Citation Nr: 1324625 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 11-05-014A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1995 to August 1999. He also had commissioned service in the Reserve Officer Training Corps (ROTC) from December 2003 to November 2005. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at an August 2011 Board personal hearing in Waco Texas (Travel Board). The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Navy from September 1995 to August 1999 and separated to enter into an ROTC program. The Veteran enlisted in the United States Navy Reserve in December 20, 2003 for a period of four years; he was involuntarily separated from service in November 30, 2005 due to service-connected physical disability. 2. The Veteran's service from December 20, 2003 to November 30, 2005 was completed to satisfy service obligation for the ROTC program and does not qualify as active duty service for the purpose of administration and payment of benefits under the 9/11 GI Bill. 3. The Veteran is not eligible for educational assistance under Chapter 33, Title 38, of the United States Code (Post 9/11 GI Bill) because he did not have a minimum of 30 days active duty service after September 10, 2001. CONCLUSION OF LAW The criteria for eligibility for Post 9/11 GI Bill educational assistance benefits have not been met. 38 U.S.C.A. §§ 3301 -24 (West 2002 & Supp. 2011); 38 C.F.R. § 21.9520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, VCAA notice is not required because the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000). The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-04, 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no possibility that any additional notice or development would aid the appellant in substantiating the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); Dela Cruz, 15 Vet. App. at 143. Laws and Regulations The Veteran filed a claim for educational assistance benefits under Chapter 33, Title 38, of the United States Code (Post 9/11 GI Bill). The provisions of the Act are codified at 38 U.S.C.A. §§ 3301 -3324 (West Supp. 2011) with the implementing regulations found at 38 C.F.R. §§ 21.9500-21 .9770 (2012). VA promulgated provisions for eligibility for this benefit based on certain qualifying periods and types of active duty service. See 38 U.S.C.A. §§ 3301-24 (West 2002 & Supp. 2013); 38 C.F.R. § 21.9520 (2012). An individual may establish eligibility for basic educational assistance under Chapter 33 by showing that he or she had active duty service after September 10, 2001, and: (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; or (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. 38 C.F.R. § 21.9520 (2012). 38 C.F.R. § 21.9505 provides that for the purposes of this subpart (governing the administration and payment of educational assistance under 38 U.S.C. Chapter 33 (Post 9/11 GI Bill)), the following definitions apply: 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. Active duty does not include: (1) Full-time National Guard Duty performed under 32 U.S.C. orders; (2) Any period during which the individual- (i) Was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; (ii) Served as a cadet or midshipmen at one of the service academies; or (iii) Served under the provisions of 10 U.S.C. 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; (3) A period of service- (i) Required by an officer pursuant to an agreement under 10 U.S.C. 2107(b); (ii) Required by an officer pursuant to an agreement under 10 U.S.C. 4348, 6959, or 9348; (iii) That was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or (iv) Counted for purposes of repayment of an education loan under 10 U.S.C. chapter 109; or (4) A period of Selected Reserve service used to establish eligibility under 38 U.S.C. chapter 30 or 10 U.S.C. Chapter 1606 or 1607. 38 U.S.C.A. § 3301 (West 2002 & Supp. 2013); 38 C.F.R. § 21.9505 (2012). Analysis The record reflects that the Veteran served on active duty in the United States Navy from September 1995 to August 1999. A DD Form 214 shows that he separated in August 1999 to enter into an ROTC program. The Veteran enlisted in the United States Navy Reserve in December 20, 2003 for a period of four years; he was involuntarily separated from service in November 30, 2005 due to service-connected physical disability. The Veteran's service dates are not in dispute in this case, nor does the Veteran dispute that his commissioned service under an ROTC program. The Veteran, instead, contends that the RO incorrectly interpreted the statutory language in finding that his ROTC service was not countable service in light of his disability discharge. The Veteran was commissioned for active duty service in the Navy under a program of educational assistance pursuant to 10 U.S.C.A. § 2107, commonly known as ROTC. The record shows that the Veteran's obligated service under the ROTC commission began in December 20, 2003 and ended in December 19, 2007. Therefore, his period of service from December 20, 2003 to November 30, 2005, to satisfy a four-year service obligation of the ROTC program, is not considered active duty for purposes of Chapter 33 benefits. 38 C.F.R. § 21.9505(3). In that regard, definitions provided under 38 U.S.C.A. § 3301 and 38 C.F.R. § 21.9505, governing the administration and payment of educational assistance under 38 U.S.C. Chapter 33, specifically state that "active duty" does not include a period of service "required by an officer pursuant to an agreement under 10 U.S.C. 2107(b)." Moreover, regulations at 38 U.S.C.A. § 3311(d), also addressing eligibility requirements under 38 U.S.C. Chapter 33, specifically prohibit treatment of certain service as a period of active duty. The regulation provides that a period of service on active duty as an officer pursuant to an agreement under 10 U.S.C.A. § 2107 shall not be considered as part of the period of active duty on which an individual's entitlement to education assistance under this chapter is based. 38 U.S.C.A. § 3311(d), The Veteran's only service, after September 10, 2001, was to satisfy a service obligation of the ROTC program and is not considered active duty for purposes of Chapter 33 benefits. As such, the Board finds that, even with consideration of the Veteran's discharge due to a service-connected disability, he did not have a minimum of 30 days qualifying "active duty" after September 10, 2001, and does not meet the basic eligibility requirements for educational assistance under Chapter 33. See 38 C.F.R. § 21.9520 (2012). Accordingly, the Veteran is not eligible for educational assistance under the Post 9/11 GI Bill. The VA is charged with administering the law as it is written and, as noted above, governing legal criteria specifically exclude an award of benefits absent the establishment of eligibility under 38 U.S.C. Chapter 33. In this case, the Veteran's ROTC is specifically excluded from creditable active duty service under the regulations governing eligibility for the Post 9/11 GI Bill, and the regulation and statute are clear. See 38 U.S.C.A. §§ 3301, 3311(West 2002 & Supp. 2012); 38 C.F.R. § 21.9505 (2012). Therefore, the Board does not have the legal authority to grant the benefit sought on appeal. See 38 U.S.C.A. §§ 503, 7104(c) (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). For these reasons, the Board finds that the Veteran's claim for educational assistance under Chapter 33 (Post 9/11 GI Bill) must be denied. ORDER Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs