). I f Congr ess had direc tly spoken to the is s u e, then the Court and the
ag ency must both "g ive ef

fec t to the unambig uously expressed intent of Congr ess." Id. at 842-43. I n section 3011 of chapte r 30, title 38, U.S. Code, Congr ess specific ally stated that benef its

are available to a person who "f irst become s a member of the Armed For ces or first enter s on active duty as a me mber of the Armed F orce s" a fter June 30, 1985." There fore , it is clea r from the pl ain lang u age of the statute that to be elig ible for benef its under chapte r 30, the appellant would have have enter ed the Armed For ces afte r J une 30, 1985. Consequently , the Court must "g ive eff ect" to the intent of Cong ress a

nd follow the lang uag e of the statute. Chevron U.S.A., I nc., supra. Her e, the a

ppellant sepa

rate d from active duty on J uly 30, 1980. R. at 191. There fore , the appellant did not have active duty service during any applicable time for Chapter 30 benef its, under 38 U.S.C. §§ 3011(a) (1)( A), (B), (C). R. at 191. Consequently , the Board' s finding is not clea rl y

err oneous. Cela n o v. Peak e , 22 Vet.App. 341, 347-48 (2009) (noting that finding s rela ted to educational benef

its are f actua l); Gilbert , 1 Vet.App. a t 52. The appellant also arg ued that the Board did not provide a n adequate s tatement of rea sons and bases as t o wh y h e wa s n ot entitled to education benef its. Appellant' s Br

. at 7. The Boa rd

8explained the l eg al criteria for a veteran to be eligible for educational benef its u n d er C h ap t er 30. R. at 144. Then, the Boa rd expl ai n ed t h at b eca

use the appellant' s active duty service conclude d befor e the applicable time period he was not elig ible for Chapter 30 educational benef its. R. at 146. The Court there fore discerns no e rror in the Boa

rd' s statement of re asons or ba ses for this finding

. 3. Educational Benefits Under Chapter 32 To be elig ible for educa

tional benef

its under Chapter 32, the Post-V i et n am Era Veter ans' Educa tional Assistance Progr am, a person entering milit ary service betwee n J anuar y 1, 1977, and J une 30, 1985, had to enroll in the prog ram for at least 12 consec utive months and ag ree to a monthly deduction from their milit ary pay
. 38 U.S.C. §§ 3221(a) , 3222(a) ; 38 C. F. R

. § § 21.5040(a) , 20.5052(a) (2011). The appellant arg ues that he was "e rrone ously denied educational assistance due to the misapplication of a
. . . contribution direc tive enac ted afte r his antec eding contra ctual commitment in Septe mber 1972." Appellant' s Br

. at 3. The B oard f ound that the appe llant was not elig ible for education benef

its under Chapter 32 beca

use, althoug h he "se rved betwee n Dec ember 31, 1976, and J uly 1, 1985, he did not contribute to an educational assistance prog ram from his milit ary pay during his period of service ." R. at 146. The Court holds that the Boa rd' s finding is not clea

rly err oneous. I n sections 3221 and 3222, chapte r 32, title 38, U.S. Code, Congr ess specific ally stated that
to be elig ible for benef

its, a veter an had to enroll in the prog ram for at least 12 consec utive months and ag ree to monthly deductions from his or her milit ary pay
. There fore , it is clea r from the plain lang u age o f t h e s tatute t hat t o be eligible for benef its under Chapter 32, the appellant would have
to have contributed to the educa tional assistance prog ram. Consequently , the Court m u s t "gi v e eff ect" to the intent of Congr ess. Chevron U.S.A., I nc., supra. Her e, reg ardle ss of the nature of the appellant' s service betwee n J anuar y 1977 and J une 1985, he admits that he did not enroll in the prog ram or make monthly contributions from his milit ary pay
. During his hearing befor e the B oard, the appellant testified that when he came onto active duty he

wa s t o l d t h at he had to make a monthly contribution if he wanted t o rec eive educational benefit s ; howeve r, he did not contribute beca use he believed that he was entitled to Chapter 34, Vietnam-e ra educational benef

its, which did not require a contribution to participate. R. a t 153-54. The appellant points t o n o authorit y that would entitle him to educational benef its under

9Chapter 32 without his having contributed to the prog ram. There fore , beca use he does not dispute that he did not make monthly contributions, the Boa rd' s finding that he is not elig ible for the PostVietnam Era Ve t er an s ' Educa tional Assistance Prog ram is not clea rly err oneous. See Celano , 22 Vet.App. a t 347-48; Gilbert , 1 Vet.App. a t 52. As to the appellant' s argum en t t h at the Boa rd did not provide an adequate statement of

rea sons and bases why he was not entitled to education benef its, the C o u rt fi n d s the appellant' s arg ument unavailing

. See Appellant' s Br

. at 7. The Boa rd explained the criter ia for a veter an to be elig ible for educational benef its under Chapter 32. R. at 145. T h e Bo ar d t h en explained that beca use the appellant had not contributed to an educational assistance prog ram from his milit ary pay during his period of service he was not entitled to Chapter 32 educational benef its. R. at 146. The Court finds no error

in the Boa

rd' s statement of re asons or ba ses for its dete rmination. 4. Educational Benefits Under Chapter 1606 and Chapter 1607 To be elig ible for educa

tional benef

its under chapte r 1606, title 10, U.S. Code, a veter an afte r J une 30, 1985, had to enlist, ree nlist, or extend an enlistment in the Selected Reserve s for six y ear s

or more or serve as a Reserve Offic er in the Selected Reserve for not less than six y ear s in addition
to any other obliga tion. 10 U.S.C. § 16132; 38 C.F.R. § 21.7540 (2011). Eligibility under chapte r 1607, title 10, U.S. Code, extend s t o t h o s e who wer e members of a Reserve component afte r September 11, 2001, who serve d on active duty in support of a conting ency o p er at i o n for 90

consec utive day s or more, or who per formed f

ull-time National Guar d duty for more than 90 day s for the purpose of responding to a national emer g ency decla red by the President. 10 U.S.C. § 16163; 38 C.F.R. § 31.9520 (2011). The Boa rd also found that t h e ap p el lant was not entitled to educational benef its under Chapter 1606, the Montgome ry G.I

. Bill – Selected Reserve , or Chapter 1607, the Reserve Educa tional Assistance Prog ram. R. at 147. At section 1632, chapte rs 1 6 0 6, title 10, U.S. Code, Congr ess expressly stated that to be elig ible for benefits, a veter an had t o b e a m ember of t he S elec ted R eser ve after 1985. 10 U.S.C. § 16132; 38 C.F.R. § 21.7540. To be elig ible for Chapter 1607 benef its, Congr ess expressly stated that the veter an had to be a member of a Reserve component or the National Guar d. There fore , it is clea r fro m t h e plain lang uag e of the statute that the appellant would have had to have been a

10member of the R eser ve or National Guard som etime after 1985 fo r h i m to be eligible for benef its under Chapte rs 1606 or 1607. Consequently , since Congr ess had spoken on the issue direc tly , the Court must defer to its intent. Chevron U.S.A., I nc., supra. Her e, the appellant' s active duty milit ary service ended in J uly 1980 and there is no evidenc e in the record that the appellant was a member of the Selecte d Reserve or t he National Guar d afte r h i s active duty service

. There fore , the Boa rd' s finding that the appellant was not entitl ed t o educational benef

its under Chapters 1606 and 1607 is not clea rly err o n eous. See Celano , 22 Vet.App. at 347-48; Gilbert , 1 Vet.App. at 52. The Boa rd' s finding that the appellant was not entitled to Chapter 1606 or 1607 educa tional benef

i t s wa s s upported by an adequate statement of

rea sons and bases. The Boa rd detailed the leg al criter ia for elig ibilit y fo r b en efits under eac h
prog ram, and then explained that beca use there is no evide n ce t h at the appellant serve d in the Reserve or Na tional Guard a fter his a ctive duty time he is not elig ible for the benef its. Theref

ore, the Court asce rtains no inadequa cies in the Boa rd' s statemen t o f re as ons or bases to support its finding

. 5. Other Argume nts The appellant also arg ues that his due proce ss rig hts wer e violated beca use a May 31, 2011,
response to a second motion for rec onsideration did not state that the Boa rd member re s p o n d ing "r evi ew ed and considered all of t he evidence." Appellant' s Br

. at 6. Finally , the appellant arg ues that the B oard e rre d by

not apply ing the "be nefit of the doubt" doctrine. Id. at 8. The Sec reta

ry responds that the Ma

y 31, 2011, letter was not a Boa rd dec ision, but i nstead

a letter from the Boa

rd that denied the appellant' s motion for rec onsideration of the April 2011 Boa rd decision, and as such, there was no require ment to revie w and rec onsider all of the ev i d en ce. Secre tary ' s Br

. at 13. Wit h respe ct to t h e ap p ell ant' s due proce ss rig hts g ener ally , the Secre tary arg ues that the Boa

rd found that the appellant' s due proce ss rig hts had been satisfied beca use he had been "a ccor ded ample opportunity to pr esent evidenc e and arg ument in support of his appea l." Id.
at 14; see also R. at 144. Finally , the Secre tary responds that the benef it of the doubt doc trine was not applicable in this ca se bec ause the "la w is disposit ive in this case." Secre tary ' s Br . at 14. The appellant' s arg uments that he was not aff orded due proce ss are without merit. The rec ord shows that the appellant was g iven the opportunity to prese nt evidenc e and arg uments in support of

11his appea l, and therefo re n o gen eral due proce ss rig ht was violated. See Thurber v. Brown ,

5 Vet.App. 119, 122-123 (1993) (citing Matthews v. Eldridge , 424 U.S. 319, 333 (1976))

. As to the
arg ument that the appellant' s due proce ss r ights wer e violated by the Boa rd' s May 31, 2011, denial of his motion for rec onsideration, the Court is not persua ded. I f the Chairman denies the appellant' s motion for rec onsideration, the appellant m ay n o t o rd i narily appea l that denial beca use that is an action that the Court g ener ally cannot rev i ew. See Murillo v. Brown , 10 Vet.App. 108, 110-11 (1997). I nstead, the appellant' s proper course of action is to appea l the Boa rd decision to this Court,

as the appellant has done here

. There fore , the appellant' s due proce ss rig hts wer e not violated by any purported failure of the Boa rd Chairman to revie w and rec onsider all of the evidenc e beca use he was deny ing the appellant' s motion for rec onsideration. As to the appellant' s arg ument that the Boa rd err ed by not providing him with the benef it of the doubt, the Court is not persua ded. Pursuant to 38 C.F.R. § 3.102 (2011), any rea sonable doubt must be resolved in f

avor of the appellant "[w]hen there is an approximate balanc e of positive a nd
neg ative evidenc e reg arding any issue materia l to the deter mination of a matter." See also 38 U.S.C. § 5107(b). Howeve r, beca use the Boa

rd deter mined that the law prec luded a g rant of benef its, this rule does not apply

. See Sabonis v. Brown , 6 Vet.App. 426, 429-30 (1994) (holding that wher e law and not evidenc e is dispositi ve, the claim should be denied or the appea l terminated beca use of lack of leg al merit or lac k of entitlement under the law)

.

III. CONCLUSION After consideration of the app el lant' s and the Secre tary ' s pleading s, and a revie w of the

rec ord, the Court AFF I RMS the Bo ar d 's Ap ri l 5, 2011, decision that denied educational benef its under Chapte rs 30, 32, 1606, and 1607.

Copies to: David A. Ma

y s VA Ge nera l Counsel (027)

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