Citation Nr: 1338116 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 13-06 805 ) DATE ) ) On appeal from the Department of Veterans Affairs St. Louis Education Center in St. Louis, Missouri THE ISSUE Entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from October 2009 to September 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 determination of the determination issued by the Department of Veterans Affairs (VA) St. Louis Education Center in St. Louis, Missouri. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran claims entitlement to educational benefits under the Post-9/11 GI Bill. His claim has been denied because he did not have qualifying active duty service after September 10, 2001. The Veteran disagreed with that decision and submitted copies of his official orders and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, which shows that he completed 4 months and 4 days of prior active service. In November 2012, VA received notice from DoD (Department of Defense) that the Veteran's DD Form 214 for October 2009 to September 2011 "is non-qualifying ADSW" (Active Duty for Special Work). In accordance with the post-9/11 GI Bill, an individual who serves an aggregate of at least 90 days on active duty in the Armed Forces (excluding service on active duty in entry level and skill training), commencing on or after September 11, 2001, may be eligible for educational assistance under chapter 33 of title 38, United States Code. See 38 U.S.C.A. § 3311. "Active duty" is defined as "full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. [§§] 688, 12301(a), 12301(d), 12301(g), 12302, or 12304." 38 C.F.R. § 21.9505; see 38 U.S.C.A. § 3301(1)(A), (B). As noted above, in support of his claim, the Veteran submitted copies of official orders ordering him into what he claims was active duty. A review of those orders shows that during that time period, the Veteran was ordered to "ADOS-RC" (Active Duty for Operational Support - Reserve Component). The Board notes that in accordance with Marine Corps Order 1001.59A, the Active Duty for Operational Support (ADOS) program replaced the program formerly known as Active Duty for Special Work and "provides Marine Corps Reserve personnel augmentation for both Active and Reserve components, in support of existing and emerging requirements of the Marine Corps Total Force to meet short-term administrative, operational, and exercise support requirements." MCO 1001.59A (Jan. 19, 2011). MCO 1001.59A establishes policies and procedures for the authorized assignment of Reserve component personnel to active duty under the ADOS program, and notes that section 12301(d) of title 10, U.S. Code provides statutory authority to order Reserve component members to active duty. As defined in MCO 1001.59A, ADOS is a category of voluntary active duty used to provide Reserve component support to operation and mission requirements. In light of the evidence submitted by the Veteran after the agency of original jurisdiction (AOJ) requested from DoD information regarding the Veteran's post-September 11, 2001, active duty status, the Board finds a remand is in order for the AOJ to again seek verification of whether the Veteran served on any periods of active duty on or after September 11, 2001. On remand, the AOJ must contact DoD to clarify whether the Veteran's service in the Reserve component as evidenced by the copies of orders he submitted included any periods of active duty. This must be done in writing and the AOJ must supply to DoD the copies of the official orders provided by the Veteran. The AOJ should ask that the information be reviewed by an appropriate DoD or military department official and a written explanation as to the Veteran's exact status relative to his eligibility for Chapter 33 benefits should be provided. Any determination with regard to the Veteran's eligibility must cite to appropriate authority. Accordingly, the case is REMANDED for the following action: 1. The AOJ must contact DoD and/or the appropriate military authority to request information as to the Veteran's eligibility for Chapter 33 educational assistance benefits. The request must be in writing and not through a database inquiry. All requests should be documented, as well as any responses, negative or positive, and the AOJ must ensure that it completes the following steps in making its request: Provide DoD and/or the appropriate military authority with copies of the official orders submitted by the Veteran showing that he was ordered to ADOS. Ask DoD and/or the appropriate military official to review these documents, as well as any information in its own system, and determine whether the Veteran served on active duty at any point since September 11, 2001. The AOJ should ask DoD to provide an explanation of its determination, including why any evidence provided by the Veteran does not show active duty, if such a determination is made. The AOJ should also ask DoD to provide the VA copies of any information/files in its possession used to make this determination. 2. After undertaking any other development deemed appropriate the AOJ should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).