Citation Nr: 1124477	
Decision Date: 06/28/11    Archive Date: 07/06/11

DOCKET NO.  10-36 217A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to educational assistance under Chapter 33, Title 38, United States Code. 


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from February 2002 to June 2002, from June 2005 to October 2005, and from February 2006 to June 2006.  This matter is before the Board of Veterans' Appeals (the Board) on appeal of a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.


FINDING OF FACT

The Veteran served on ACDUTRA from February 2002 to June 2002, from June 2005 to October 2005, and from February 2006 to June 2006.


CONCLUSION OF LAW

The requirements for eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) have not been met.  38 U.S.C.A. § 3311 (West 2002 & Supp. 2010); 38 C.F.R. §§ 21.9505, 21.9520 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board finds that the statutory and regulatory notice and duty to assist provisions are not applicable in this case because the issue presented is solely one of statutory interpretation.  See Manning v. Principi, 16 Vet. App. 534, 542 (2002).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  The United States Court of Appeals for Veterans Claims (Court) found in Manning that the Veterans Claims Assistant Act of 2000 (VCAA) has no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact.  Also see Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error.

In June 2009, the Veteran applied for educational benefits under the Post-9/11 GI Bill in lieu of educational benefits under Chapter 1606, Title 10, United States Code (Montgomery GI Bill - Selected Reserve (MGIB-SR)).  

In support of his claim, the Veteran submitted three separate reports of separation, Form DD 214s, indicating that he served on ACDUTRA from February 2002 to June 2002, from June 2005 to October 2005, and from February 2006 to June 2006.  These reports of separation listed the narrative reason for each separation as completion of period of ACDUTRA.

In July 2009, VA contacted the Department of Defense (DoD) to confirm the nature of the Veteran's military service after September 10, 2001.  DoD's July 2009 response indicated that the Veteran's periods of ACDUTRA service, from February 2002 to June 2002, from June 2005 to October 2005, and from February 2006 to June 2006, did not include any qualifying period of service under the Post-9/11 GI Bill.  The response also noted that the Veteran was eligible for benefits under the MGIB-SR program.

In July 2009, the RO denied the Veteran's claim for educational assistance under the Post-9/11 GI Bill.  38 U.S.C.A. § 3011 (West 2002); 38 C.F.R. § 21.9505.

The Post-9/11 GI Bill was enacted under Pub.L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2375.  See generally 38 U.S.C.A. §§ 3301-24 (West Supp. 2010); 38 C.F.R. § 21.9520.  Generally, to be eligible for educational assistance benefits under the Post-9/11 GI Bill, an individual must have served on active duty for a minimum of 90 days after September 10, 2001.  See 38 C.F.R. § 21.9520.  The service requirement is also met by an individual who serves a minimum of 30 continuous days of active duty, and after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability.  See 38 C.F.R. § 21.9520 (b).

Important for this decision, 38 C.F.R. § 21.9505 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) 12301(d), 12301(g), 12302, 12304 (West 2002 & Supp. 2010).  See 38 C.F.R. § 21.9505.

In this case, the Veteran's military service does not meet the minimum requirements for eligibility for educational assistance under the Post-9/11 GI Bill.  Specifically, the Veteran does not have qualifying active duty service as defined in 38 C.F.R. § 21.9505.  His military service after September 10, 2001, consists of three periods of ACDUTRA in the Army National Guard, and this service was not shown to be under a call or order to active duty under 10 U.S.C.A. §§ 688, 12301(a) 12301(d), 12301(g), 12302, 12304.  Moreover, the July 2009 DoD response indicated that the Veteran had no qualifying period of military service for educational assistance benefits under the Post-9/11 GI Bill.  Under these circumstances, the Veteran's claim of entitlement to educational assistance under the Post-9/11 GI Bill must be denied.


ORDER

The appeal is denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs