Citation Nr: 1306376 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-40 543A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to education benefits. ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran served on active duty from April 1994 to September 1994 and from July 1996 to April 1997. He also had subsequent service in the U.S. Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks educational assistance benefits under the Montgomery GI Bill-Selected Reserve (MGIB-SR) or Chapter 1606. The Reserve components decide who is eligible for the program and VA makes the payments for the program. VA regulations provide that a determination of an individual's eligibility for MGIB-SR benefits is to be made by the Armed Forces or the Department of Defense (DOD). 38 C.F.R. § 21.7540(a). The MGIB-SR or Chapter 1606 benefits are intended to encourage membership in the Selected Reserve of the Ready Reserve. See 10 U.S.C.A. § 16131 (West 2002 & Supp. 2010). A reserve member is entitled to benefits if, after June 30, 1985, he or she enlists for a period of not less than six years, has completed high school or an equivalency certificate, and has completed the initial period of ACDUTRA. 38 U.S.C.A. § 16132(a), (b) (West 2002 & Supp. 2010); 38 C.F.R. § 21.7540(a) (2012). Chapter 1606 benefits are no longer available as of the earlier of the date on which the person is separated from the Selected Reserve and the last day of the 14-year period beginning on the date the reservist becomes eligible for educational assistance. 10 U.S.C.A. § 16133(a), (b) (West 2002 & Supp. 2010); 38 C.F.R. § 21.7550(a). There are certain exceptions, to include where the person is separated because of a disability which was not the result of willful misconduct incurred on or after the date of entitlement to educational assistance. 10 U.S.C.A. § 16133(a), (b); 38 C.F.R. § 21.7550(a), (d). Additionally, if the reservist serves on active duty pursuant to an order to active duty issued under 10 U.S.C.A. § 12301(a), 12301(d), 12301(g), 12302, the period of this active duty plus four months shall not be considered in determining the time limit on eligibility. 38 C.F.R. § 21.7550(b). Personnel records show that the Veteran entered into active duty on April 19, 1994, was released from active duty on September 3, 1994, not by reason of physical disability. The Veteran again entered into active duty on July 26, 1996, was released from active duty on April 12, 1997, not by reason of physical disability. Both periods of service were honorable. For the second period of active duty service, the Veteran was ordered to active duty in support of Operation Joint Endeavor, under 10 U.S.C. § 12304. He was discharged from the Army Reserve on April 2, 2002. The Veteran filed a claim for Chapter 1606 benefits in July 2010. Information received from DOD states, "Not eligible for Ch. 1606 involuntary discharged; honorable; expiration of ARNG or USAR service obligation effective 4/2/02." On this basis, VA denied the claim. The RO noted that the Veteran's education benefits would have expired within 14 years of eligibility, or September 3, 2008 (14 years from September 3, 1994). Considering the second period of service, however, the time limit would be extended for approximately 12 months (eight months of service in addition to the regulatory four months). That would mean eligibility ends near September 3, 2009. Additionally, however, the Veteran has submitted evidence indicating he attended school September 1994 to December 1997 and from Fall 2008 to Spring 2011. It isn't clear why Chapter 1606 benefits would not be available for some of those time periods. Accordingly, remand is required for clarification. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate Armed Forces division to obtain an additional determination of the Veteran's eligibility for Chapter 1606 educational assistance benefits. Include a specific request to provide a narrative regarding the period of the Veteran's eligibility (including a discussion of the second period of active duty service) and whether the Veteran needed to apply within the 14 year period (with extension) or needed to attend school within that 14 year period. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. 2012). _________________________________________________ K. MILLIKAN Acting 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) (2012).