Citation Nr: 1341141	
Decision Date: 12/13/13    Archive Date: 12/20/13

DOCKET NO.  10-16 287	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to basic eligibility for educational assistance under 38 U.S.C.A. Chapter 33 (Post-9/11 GI Bill).


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Bordewyk, Alicia R.

INTRODUCTION

The Veteran served on active duty from January 2007 to February 2009.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the above-claimed benefits.

The Veteran provided testimony during a hearing before the undersigned at the RO in June 2013.  A transcript is of record.  


FINDING OF FACT

The Veteran's entire active service period from January 2007 to February 2009 was subject to the education loan repayment program under 10 U.S.C.A. Chapter 109; there is no active duty service creditable to Post 9/11 GI Bill benefits.  


CONCLUSION OF LAW

The criteria for entitlement to benefits under the Post-9/11 GI Bill have not been met.  10 U.S.C.A. § 2171 (West 2002); 38 U.S.C.A. Chapter 33 (West 2002 & Supp. 2013); 38 C.F.R. §§ 21.9510, 21.9520, 21.9550 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In May 2009, the Veteran applied for benefits pursuant to the Post-9/11 GI Bill. 

Under the applicable regulations, in order to be an eligible individual for these benefits, a Veteran must meet the service requirements of 38 C.F.R. § 21.9520 (2013).  A period of service counted for purposes of repayment of an education loan under 10 U.S.C.A. Chapter 109, known as the loan repayment program (LRP), may not be counted as a period of service for entitlement to educational assistance under 38 U.S.C.A. Chapter 33, the Post-9/11 GI Bill.  38 U.S.C.A. § 3322(b) (2013). 

In his application and during the Board hearing, the Veteran reported that his entire period of active service (two years, one month, and seven days) was counted for the purposes of repaying an education loan.  Evidence from the Department of Defense also indicates that the Veteran's service from January 2007 to February 2009 was under an LRP obligation.  As the Veteran's entire period of active service was counted for purposes of repayment of an education loan under 10 U.S.C.A. Chapter 109, this period of service cannot be counted as a period of service for entitlement to educational assistance under the Post-9/11 GI Bill.  38 U.S.C.A. § 3322(b).  

The Veteran testified during the Board hearing that he realized his active duty service was counted for the purposes of the LRP, but was not sure whether that meant that he was ineligible for Post 9/11 GI Bill benefits.  He submitted information regarding basic eligibility for the benefits, which he found on the Internet, and noted that that source did not discuss the implications of participation in the LRP.   

Unfortunately, the regulations make it clear that, because all of the Veteran's active service was counted under the LRP, and he received education benefits for each day of that service, none of it can be counted as a period of service for eligibility under the Post 9/11 GI Bill.  38 U.S.C.A. § 3322(b).  The Veteran's uncompleted service obligation is not considered "active duty service" for any benefits, including education benefits under the Post 9/11 GI Bill. 

In short, there simply is no legal basis to find him eligible for education assistance benefits under the Post 9/11 GI Bill.  The Board is bound by the law, and its decision is dictated by the controlling statutes and regulations. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). 

The Veteran is not eligible for benefits under the Post-9/11 GI Bill.  His claim for these benefits must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
ORDER

Entitlement to eligibility for educational assistance under 38 U.S.C.A. Chapter 33 (Post-9/11 GI Bill), is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs