Citation Nr: 1328857 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 11-02 680A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a benefits payment rate higher than 60 percent of maximum for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the U.S. Air Force from July 1985 to March 1993. He also served in the Air National Guard for periods from August 14, 1995 to October 11, 2001, from October 12, 2001 to September 26, 2002, and from September 26, 2002 to December 31, 2008. The character of service for all periods is honorable. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted the Veteran educational benefits of 60 percent of the maximum amount payable under 38 U.S.C.A. Chapter 33 (Post-9/11 GI Bill). The Veteran disagreed with the percentage awarded and perfected an appeal. Thereafter, the Veteran's case was transferred to the jurisdiction of the RO in Phoenix, Arizona. In August 2011, the Veteran appeared at the Phoenix RO and testified at a videoconference hearing conducted by the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's education file. The Board also notes that the decision herein is based on a review of the Veteran's education folder, which is separate from his claims file, but a review of the Veteran's claims file via the Virtual VA system (i.e., an electronic version of his claims file) and the Veteran Appeals Control and Locator System (VACOLS) indicates that there are numerous other issues in appellate status which the RO has yet to certify to the Board for its review (and it appears for three of the issues that the RO has yet to issue a statement of the case). Accordingly, the sole matter for the Board's consideration is the issue listed on the first page of this document. FINDING OF FACT The Veteran completed more than 36 months of aggregate, honorable, and creditable active duty service after September 10, 2001. CONCLUSION OF LAW The criteria for a benefits payment rate of 100 percent of maximum for educational assistance under the Post-9/11 GI Bill have been met. 38 U.S.C.A. §§ 3301, 3311, 3313 (West Supp. 2012); 38 C.F.R. §§ 21.9505, 21.9640 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the decision herein is favorable to the Veteran and the Board is granting the maximum available benefit, VCAA compliance need not be addressed. II. Merits of the Claim In February 2010, the Veteran submitted an application for 38 U.S.C.A. Chapter 33 educational benefits (in lieu of Chapter 1606 benefits) known as Post-9/11 educational assistance benefits. In a February 2010 administrative decision, the Muskogee RO granted 60 percent of the maximum amount payable under the act. The Veteran disagreed, contending that his active duty service in the National Guard qualified him for 100 percent of the maximum amount payable. In a statement received in April 2010, the Veteran detailed his military job assignments to include as the 162nd Fighter Wing's Information Security Program Manager (ISPM) where he contributed to Operation Iraqi Freedom and Operation Enduring Freedom by ensuring all Air Guard personnel assigned to a new Predator Squadron/mission carried the necessary security clearance to attend training, which was a prerequisite for the squadron to be established and activated. He submitted Enlisted Performance Reports covering the periods of August 2001 to August 2002 and of August 2003 to August 2004. The Veteran's submissions also included copies of Arizona Air National Guard Special Orders, dated in May 2003 and September 2006, which show that he was ordered on full-time Active Guard/Reserve (AGR) duty under 32 U.S.C. § 502(f) and ANGI 36-101. The period covered by these particular orders spanned August 14, 2003 to December 16, 2007. (Title 32 U.S.C. pertains to the power of state governors to command and control their respective state National Guard. Under 32 U.S.C § 502(f), a member of the National Guard may be ordered to perform training or other duty beyond drills and field exercises that may include support of operations or missions undertaken by the member's unit at the request of the President or Secretary of Defense. ANGI 36-101 refers to the Active Guard/Reserve Program.) Furthermore, he submitted copies of a Request and Authorization for Change of Administrative Orders, dated in October 2001 and September 2002, relating to AGR Orders. These show that for the AGR duty period of October 12, 2001 to September 30, 2002, his orders were under the authority of 10 U.S.C. § 12302, and that for the AGR duty period effective September 27, 2002 his orders were under the authority of 32 U.S.C § 502(f). For purposes of claims under the Post-9/11 GI Bill, once an individual is found eligible for benefits, VA must determine the rate at which such educational assistance is payable. 38 C.F.R. § 21.9640 (2012). VA's rate determination is based on the aggregate length of creditable active duty service after September 10, 2001. Specifically, 38 C.F.R. § 21.9640 provides, in pertinent part, that if a claimant serves the following periods of active duty, the corresponding percentage of maximum Chapter 33 educational benefits will be paid: At least 36 months . . . . . . . . . . . . . . . . . . . . . . . . . . 100 percent At least 30 months, but less than 36 months . . . . . . . 90 percent At least 24 months, but less than 30 months . . . . . . . 80 percent At least 18 months but less than 24 months . . . . . . . . 70 percent At least 12 months but less than 18 months . . . . . . . . 60 percent Moreover, if a claimant served at least 30 continuous days of creditable active duty service and was discharged due to a service-connected disability, 100 percent of the maximum Chapter 33 benefits will be paid. Notes for the provision indicate that active duty at the 60 percent and 70 percent levels excludes entry level and skill training; active duty at the 80 percent, 90 percent, and 100 percent levels includes entry level and skill training; and where service requirements are met at both the 80 percent and 70 percent levels, a maximum 70 percent must be applied to amounts payable. 38 U.S.C.A. §§ 3311(b), 3313(c) (West Supp. 2012); 38 C.F.R. § 21.9640(a) (2012). For purposes of the Post-9/11 GI Bill, creditable active duty has various meanings, as follows. For members of the regular components of the Armed Forces, qualifying active duty service is full-time duty other than active duty for training. 38 U.S.C.A. § 3301(1)(A). For members of the reserve components of the Armed Forces, qualifying active duty includes service on active duty under a call or order to active duty under 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 [i.e., under Title 10 authority]. 38 U.S.C.A. § 3301(1)(B). For members of the Army National Guard of the United States or the Air National Guard of the United States, in addition to service described above [for members of the regular and reserve components of the Armed Forces], qualifying active duty includes full-time service in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or, in the National Guard under 32 U.S.C. § 502(f) [i.e., under Title 32 authority] when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38 U.S.C.A. § 3301(1)(C). It is noted that on January 4, 2011, the Post-9/11 Veterans Educational Improvements Act of 2010 was enacted. Pub. L. No. 111-377, 124 Stat. 4106 (2011). This Act made changes to Chapter 33 of Title 38, United States Code, pursuant to the Post-9/11 Veterans Educational Assistance Act of 2008 (Title V of Public Law 110-252), which include adding provisions to allow certain National Guard service to be considered as qualifying active duty service for purposes of Chapter 33 eligibility. See Pub. L. No. 111-377, § 101(a), 124 Stat. 4106, 4108 (2011). Prior to the Act, Title 32 National Guard service was explicitly excluded as qualifying active duty service for purposes of Chapter 33 eligibility. Further, it is especially notable that 38 C.F.R. § 21.9505(1) still reflects that active duty does not include full-time National Guard Duty performed under the authority of Title 32; amendments to the regulations have yet to be promulgated. Notwithstanding the foregoing, qualifying active duty service for purposes of Chapter 33 eligibility does not include any period during which the individual 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; served as a cadet or midshipmen at one of the service academies; or 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. 38 C.F.R. § 21.9505(2); see also 38 U.S.C.A. § 3301(1) [incorporating the limitations on the meaning of "active duty" as specified in 38 U.S.C. § 3002(6)]. In the present case, three DD Forms 214 (Certificate of Release or Discharge from Active Duty) of record show that the Veteran served on active duty in the U.S. Air Force from July 1985 to March 1993, and that he served in the Arizona Air National Guard from August 14, 1995 to October 11, 2001 and from October 12, 2001 to September 26, 2002. The RO has already recognized that period of service that was served after September 11, 2001 - 12 months and 15 days - as creditable active duty service for purposes of the Post-9/11 GI Bill. It was calculated that he had a total of 381 days of creditable Title 10 service for the period of September 11, 2001 to September 26, 2002, and on that basis the RO awarded the Veteran educational assistance benefits at the 60 percent rate. Later in the appeal period, however, another DD Form 214 was received into the record in February 2011. This additional service department document reflects that the Veteran served in the Air National Guard from September 26, 2002 to December 31, 2007, when he retired (he had sufficient service). This was an honorable period of service of 6 years, 3 months, and 5 days. This record also specifically states that for the entire period of such service the Veteran served on active duty under Title 32, U.S.C. § 502(f). The RO has not considered whether this period of service is creditable for purposes of the Post-9/11 GI Bill. (The Veteran submitted another copy of this DD 214 at the time of his hearing in August 2011, and waived initial RO consideration of the evidence pursuant to 38 C.F.R. § 21.1304.) Nevertheless, the Board finds that it constitutes creditable active duty service for Chapter 33 eligibility purposes. The evidence shows that the Veteran served on active duty, which included full-time service. While he was ordered to duty under the authority of 32 U.S.C. § 502(f), that is, under Title 32 orders, the law now provides that such service is not necessarily excluded as qualifying active duty service for purposes of Chapter 33 eligibility, as it had been previous to the January 2011 enactment of the Post-9/11 Veterans Educational Improvements Act of 2010. Given the DD Form 214, service department documents submitted by the Veteran including Air National Guard Special Orders, and his credible testimony in August 2011, the Board concludes that the Veteran's service from September 26, 2002 to December 31, 2008 meets the definition of active duty for a member of the National Guard. That is, he is shown to have had full-time service in the National Guard under 32 U.S.C. § 502(f) when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38 U.S.C.A. § 3301(1)(C). Further, the Board finds that the Veteran does not meet any of the circumstances whereby his active duty from September 26, 2002 to December 31, 2008 would be considered disqualifying for Chapter 33 eligibility purposes. See 38 U.S.C.A. § 3301(1) [incorporating the limitations on the meaning of "active duty" as specified in 38 U.S.C. § 3002(6)]; 38 C.F.R. § 21.9505(2). That is, there is no indication that this period of duty was accomplished while the Veteran was assigned to a civilian institution and pursuing a program of instruction available to civilians, and he has never been a cadet or midshipmen at one of the U.S. military academies. Further, during this period of duty he is not shown to have served under the authority of 10 U.S.C.A. § 12103(d) pursuant to an enlistment in the Air National Guard. In this case, the specific period in question for determining creditable active duty service was September 26, 2002 to December 31, 2008. As explained, the Veteran completed in excess of 36 months of aggregate, honorable, and creditable active duty service during this period. Under 38 C.F.R. § 21.9640, his total time meets the criteria of 36 months for entitlement to payment of Post-9/11 GI Bill benefits at the 100 percent rate. 38 U.S.C.A. § 3311 (b)(1)(A) (an aggregate of 36 months with honorable release qualifies). Accordingly, the appeal is granted. ORDER A benefits payment rate of 100 percent for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs