Citation Nr: 1342267 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 12-11 304A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance under Chapter 33, Title 38, United States Code (Post 9/11 GI Bill). ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1990 to May 1991 and active duty for special work (ADSW) service from August 2005 to February 2006. He also had other service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 administrative decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim for Post-9/11 GI bill benefits. The Board observes that the Veteran submitted an additional DD Form 214 in April 2013, subsequent to the issuance of the March 2012 statement of the case, and without a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2013). However, as the Veteran's claim is being remanded, the AOJ will have an opportunity to review all the newly associated document such that no prejudice results to him in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends that he meets the requirements for basic eligibility for educational assistance under the provisions of the Post-9/11 GI Bill as he had been activated to active duty in support of Hurricane Katrina. In March 2010, the RO denied his claim on the basis that he had insufficient qualifying active duty service. The RO had informed the Veteran that, generally, he had to have active duty service after September 10, 2001. In April 2013, the Veteran submitted a DD Form 214 showing ADSW service from August 2005 to February 2006. For purposes of the Post-9/11 GI Bill, creditable active duty has various meanings, as follows. For members of the regular components of the Armed Forces, qualifying active duty service is full-time duty other than active duty for training. 38 U.S.C.A. § 3301(1)(A) (West 2002). For members of the Army National Guard of the United States or the Air National Guard of the United States, such as applicable here, 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 in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or, in the National Guard under 32 U.S.C. § 502(f) [i.e., under Title 32 authority] 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. 38 U.S.C.A. § 3301(1)(C) (West 2002). The Board further notes that Title 32 activation of National Guard personnel creates entitlement to federal pay and benefits "as though they were in federal service." 32 U.S.C.A. § 502(f); see CRS: Report of Congress, Operation Noble Eagle, Enduring Freedom, and Iraqi Freedom: Questions and Answers About U.S. Personnel, Compensation, and Force Structure (updated February 16, 2005), p. 3. The benefits do not extend to Title 38 Veterans' Benefits. In this regard, "Title 32 status" is not the same as "federal status." With Title 32 status, personnel remain under the control of the states, whereas control is with the Federal government with activation of National Guard personnel under 10 U.S.C. § 12304. National Guard troops are typically funded through their individual states, but the Title 32 designation permits the federal government to reimburse fully states for operations without taking over command responsibilities for National Guard personnel relief operations. According to VA's Adjudication Procedure Manual, duties performed under ADSW may be for operational, support, or training purposes. If a DD Form 214 is issued for such duty, or if ADSW is reported by the claimant, even though the duration may be less than 180 days, development is to be undertaken to determine the type of duty performed under ADSW. If the duty was for training purposes, it is not considered active duty. All other duties performed under ADSW are considered active duty. VAOPGCPREC 25-90 concluded that temporary service for purposes other than training could be defined as active duty, not active duty for training. DoD Directive 1215.6 defines ADSW as a tour of active duty to fulfill support requirements. See M21-1MR, Part III, Subpart v, 4.C.16.i, Note. The Board notes that a March 2012 response from the Department of Defense (DoD) indicates that the Veteran had no qualifying periods of eligible service under Chapter 33 after September 11, 2001. However, the DoD did not have the benefit of the DD Form 214 demonstrating ADSW from August 2005 to February 2006, as it was submitted to VA in April 2013. Moreover, the Board notes that VA is bound by the service department's certification as to a claimant's military service. See Duro v. Derwinski, 2 Vet. App. 530 (1992); see also 38 C.F.R. §§ 3.1(y)(1), 3.203 (2013). Therefore, given the apparently conflicting information in the service department's records, it is necessary to seek clarification and certification of the Veteran's service dates from the service department. On remand, DoD should be asked to consider the DD Form 214 submitted by the Veteran and determine whether such service constituted active duty service under Title 32 authority. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate source(s), including the Veteran's National Guard Unit, to request information regarding all periods of active duty service since September 10, 2001, including the authority for each period of service and the nature/purpose of each period of service. The RO should specifically request any relevant personnel records, pay records, orders, etc. which might contain information pertaining to any active duty service. Such periods should specifically include from August 2005 to February 2006, in support of Hurricane Katrina. 2. Following the completion of the above development, and the receipt of any outstanding records, submit a request to the DoD to determine whether the Veteran had any periods of service after September 11, 2001 that qualified as service under 32 U.S.C. § 502(f) [i.e., under Title 32 authority]. The DoD should specifically consider the contentions of the Veteran that his service from August 2005 to February 2006 constituted active duty, rendering him eligible for Chapter 33 benefits as well as the DD Form 214 showing ADSW from August 2005 to February 2006. 3. Thereafter, readjudicate the claim on appeal concerning entitlement to educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), in light of all of the evidence of record, including DoD's response. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ A. JAEGER 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).