Citation Nr: 1418506	
Decision Date: 04/25/14    Archive Date: 05/02/14

DOCKET NO.  11-07 882	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Whether a valid, irrevocable election of Post-9/11 GI Bill (Chapter 33) education benefits was made.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel



INTRODUCTION

The appeal has been advanced on the Board's docket.  38 C.F.R. § 20.900(c).

The Veteran had active duty with the United States Marine Corps from October 2002 to October 2006.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 decision by the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted entitlement to 8 months and 5 days of education benefits under the Post-9/11 GI Bill, also referred to as Chapter 33 education benefits.

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


FINDING OF FACT

The Veteran did not make an informed declaration to irrevocably elect Chapter 33 education benefits.


CONCLUSION OF LAW

The criteria for a valid, irrevocable election to receive Chapter 33 education benefits have not been met.  38 C.F.R. § 21.9520(c)(2).

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal.  Any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks to rescind his election to receive Chapter 33 education benefits.

Generally, veterans are eligible for a total of 36 months of education benefits under Chapter 30 or Chapter 33; a veteran who has exhausted his entitlement under Chapter 30, however, may obtain an additional 12 months of entitlement under Chapter 33 once basic eligibility is established.  If Chapter 30 benefits have not been exhausted, or used at all, the veteran must irrevocably elect Chapter 33 benefits, and is limited to 36 months of total entitlement.  38 C.F.R. §§ 21.4020, 21.7072, 21.9520, 21.9550.

In order to irrevocably elect Chapter 33 benefits, regulations require that the veteran make an informed declaration of his intent by filling out a VA Form 22-1990, filing a transfer of entitlement designation with the Department of Defense, or by submitting written correspondence including: 1) identification information, 2) a statement of election, 3) the effective date of the election, and 4) acknowledgment that the election is irrevocable.  38 C.F.R. § 21.9520(c)(2).

The regulations make clear that informed election is paramount.

The hard copy form instructions very clearly inform veterans of the nature of the election, in Item 9F.  Bold faced, capitalized, italicized print is used.  Any veteran signing this form would be adequately notified of the effect of the election.

On November 3, 2010, the Veteran filed an electronic VA Form 22-1990, online through the VONAPP program, that elected Chapter 33 education benefits.

On November 10, 2010, the Veteran filed a second electronic VA Form 22-1990 online through the VONAPP program, that attempted to rescind the first election. 

The Veteran has printed and submitted copies of both.  

Neither form indicates that the election of Chapter 33 was irrevocable.

The RO subsequently printed and submitted copies of the Veteran's forms.  Unlike the Veteran's copies, the RO's copies contain an additional section that states that the Veteran's election is "irrevocable and may not be changed."  VA Form 22-1990, 1-2 (Nov. 2010)(RO's copy).  The RO's copies are otherwise no different than those submitted by the Veteran. 

The Board has no reason to believe that the Veteran or the RO tampered with the forms.

Absent an actual showing of the content of any warning to the Veteran that his election was irrevocable, the Board is unwilling to conclude his decision was informed. 

Affording the Veteran the benefit of the doubt, a valid, irrevocable election of Post-9/11 GI Bill (Chapter 33) education benefits was not made.


ORDER

A valid, irrevocable election of Post-9/11 GI Bill (Chapter 33) education benefits was not made.




____________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs