Citation Nr: 1326680 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-16 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the Veteran made an irrevocable election for education 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 K. Hudson, Counsel INTRODUCTION The Veteran had active service from September 1996 to September 2000, and from February 2004 to November 2004. 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 education processing center in Atlanta, Georgia. FINDING OF FACT The record, including the electronic VA Form 22-1990 filed by the Veteran, does not contain an acknowledgement that the Veteran's election for education benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program was irrevocable, and, hence, the Veteran's claim was not "properly completed." CONCLUSION OF LAW The criteria for an irrevocable election for education benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program have not been met; reversion from Post-9/11-GI Bill program (Chapter 33) to the Montgomery GI Bill (MGIB) program (Chapter 30) is warranted. 38 U.S.C.A. §§ 3322 (West Supp. 2013); 38 C.F.R. §§ 21.9520, 21.9550 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In view of the favorable outcome of this appeal, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)) need not be discussed. After his discharge from service, the Veteran received education benefits under the MGIB, but still had over 19 months of entitlement remaining when he terminated his program of education. In December 2010, he applied for educational assistance under the Post-9/11 GI Bill on an internet version of VA Form 22-1990. In February 2011, he was awarded education benefits under the Post-9/11 GI Bill, in the amount of $281.91 for tuition and fees, and $125.00 for books. He was informed that this was based on his certified enrollment in 6 credits, and his entitlement to receive benefits at the 50 percent level, based on his length of qualifying (post-9/11) service. Shortly thereafter, the Veteran requested to have his election of benefits under the Post-9/11 GI Bill revoked. He said that he had been under the impression that he would be entitled to an additional 12 months of education benefits under the Post-9/11 GI Bill, but had found out he was mistaken. Additionally, the assistance provided under the Post-9/11 GI Bill covered only half of his tuition, fees, and book costs, and nothing else, whereas he had relied upon the monthly payments he had received under the MGIB to be able to afford to attend school. The RO found that the Veteran had irrevocably elected to receive benefits under the Post-9/11 GI Bill, in lieu of the MGIB. In this regard, an otherwise qualifying individual with MGIB entitlement 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 makes an irrevocable election to receive benefits under the Post-9/11 GI Bill by relinquishing eligibility under the MGIB. 38 C.F.R. § 21.9520(c)(1)(i); see 38 U.S.C.A. § 3322(h). The individual who makes such irrevocable election will be entitled to one month (or partial month) of entitlement under the Post-9/11 GI Bill for each month (or partial month) of unused entitlement under the MGIB. 38 C.F.R. § 21.9550(b)(1). The issue before the Board, then, is whether the Veteran made an irrevocable election of Post-9/11 GI Bill benefits. An individual may make an irrevocable election to receive benefits under Chapter 33 by one of three ways, the first of which is by properly completing VA Form 22-1990. 38 C.F.R. § 21.9520(c)(2). In this case, the claim was on an electronic version of VA Form 22-1990, and the question is whether such form was "properly completed." First, the form as completed does not appear to contain any form of signature or acknowledgement from the Veteran, including an e-signature. The date was left blank. Additionally, under a section entitled "INFORMATION ON VA EDUCTION BENEFITS," it was noted that the Veteran had not received an information pamphlet. Moreover, the official version of the VA Form 22-1990, as available in a paper copy, and on the VA web site for forms, contains a section in which a veteran must acknowledge that his "election is irrevocable and may not be changed." See VA Form 21-1990, page 1 (Oct. 2010) (emphasis in original). He must enter the date, and indicate via a checkmark that he understands that, by electing Chapter 33 benefits, it is in lieu of entitlement to Chapter 30 benefits and, again, that his election is irrevocable. In contrast, the electronic version of the Veteran's submitted VA Form 22-1990 does not contain this section or require any similar acknowledgement by the Veteran that he understood that his election was irrevocable. An irrevocable election may also be accomplished by submitting a transfer-of-entitlement designation 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, e.g., the MGIB; (iii) The date the individual wants the election to be effective; 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). There is no evidence or suggestion that the Veteran submitted a transfer-of-entitlement designation to the Department of Defense. As to the final method, a written statement, this, too, requires that the Veteran explicitly acknowledge that the election is irrevocable. Thus, the Board finds that in order for the application to be "properly completed," there must be sufficient information to convey that that the Veteran has acknowledged that the election is irrevocable. As documented in the file, the electronically filed version VA Form 22-1990 does not contain such acknowledgement. A statement that he is filing for Chapter 33 benefits in lieu of Chapter 30 benefits is not sufficient to convey that the election is irrevocable, particularly in view of the explicit acknowledgement required in both the official application form and for a written statement to be accepted as an irrevocable election. In this case, the Veteran obviously failed to adequately research whether electing Post-9/11 GI Bill benefits was to his advantage. However, VA was also at fault in failing to ensure that the internet version of the claim includes the required acknowledgment that the election is irrevocable, as is included on the printed form, and required in a written statement. Indeed, it is possible that had the Veteran been required to expressly acknowledge the irrevocability of his election, he might have made more effort to ensure that he was making the right decision. In sum, the Veteran's electronically submitted VA Form 22-1990 does not appear to be signed, and is not dated. There is no express acknowledgement that the election of Post-9/11 GI Bill benefits, in lieu of MGIB benefits, was irrevocable. As such, the Board finds that a "properly completely" VA Form 21-1990 is not of record. Likewise, no other valid irrevocable election is of record. Accordingly, the Board concludes that an irrevocable election of Post-9/11 GI Bill education benefits was not received, and the appeal must be granted. ORDER As an irrevocable election for education benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program has not been effectuated, reversion from Post-9/11-GI Bill program (Chapter 33) to the Montgomery GI Bill (MGIB) program (Chapter 30) is warranted; The appeal is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs