Citation Nr: 1448887 Decision Date: 11/04/14 Archive Date: 11/10/14 DOCKET NO. 12-01 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to educational assistance benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) at a rate in excess of 80 percent. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from August 2004 to August 2006, with subsequent service in the U.S. Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the RO in May 2012. A hearing transcript is of record. FINDINGS OF FACT The Veteran had at least 30 continuous days of active duty service after September 2001, and he was discharged due to a service-connected disability. CONCLUSION OF LAW The criteria for an eligibility percentage of 100 percent for educational assistance benefits under the Post-9/11 GI Bill have been met. 38 U.S.C.A. §§ 3311, 3313 (West Supp. 2013); 38 C.F.R. §§ 21.9500, 21.9505, 21.9520, 21.9640 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Congress enacted the Post-9/11 Veterans Educational Assistance Act of 2008 in June 2008, which was made effective August 1, 2009. See Pub. L. 110-252, Title V, §§ 5002-5003, June 30, 2008. This represented a new program of education benefits designed for Veterans who served on active duty after September 11, 2001. See, generally, 38 U.S.C.A. §§ 3301 to 3324; 38 C.F.R. §§ 21.9500 to 21.9770. After basic eligibility for benefits under the Post-9/11 GI Bill is established, VA must determine the rate at which such educational assistance is payable, which is based on the aggregate length of creditable active duty service after September 10, 2001. As pertinent to this case, the rate is 80 percent with at least 24 months, but less than 30 months, of creditable active duty service; or 100 percent with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 U.S.C.A. §§ 3311, 3313; 38 C.F.R. § 21.9640. The Veteran's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he served on active duty in the Army National Guard from August 16, 2004, to August 16, 2006, under 10 U.S.C. § 12302. See 38 C.F.R. § 21.9505 (defining "active duty" for Post-9/11 GI Bill purposes). The RO recognized this period of active duty service as creditable for purposes of the Post-9/11 GI Bill, and awarded educational benefits at the 80 percent rate for 24 months of active duty. This DD Form 214 specified that the Veteran was retired from active duty due to temporary disability, with honorable service. In other words, he was placed on the temporary disability retired list (TDRL) effective August 16, 2006. The DD Form 214 indicated that he was subject to active duty recall, muster duty, and/or annual screening. Consistent with these notations, TDRL is not active duty; instead, it is a way that an individual can be released from active duty service and still have basic eligibility for Chapter 33 educational benefits. See 38 C.F.R. § 21.9520(a)(3). The Veteran continued in the Army National Guard (ARNG) under TDRL status. Effective October 15, 2009, he was removed from the TDRL and was permanently retired from the U.S. Army/ARNG due to physical disability. He was issued orders and a retirement certificate to this effect, copies of which are in the claims file. Although the Department of Defense (DoD) indicated in a November 2011 email that the Veteran was discharged from the Army National Guard due to expiration of term of service (ETS) on January 16, 2008, a subsequent NGB Form 22A dated February 8, 2012, shows that the form was corrected to show "placement on temporary disability retired list." This is consistent with the other service records. The Veteran testified in May 2012 that he was released from active duty, and ultimately was permanently retired from service, due to his primary disability of myasthenia gravis. This is consistent with the fact that he is service-connected for multiple disabilities, including myasthenia gravis and related diplopia with bilateral ptosis, effective since August 17, 2006, or immediately after his period of active duty. See March 2007 rating decision and code sheet on Virtual VA. In a March 2012 email, a representative for the Army indicated that no correction was required for the Veteran's DD Form 214 to reflect that he was retired from active duty due to disability. The Army representative explained that, when a solider is medically retired and placed on the TDRL, he will receive the DD Form 214 indicating the reason for discharge as temporary disability retirement, and when the solider is subsequently removed and permanently retired, he will receive orders and a retirement certificate. This is consistent with the records in this case. The weight of the evidence reflects that the Veteran was ultimately discharged and permanently retired from service due to the same disability for which he was released from active duty and placed on the TDRL, and for which he has been awarded service connection effective since his release from active duty. Therefore, the Board finds that the Veteran was discharged from active duty due to service-connected disability. Because he also had the requisite amount of active duty service of at least 30 continuous days prior to discharge, payment at the 100 percent rate under the Post-9/11 GI Bill is authorized. 38 C.F.R. § 21.9640. ORDER Payment of educational assistance under the Post-9/11 GI Bill at the 100 percent level is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs