Harvey v. Brown

6 Vet. App. 416, 1994 U.S. Vet. App. LEXIS 361, 1994 WL 145506
United States Court of Appeals for Veterans Claims·Decided April 21, 1994·No. No. 92-1398·Published·Cited by 49 cases

Opinion

STEINBERG, Judge:

The appellant veteran, James R. Harvey, appeals a September 21,1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying him basic eligibility for educational assistance benefits under chapter 30 of title 38, United States Code, the “All Volunteer Force Educational Assistance Program” [hereinafter “GI Bill of 1984” or “New GI Bill” or “NGIB”]. The veteran has filed an informal brief urging the Court to reverse the Board decision. The Secretary has filed a brief requesting summary affirmance. For the reasons set forth below, the Court will affirm the decision of the Board.

I. Background

The veteran enlisted in the Army under the Delayed Entry Program (DEP) on November 8, 1985, by completing and signing a form entitled “Enlistment/Reenlistment Doc-umente,] Armed Forces of the United States”. R. at 69-71. The enlistment form contains alphabetical sections A. through H. Section B., “Agreements”, states in part (with the material underlined that was filled in on the form):

8. I am enlisting/reenlisting in the United States (list branch of service) Army Reserve this date for 8 years and_weeks beginning in pay grade E-l. The additional details of my enlistment/reenlistment are in Section C. and Annex(es) A.
[418] a. FOR ENLISTMENT IN A DELAYED ENTRY/ENLISTMENT PROGRAM (DEP): I understand that I will be ordered to active duty as a reservist unless I report to the place shown in item 4 above by (list date (YYMMDD)) 0700 86 JAN 80 for enlistment in the Regular component of the United States (list branch of service) ARMY for not less than 4 years and_ weeks. My enlistment in the DEP is in a nonpay status. I understand my period of time in the DEP is NOT creditable for pay purposes upon entry into a pay status. However, I also understand that this time is counted toward fulfillment of my military service obligation or commitment. I must maintain my current qualifications and keep my recruiter informed of any changes in my physical or dependency status, moral qualifications, and mailing address[.]
b. Remarks: (if none, so state.) NONE
c. The agreements in this section and attached annex(es) are all the promises made to me by the Government. ANYTHING ELSE ANYONE HAS PROMISED ME IS NOT VALID AND WILL NOT BE HONORED.

R. at 69. The record contains no evidence that an annex was attached to the enlistment form. Section D., “Certification and Acceptance”, states in part:

I CERTIFY THAT I HAVE CAREFULLY READ THIS DOCUMENT. ANY QUESTIONS I HAD WERE EXPLAINED TO MY SATISFACTION. I FULLY UNDERSTAND THAT ONLY THOSE AGREEMENTS IN SECTION B OF THIS DOCUMENT OR RECORDED ON THE ATTACHED ANNEX(ES) WILL BE HONORED. ANY OTHER PROMISES OR GUARANTEES MADE TO ME BY ANYONE ARE WRITTEN BELOW: (if none, X “NONE” and initial)

R. at 70. The form indicates that the veteran checked the box labeled “NONE” and initialed his checkmark. Ibid.

Sections F., “Discharge From Delayed Entry/Enlistment Program”; G., “Approval and Acceptance by Service Representative”; and H., “Confirmation of Enlistment or Reenlistment”, of the veteran’s Enlistment/Reenlistment Document were completed and signed by the veteran on January 30,1986. Section F. indicates that the veteran was discharged from the DEP and enlisted in the Regular Component of the Army on January 30,1986. R. at 71. Section F. states (with the material underlined filled in): “No changes have been made to my enlistment options OR if changes were made they are recorded on Annex(es) B & C which replace(s) Annex(es) A. Ibid. The record contains no indication of any annex to this portion of the veteran’s Enlistment/Reenlistment Document.

On February 3, 1986, four days after his entrance into active duty in the Army, the veteran signed and dated a DD Form 2366, “Veteran’s Educational Assistance Act of 1984 ([New] GI Bill)”. The form contained a “Statement of Understanding” which explained that the veteran was “eligible for the GI Bill of 1984 and [would be] automatically enrolled.” R. at 60. The veteran’s signature appears beneath this statement. The form also contains a “Statement of Enrollment”, which notes:

a. I understand that if I remain enrolled in the GI Bill of 1984 that $100 per month will be deducted from my basic pay for EACH of the first full 12 months of active duty and WILL NOT BE REFUNDED
b. I must complete three years of service before I am entitled to $300 per month for 36 months ($250 per month for 36 months, if I have a two year obligation)
c. I must complete two years of active duty service and join the Selected Reserve for a minimum four year service agreement before I am entitled to $300 per month for 36 months.

Ibid. The veteran’s signature appears beneath this statement also. The form further contains a section entitled “Service Unique Education Assistance Options”, which noted: “If I remain enrolled in the GI Bill of 1984,1 may be eligible for additional educational assistance based on my military specialty and/or years of service as shown below”. Ibid. An illegible hand-written sentence appears underneath this section. Ibid. The [419] illegible sentence, clarified in a handwritten attachment to DD Form 2366, states: “I understand that I may not become entitled to the new GI Bill and/or the new ACF [Army College Fund] for the same time period of service that I accrue from repayment of eligibility.” R. at 59.

In June 1992 testimony to the BVA, the veteran later explained the circumstances surrounding his entry into service and ensuing events, as follows:

When I enlisted in the Army ... I was in college for a year, and so I had loans accrued from that period. And I wanted the GI bill. So [when] I enlisted, I made sure I had both the loan forgiveness time track and the part of the GI bill all in there- I wrote letters to the bank ... so I wouldn’t have to make payments.... [A]fter I was in for several months, the bank sent me a note saying these loans aren’t getting paid. So I had to start [making] some phone calls....

R. at 48.

On January 15, 1987, after he had served almost a year, the Army wrote to the veteran as follows:

The New GI Bill became effective 1 July 1985. One of the provisions of the new law precludes accruing eligibility for both Loan Repayment and New GI Bill for the same period of service.... Some soldiers who entered active duty between 1 July 1985— 31 March 1986 were erroneously offered both the Loan Repayment Program and the New GI Bill. You have been identified as one of those soldiers, and you now must choose an option in accordance with the law.

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Harvey v. Brown, 6 Vet. App. 416, 1994 U.S. Vet. App. LEXIS 361, 1994 WL 145506 (Cal. 1994).

6 Vet. App. 416 (Harvey v. Brown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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