Citation Nr: 1326478 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-11 709A ) DATE ) ) On appeal from the Department of Veterans Affairs Atlanta Education Center in Atlanta, Georgia THE ISSUE Whether the Veteran's date of election to receive education benefits under the Post-9/11 GI Bill program (38 U.S.C. Chapter 33) in lieu of benefits under the Reserve Educational Assistance Program or REAP (10 U.S.C. Chapter 1607) was irrevocable. ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on inactive duty training from November 30, 1999 to June 15, 2000 and on active duty from January 4, 2005 to December 15, 2005. He reportedly had another period of active duty from June 2004 to January 2005; and was a member of the Marine Corps Reserves from November 199 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision regarding entitlement to education benefits from the Department of Veterans Affairs (VA) Regional Office (RO) Atlanta Education Center in Atlanta, Georgia. In May 2011, the Veteran requested a Board hearing. He failed to report to the hearing in October 2011. The Board considers the request withdrawn. FINDING OF FACT The record does not contain evidence from the Veteran acknowledging that he was making an irrevocable election for education benefits under the Post-9/11 GI BILL program in lieu of benefits under REAP. CONCLUSION OF LAW The criteria for a revocable election for education benefits under the Post-9/11 GI BILL program in lieu of benefits under REAP have been met. 10 U.S.C.A. § 16161-66; 38 U.S.C.A. §§ 3301-24 (West Supp. 2013); 38 C.F.R. § 21.9520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA In this decision, the Board is allowing the Veteran to revoke the date of his election of education benefit and therefore his effective date of that election. As this represents a complete grant of the benefit sought on appeal, no further notice or assistance is required under the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 West 2002 & Supp. 2013), is necessary. Analysis At some point prior to November 18, 2010, the Veteran apparently applied for benefits under the Post 9/11-GI Bill. He had previously been granted REAP benefits. On November 18, 2010, the RO sent the Veteran a letter with blank spaces and boxes for him to provide additional information. In November 2011, the RO received a facsimile transmittal of the November 18, 2010 letter from the Veteran. He indicated that he was choosing to relinquish REAP benefits. He completed the statement "I am relinquishing eligibility under the program specified above to receive Post-9/11 GI Bill benefits effective," by adding "11/22/10." His name and address were on the document along with the last four digits of his Social Security number. There was; however, no signature. The Veteran subsequently sought to change the date of election for Chapter 33 benefits to November 1. 2009. The RO denied the Veteran's request, on the basis that the Veteran's election of benefits under the Post 9/11 GI BILL was irrevocable. VA regulation 38 C.F.R. § 21.9520 states that an individual may establish eligibility for educational assistance under the Post 9/11 GI BILL based on active duty service after September 10, 2001, if he or she meets certain minimum requirements. See 38 C.F.R. § 21.9520(a), (b) (2012). The Veteran's eligibility for Post 9/11 benefits is not in dispute. After meeting the minimum service requirements in section an individual can make an irrevocable election to receive benefits under Post 9/11 GI BILL, 38 U.S.C. Chapter 33. When an individual makes this election, they may select a date of election as early as August 1, 2009. 38 C.F.R. § 21.9520(c)(2)(iii). In order to make the irrevocable election, the Veteran had to properly relinquish eligibility under REAP, 10 U.S.C. Chapter 1607. 38 C.F.R. § 21.9520(c)(1). He could do this by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation to the Department of Defense, or submitting a written statement. 38 C.F.R. § 21.9520(c)(2). The written statement had to contain 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."). 38 C.F.R. § 21.9520(c)(2) (emphasis added). The criteria under 38 C.F.R. § 21.9520(c)(2) use the conjunctive "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 education benefits under the Post-9/11 GI BILL program in lieu of benefits under REAP. The document filed by the Veteran does not contain any notice that an election for benefits under the Post-9/11 GI BILL program was irrevocable. Additionally, this document does not contain any acknowledgement on the part of the Veteran that he was aware of the irrevocability criteria. The regulation requires an acknowledgement by the Veteran that his election for education benefits under the Post-9/11 GI BILL program was irrevocable before such election becomes irrevocable. The irrevocability requirements set forth under 38 C.F.R. § 21.9520(c)(2)(iv) have not been met. The Board must find that the Veteran is allowed to revoke election for education benefits under the Post-9/11 GI BILL program in lieu of benefits under REAP. The appeal is granted. ORDER The Veteran's date of election for education benefits under the Post-9/11 GI BILL program in lieu of benefits under REAP was not irrevocable; the appeal is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs