Citation Nr: 1312912 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-48 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). ATTORNEY FOR THE BOARD J. M. Kirby, Counsel REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appellant submitted an application for educational assistance benefits under Chapter 33, the Post-9/11 GI Bill, in November 2009. He asserts that his service from April 2006 to June 2007, and/or subsequent time spent enrolled at the United States Naval Academy (USNA), entitles him to these benefits. The Post-9/11 GI Bill was enacted under Pub. L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. To be eligible for these benefits, an individual must have served on active duty after September 10, 2001 a minimum of 30 continuous days after which he or she is discharged under other than dishonorable conditions due to a service-connected disability; or a minimum of 90 total days excluding entry level and skill training and, after completion of such service (1) continues on active duty, (2) is discharged from service with an honorable discharge, (3) is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve, (4) is released from service characterized as honorable for further service in a reserve component; or (5) is discharged or released from service for hardship or certain medical conditions. Active duty is defined by 38 C.F.R. § 21.9505 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. 688, 12301(a) 12301(d), 12301(g), 12302, or 12304. Certain types of service are specifically excluded from active duty, including service as a cadet or midshipmen at one of the service academies. See 38 C.F.R. § 21.9505(2)(ii) (2012). Thus, the period of time the appellant spent at USNA is not qualifying service whether or not, as the appellant has indicated, he was dismissed from that service academy in June 2009. The RO also denied the appellant's claim on the basis that his service from April 2006 to June 2007, constituted initial active duty for training (ACDUTRA), as it occurred while he was serving in the Reserve. Indeed, entry level and skill training, which for the appellant's service branch means Recruit Training (Boot Camp) and Skill Training ("A" School), is specifically excluded from active duty. See 38 C.F.R. § 21.9505. However, the record calls into question the RO's determination that the service from April 2006 to June 2007 was ACDUTRA, and not active duty. While one internal VA memorandum identifies the April 2006 to June 2007 period of service as ACDUTRA, other records appear to identify it as creditable service, and specifically indicate that it was not training, thus supporting the appellant's contention that that period constituted 426 days of active duty. This is important because if the service from April 2006 to June 2007 were active duty and constituted a separate period of service from the appellant's time at USNA, he would be eligible based on the length of time during that period (more than 90 days) and the honorable discharge he received. Indeed, VA may award benefits based on eligibility derived from one period of service, even if prior and/or subsequent period(s) of service would not qualify the same claimant for the same desired benefit. 38 CFR § 3.12 (2012). Thus, remand is required to obtain the appellant's service personnel records and any available documentation regarding his appointment to and dismissal from USNA, so that a determination of whether the appellant had qualifying service may be made. Accordingly, the appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file, in either physical or electronic form, the appellant's service personnel records for the period April 2006 to June 2007. 2. Contact the USNA and request any available records regarding the appellant's appointment to and dismissal from that service academy. Associate any records received with the claims file. 3. If the benefit sought on appeal remains denied, readjudicate the issue on appeal in a supplemental statement of the case; therein, make a specific determination as to whether the appellant's period of service from April 2006 to June 2007 constituted a separate period of service from his time spent at the USNA. Allow an appropriate period of time for the appellant to respond. Then, return the appeal to the Board. No action is required by the appellant until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board 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). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).