Citation Nr: 1126367 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 10-44 008A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Education Center in Buffalo, New York THE ISSUE Entitlement to educational assistance benefits under Chapter 1606, Title 10, United States Code (Montgomery GI Bill - Selected Reserve (MGIB-SR)). ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Appellant had a period of active duty training from February 1995 to August 1995. She was honorably discharged from the United States Army Reserve in January 2003. The appeal is being remanded to the Education Center via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Appellant if further action is required of her part. REMAND The Appellant asserts that she is entitled to Chapter 1606 VA educational assistance benefits under MGIB-SR based on eight years of honorable service in the United States Army Reserve ending in January 2003. She contends that her unused benefits are good for ten years upon her "good standing of service." Thus, she claims she is eligible for any unused benefits. MGIB-SR is an educational assistance program enacted by Congress. This program is for members of the Selected Reserve of the Army, Navy, Air Force, Marine Corps, and Coast Guard, and the Army and Air National Guard. The Reserve components decide who is eligible for the program. VA makes the payments for the program. Chapter 1606 assists eligible persons to further their education after high school. It provides educational assistance for people enrolled in approved programs of education or training. It is the first such program that does not require service in the active Armed Forces in order to qualify. 38 C.F.R. §§ 21.7520, 21.7540 (2010). A reservist may initially become eligible when he or she enlists, reenlists, or extends an enlistment as a reservist so that the total period of obligated service is at least 6 years from the date of such enlistment, reenlistment, or extension; or when he or she is appointed, or is serving as a reserve officer and agrees to service in the Selected Reserve for a period of not less than 6 years in addition to any other period of obligated service in the Selected Reserve. 10 U.S.C.A. § 16132 (West 2002); 38 C.F.R. § 21.7540(a)(1) (2010). The reservist must also complete his or her initial period of active duty for training (ACDUTRA); must be participating satisfactorily in the Selected Reserve; must not have elected to have his or her service in the Selected Reserve credited toward establishing eligibility to benefits provided under 38 U.S.C.A., Chapter 30; and must have met the requirements for a secondary school diploma (or an equivalency certificate) before applying for educational assistance. 38 C.F.R. § 21.7540(a)(2)-(5) (2010). In the instant case, the Appellant applied for VA education benefits in February 2010. The RO denied the Appellant's claim for education benefits under Chapter 1606 because she left the Army Reserve on January 21, 2003, and thus, found she was no longer eligible for such benefits. The RO cited to 38 C.F.R. § 21.7550 to support the ending date of eligibility. The RO incorrectly cited to subsection (a)(1) for Reservists who become eligible before October 1, 1992. DA Form 2384-1, Notice of Basic Eligibility, shows the Appellant became eligible January 19, 1995. A reservist's period of eligibility expires effective the earlier of the following dates: (1) the last day of the 14- year period beginning on the date the reservist becomes eligible for educational assistance; or (2) the date of separation from the Selected Reserve. 38 C.F.R. § 21.7550(a). The reservist may still use the full 14 years if she leaves the Selected Reserve because of a disability that was not caused by misconduct, the reservist's unit was inactivated during the period from October 1, 1991, through September 30, 1999, or in certain instances when the reservist is involuntarily separated. 38 C.F.R. § 21.7550(c), (d). Applicable law also establishes that a veteran's eligibility may be resumed after Reserve duty status ends if the veteran returns to the Selected Reserve within one year. 38 U.S.C.A. § 3012. The Veteran can also apply to extend the date of eligibility if an application is received within one year of the date eligibility ended. 10 U.S.C.A. § 16133(b); 38 U.S.C.A. §§ 3031(d), 3232(a), 3512; 38 C.F.R. § 21.1033 (2010). The Board also notes that laws and regulations pertaining to educational assistance under Chapter 1606, Title 10, United States Code provide that a determination of an individual's eligibility for Chapter 1606 benefits is to be made by the Armed Forces. 38 C.F.R. § 21.7540(a). The Department of Defense (DOD) determination has not been associated with the Appellant's Educational folder. Thus, the Board has not been able to verify whether in fact DOD denied the Appellant's eligibility (though presumably so) and/or the basis for such a determination. Such document is necessary prior to appellate disposition by the Board. Id. There is also no information as to whether the Appellant's unit was inactivated during the period from October 1, 1991, through September 30, 1999, or if the Appellant returned to the Selected Reserve within one year of her discharge. 38 U.S.C.A. § 3012; 38 C.F.R. § 21.7550(c), (d). Accordingly, the case is REMANDED for the following action: 1. The Education Center should contact DOD and/or the appropriate military authority to request a copy of the determination as to the Appellant's eligibility for Chapter 1606 educational assistance benefits as of February 16, 2010, when she filed her claim for benefits. DOD must provide an explanation of such determination and copies of any documents used in their consideration. All requests for records, and their responses, should be clearly documented in the claims folder. 2. The Education Center should also determine whether the Appellant's reservist unit was inactivated during the period from October 1, 1991, through September 30, 1999, or if the Appellant returned to the Selected Reserve within one year of her discharge. 38 U.S.C.A. § 3012; 38 C.F.R. § 21.7550(c), (d). 3. Thereafter, the Education Center should readjudicate the claim for benefits under the correct statutory regulations (38 C.F.R. § 21.7550(a)(2), for reservists who became eligible after September 30, 1992) and issue a Supplemental Statement of the Case that contains a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination contained therein. 38 C.F.R. § 19.29. The Appellant should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2009). _________________________________________________ STEPHEN L. WILKINS 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 your appeal. 38 C.F.R. § 20.1100(b) (2010).