Citation Nr: 1306180 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 11-01 629 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to an eligibility percentage for educational assistance in excess of 50 percent under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill Program). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The appellant is a Veteran who served on active duty for training from October 19, 2005 through November 25, 2007, and on active duty from September 19, 2008 to August 26, 2009. Records show he had additional military service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 administrative decision of the Muskogee, Oklahoma, Department of Veterans' Affairs (VA) Regional Office (RO), which granted entitlement to education benefits under the Post 9/11 GI Bill at a 50 percent benefit level. On March 7, 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge sitting at the San Diego, California RO. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran completed active duty service under Title 10 orders from September 19, 2008 to August 26, 2009. 2. The Veteran participated in Special Forces qualification training during the period from October 19, 2005, to November 25, 2007 while serving full time in the National Guard. CONCLUSION OF LAW The criteria for benefits at the 100 percent benefit level under 38 U.S.C.A. Chapter 33, post-9/11 educational assistance have been met. 38 U.S.C.A. §§ 3301, 3311 (West Supp. 2012); 38 C.F.R. §§ 21.9505, 21.9640 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In August 2009, the Veteran submitted an application for 38 U.S.C.A. Chapter 38 U.S.C.A. § 33 educational benefits known as Post9/11 educational assistance benefits. In an August 2009 administrative decision, the RO granted 50 percent of the maximum amount payable under the act. The Veteran disagreed, contending that the time he attended the Special Forces Qualification Course should count; and, all service members who attend that training are granted creditable active duty service toward the Post 9/11 GI Bill. He claimed that his time in the course should be considered active duty time for purposes of the act. The Veteran argues that if such time is counted, his percentage of maximum amount payable should be increased. In this case, the record includes several DD-214s showing that the Veteran served on active duty for training from October 19, 2005 to November 25, 2007, and on active duty from September 19, 2008 to August 26, 2009. The record indicates that, during the period from October 2005 through November 2007, the Veteran completed the Special Forces Command Course, which lasted 63 weeks. For purposes of claims under 38 U.S.C.A. chapter33, active duty means "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. 688, 12301(a), 12301(d), 12301(g), 12302 or 12304. Public Law 111-377, § 101(a)(1) amended the act by including, in the case of a member of the National Guard, full-time service in the National Guard for the purpose of organizing, administering, recruiting, or training. The provisions of 38 C.F.R. § 21.9640 set out the rates of payment of educational assistance under 38 U.S.C.A. chapter 33. Specifically, section 21.9640 provides in pertinent part that if a claimant serves the following periods of active duty, the corresponding percentage of maximum chapter 33 educational benefits will be paid: At least 36 months . . . . . . . . . . . . . . . . . . . . . . . . . . 100 percent At least 30 months, but less than 36 months . . . . . . . 90 percent At least 24 months, but less than 30 months . . . . . . . 80 percent At least 18 months but less than 24 months . . . . . . . . 70 percent At least 12 months but less than 18 months . . . . . . . . 60 percent The RO has determined that the Veteran's service from September 19, 2008 to August 26, 2009 was active duty and that the Veteran's period of service from October 19, 2005 to November 25, 2007 was not a period of active duty for purposes of Chapter 33. It appears that the RO determined that the period of October 19, 2005 to November 25, 2007 does not qualify since the Veteran was Active Duty for training under Title 32 and not Federally mobilized. The Veteran contends that his service during the period from October 2005 to November 2007 should count as creditable active duty service. The period in question includes the Veteran's Special Forces training from October 2005 to November 2007, for a total of 63 weeks. The Board observes that the training is not specifically mentioned as being an "entry level and skill training" under the definition listed in 38 U.S.C.A. § 3301 (West 2010). Nor does this period appear to meet the criteria of prohibited duty specified under the definition of active duty. The RO, apparently, determined that the Veteran's training was similar to such training and was, therefore, not eligible for purposes of the act. The Board finds that the plain meaning of the statute does not allow for such interpretation. "A statutory interpretation begins with the language of the statute, the plain meaning of which we derive from its test and its structure." Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed.Cir. 2007) (quoting McEntee v. Merit sys. Prot. Bd., 404 F.3d 1320, 1328 (Fed. Cir. 2005)). "Determining a statute's plain meaning requires examining the specific language at issue and the overall structure of the statute." Gardner v. Derwinski, 1 Vet. App. 584, 586 (1991), aff'd sub nom. Gardner v. Brown 5 F.3d 1456 (Fed. Cir. 1993), aff'd 513 U.S. 115 (1994). When "the plain meaning of a statute is discernible, that plain meaning must be given effect." Johnson v. Brown, 9 Vet. App. 369, 371 (1996). The language at issue is: "Entry level and skill training means the following: (A) In the case of members of the Army, Basic Combat Training and Advanced Individual Training." 38 U.S.C.A. § 3301(2) (A). The language is unambiguous and its plain meaning is unmistakable: entry level and skill training includes the period of training and neither specifically includes Special Forces qualification training. If Congress considered such periods of training not to qualify for educational benefits, the language could have been broader. The language is, however, very specific and limited. Thus, the plain language of the statute must be given effect. The Board finds that the Veteran's period of duty while attending Special Forces training was not entry level and skill training. There is no indication that the period of duty was accomplished while the Veteran was assigned to a civilian institution and pursuing a program of instruction available to civilians, and he has never been a cadet of the U.S. Military Academy, or required to provide service to repay an obligation incurred by the Army's provision of educational benefits to an officer. In sum, the Board finds that the period of Special Forces training was a period of training as contemplated by 38 U.S.C.A. § 3301(1)(C)(i) and therefore qualifies for active duty for purposes of chapter 33 benefits. The specific period in question was October 19, 2005 through November 25, 2007, or a total of 25 months and 7 days. As noted above, the Veteran completed active duty service from September 19, 2008 to August 26, 2009, for a total of 11 months and 8 days. Combined, the total time of active duty service is 36 months and 15 days. Under the provisions of 38 C.F.R. § 21.9640, the Veteran's total time meets the criteria of 36 months for 100 percent of benefits. 38 U.S.C.A. § 3311 (b)(1)(A) (an aggregate of 36 months with honorable release qualifies). The Veteran's claim is granted to that extent. ORDER An eligibility percentage for educational assistance of 100 percent under the Post-9/11 educational assistance provisions is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs