B-207679 L/M, JUN 21, 1982, OFFICE OF GENERAL COUNSEL

B-207679 L/M: Jun 21, 1982

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THE MEMBER WAS INFORMED THAT UNDER THE APPLICABLE STATUTES NATIONAL GUARD MEMBERS MAY NOT USE "ACTIVE DUTY FOR TRAINING" TO ESTABLISH ELIGIBILITY FOR VA ASSISTANCE IN THE PURCHASE OF A HOME AND THAT. IND ARNG: THIS LETTER IS IN RESPONSE TO YOURS DATED MAY 25. YOU INDICATE THAT YOU HAVE BEEN SERVING ON ACTIVE DUTY WITH THE INDIANA NATIONAL GUARD CONTINUOUSLY SINCE JULY 28. WITH YOUR LETTER YOU HAVE ENCLOSED A COPY OF THE ORDERS THAT WERE ISSUED BY THE INDIANA ADJUTANT GENERAL'S OFFICE LAST JULY CALLING YOU TO ACTIVE DUTY. IT WAS YOUR UNDERSTANDING THAT AFTER YOU HAD COMPLETED 181 DAYS OF CONTINUOUS SERVICE UNDER THOSE ORDERS. PROVISIONS OF STATUTORY LAW GOVERNING VA BENEFITS ARE CONTAINED IN TITLE 38 OF THE UNITED STATES CODE.

B-207679 L/M, JUN 21, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: THE VETERANS ADMINISTRATION (VA) ADVISED A NATIONAL GUARD MEMBER THAT HE DID NOT QUALIFY FOR VA ASSISTANCE IN THE PURCHASE OF A HOME BASED ON "ACTIVE DUTY FOR TRAINING" PERFORMED UNDER ORDERS ISSUED BY A STATE ADJUTANT GENERAL, AND THE MEMBER QUESTIONED THE CORRECTNESS OF THAT ADVICE. IN RESPONSE, THE MEMBER WAS INFORMED THAT UNDER THE APPLICABLE STATUTES NATIONAL GUARD MEMBERS MAY NOT USE "ACTIVE DUTY FOR TRAINING" TO ESTABLISH ELIGIBILITY FOR VA ASSISTANCE IN THE PURCHASE OF A HOME AND THAT, IN ANY EVENT, GAO HAS NO JURISDICTION TO REVIEW OR OVERRULE VA BENEFIT DETERMINATIONS. 38 U.S.C. 101, 211, 1818.

SERGEANT ROBERT D. GIBSON, IND ARNG:

THIS LETTER IS IN RESPONSE TO YOURS DATED MAY 25, 1982, CONCERNING YOUR ELIGIBILITY FOR VETERANS BENEFITS.

YOU INDICATE THAT YOU HAVE BEEN SERVING ON ACTIVE DUTY WITH THE INDIANA NATIONAL GUARD CONTINUOUSLY SINCE JULY 28, 1981, AND WITH YOUR LETTER YOU HAVE ENCLOSED A COPY OF THE ORDERS THAT WERE ISSUED BY THE INDIANA ADJUTANT GENERAL'S OFFICE LAST JULY CALLING YOU TO ACTIVE DUTY. THOSE ORDERS STATE, AMONG OTHER THINGS, "AUTH: TITLE 32 U.S.C. 502(F) (DO NOT ACCESS INTO THE STRENGTH OF THE ACTIVE ARMY)." IT WAS YOUR UNDERSTANDING THAT AFTER YOU HAD COMPLETED 181 DAYS OF CONTINUOUS SERVICE UNDER THOSE ORDERS, YOU WOULD BECOME ELIGIBLE FOR BENEFITS ADMINISTERED BY THE VETERANS ADMINISTRATION (VA) TO ASSIST YOU IN THE PURCHASE OF A HOME. HOWEVER, VA OFFICIALS IN INDIANAPOLIS RECENTLY ADVISED YOU THAT YOU DO NOT QUALIFY FOR THOSE BENEFITS BASED ON YOUR "TITLE 32" SERVICE. ESSENTIALLY, YOU QUESTION THE CORRECTNESS OF THAT ADVICE.

PROVISIONS OF STATUTORY LAW GOVERNING VA BENEFITS ARE CONTAINED IN TITLE 38 OF THE UNITED STATES CODE. SUBSECTION 211(A) OF TITLE 38 PROVIDES THAT:

"*** THE DECISIONS OF THE ADMINISTRATOR ON ANY QUESTION OF LAW OR FACT UNDER ANY LAW ADMINISTERED BY THE VETERANS' ADMINISTRATION PROVIDING BENEFITS FOR VETERANS AND THEIR DEPENDENTS OR SURVIVORS SHALL BE FINAL AND CONCLUSIVE AND NO OTHER OFFICIAL OR ANY COURT OF THE UNITED STATES SHALL HAVE POWER OR JURISDICTION TO REVIEW ANY SUCH DECISION BY AN ACTION IN THE NATURE OF MANDAMUS OR OTHERWISE."

THUS, THE GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO REVIEW OR OVERRULE ANY FINAL DECISION THAT THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY MAKE CONCERNING YOUR ELIGIBILITY FOR VA BENEFITS. HOWEVER, THE FOLLOWING INFORMATION MAY BE OF SOME USE TO YOU.

SUBSECTION 1818(A) OF TITLE 38, U.S.C. AUTHORIZES VA BENEFITS TO ASSIST A SERVICE MEMBER TO PURCHASE A HOME IF AFTER MAY 7, 1975, THE MEMBER "HAS SERVED MORE THAN 180 DAYS IN ACTIVE DUTY STATUS AND CONTINUES ON ACTIVE DUTY WITHOUT A BREAK THEREIN." SUBSECTION 101(21) OF TITLE 38 DEFINES THE TERM "ACTIVE DUTY" AS "FULL-TIME DUTY IN THE ARMED FORCES, OTHER THAN ACTIVE DUTY FOR TRAINING." SUBSECTION 101(22) OF TITLE 38 DEFINES THE TERM "ACTIVE DUTY FOR TRAINING" AS INCLUDING:

"(C) IN THE CASE OF MEMBERS OF THE NATIONAL GUARD OR AIR NATIONAL GUARD OF ANY STATE, FULL-TIME DUTY UNDER SECTION 316, 502, 503, 504, OR 505 OF TITLE 32 ***;"

HENCE, YOUR FULL-TIME NATIONAL GUARD SERVICE BASED ON THE ORDERS CALLING YOU TO DUTY UNDER "TITLE 32 U.S.C. 502(F)" APPEARS BY STATUTE TO FALL WITHIN THE CATEGORY OF "ACTIVE DUTY FOR TRAINING" FOR PURPOSES OF ESTABLISHING ELIGIBILITY FOR VA BENEFITS. IT ALSO APPEARS THAT THE ADVICE GIVEN TO YOU BY THE VA OFFICIALS IN INDIANAPOLIS CONFORMED TO THE LAWS GOVERNING VA BENEFITS, SINCE UNDER 38 U.S.C. 1818(A) "ACTIVE DUTY FOR TRAINING MAY NOT SERVE AS A BASIS FOR ESTABLISHING ELIGIBILITY FOR VA ASSISTANCE IN THE PURCHASE OF A HOME.

I TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY, AND I REGRET THAT I AM UNABLE TO FURNISH YOU WITH MORE FAVORABLE INFORMATION.

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