Citation Nr: 1338716	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  10-27 562A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to educational assistance under Chapter 33 of Title 38, United States Code (Post 9/11 GI Bill).


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

D. Johnson, Counsel








INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from August 2004 to January 2005.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision by the Department of Veterans Affairs (VA) Regional Processing Center Office in Atlanta, Georgia.  

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2011.  A transcript of the hearing is in the Veteran's file.

(The issue of entitlement to service connection for diabetes mellitus is addressed in a separate Board decision.)

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. 


REMAND

To be eligible for Chapter 33 educational assistance benefits, an individual must have served on active duty for at least 90 aggregate days after September 10, 2001, and meet additional requirements; or, have served a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability.  38 C.F.R. § 21.9520.

For Post-9/11 GI Bill purposes, 38 C.F.R. § 21.9505 defines "active duty" 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.A. § 688, 12301(a) 12301(d), 12301(g), 12302, 12304 (West 2002 & Supp. 2013).  38 C.F.R. § 21.9505. 



In support of her claim, the Veteran provided a copy of an order (Order 129918) issued by the Department of the Army, 81st Regional Support Command located in Fort Jackson, Mississippi.  The document indicates the Veteran was ordered to Active Duty Operational Support-Reserve Component (ADOS-RC) for the period beginning July 2, 2009, for a period of 89 days.  The authority noted for the order was "Title 10 USC."  

An addendum to the document, signed and dated by the Veteran and a certifying official, reflects that she completed a tour of duty from July 2, 2009, to September 21, 2009.  

The Veteran was discharged from Army Reserve, effective October 17, 2009.  

In June 2010, VA contacted the Department of Defense (DoD) to verify the Veteran's eligibility for education assistance benefits.  That same month, DoD indicated that the Veteran did not have any qualifying active duty under Title 10.

The information received from DoD does not provide sufficient detail by which the Board can proceed to adjudicate the claim.  As it remains unclear as to which Title 10 authorizing provision was utilized to order the Veteran to service on July 2, 2009, additional development is required.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Department of the Army, 81st Regional Support Command located in Fort Jackson, Mississippi, for the provision under Title 10 authorizing the Veteran to Active Duty Operational Support-Reserve Component (ADOS-RC) on July 2, 2009, (i.e. 10 U.S.C.A. § 688, 12301(a) 12301(d), 12301(g), 12302, or 12304).  A copy of the order must be provided to the 81st Regional Support Command.  



2.  In the event that the 81st Regional Support Command is unable to provide the necessary information, the RO must then contact the Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs, in Washington, D.C., and ask the same question, that is, the provision under Title 10 authorizing the Veteran to Active Duty Operational Support-Reserve Component (ADOS-RC) on July 2, 2009, (i.e. 10 U.S.C.A. § 688, 12301(a) 12301(d), 12301(g), 12302, or 12304).  A copy of the order must be provided to The Office of the Assistant Secretary, Manpower and Reserve Affairs.  

3.  After the development has been completed, readjudicate the claim.  If the benefit sought is denied, furnish the Veteran a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



_________________________________________________
George E. Guido Jr
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) (2013).