DeSousa v. Brown

4 Vet. App. 561, 1993 U.S. Vet. App. LEXIS 151, 1993 WL 116938
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 19, 1993
DocketNo. 91-259
StatusPublished
Cited by1 cases

This text of 4 Vet. App. 561 (DeSousa v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeSousa v. Brown, 4 Vet. App. 561, 1993 U.S. Vet. App. LEXIS 151, 1993 WL 116938 (Cal. 1993).

Opinion

STEINBERG, Associate Judge:

The pro se appellant, veteran John A. DeSousa, appeals from the December 11, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying his claim for entitlement to an additional change of program for receipt of educational assistance allowance under chapter 34 of title 38, United States Code [hereinafter referred to as “education benefits”]. John A. DeSousa, BVA 90-41831 (Dec. 11, 1990). The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affir-mance, which will be denied because the case is not one “of relative simplicity”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board’s decision will be vacated and the matter remanded for readjudication.

I. BACKGROUND

The veteran served on active duty in the Army from July 1976 to November 1981. [562]*562R. at 1. Although he received a discharge “under conditions other than honorable”, in April 1985 a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) entered a determination that his service from July 1976 to March 1979 entitled him to an unconditional discharge pursuant to 38 C.F.R. § 3.13(c) and that he was entitled to VA benefits based on that period of service. R. at 6.

In July 1980, while he was on active duty, the VA awarded the veteran education benefits for his enrollment in a correspondence course in “Digital Electronics” offered by the National Radio Institute (NRI). Supp.R. at 1, 4. In October 1984, he applied for education benefits in order to enroll in the “A.S. [Associate of Science] Computer Science]” program at Austin Peay State University, in Clarksville, Tennessee; the veteran’s stated goal was to become a computer technician. Supp.R. at 5, 7. In April 1985, before the RO had acted on this application, Austin Peay submitted a VA Enrollment Certification form which listed the veteran’s program of study as “A.O.S. [Associate of Science], Elec Tech”. R. at 10. Later that month, the VARO granted the requested educational assistance allowance. The April 29, 1985, letter notifying the veteran of the decision stated: “Initiation of this program will be your first and only optional change of program. Another change of program cannot be approved unless it is shown to be suitable to your aptitudes, interests and abilities.” Supp.R. at 11.

Nine months later, in February 1986, the veteran filed another application for education benefits, this time for a correspondence course in “Microcomputers and Microprocessors” given by NRI. On the application, he stated his goal as becoming an “Electronics Technician and Computer Programmer”. Supp.R. at 13. In the box labeled “Reason for changing course or place of study”, he wrote: “Unable to [progress to my satisfaction”. Ibid. In May 1986, upon the RO’s request, the veteran completed a VA Form 28-1902 (Supplemental Information for Change of Program), stating that the “electronics technician” program at Austin Peay had cost too much money and that he was “not learning anything”. Supp.R. at 17. In June 1986, apparently after he had submitted another request for education benefits for his NRI course work and another Form 28-1902, the veteran, in reply to the question “What did you like or dislike about your first program using VA benefits?”, gave the following response concerning his “electronic tech” program at Austin Peay: “Not learning enough[] for the money”. Supp.R. at 20. In October 1986, the RO approved education benefits for his NRI Microcomputers and Microprocessors course. Supp.R. at 22.

In October 1988, the veteran filed another request for education benefits, this time to take 72 credits in computer programming and 12 credits in general education at CareerCom Junior College of Business in Hopkinsville, Kentucky (CCJC). Supp.R. at 23. He stated the reason for the requested change as “No assistant on this course[. T]his is the second time.” Ibid. In a January 1989 letter, the RO informed him: “Another change may be authorized only if it is necessary because you were unable to complete your last training program due to circumstances beyond your control.” Supp.R. at 24 (emphasis in original). As requested, he filled out another Form 28-1902, stating on it that he did not complete his NRI “Micro[ ]electronics” course “because of bad service from school on money and school supplies”. He added: “I am sorry about all this trouble, but the first two programs [were] about the same thing, but this program would put [me] into computer repair and program[m]er.” Supp.R. at 25.

In March 1989, the RO denied the requested education benefits, finding that the evidence of record did not show that the “previous changes of program” had been beyond the veteran’s control. Supp.R. at 27. In April 1989, he filed a Notice of Disagreement with the RO’s decision, and in May 1989 he filed another application for education benefits for his CCJC courses; he listed the program as “Associate of Specialized Business Degree — Computer Programming Major”. Supp.R. at 28. A VA [563]*563enrollment certificate dated June 1989 showed that CCJC had awarded him 27 credits for prior training and experience. Supp.R. at 31. In his July 1989 VA Form 1-9 (Appeal to the BVA), the veteran stated: “The changes of places of training [were] due to lack of cooperation on the schools’ part.” R. at 13. He also took issue with the March 19, 1989, delimiting date given by VA in the June 1989 Statement of the Case, asserting that the correct date was December 31, 1989. Ibid.

In January 1990, the veteran testified under oath at a personal hearing held at the Nashville, Tennessee, RO. He stated that when he began his studies with NRI in 1980 his career goal was “electronics and ... computer programming or repair”. R. at 18. He stated that after he had encountered unspecified problems with NRI’s financial personnel, and after “the teachers wouldn’t respond to some of my letters”, he enrolled at Austin Peay, where he sought to “refresh my background on some knowledge in electronics”. Ibid. He further stated his belief that his courses at Austin Peay, NRI, and CCJC all led to his career goal of computer repair and programming and said that he would receive an Associate of Science degree from CCJC in July 1990. R. at 19-20.

In its December 1990 decision denying the veteran’s claim, the BVA stated:

Despite the veteran’s argument that his proposed course leading to an Associate’s degree in Computer Programming is a continuation of his education in the computer repair field, it is clear that, when compared to the correspondence course in Microcomputers and Microprocessors, the veteran’s proposed Associate’s degree program leads to a different vocational objective and requires a charge in the type of courses required to obtain that objective.

DeSousa, BVA 90-41831, at 6. Further, the Board stated that it had considered his statement that he had discontinued his NRI course due to “bad service” from the school, but concluded, without specification of reasons, that the change of program was “not necessitated by circumstances beyond the veteran’s control.” Id. at 7. Finally, the Board noted, “for the veteran’s benefit”, that the CCJC course had started in May 1989, after his delimiting date, noting also that chapter 34 education benefits had expired'for all veterans on December 31, 1989. Ibid.

II.

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Related

DeSousa v. Gober
10 Vet. App. 461 (Veterans Claims, 1997)

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Bluebook (online)
4 Vet. App. 561, 1993 U.S. Vet. App. LEXIS 151, 1993 WL 116938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desousa-v-brown-cavc-1993.