Citation Nr: 1313131 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-44 098A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the Veteran made an irrevocable election for educational benefits under the Post-9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active military service from September 2001 to September 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a determination of the Education Office at the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran was scheduled to testify before a Veterans Law Judge at a hearing in August 2011 but he failed without explanation to appear for the hearing, and he has not requested that the hearing be rescheduled. His request for a hearing before the Board is accordingly deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. The electronic copy of the Veteran's VA Form 22-1990 does not contain an acknowledgement of irrevocability. 2. A transfer-of-entitlement designation to the Department of Defense is not of record. 3. The record does not contain a statement from the Veteran acknowledging that he was making an irrevocable election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program. CONCLUSION OF LAW The criteria for an irrevocable election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program have not been met. 38 U.S.C.A. §§ 3301 -24 (West Supp. 2012); 38 C.F.R. § 21.9520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In December 2008, the RO received the Veteran's electronically filed application (VA Form 22-1990) for educational benefits under the Post-9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). The Veteran's application was approved in August 2009 and he was notified that he had 16 months and 10 days of benefits to use under the Post-9/11 GI Bill program. See August 3, 2009, letter to the Veteran. In September 2009 the Veteran requested to revert back to MGIB benefits (Chapter 30). The Veteran contends that he was misinformed by a VA representative who did not inform him that the addition of 12 months of benefits under Chapter 33 was contingent upon him exhausting his Chapter 30 benefits first. The RO has denied his request on the basis that his election to switch to Post-9/11 GI Bill benefits is irrevocable. The Board, upon review of the record, finds that the Veteran raises a question of law of first impression. Pub. L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2375, generally provided that an election of Chapter 33 benefits constituted an irrevocable decision. However, in implementing this new law, VA promulgated 38 C.F.R. § 21.9520, which states as follows: An individual may establish eligibility for educational assistance under 38 U.S.C. chapter 33 based on active duty service after September 10, 2001, if he or she-- (a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) 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-- (i) A medical condition that preexisted such service and is not determined to be service-connected; (ii) Hardship, as determined by the Secretary of the military department concerned; or (iii) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct; (b) Serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability; or (c)(1) After meeting the minimum service requirements in paragraph (a) or (b) of this section-- (i) An individual makes an irrevocable election to receive benefits under 38 U.S.C. § chapter r 33 by relinquishing eligibility under either 38 U.S.C. chapter r 30, or 10 U.S.C. chapter r 106a, 1606, or 1607; (ii) A member of the Armed Forces who is eligible for educational assistance under 38 U.S.C. chapter r 30 and who is making contributions towards such educational assistance under 38 U.S.C. 3011(b) or 3012(c) makes an irrevocable election to receive benefits under 38 U.S.C. chapter r 33; or (iii) A member of the Armed Forces who made an election not to receive educational assistance under 38 U.S.C. chapter r 30 in accordance with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33. (2) An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following-- (i) Identification information (including name, social security number, and address); (ii) If applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., "I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill--Active Duty (chapter 30) program."); (iii) The date the individual wants the election to be effective (e.g., "I want this election to take effect on August 1, 2009."). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and (iv) An acknowledgement that the election is irrevocable (e.g., "I understand that my election is irrevocable and may not be changed."). The Board finds that the appeal in this case must be granted. With regard to whether a properly competed VA Form 21-1990 is of record, the Board finds that it is not. There is an electronic copy of the Veteran's filed VA Form 21-1990. However, the Board notes that, on a properly completed VA Form 21-1990, there is a section on which a veteran must indicate via a checkmark that he understands that, by electing chapter 33 benefits, it is in lieu of entitlement to chapter 30 benefits and that his election is irrevocable. See VA Form 21-1990, page 1. The electronic version of the Veteran's submitted VA Form 21-1990 does not contain this section or any similar acknowledgement by the Veteran that he understood that his election was irrevocable. As such, the Board concludes that a properly completely VA Form 21-1990 is not of record. There is no evidence or suggestion that the Veteran submitted a transfer-of-entitlement designation to the Department of Defense. Therefore, the only remaining avenue for the Veteran to have made an irrevocable election for educational benefits under the Post-9/11 GI Bill is by meeting the four specific criteria under 38 C.F.R. § 21.9520(c)(2) . Notably, the criteria under 38 C.F.R. § 21.9520(c) (2) uses the conjunctive phrase "and" which means that irrevocability does not occur unless all criteria have been met. See generally Melson v. Derwinski, 1. Vet. App. 334 (1991) (the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met). In this case, the irrevocability criteria of 38 C.F.R. § 21.9520(c)(2) have not been met, as the record does not contain a statement from the Veteran acknowledging that he was making an "irrevocable" election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program. There is no document in evidence to show that the Veteran was notified that an election for benefits under the Post-9/11 GI Bill program was irrevocable. Additionally, there is no document of record to show that the Veteran acknowledged that he was aware of the irrevocability criteria. In summary, the regulation promulgated by VA requires a properly completed VA Form 21-1990, a submission of a transfer-of-entitlement designation under this chapter to the Department of Defense, or an acknowledgement by the Veteran that his election for educational benefits under the Post-9/11 GI Bill program was irrevocable before such election becomes irrevocable. The evidence of record shows that none of these criteria are met. The irrevocability requirements set forth under 38 C.F.R. § 21.9520(c) (2) have not been met. Therefore, the Board finds that the Veteran did not make an irrevocable election for benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB. The appeal is granted. ORDER The appeal is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs