Citation Nr: 1439342 Decision Date: 09/04/14 Archive Date: 09/09/14 DOCKET NO. 11-16 915 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to education benefits in excess of a 50 percent rate under the provisions of Chapter 33, Title 38, United States Code (Chapter 33 or Post-9/11 GI Bill). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had honorable active service from November 2004 to November 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2010 decision in which the RO in Muskogee, Oklahoma determined the duration of the Veteran's creditable active duty service toward the Chapter 33 (Post 9/11 GI Bill) education benefits warrants a 50 percent rate of payment. In January 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2011. In June 2012, the Veteran provided testimony during a hearing before the undersigned Veterans Law Judge at the VA Regional Office in Los Angeles, California (which now has jurisdiction of this appeal). A transcript of that hearing is of record. In addition to the paper claims file, there are paperless, electronic files associated with the Veteran's claim. A September 2014 review of these files does not reveal that they include any documents pertinent to the issue on appeal. For reasons expressed below, the claim on appeal is being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required. REMAND The Veteran has maintained that he had active duty service for longer than he has been given credit for, and that as such, his rate for Chapter 33 benefits should be upwardly adjusted, in excess of the currently credited 50 percent rate. The Veteran maintains that he has additional creditable service from March to September 2009 which has not been appropriately considered by VA. Congress enacted the Post 9/11 Veterans Educational Assistance Act of 2008 in June 2008. See Pub. L. 110-252, Title V, §§ 5002-5003, June 30, 2008. This represented a new program of education benefits designed for Veterans who served on active duty after September 11, 2001. The change in the law was effective from August 1, 2009. The provisions of the Act are codified at 38 U.S.C.A. §§ 3301 to 3324 (West Supp. 2013) with the implementing regulations found at 38 C.F.R. §§ 21.9500 to 21.9770 (2013). Under these provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance. 38 C.F.R. §§ 21.9550(a). The post-9/11 GI Bill, or 38 U.S.C.A. Chapter 33, provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. The post-9/11 GI Bill defines "active duty" as full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C.A. §§ 688, 12301(a), (d), (g), 12302, or 12304. See 38 C.F.R. §21.9505. Aggregate length of creditable active duty service after September 10, 2001 determines the percentage of maximum amounts payable. The table is as follows, in pertinent part: 40 percent with at least 90 days, but less than 6 months, of creditable active duty service; 50 percent with at least 6 months, but less than 12 months, of creditable active duty service; 60 percent with at least 12 months, but less than 18 months, of creditable active duty service; 70 percent with at least 18 months, but less than 24 months, of creditable active duty service; 80 percent with at least 24 months, but less than 30 months, of creditable active duty service; 90 percent with at least 30 months, but less than 36 months, of creditable active duty service; 100 percent with at least 36 months of creditable active duty service or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 U.S.C.A. §§ 3311, 3313; 38 C.F.R. § 21.9640. As it currently stands, in December 2010 VA determined that the duration of the Veteran's creditable active duty service toward the Chapter 33 (Post 9/11 GI Bill) education benefits totaled 354 days, warranting a 50 percent rate of payment. In that determination, the RO indicated that the Veteran's active service dates from November 2004 to November 2005 were credited. That determination was confirmed in a decision of April 2011. In a Statement of the Case issued in April 2001, the RO explained that the Department of Defense (DoD) had characterized the Veteran's period of service from March to September 2009 as Active Duty for Special Work (ADSW) under Title 32, which is not considered creditable service for purposes of establishing the duration and service and rate of Chapter 33 benefits. During the June 2012 Board hearing, the Veteran submitted a copy of a DD Form 214 reflecting active service with the Army/Army National Guard from March to September 2009. Also submitted for the file was a copy of Orders issued by the State of California Office of the Adjutant General ordering the Veteran to Active Duty for Operational Support - Reserve Component (ADOS - RC) for this period. It appears that the authority for the Order was identified as USC 12301(d). In essence, if the Veteran's apparent ADOS service was found creditable, it would appear that the Veteran could have as much as approximately 6 months of additional active service for purposes of computing his creditable active duty service toward the rate of Chapter 33 (Post 9/11 GI Bill) education benefits, and that a higher rate of payment may be warranted. The Board notes that in accordance with Marine Corps Order 1001.59A, the Active Duty for Operational Support (ADOS) program replaced the program formerly known as Active Duty for Special Work (ADSW) and "provides Marine Corps Reserve personnel augmentation for both Active and Reserve components, in support of existing and emerging requirements of the Marine Corps Total Force to meet short-term administrative, operational, and exercise support requirements." MCO 1001.59A (Jan. 19, 2011). MCO 1001.59A establishes policies and procedures for the authorized assignment of Reserve component personnel to active duty under the ADOS program, and notes that section 12301(d) of title 10, U.S. Code provides statutory authority to order Reserve component members to active duty. As defined in MCO 1001.59A, ADOS is a category of voluntary active duty used to provide Reserve component support to operation and mission requirements. In light of the evidence submitted by the Veteran, the Board finds a remand is in order for the AOJ to seek clarification regarding whether any or all of the Veteran's service between March and September 2009 qualifies as active duty pursuant to 10 U.S.C.A. §§ 688 12301(a), (d), (g), 12302, or 12304. See 38 C.F.R. §21.9505, as is suggested by the Veteran's Orders. Specifically, on remand, the AOJ will be requested to contact DoD to clarify whether the Veteran's service in the Reserve component, as evidenced by the copies of Orders he submitted, included any periods of creditable service for purposes of establishing entitlement to Chapter 33 benefits. This must be done in writing and the AOJ must supply to DoD the copies of the official orders provided by the Veteran. The AOJ should ask that the information be reviewed by an appropriate DoD or military department official and a written explanation as to the Veteran's exact status relative to his eligibility for Chapter 33 benefits should be provided. Any determination with regard to the Veteran's eligibility must cite to appropriate authority. Accordingly, this matter is hereby REMANDED for the following action: 1. Contact DoD and/or the appropriate military authority to request information as to the Veteran's eligibility for Chapter 33 educational assistance benefits. The request must be in writing and not through a database inquiry. Ensure that the following steps are completed in making the request: Provide DoD and/or the appropriate military authority with copies of the DD214 Form and official orders submitted by the Veteran showing that he was ordered to ADOS - RC from March to September 2009, apparently under the authority of 10 USC 12301(d). Ask DoD and/or the appropriate military official to review these documents, as well as any information in its own system, and determine whether the Veteran served on active duty between March and September 2009. Ask DoD to provide an explanation of its determination, including why any evidence provided by the Veteran does not show active duty, if such a determination is made. Also ask DoD to provide to VA copies of any information/files in its possession used to make this determination. All requests as well as all responses, positive or negative, must be documented. 2. After performing the above development and any other actions deemed appropriate to determine whether all or some of the Veteran's service from March to September 2009 may be considered creditable active duty service for determining the rate of Chapter 33 (Post 9/11 GI Bill) education benefits, readjudicate the issue on appeal, to include consideration of: the DD214 Form and copy of Orders issued by the State of California Office of the Adjutant General; any evidence added to the record since the April 2011 Statement of the Case was issued; and evidence obtained pursuant to this remand. 3. If the benefit sought on appeal is not granted, furnish to the Veteran an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him an appropriate opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to afford due process, and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2013).