Citation Nr: 1313663 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-44 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to basic eligibility for Post-9/11 GI Bill (Chapter 33) educational assistance benefits. REPRESENTATION Veteran represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran had a period of active duty training (ACDUTRA) in the Army National Guard of Missouri from January 2002 to March 2002. He is in receipt of service-connected compensation for disabilities as a result of this period of service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran basic eligibility for Chapter 33 educational assistance benefits (also referred to as the "Post-9/11 GI Bill"). The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in August 2011. A transcript of that hearing is associated with the file. The Veteran submitted additional evidence in support of his claim in August 2011, shortly after the Board hearing, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). FINDINGS OF FACT 1. The Veteran served on ACDUTRA in the Army National Guard of Missouri from January 2002 to March 2002, for a total of 82 consecutive days. 2. The Veteran did not have any period of active duty service. CONCLUSION OF LAW The Veteran is not eligible for Post-9/11 GI Bill (Chapter 33) educational assistance benefits. 38 U.S.C.A. §§ 101(2), (22)(A), (24)(B), 3002, 3301, 3311, 12103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.9500, 21.9505, 21.9520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). Proper VCAA notice should be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Applicable regulations state that VA has no duty to notify or assist in a claim for educational benefits where the claim cannot be substantiated because there is no legal basis for the claim, or undisputed facts render the claimant ineligible for the claimed benefit. 38 C.F.R. §§ 21.1031, 21.1032(d), 21.9510. Similarly, the VCAA does not apply where the issue presented is solely one of statutory interpretation or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). However, in this case, the Veteran disputes certain facts in his case, including whether he was discharged due to service-connected disability, and whether he had active duty service. As such, the provisions of the VCAA apply. The Board notes that the Veteran was not advised prior to the initial denial of his claim of the evidence and information necessary to establish eligibility to Chapter 33 educational assistance benefits. Nevertheless, there is no resulting prejudice. In this regard, the Veteran was notified of the reasons for the denial of his claim, including a lack of qualifying service, in decisional documents in October 2009 and September 2010. More importantly, the Veteran and his representative have indicated actual knowledge of the requirements to substantiate his claim. They have made pertinent arguments concerning the nature of his service and the reasons for his discharge, and cited to language from applicable laws and regulations. Further, during the August 2011 hearing, the undersigned Veterans Law Judge explained the elements of the claim, asked questions to obtain relevant information, and summarized the Veteran's arguments. Neither the Veteran nor his representative has argued that VA failed to comply with the duties as set forth in 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the hearing. VA has substantially complied with such duties, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010). There is no indication or argument that any notification deficiencies resulted in prejudice or otherwise affected the essential fairness of the proceedings. Rather, the Veteran has had a meaningful opportunity to participate in the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). With regard to the duty to assist, there is no indication or argument that any outstanding records are necessary for a fair adjudication of the Veteran's claim. As discussed below, the available service records and medical records are sufficient to determine the nature of the Veteran's relevant period of service and the reasons for discharge. A VA examination is not necessary due to the nature of the claim. The primary evidence is contained in the Veteran's education file. Although his complete paper claims file remains at the RO, the Board has also reviewed his Virtual VA paperless claims file (a highly secured storage system). The paperless file verifies the Veteran's service-connected disabilities and current ratings, but there are no other documents in that file that are pertinent to the issue on appeal. Based on the above, a remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision. II. Analysis The educational assistance program under Chapter 33 (or the post-9/11 GI Bill) was established for "individuals who served on active duty after September 10, 2001" and was made effective in August 2009. 38 C.F.R. § 21.9500. Here, the Veteran enlisted and served in the Army National Guard of Missouri after September 11, 2001. He was released from service after injuring his right shoulder during basic training in January 2002. As discussed in further detail below, his basic eligibility for Chapter 33 benefits turns on whether he served on "active duty." In pertinent part, eligibility for educational assistance under Chapter 33 based on active duty service after September 10, 2001, may be established in two ways. First, the individual must have served a minimum of 90 aggregate days of active duty (excluding active duty for entry level and skill training) and, after completion of such service: (1) continued on active duty; (2) was discharged from service with an honorable discharge; (3) was 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) was released from service characterized as honorable for further service in a reserve component; or (5) was discharged or released from service for a medical condition that preexisted such service and is not determined to be service-connected; hardship, as determined by the Secretary of the military department concerned; or 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. 38 U.S.C.A. § 3311(b)(8); 38 C.F.R. § 21.9520(a). Alternatively, the individual must have served a minimum of 30 continuous days on active duty and, after completion of such service, was discharged or released from active duty under other than dishonorable conditions due to a service-connected disability. 38 U.S.C.A. § 3311(b)(2); 38 C.F.R. § 21.9520(b). The Veteran contends that he is entitled to Chapter 33 educational assistance benefits because he had 30 days of continuous service on active duty, and he was discharged due to his service-connected right shoulder disability. Alternatively, he asserts that he received an honorable discharge after more than 90 days of active duty service, and his right shoulder disability was a condition which interfered with duty. The Veteran's representative further argues that he would have continued on active duty or been released for further service in a reserve component if not for the right shoulder injury. See claim, notice of disagreement, and hearing transcript. The Veteran enlisted in the Army National Guard of Missouri in December 2001, and he began initial active duty training (IADT) on January 9, 2002. See Certificate or Release from Active Duty (DD Form 214) and National Guard Bureau Report of Separation and Record of Service (NGB Form 22). On January 13, the Veteran sustained an injury to the right shoulder, which was incurred in the line of duty. See January 2002 Statement of Medical Examination and Duty Status. In March 2002, the Veteran was counseled that he was being recommended for separation under AR 635-200, Chapter 11, due to his right shoulder injury. The Troop Medical Clinic provider had indicated that there was an anticipated recovery period of 4-6 months, and there was no guarantee that he would be ready to train after that time. The injury was about 80 percent healed as of March 2002, and no further medical treatment was required. The injury would prevent him from conducting and completing basic combat training and advanced individual training, and from properly functioning in the Army. Further rehabilitative efforts were unlikely to be effective, and it would be in the best interests of the Army and the Veteran that he be discharged. He was advised that, if approved, he would receive an entry level separation with his service being uncharacterized. He would not be allowed to re-enter the Armed Forces for a period of two years. See Military Development Counseling Form. This summary is consistent with a January 2002 memorandum from the Troop Medical Clinic provider. The Veteran was released from active duty training (or ACDUTRA) on March 29, 2002. As such, he had ACDUTRA service for 2 months and 21 days, or 82 continuous days. The official reason for the release was AR 635-200, Chapter 11, or "entry level performance and conduct," and the period of service was uncharacterized. He was assigned reentry code 3, meaning that he was not qualified for continued service without a waiver. See DD Form 214 and NGB Form 22. Thereafter, the Veteran was granted service connection for his right shoulder disability with a 40 percent disability rating, effective as of March 30, 2002, and later for an associated right arm disability with a 30 percent rating effective as of February 27, 2008. See January 2013 rating code sheet. The Board notes that, as he was disabled by an injury incurred during ACDUTRA, for which he has been awarded VA compensation, the claimant meets the statutory definition of a "veteran" as defined in 38 U.S.C.A. §§ 101(2), (22)(A), (24)(B). Based on the foregoing, the Board resolves doubt in the Veteran's favor and finds that he sustained a right shoulder injury that resulted in disability during service, and that such disability was the reason for his discharge from service. Further, although his period of service was uncharacterized, it appears to have been under other than dishonorable conditions. Nevertheless, the Veteran is not eligible for educational assistance benefits under Chapter 33 because the period of service at issue did not qualify as "active duty." For the purposes of establishing Chapter 33 eligibility, in the case of a member of the reserve components of the Armed Forces, "active duty" means service under a call or order to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. See 38 U.S.C.A. § 3301(1)(B); 38 C.F.R. § 21.9505. Active duty for these purposes does not include full-time National Guard duty performed under 32 U.S.C. orders; or any period during which the individual served under the provisions of 10 U.S.C. § 12103(d) pursuant to an enlistment in the Army National Guard. 38 U.S.C.A. §§ 3301(1), 3002(6); 38 C.F.R. § 21.9505(1),(2)(iii). Under 10 U.S.C. § 12103(d), a non-prior-service person who is qualified for induction for active duty in an armed force, and who is not under orders to report for induction under the Military Selective Service Act, may enlist in the Army National Guard for a term of not less than six years nor more than eight years. Each person enlisted under this provision shall perform an initial period of active duty for training of not less than twelve weeks. 10 U.S.C.A. § 12103(d). In this case, the Veteran's military service after September 10, 2001, consists of one period of ACDUTRA or IADT for basic combat training from January 2002 to March 2002 (during which time he injured his shoulder) in the Army National Guard of Missouri. This period of service was not under a call or order to active duty under 10 U.S.C.A. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. Rather, this period of service appears to have been the Veteran's initial period of active duty for training after enlistment in the Army National Guard under the provisions of 10 U.S.C.A. § 12103(d). Indeed, he indicated in a December 2001 contract concerning certain benefits under the Selected Reserve Montgomery GI Bill that he had enlisted in the Army National Guard for a minimum of six years. Additionally, the education folder includes an inquiry from VA requesting clarification from the Department of Defense (DoD) as to whether the Veteran's period of service from January 2002 to March 2002 was for active duty or for IADT. In August 2010, the DoD indicated that the Veteran appeared to have received an uncharacterized discharge prior to completing IADT in 2002, and that he did not appear to have been eligible for Chapter 33 benefits. This information was obtained from the Defense Manpower Data Center (DMDC). An October 2009 response from the DoD also indicates that the Veteran did not complete IADT. This period of initial active duty training after enlistment in the Army National Guard is specifically excluded as "active duty" for Chapter 33 purposes. See 38 U.S.C.A. §§ 3301(1), 3002(6); 38 C.F.R. § 21.9505(1),(2)(iii). Moreover, this period of service was for basic combat training, which constitutes entry level training, and is also specifically excluded from qualifying active duty service for calculating the length of aggregate service for Chapter 33 benefits. See 38 U.S.C.A. §§ 3301(2)(A), 3311(b)(8); 38 C.F.R. §§ 21.9505, 21.9520. There is conflicting information as to the exact dates of the Veteran's military service. As summarized above, his DD Form 214 and NGB Form 22 indicate that he was released from ACDUTRA on March 29, 2002. The Veteran also reported in his July 2009 claim for Chapter 33 benefits that he served on active duty from January 9, 2002, to March 29, 2002. In contrast, an October 2009 printout from the Veterans' Information Solutions website indicates that the Veteran served in the Army National Guard from January 16, 2002, to May 8, 2002. The Department of Defense also referred to these dates in August 2010. The Veteran then asserted during the August 2011 Board hearing that he remained on active duty after May 2002. The Board notes that the cited service entry date of January 16, 2002, is clearly incorrect, as this is three days after the date of the Veteran's right shoulder injury, as shown by the Report of Medical Examination and Duty Status. Further, the Veteran's NGB Form 22 indicates that he enlisted in December 2001. Nevertheless, the record is clear that the Veteran was only on ACDUTRA or IADT from January 2002 to March 2002, at which point he was released due to his right shoulder disability. Indeed, he was granted service connection for the right shoulder disability effective as of March 30, 2002, or the day after he was released from ACDUTRA. Even if the Veteran continued in the Army National Guard of Missouri after that time, this did not constitute active service. Although the Veteran believes that he was on active duty from January 2002 to March 2002, this is legally incorrect. Rather, such service was for initial active duty training or basic training for the Army National Guard of Missouri, also known as ACDUTRA, as explained above. Although active duty and ACDUTRA service may appear the same from the view of the service member, they have different meanings for the purposes of VA benefits, including Chapter 33 educational assistance, based on applicable statutes and regulations. As discussed above, this period of ACDUTRA or IADT was not active duty service for Chapter 33 purposes. Similarly, the Board has considered the Veteran's testimony at the Board hearing that he was still on "active duty" after May 2002, as he continued to be in contact with his National Guard liaison. However, this is inconsistent with his separation records, which indicate that he was released from ACDUTRA in March 2002 and was ineligible to serve again without a waiver and for a period of two years. Members of the National Guard do not have active military service at all times. Rather, there are periods of ACDUTRA, inactive duty for training (IDT), and sometimes active duty. Although the Veteran may still have had contact with his National Guard liaison after March 2002 or May 2002, this does not establish active military service at that time, for active duty or otherwise. The Board acknowledges that the Veteran is competent to report his dates of service and the nature of such service, as these items are factual in nature. However, the Board finds that he is not credible in this regard. Rather, the service records, and particularly the separation records (DD Form 214 and NGB Form 22) are more probative, as they were created at the time of the incidents at issue. Similarly, the Veteran's understanding of the nature of his service from January to March 2002, to include whether it constituted active duty, is inconsistent with the contemporaneous service records and with the applicable statutes and regulations. The Board is sympathetic to the Veteran's claim; however, educational assistance benefits under Chapter 33 are prefaced on specific and unambiguous legal requirements, which have not been met. The Board has no authority to grant claims on an equitable basis and, instead, is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998). In view of the foregoing discussion, the Board finds that the Veteran lacks qualifying service to be eligible for Post-9/11 GI Bill educational assistance benefits under Chapter 33. The legal criteria in this case are clear. Although the Board has resolved reasonable doubt in the Veteran's favor with respect to his being discharged as a result of service-connected disability, the preponderance of the evidence is against a finding that he had qualifying active duty service. Therefore, the benefit-of-the-doubt doctrine does not apply as to the primary issue of entitlement to chapter 33 educational assistance benefits, and the claim must be denied. See 38 U.S.C.A. § 5107. ORDER Basic eligibility for Post-9/11 GI Bill (Chapter 33) educational assistance benefits is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs