Citation Nr: 1343258	
Decision Date: 12/30/13    Archive Date: 01/07/14

DOCKET NO.  12-32 401	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a benefits payment rate higher than 40 percent of maximum for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill).


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel



INTRODUCTION

The Veteran had active duty service from March 15, 2011 to November 4, 2011.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 letter of determination by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded eligibility for education benefits, but only payable at 40 percent of the maximum.  The Veteran timely appealed the payable rate assigned.


FINDINGS OF FACT

The Veteran completed more than 6 months but less than 12 months of continuous, honorable, and creditable active duty service after September 10, 2001.


CONCLUSION OF LAW

The criteria for a benefits payment rate of 50 percent of maximum for educational assistance under the Post-9/11 GI Bill have been met.  38 U.S.C.A. §§ 3301, 3311, 3313 (West Supp. 2012); 38 C.F.R. §§ 21.9505, 21.9640 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran submitted an application for 38 U.S.C.A. Chapter 33 educational benefits (in lieu of Chapter 1606 benefits) known as Post-9/11 educational assistance benefits.  In a January 2012 letter of determination, the RO granted 40 percent of the maximum amount payable under the act because the Veteran had at least 90 days but less than 6 months of service.  The Veteran disagreed and in his substantive appeal, VA Form 9, contended that his active duty service was more than 6 months but less than 12 months and qualified him for 50 percent of the maximum amount payable. 

For purposes of claims under the Post-9/11 GI Bill, once an individual is found eligible for benefits, VA must determine the rate at which such educational assistance is payable.  38 C.F.R. § 21.9640 (2013).  VA's rate determination is based on the aggregate length of creditable active duty service after September 10, 2001.  Specifically, 38 C.F.R. § 21.9640 provides, in pertinent part, that if a claimant serves the following periods of active duty, the corresponding percentage of maximum Chapter 33 educational benefits will be paid: 

At least 36 months . . . . . . . . . . . . . . . . . . . . . . . . . . 100 percent
At least 30 months, but less than 36 months . . . . . . . 90 percent 
At least 24 months, but less than 30 months . . . . . . . 80 percent 
At least 18 months but less than 24 months . . . . . . . . 70 percent 
At least 12 months but less than 18 months . . . . . . . . 60 percent 

Moreover, if a claimant served at least 30 continuous days of creditable active duty service and was discharged due to a service-connected disability, 100 percent of the maximum Chapter 33 benefits will be paid.  Notes for the provision indicate that active duty at the 60 percent and 70 percent levels excludes entry level and skill training; active duty at the 80 percent, 90 percent, and 100 percent levels includes entry level and skill training; and where service requirements are met at both the 80 percent and 70 percent levels, a maximum 70 percent must be applied to amounts payable.  38 U.S.C.A. §§ 3311(b), 3313(c) (West Supp. 2012); 38 C.F.R. § 21.9640(a) (2013). 

For purposes of the Post-9/11 GI Bill, creditable active duty has various meanings, but 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).  

Notwithstanding the foregoing, qualifying active duty service for purposes of Chapter 33 eligibility does not include any period during which the individual was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; served as a cadet or midshipmen at one of the service academies; or served under the provisions of 10 U.S.C. 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve.  38 C.F.R. § 21.9505(2); see also 38 U.S.C.A. § 3301(1) [incorporating the limitations on the meaning of "active duty" as specified in 38 U.S.C. § 3002(6)]. 

In this case, the Veteran's Form DD-214 enclosed in the claims file documents that he had active duty service from March 15, 2011 to November 4, 2011.  

The Board calculates the following number of months of service: (1) March 15 to April 15; (2) April 15 to May 15;(3) May 15 to June 15; (4) June 15 to July 15; (5) July 15 to August 15; (6) August 15 to September 15; and, (7) September 15 to October 15.

As it is clear that the Veteran had at least 7 continuous, honorable and creditable hours of active duty service after September 10, 2011, the Board finds that the appropriate percentage assigned is 50 percent of maximum under the chart in 38 C.F.R. § 21.9640(a).  Accordingly, the Board finds that a benefits payment rate of 50 percent for educational assistance under Chapter 33, Title 38, United States Code is warranted.  See 38 C.F.R. § 21.9640(a).  As the Veteran specifically contended that his payment rate should be 50 percent in his substantive appeal, this award of benefits constitutes a full grant of benefits sought on appeal.


ORDER

A benefits payment rate of 50 percent for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), is granted.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs