DeSousa v. Gober

10 Vet. App. 461, 1997 U.S. Vet. App. LEXIS 986, 1997 WL 677479
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 31, 1997
DocketNo. 96-001
StatusPublished
Cited by15 cases

This text of 10 Vet. App. 461 (DeSousa v. Gober) 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. Gober, 10 Vet. App. 461, 1997 U.S. Vet. App. LEXIS 986, 1997 WL 677479 (Cal. 1997).

Opinion

STEINBERG, Judge.

The pro se appellant, veteran John A. DeSousa, appeals a November 21, 1995, Board of Veterans’ Appeals (BVA or Board) decision denying his claim for entitlement to educational assistance allowance under chapter 34 of title 38, U.S.Code [hereinafter education benefits]. Record (R.) at 11. The appellant has filed an informal brief, and the Secretary has filed a brief. For the reasons that follow, the Court will affirm in part the decision of the Board and vacate it in part and remand a matter.

I. Background

The veteran’s claim was previously before the Court in DeSousa v. Brown, 4 Vet.App. 561 (1993) (DeSousa I), and a full statement of facts is set forth there.

The veteran had two consecutive periods of service in the U.S. Army, from July 1976 to March 1979 and from March 1979 to November 1981. R. at 91, 92. He was given an honorable discharge from his first period of service (R. at 65), but his discharge from his second period of service was “under conditions other than honorable” (R. at 64). An April 1985 Department of Veterans Affairs (VA) regional office (RO) administrative decision determined that (1) the character of discharge from his first service period was unconditional and therefore established his eligibility for VA benefits for the period of service from July 26, 1976, to July 25, 1979, and (2) that the discharge from his second service period was “not considered to have been issued under other than dishonorable conditions” and therefore did not qualify him for VA benefits generally. R. at 92. This decision was apparently never appealed and became final.

In July 1980, while still on active duty, he was awarded, effective January 22, 1980, education benefits for correspondence-course study in electronics (R. at 49).at the National Radio Institute. R. at 51. In April 1985, he sought a change of program to “A.S. [Associate of Science] Computer Sei[enee]” at Austin Peay State University (R. at 55), and VA granted the change, noting: “Initiation of this program will be your first and only optional change of program” (R. at 96). In February 1986, he applied for another change of program, this time to a course in “microcomputers [and] microprocessors” (R. at 110), and VA also granted that change and stated: “This program will constitute your second change of program. A third or subsequent change of program may be approved only if found suitable to your interests, aptitudes, and abilities, and necessitated by circumstances beyond your control”. R. at 134 (emphasis in original). In September 1988, the veteran requested a third change of program to pursue an “ASB [Business] — Computer Programming]” at another school, CareerCom Junior College of Business (CJCB). R. at 147. It is this third change that gives rise to the present case.

In March 1989, the RO denied the veteran’s request for education benefits for the CJCB course of study. R. at 164. The veteran filed a Notice of Disagreement (NOD) in April 1989 (R. at 169), the RO issued a Statement of the Case (SOC) (R. at 183), and, subsequently, the veteran timely filed a Form 1-9 (Substantive Appeal to BVA) (R. at 188). He was enrolled in the CJCB. course of study from May 22, 1989, to May 31, 1990, and from August 20, 1990, to November 8,1990. R. at 261.

The December 11, 1990, BVA decision appealed in DeSousa I, supra, denied the veteran education benefits for his third requested change of program on the ground that the Board did not “find that circumstances beyond [his] control interrupted or terminated [463]*463his program pursuit, and necessitated another change of program”. R. at 223. The BVA applied the law then in effect, 38 U.S.C. § 3691 (1990) [hereinafter 38 U.S.C. § 3691 (1990) ], and regulation, 38 C.F.R. § 21.4234 (1990). In its April 19, 1993, opinion in DeSousa I, the Court, relying upon Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991), concluded that liberalizing law and regulation adopted during the pendency of the appeal had potential bearing upon the veteran’s case in that it might allow for the proposed third change of program. The Court thus vacated the 1990 BVA decision and remanded for the Board to determine (1) what was the correct delimiting date for the veteran’s education benefits and (2) whether the veteran’s CJCB course of study had constituted a change of program under the liberalizing law and regulation and, if so, whether that third change was still permissible because, pursuant to 38 C.F.R. § 21.4234(d)(3), it was “necessitated by circumstances beyond the control of the veteran”. DeSousa I, 4 Vet.App. at 565.

On remand, the BVA determined in a December 1993 decision that the correct delimiting date for the veteran’s pursuit of chapter 34 education benefits was July 26,1989 (R. at 247), and remanded to the RO the issue of whether his CJCB course of study, pursued over the period from May 1989 to November 1990, constituted a change of program under the liberalizing law and regulation (R. at 248). A July 1995 General Counsel (GC) memorandum on this case, referencing a May 1994 GC advisory opinion, determined that “under the liberalized rules, the veteran’s change of schools in 1989 did not ... constitute a change of program”. R. at 271; see also R. at 266, 280. However, the GC memorandum concluded that effective-date rules under 38 U.S.C. §§ 5110(g) and 5113(a) and 38 C.F.R. § 21.4131(f) prohibited an award based on a liberalizing law or regulation for a period of study carried out before the effective date of the law or regulation (ibid.), found that the effective date of the liberalizing regulation, 38 C.F.R. § 21.4234(a), was September 4, 1992 (R. at 272), and thus concluded that “no payment may be authorized for [his] 1989 course pursuit” (ibid.).

In the November 1995 BVA decision here on appeal, the Board relied on the May 1994 GC advisory opinion in denying the veteran’s claim for education benefits. R. at 10. The Board concluded as follows: (1) That the CJCB course of study did not constitute a change of program under the revised regulation (38 C.F.R. § 21.4234(a)) (R. at 7,10); (2) that the veteran’s delimiting date was July 26, 1989 (R. at 9); and (3) that effective-date rules, pursuant to 38 U.S.C. §§ 5110(g) and 5113(a) and 38 C.F.R. § 21.4131(f), precluded an award of education benefits for study pursued earlier than September 4, 1992 (R. at 10).

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Bluebook (online)
10 Vet. App. 461, 1997 U.S. Vet. App. LEXIS 986, 1997 WL 677479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/desousa-v-gober-cavc-1997.