ࡱ> 130q x!bjbjt+t+ ".AAx]8888888LLLLL XL K M M M M M M $< 0 q 8q 88"88K LL8888K p88K t @!塠LL7 Department of Memorandum Veterans Affairs Date: March 20, 2001 VAOPGCPREC 09-2001 From: Acting General Counsel (02) Subj: Correct Delimiting Date To: Director, Education Service (22) QUESTION: If an individual has multiple periods of active duty military service, but the last such period does not culminate with an honorable discharge, when does the individuals ten year period of eligibility to receive benefits under the Montgomery GI Bill Active Duty end? DISCUSSION: 1. In this case, the veteran served on active duty in the Army from June 2, 1986, until October 2, 1989, at which time he reenlisted. He then served until July 19, 1990, whereupon he was discharged under other than honorable conditions. VA has determined that, under 38 U.S.C. 3031(a), he is entitled to receive Montgomery GI Bill (MGIB) benefits based upon his honorable period of service from 1986-89 with a delimiting date, by which such benefits are to be used, of October 2, 1999, 10 years after his only honorable discharge. The veteran, however, contends that, since his last discharge was on July 19, l990, he should be able to use his benefits until July 20, 2000, 10 years after that discharge. 2. In general, to become entitled to basic educational assistance allowance under the MGIB, an individual must serve a prescribed period of active duty service after completion of which he or she is discharged from active duty with an honorable discharge. 38 U.S.C. 3011(a)(3)(B). In the case of a veteran who, thereby, has become entitled to MGIB benefits, 38 U.S.C. 3031(a) delimits the eligibility period as follows: such individuals entitlement expires at the end of the 10-year period beginning on the date of such individuals last discharge or release from active duty [with two exceptions not here germane]. 3. Read literally, the language of section 3031(a) would seem to support the claimants contention. The statute gives no characterization whatsoever of the type of discharge required for such purpose. Nevertheless, statutory interpretation is a holistic endeavor that requires consideration of a statutory scheme in its entirety; when interpreting a statute the court should look to the provisions of the whole law, and to its object and policy. See Gallegos v. Gober, 14 Vet. App. 50, 59 (2000) (Farley, J., dissenting) quoting Meeks v. West, 216 F.3d 1363,1366 (Fed. Cir. 2000). Accordingly, we must look to the broader statutory framework before pronouncing that Congress silence in this matter was intentional. 2. Director, Education Service (22) 4. As indicated by the statute earlier cited, Congress clearly did not intend to grant an individual education benefits based on military service not deemed honorable. Rather, an individual must serve a specific period of active duty and after completion of [that period of service] must either continue on active duty; be discharged with an honorable discharge; or be released from active duty characterized as honorable service in order to retire or transfer to the reserves. 38 U.S.C. 3011(a)(3)(A)-(D). In each case, MGIB entitlement is contingent upon honorable performance of active-duty service. 5. Nevertheless, as you have noted, we previously have affirmed that an individual may vest entitlement under chapter 30, based on completing the requisite qualifying period of active duty with an honorable discharge, notwithstanding the individuals later receipt of a less than honorable discharge from a subsequent period or periods of active-duty service. See, memorandum from General Counsel to Chief Benefits Director, dated September 22, 1992; see also, VAOPGCPREC 10-92 (O.G.C. Prec. 10-92) (The fact that the individual [honorably discharged following completion of his initial active duty obligation] subsequently reenlisted . . . and was awarded a discharge characterized as other than an honorable discharge is of no consequence for chapter 30 entitlement purposes.). In such case, however, were the 10-year eligibility period measured from the date of the individuals last honorable discharge, it could have the effect of retroactively divesting that individual of use of part or all of his or her earned MGIB entitlement. In other words, the individuals eligibility period would be considered, after-the-fact, to have run during his or her last period of service, thereby, effectively denying the individual use of benefits for that period of time. 6. In our view, giving the statute a meaning having that significant an adverse effect on an individuals entitlement must be founded on more than the statutes mere silence on the issue. Moreover, having reviewed the statute and its legislative history, we find no persuasive evidence that Congress intended the same discharge standard it explicitly set forth for establishing MGIB entitlement under section 3011(a)(3) also should apply in this context. Rather, we note a complete absence of any clear and unambiguous prescription to employ the same character of discharge requirement when fixing an individuals delimiting period under section 3031(a). In such circumstances, the statute should be construed according to the plain meaning of its unqualified language. See, Gardner v. Derwinski, 1 Vet. App. 584, 587-88 (1991) (Where a statutes language is plain, and its meaning clear, no room exists for construction. There is nothing to construe.) 7. Certainly, had Congress intended to restrict the period for using MGIB benefits to the 10-year period following the last period of active duty from which the eligible individual received an honorable discharge, it readily could have 3. Director, Education Service (22) done so. See, Saunders v. Secretary of Dept. of HHS, 25 F.3d 1031, 1036 (Fed. Cir. 1994) (if Congress had intended such a result, we believe that Congress would have made its intention clear in the statute). Instead, Congress, in section 3031, made no characterization and placed no limitation on the individuals discharge other than that it be the individual's last discharge from active duty. (Note, however, that Congress did place other qualifications on the last period of active duty for such purposes, generally requiring that it be a minimum of at least 90 days service. See, 38 U.S.C. 3031(g).) We can only assume, therefore, that Congress intended that an eligible individual would have a 10-year period following the individuals last discharge or release from active duty, regardless of whether that discharge or release was honorable, within which to use his or her MGIB entitlement. We so hold. CONCLUSION: In the basic case, an individual who is awarded an honorable discharge upon completion of the minimum period of active duty required for MGIB benefits entitlement under 38 U.S.C. 3011 may use those benefits within 10 years after the date of such discharge. If that individual subsequently serves one or more additional periods of active duty (generally, of not less than 90 days), then the individual would have 10 years from the date of the individuals last discharge from active duty within which to use his or her MGIB benefits. Provision of such later delimiting period is not conditioned upon the individuals having been awarded an honorable discharge from his or her last period of active duty. 38 U.S.C. 3031(a) and (g). John H. Thompson DEGALLIN:3/14/01:dl:DelimitDate Op Final.doc 021 02 edms#109226 0201101003 ,1DWX]z  F S (*_gJMoz}  !#!x!5CJ6 6hnH hnH 5>*CJ >*hnHhnH CJhnH5CJ<5CJ 8,WXz{+ , )*$1$$1$,WXz{+ , )*YZMNop   !!!!!!!!!!!!!!!! !!!"!#!x!@YZMNop   !!!!!!!!!!!!!$$$1$!!!! !!!"!#!x!$ &P/ =!"#$.% [0@0NormalCJOJQJmH 8@8 Heading 3 $@&5CJ <A@<Default Paragraph Font8P@8 Body Text 2$1$hnH &B@& Body Textx.x!!x!x!<@{z,Vz VACOGalliD1\\ogccobdc1\psg-1\gallin\DelimitDate Op Final.doc VACOGalliD1\\ogccobdc1\psg-1\gallin\DelimitDate Op Final.doc VACOGalliD5C:\TEMP\AutoRecovery save of DelimitDate Op Final.asd VACOGalliD1\\OGCCOBDC1\psg-1\gallin\DelimitDate Op Final.doc VACOGalliDA:\DelimitDate Op Final 1A.doc VACOGalliD1\\ogccobdc1\psg-1\gallin\DelimitDate Op Final.doc VACOLomaxD5C:\TEMP\AutoRecovery save of DelimitDate Op Final.asd VACOLomaxD1\\ogccobdc1\psg-1\gallin\DelimitDate Op Final.doc VACOGalliD1\\ogccobdc1\psg-1\gallin\DelimitDate Op Final.doc VACOSokolS3\\ogccobdc1\users\Ogcopins\Opins2001\prc09-2001.doc  %h!|q- !< 7\^ {g 9i hho(\o(.hho(.hho(.hho(.hho(.hho(.|q-7\^9i!!<{g  @@@^@@x @GTimes New Roman5Symbol3& Arial"qhsU&sU&ժSfCL 3H -$r0dActing General Counsel (02)DEGallin VACOSokolSOh+'0  4 @ L Xdlt|Acting General Counsel (02)cti DEGallinnerEGaNormaln VACOSokolSr2COMicrosoft Word 8.0s@@ƈ@t@tCL՜.+,D՜.+,H hp|   g3 1 Acting General Counsel (02) Title 6> _PID_GUIDAN{73299E5D-0C97-11D5-942B-0000E88E4A10} !"#$%&')*+,-./2Root Entry FH ߿ز41TableWordDocument".SummaryInformation( DocumentSummaryInformation8(CompObjjObjectPool  FMicrosoft Word Document MSWordDocWord.Document.89q