Citation Nr: 1505720	
Decision Date: 02/06/15    Archive Date: 02/18/15

DOCKET NO.  13-06 185A	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Whether the appellant is eligible for VA educational assistance benefits under Chapter 33, Title 38, of the United States Code (known as the Post-9/11 GI Bill).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The appellant


ATTORNEY FOR THE BOARD

K. Neilson, Counsel

INTRODUCTION

The appellant served in the Army National Guard.  He had periods of service from August 2008 to January 2009 and from May 2009 to August 2009 that he alleges render him eligible for educational assistance under the Post-9/11 GI Bill.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, certifying that the appellant was entitled to Chapter 33 educational assistance benefits at the 40 percent level.  The appellant asserted disagreement with the award, alleging that he was entitled to the 100 percent level of payment.  Based on development undertaken to determine if the appellant was entitled to the 100 percent level of payment it was determined that the appellant's periods of service from August 2008 to January 2009 and from May 2009 to August 2009 do not count as qualifying active duty service.  A statement of the case (SOC) was issued in February 2013 notifying the appellant that he was not eligible for Post-9/11 GI Bill education benefits.  

On July 17, 2013, the appellant testified, via videoconferencing, before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with his Virtual VA file.  Although it was indicated during that hearing that the issue was entitlement to educational assistance under Chapter 30 (known as the Montgomery GI Bill), it appears that that was simply a misstatement because it was also noted that the appellant was seeking benefits under the "post 9/11 GI Bill."  


FINDING OF FACT

In a statement received in December 2014, the appellant expressed his desire to withdraw from appellate review his appeal as to the issue of entitlement to VA educational assistance benefits under the Post-9/11 GI Bill.



CONCLUSION OF LAW

The appellant's appeal as to the issue of entitlement to VA educational assistance benefits under the Post-9/11 GI Bill has been withdrawn.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2014).  An appeal may be withdrawn by an appellant or by his representative.  38 C.F.R. § 20.204(a).  Except when made on the record at a hearing, appeal withdrawals must be in writing.  An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision.  38 C.F.R. § 20.204(b).  Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies.  38 C.F.R. § 20.204(c).

The appellant was seeking entitlement to VA educational assistance benefits under the Post-9/11 GI Bill.  In December 2014, the appellant submitted a statement, which is included in his VBMS file, wherein he reported having an open claim for Post-9/11 GI Bill benefits and asking "that this claim be closed and no further action [be] taken on the claim."  As the appellant has expressed his desire to withdraw his appeal as to the issue of entitlement to VA educational assistance benefits under the Post-9/11 GI Bill, there is effectively no longer any remaining allegation of error of fact or law concerning that issue.  Accordingly, the Board does not have jurisdiction to review this claim, and it is dismissed.  



ORDER

The appeal as to the issue of entitlement to VA educational assistance benefits under the Post-9/11 GI Bill has been withdrawn.  



____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs