Citation Nr: 1336863 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 13-03 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to basic eligibility for Post 9/11 GI Bill (Chapter 33) educational assistance benefits. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The appellant served in the Army National Guard from February 1992 to February 1998; August 2004 to May 2008 and from December 2008 to September 2009. During this time frame, he had periods of active duty for training (ACDUTRA) from November 2005 to May 2006 and from December 2008 to September 2009. He also had active service in the Army National Guard from May 2006 to May 2008. The appellant also served in the United States Army Reserves from February 1998 to June 2004. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). During the current appeal, and specifically in July 2013, the appellant also testified at a Travel Board hearing at the RO. A transcript of the testimony has been associated with the appellant's Virtual VA claims folder. FINDINGS OF FACT 1. While serving in the United States Army National Guard, the appellant was ordered to active duty for training for the period dating from November 2005 to May 2006 pursuant to 32 U.S.C.A. § 502(f). 2. The November 2005 order to active duty for training was not 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. 3. The appellant did not serve in the National Guard of a State for the purpose of organizing, administering, or recruiting, instructing, or training the National Guard. 4. The appellant was also ordered to active service from May 2006 to May 2008 under the provisions of 10 U.S.C.A. § 12301(h). 5. The appellant has not had any periods of qualifying active duty subsequent to September 11, 2011. CONCLUSION OF LAW The appellant is not eligible for Post-9/11 GI Bill (Chapter 33) educational assistance benefits. 38 U.S.C.A. §§ 101(2), (22)(A), (24)(B), 3002, 3301, 3311, 12103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 21.9500, 21.9505, 21.9520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA was not applicable where the outcome is controlled by the law, and the facts are not in dispute. Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). In the instant case the law and not the facts are controlling. In other words, even if all of the appellant's contentions were accepted, he could still not prevail on his claim. Further, the United States Court of Appeals for Veterans Claims (Court) has held that VCAA notification procedures do not apply in cases where the applicable chapter of Title 38, United States Code contains its own notice provisions. See Barger v. Principi, 16 Vet. App. 132, 138 (2002) (VCAA notice was not required in case involving a waiver request). In the present case, specific VCAA notice was not required because education benefit claim notice is covered in 38 C.F.R. § 21.1031 (2012). See 38 C.F.R. § 21.9510 (2013). As explained in the Federal Register, substantiating eligibility under one of the various educational assistance programs VA administers generally requires only proof of military service and the notice and assistance provisions of 38 C.F.R. §§ 21.1031, 21.1032 (2013) apply as opposed to those provisions for compensation and other VA claims. 72 Fed. Reg. 16,962 (Apr. 5, 2007). Basic requirements, however, are also substantially similar to those used in the compensation claims; VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 U.S.C.A. § 5103; Cf. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). For education benefits claims, VA is to provide forms and notify claimants of necessary information or evidence except when a claim cannot be substantiated because there is no legal basis for the claim or undisputed facts render the claimant ineligible for the claimed benefit. See 38 C.F.R. § 21.1031(b)(1) (2013). Here, on the appellant's application for VA benefits, he acknowledged that he had received information on VA education benefits via a pamphlet. In December 2011, he was informed by the RO that he had insufficient qualifying service. In March 2012, the appellant responded that he disagreed; he also sent duplicate copies of his November 2005 order to active duty for training from the Office of the Adjutant General and his May 2006 order to active duty from the Department of the Army U.S. Army Human Resources Command. In November 2012, the appellant was sent a statement of the case with the provisions of 38 C.F.R. § 21.9520 that outline basic eligibility, a discussion of the facts of the claim, notification of the basis of the decision, and a summary of the evidence used to reach that decision. The appellant perfected his appeal in January 2013 and he provided testimony at a Board hearing in July 2013. Based upon the foregoing, the Board finds that the appellant was fully advised of the evidence needed to substantiate his claim and that all relevant evidence necessary for an equitable disposition of his appeal has been obtained. Although such post-decisional notice does not satisfy the requirements of 38 C.F.R. §§ 21.1031, 21.1032; the evidence shows the appellant knew what was needed to substantiate the claim, what evidence should provide and what evidence VA would undertake to obtain. The Board finds no prejudice in delayed notice and that no such issue has been raised. Shinseki v. Sanders, 556 U.S. 396, 408-409 (2009) (the burden is on the appellant to show that a notice error is harmful). Regarding the duty to assist, there is no indication of outstanding records, and an examination is not required to decide this claim. Service department confirmation of the type and periods of service is in the file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The educational assistance program under Chapter 33 (or the post-9/11 GI Bill) was established for "individuals who served on active duty after September 10, 2001," and was made effective in August 2009. 38 C.F.R. § 21.9500. Here, the appellant re-enlisted and served in the Army National Guard after September 10, 2001. As discussed in further detail below, his basic eligibility for Chapter 33 benefits turns on whether he served on "active duty." In pertinent part, eligibility for educational assistance under Chapter 33 based on active duty service after September 10, 2001, may be established in two ways. First, the individual must have served a minimum of 90 aggregate days of active duty (excluding active duty for entry level and skill training) and, after completion of such service, (1) continued on active duty; (2) was discharged from service with an honorable discharge; (3) was released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) was released from service characterized as honorable for further service in a reserve component; or (5) was discharged or released from service for a medical condition that preexisted such service and is not determined to be service connected; hardship, as determined by the Secretary of the military department concerned; or a physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. 38 U.S.C.A. § 3311(b)(8); 38 C.F.R. § 21.9520(a). Alternatively, the individual must have served a minimum of 30 continuous days on active duty and, after completion of such service, was discharged or released from active duty under other than dishonorable conditions due to a service-connected disability. 38 U.S.C.A. § 3311(b)(2); 38 C.F.R. § 21.9520(b). Pursuant to 38 U.S.C.A. § 3301(1)(A), qualifying active duty service for members of the regular components of the Armed Forces is full time duty other than active duty for training. 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 section 688, 12301(a), 12301(d), 12301(g), 12302, or 12305 of title 10. See 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 (i) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or (ii) in the National Guard under section 502(f) of title 32 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. See 38 U.S.C.A. § 3301(1)(C). In the present appeal, the appellant contends that he is entitled to Chapter 33 educational assistance benefits in light of the fact that he had periods of active service after September 10, 2001. The record reflects that the appellant has had multiple periods of service throughout the years. He initially served in the United States Army National Guard from February 1992 to February 1998, and thereafter enlisted with the United States Army Reserves Individual Ready Reserve (IRR) from February 1998 to June 2004. See Initial Department of Defense (DoD) Reply form. A Veterans Information Solution (VIS) military history profile for the appellant (printed August 2009) indicates he had re-enlisted in the Army National Guard in August 2004. A January 2013 Information Report also reflects that the appellant re-enlisted in the Army National Guard in August 2004 and remained there until September 2009. The appellant has submitted two Certificates of Release or Discharge from Active Duty (DD form 214s), which reflect that he had active service with the Army National Guard from November 2005 to May 2006, and from May 2006 to May 2008, respectively. With regard to the first period of service referenced above, a November 2005 letter issued through the Office of the Adjutant General reflects that the appellant was ordered to active duty for training from November 9, 2005, through May 20, 2006. First and foremost, the letter does not reflect that the appellant was ordered to active service in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing or training the National Guard. Although the November 2005 letter appears to have been authorized under 32 U.S.C.A. § 502(f), there is no indication that this order was 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. Indeed, the fact that the appellant was ordered to active duty for training would lead the Board to understand that this particular period of service was not the type of service "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." Review of the November 2005 letter indicates that the appellant's military occupational specialty (MOS) during this period would be that of "Explosive Ordnance Disposal Specialist." In the initial DoD response form, it was determined that the appellant was ordered to active duty for training under the authority of Title 32 for the period dating from November 2005 to May 2006, and that this period was not considered qualifying active duty for purposes of establishing eligibility for Chapter 33 benefits. Indeed, in his January 2013 substantive appeal, the appellant stated that he was ordered to active duty for training under 32 U.S.C.A. § 502 so to acquire a secondary MOS. According to the appellant, during this period, he had a line of duty injury (LDI) but was not rated as disabled. He further stated that he was thereafter ordered to active duty from May 2006 to May 2008 under 10 U.S.C.A. § 12301(h). With regard to the second period of service referenced above, a May 2006 letter from the Department of the Army United States Army Human Resources Command reflects that the appellant was ordered to active duty, beginning in May 2006, in accordance with the provisions under 10 U.S.C.A. § 12301(h). Pursuant to this statutory provision, when authorized by the Secretary of Defense, the Secretary of a military department may, with the consent of the member, order a member of a reserve component to active duty-(A) to receive authorized medical care; (B) to be medically evaluated for disability or other purposes; or (C) to complete a required Department of Defense health care study, which may include an associated medical evaluation of the member. 10 U.S.C.A. § 12301(h)(1)(A)-(C). Unfortunately, a call to active service under this statutory provision does not constitute qualifying active duty for purposes of establishing eligibility for Chapter 33 benefits. See 38 U.S.C.A. § 3301(1)(C). The initial DoD response form also reflects that this period of service was authorized under 10 U.S.C.A. § 12302(h) and is not considered "qualifying service." In the initial response form, the DoD also clarified that the appellant was currently not eligible for benefits under the Montgomery GI Bill-Selected Reserve Educational Assistance (MGIB-SR) Program (Chapter 1606) or under Chapter 1607 of Title 10 of the United States Code. The DoD further indicated that any period of service prior to September 11, 2011 was not considered active service. In addition, the Board notes that service in the IRR is not considered qualifying active duty for purposes of establishing eligibility for Chapter 33 benefits. A second more recent reply was issued by the DoD which provided a listing of all service to see if there was any service that would qualify the Veteran for Post-9/11 GI Bill Program benefits. This response explained that the appellant was previously eligible for benefits under Chapter 1606 for the period from July 1992 to February 1998, and his eligibility was suspended in February 1998 when he was transferred to the United States Army Reserves. It was further noted that the appellant's eligibility terminated effective February 1998 when the appellant failed to re-affiliate with the National Guard. The DoD further determined that the appellant was currently not eligible for benefits under Chapter 1607, and that another period of service in question, dating from December 2008 to September 2009, was considered active duty for training, and did not count towards any benefits under the GI Bill. The DoD acknowledged that the appellant had enlisted in the United States Army Reserves in March 2012, and was currently still enlisted in the Reserves. Based on the response provided, however, the appellant's period of service with the Reserves does not constitute qualifying active duty. The DoD once again reiterated that the appellant was not eligible for Chapter 33 benefits at this time, and that there was nothing in his file showing that the appellant had qualifying active duty service after September 11, 2001. Although the Board sympathizes with the appellant's claim, it should be noted that he had been found eligible for educational assistance benefits under the Montgomery GI Bill (MGIB) program (Chapter 30). See January 2012 Certificate of Eligibility. Unfortunately, a review of the record is clear that he does not have the requisite active duty necessary to establish eligibility for Chapter 33 benefits. As a result, the claim is denied as a matter of law. ORDER Entitlement to basic eligibility for receiving educational assistance benefits under the Post-9/11 GI Bill Program is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs