Citation Nr: 1325940 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-14 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the appellant is eligible for VA educational assistance benefits under Chapter 1606, Title 10, of the United States Code (also known as the Montgomery GI Bill for Selected Reserves (MGIB-SR)). ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from April 1982 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 award of education benefits under the Post-9/11-GI Bill program by the Department of Veterans Affairs (VA) Regional Office (RO) education processing center in Muskogee, Oklahoma. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Educational benefits are available to qualifying members of the Selected Reserve under Chapter 1606, Title 10, United States Code. See 10 U.S.C.A. § 16132. A determination of an individual's eligibility for Chapter 1606 benefits, as to military service, is to be made by the Armed Forces. 38 C.F.R. § 21.7540(a) (2012). Here, the Veteran filed a claim for MGIB-SR educational assistance in October 2010. VA electronically requested information from the Department of Defense (DoD) as to whether the Veteran had Chapter 1606 eligibility, identifying his service as in the "AFR," i.e., Air Force Reserve. After receiving a response that he had no qualifying 6-year contract, the RO denied the claim in November 2010. In December 2010, the Veteran submitted a copy of an enlistment contract, documenting his enlistment in the U. S. Army Reserve for a period of six years, signed in June 2005. Although the contract itself did not refer to the Selected Reserve or Chapter 1606 educational assistance, additional details of his enlistment were noted to be in Annexes A and B, which were not included in the Veteran's submission. The Veteran also submitted a Notice of Basic Eligibility (NOBE), DD Form 2384-1, that was signed and dated in November 2010. This form is issued to military members to certify their entitlement to MGIB-SR benefits. See Department of Defense (DoD) Instruction 1322.17, Montgomery GI Bill-Selected Reserve (MGIB-SR), Encl. 2, ¶ E2.1.4 (Nov. 29, 1999). Also submitted were a "Statement of Understanding" and a "Certification and Acknowledgement," also referring to the Veteran's enlisting in the Selected Reserve in June 2005, with a view to obtaining MGIB educational assistance. In March 2011, VA again electronically requested information from the Department of Defense (DoD) as to whether the Veteran had Chapter 1606 eligibility, again providing the erroneous information that he was in the Air Force Reserve, and again receiving a response that he had no qualifying 6-year contract. This conflict in the evidence must be reconciled by DoD. In this regard, it cannot be ascertained from the record as it currently stands whether DoD failed to identify the Veteran as eligible for Chapter 1606 educational assistance because VA erroneously identified him as serving in the Air Force Reserve, instead of the Army Reserve, or whether he failed to complete some other requirement for Chapter 1606 education assistance. For example, in addition to a 6-year enlistment contract, the individual must also complete his or her initial period of active duty for training, must be participating satisfactorily in the Selected Reserve, and must not have elected to have his or her service in the Selected Reserve credited toward establishing eligibility to benefits provided under 38 U.S.C., Chapter 30. 38 C.F.R. § 21.7540(a)(2)-(4) (2012). Accordingly, the case is REMANDED for the following action: 1. Contact DoD and request information as to whether the Veteran is eligible for Chapter 1606 educational assistance, this time providing the Veteran's correct branch of service, i.e., Army Reserve. Also provide the address for the Veteran's unit, i.e., 370th Chemical Company, NAS/JRB, Forth Worth, TX 76127-1720, as well as the telephone number for the unit provided in November 2010: (817) 782-3550. All requests and responses should be documented in the claims file. 2. If the response is still negative, and DoD provides no adequate explanation (in view of the evidence indicating a 6-year contract submitted by the Veteran, a simple response that he has no qualifying 6-year contract is not adequate), a request to DoD and/or other appropriate military authority, in writing and not through a database inquiry must be made. This request must also include copies of the documents submitted by the Veteran, i.e., (1) the appellant's enlistment agreement executed in June 2005 (if necessary, annexes A and B must be obtained by DoD from the appropriate Enlisted Master File and/or Field Personnel File); (2) the Statement of Understanding signed in June 2005; (3) the Certificate and Acknowledgement) signed in June 2005; and (4) the NOBE signed in November 2010. Ask DoD to review these documents, as well as any information in its own system, and determine the appellant's eligibility for Chapter 1606. If the appropriate authority determines that the Veteran is not eligible for Chapter 1606 benefits, an explanation must be provided, which address the evidence submitted by the Veteran, including the NOBE, suggesting he is eligible. In addition, DoD (and/or other appropriate military authority) should provide the VA copies of any information/files in its possession used to make the determination. All requests should be documented, as well as any responses, negative or positive, and associated with the claims file. 3. After undertaking any other development deemed appropriate the AOJ should re-adjudicate the issue of entitlement to MGIB educational assistance. If the benefit sought is not granted, the appellant should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant 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). _________________________________________________ MICHAEL A. HERMAN 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).