Citation Nr: 1331902	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  11-11 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


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).


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Hudson, Counsel




INTRODUCTION

The Veteran had active service from August 2001 to July 2003, and from January 2010 to December 2010.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 determination by the Department of Veterans Affairs (VA) Regional Office education processing center (EPC) in Muskogee, Oklahoma, which denied the Veteran's request to rescind his election of Post-9/11 GI Bill educational assistance, in lieu of MGIB educational benefits.  Although processed at the Muskogee EPC, jurisdiction of the Veteran's file remains with the Chicago, Illinois, RO.  

In September 2011, the Veteran appeared and testified at a Travel Board hearing at the Chicago RO.  A transcript of the hearing is associated with the record.


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.  38 U.S.C.A. §§ 3322 (West Supp. 2013); 38 C.F.R. §§ 21.9520, 21.9550 (2013). 



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 the Veteran's first period of active duty, from August 2001 to July 2003, he received education benefits under the MGIB, but still had 17-1/2 months of entitlement remaining when he terminated his program of education.  

His second period of service was from January 2010 to December 2010, during which time he states he was deployed to Iraq.  Toward the end of his period of service, in September 2010, while still overseas, he applied for Post-9/11 GI Bill benefits.  

In December 2010, the Veteran contacted VA and asked to have his request for Chapter 33 benefits withdrawn.  He said he had been misinformed as to the effects of electing Chapter 33 benefits.  He said that at the time he applied, he was in Iraq, and it was not until he returned that he learned he would only get tuition and books paid for, and that could have received an additional 12 months of benefits if he had not elected Chapter 33 benefits..  

The RO denied the Veteran's request in January 2011, finding that the Veteran had irrevocably elected to receive benefits under the Post-9/11 GI Bill, in lieu of the MGIB.  See 38 C.F.R. § 21.9520(c)(1) (an otherwise qualifying individual may establish eligibility for educational assistance under Chapter 33, if he or she makes an irrevocable election to receive benefits under that Chapter by relinquishing eligibility under Chapter 30).

The Veteran contends that his decision should not be irreversible, given that he was in Iraq when this occurred, and he was not aware of the negative consequences of his choice until after he returned.  In essence, he believes that he was not given sufficient information to make an informed decision until after the election was made.  Additionally, he states that he tried to withdraw the election before the benefits kicked in; he did not attend school under the Post-9/11 GI Bill and then try to switch back.  

At his Board hearing in September 2011, the Veteran testified that while he was in Iraq, his wife had talked him into going back to school, and he was contacted by a university that his wife had used.  The Veterans' representative at the school informed him that he needed to sign up for the Post-9/11 GI Bill.  He said that he did not know the difference between the benefits he would receive under the MGIB and the Post-9/11 GI Bill; he just went by what the Veterans' representative at the school told him to do.  He said that when he returned, he learned that he would be losing 12 months of educational benefits.  He acknowledged that if someone had actually taken the time to explain the difference between the benefits, he would not have elected the Post-9/11 GI Bill.  He said that now, it looked like he would run out of benefits about a year before his degree was finished, and would have to pay out of pocket for the last year, and, thus, would be losing out on educational benefits that he would have otherwise been entitled to.    

The Board finds the Veteran's statements and testimony to be entirely credible, and supported by the record.  Significantly, the Veteran was trying to apply for educational assistance while he was still on active duty in Iraq, a war zone.  More than likely, the information available to him at that time and place was incomplete at best.  The decision as to whether to elect the Post-9/11 GI Bill is clearly one that requires an analysis of which program would provide the greater benefit in the short run (i.e., term by term), as well as the long run (i.e., the additional 12 months to be gained by exhausting entitlement under Chapter 30 first).  The Veteran credibly states that he was unaware of this latter consequence.  

In this regard, aside from any differences in the amount of educational assistance payable under the two programs, the aggregate period for which any person may receive assistance under two or more of various educational assistance programs, including Chapters 30 and 33, may not exceed 48 months (or the part-time equivalent).  38 C.F.R. § 21.4020(a) (2013).  Each of these individual programs of educational assistance, however, only permits 36 months of training.  See 38 C.F.R. §§ 21.7072 (36 months of full-time training under MGIB), 21.9550(a) (Subject to the provisions of § 21.4020 and this section, an eligible individual is entitled to a maximum of 36 months of educational assistance (or its equivalent in part-time educational assistance) under 38 U.S.C.A. chapter 33.).  The confluence of the various regulations has resulted in a situation whereby if the Veteran converts his or her MGIB entitlement to Post-9/11 GI Bill entitlement, the Veteran receives only the amount of time remaining on the MGIB entitlement.  If, however, he or she continues to use MGIB entitlement until it is exhausted, and then applies for Post-9/11 GI Bill benefits, it appears that he or she will receive an additional 12 months under the Post-9/11 GI Bill.  

The Post-9/11 GI Bill had been in operation for only a year by the time the Veteran applied, and, according to the notice provided to the Veteran in April 2011, there have been subsequent revisions.  As do many Veterans in navigating the complex educational benefits programs, the Veteran relied upon the Veterans' advisor at the school.  In this case, it turned out to be a mistake, which the Veteran sought to remedy immediately after his return from overseas.  

The relevant statutory authority in this case is set forth in 38 U.S.C.A. § 3322, entitled "Bar to duplication of educational assistance benefits," and reads:  
An individual entitled to educational assistance under this chapter who is also eligible for educational assistance under chapter 30, . . . , may not receive assistance under two or more such programs concurrently, but shall elect (in such form and manner as the Secretary may prescribe) under which chapter or provisions to receive educational assistance.  38 U.S.C.A. § 3322(a).  

Notably, the purpose of requiring election was to avoid duplication of educational assistance, and the statute itself does not require that the election be irrevocable.  This was added by the regulation, which provides that 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).  

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).  Here, the claim was on an electronic version of VA Form 22-1990, and it must be determined whether such form was "properly completed."  

First, the form as completed did not contain any form of signature or acknowledgement from the Veteran, including an e-signature.  The date was left blank.  He did not identify an institution or start date.  Additionally, under a section entitled "INFORMATION ON VA EDUCTION BENEFITS," it was noted that the Veteran had not received an information pamphlet.  

The lack of signature and date were rectified by obtaining email authorization.  After the Veteran's application was received, in October 2010, he was sent an email from the St. Louis EPC, which informed the Veteran that it appeared he was requested Post-9/11 GI Bill, and that he must fax a letter stating that he was requesting Chapter 33 benefits in lieu of Chapter 30 benefits as of this date.  The Veteran responded that he was currently overseas, and could not send a fax.  He was informed that an email stating that he elected Chapter 33 benefits in lieu of Chapter 30 benefits as of this date, followed by his name, would be accepted.  Accordingly, he responded with an email stating "I elect chapter 33 benefits in lieu of chapter 30 benefits as of this date 07 October 2010," followed by his name.  

Notably, at no point during this email exchange was the Veteran informed or asked to acknowledge that the election was irrevocable.  

In contrast to the electronic version, 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 explicitly 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.  

Although the RO responds that the instructions for the electronic version of the VA Form 22-1990 state at the beginning that the election is irrevocable, the body of the form itself does not require any acknowledgement by a Veteran that he/she understands that the election is irrevocable, such as is contained in the official version.  

The other two methods for effecting an irrevocable election to receive benefits under Chapter 33 are by submitting a transfer-of-entitlement designation under this chapter to the Department of Defense (DoD), 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 DoD.  As to the final method, a written statement, this, too, requires that the Veteran explicitly acknowledge that the election is irrevocable.  As can be seen, this is a separate requirement, in addition to the requirement that the Veteran elect to receive benefits in lieu of MGIB benefits.  The October 2010 email request to the Veteran only addressed this latter requirement.  

Given the explicit acknowledgement required in both the official application form and for a written statement to be accepted as an irrevocable election, the Board finds that in order for the application to be "properly completed," there must be sufficient information to convey 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.  

Although the Board finds that the electronic version of VA Form 22-1990 is deficient in not requiring explicit acknowledgement of irrevocability, here, since the original Form 22-1990 was also defective in other areas acknowledged by the RO, the claim could also be considered as a claim based on a written statement, with all four elements listed above required for an irrevocable election.  

Under these circumstances, the Board finds that the Veteran did not "properly complete" the VA Form 22-1990 which was submitted in September 2010, there was no transfer-of-entitlement designation to the DoD, and there was no written statement acknowledging the Veteran's understanding that the election was irrevocable.  Hence, there was no irrevocable election of Chapter 33 Post-9/11 GI Bill benefits.  Particularly where the consequences of filing an irrevocable election are potentially so significant, strict compliance with the irrevocable election requirements is required.  In reaching this determination, the benefit-of-the-doubt rule has been applied.  38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

The Veteran did not make an irrevocable election for education benefits under the Post-9/11-GI Bill program in lieu of benefits under the MGIB program; the appeal is allowed.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs