Citation Nr: 1540617	
Decision Date: 09/21/15    Archive Date: 10/02/15

DOCKET NO.  10-36 277A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Whether the Veteran made an irrevocable election for educational benefits under the Post-9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30).


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel


INTRODUCTION

The Veteran served on active duty from November 1992 to December 2003.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the VA Education Center at the Regional Office (RO) in Atlanta, Georgia.  

In December 2012, the Board remanded the claim for additional development.  The case has been returned to the Board for further appellate review.

The Board has reviewed the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) e-folders.  The VBMS e-folder includes the Veteran's educational records, which are duplicative and contained in his education folders.  The Virtual VA e-folder does not include any additional relevant evidence.


FINDINGS OF FACT

1.  In January 2010, the RO received the Veteran's electronically filed application (VA Form 22-1990) for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program.  

2.  The electronic copy of the Veteran's VA Form 22-1990 does not contain an adequate acknowledgement of irrevocability.  

3.  A transfer-of-entitlement designation to the Department of Defense is not of record.  

4.  The record does not contain a statement from the Veteran acknowledging that he was making an irrevocable election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program.


CONCLUSION OF LAW

The criteria for an irrevocable election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program have not been met.  38 U.S.C.A. §§ 3301-24 (West 2014); 38 C.F.R. § 21.9520 (2015).  



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duty to Notify and Assist

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159.  As the Board is granting the full benefit sought on appeal, further discussion of the VCAA is unnecessary.  Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). 

II.  Merits of the Claim

The Veteran contends that he should be permitted to revert his award of educational benefits under the Post-9/11 GI Bill (Chapter 33) back to benefits under the MGIB (Chapter 30), as he was mistakenly informed that he had exhausted his Chapter 30 benefits at the time he applied for Chapter 33 benefits.  In his February 2010 notice of disagreement (NOD), the Veteran explained that his educational advisor informed him that he had no benefits remaining under the MGIB, but could apply for an additional 12 months of benefits under the Post-9/11 GI Bill.  The Veteran stated that he trusted the educational advisor's knowledge and completed the application in the advisor's office.  The Veteran asserts that he would like to use his benefits from Chapter 30 and once exhausted, use the remaining from Chapter 33.  See his August 2010 VA Form 9.  

Review of the evidentiary record shows that the Veteran first filed for education benefits under Chapter 30 in June 2001.  In June 2004, the Veteran filed for Chapter 30 benefits again, specifically noting in his application that he had previously applied for Chapter 30 benefits.  He continued to receive such benefits until May 2009.  In January 2010, the Veteran submitted an application for Chapter 33 benefits.  The electronic application is titled as "EDUCATION BENEFIT BEING APPLIED FOR: Chapter 33 in Lieu of Chapter 30 . . . ."  

In response to the Veteran's application, a decision dated in January 2010 informed the Veteran that he had been awarded education benefits under the Post-9/11 GI Bill program.  In February 2010, the Veteran contacted the Education Center at the Muskogee RO and stated that he was told by his school that he could change back to receiving benefits from Chapter 30 because he had not received any payments from Chapter 33.  The representative from the RO informed the Veteran that his election to receive Chapter 33 benefits in lieu of Chapter 30 benefits is irrevocable and could not be changed.  In February 2010, the Atlanta RO sent a letter to the Veteran granting his request to receive benefits under Chapter 30 rather than Chapter 33.  However, in March 2010, the Veteran received his formal award letter for benefits under Chapter 33.  The Veteran filed his NOD in February 2010, seeking reversion to the MGIB program, indicating that he was told by his educational advisor to apply for benefits under the Post-9/11 GI Bill because he no longer had any benefits under the MGIB.  In the July 2010 statement of the case (SOC), the RO indicated that the February 2010 letter sent to the Veteran was sent in error.  

In accordance with 38 C.F.R. § 21.9520(c)(1)(i), after an individual has applied for basic educational assistance benefits under the provisions of Chapter 33, and has met the minimum service requirements in paragraph (a) and (b), that individual then makes an irrevocable election to receive benefits under 38 U.S.C. Chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607.  

Pursuant to 38 C.F.R. §21.9520(c)(2), an individual may establish eligibility for educational assistance under 38 U.S.C. chapter 33 based on active duty service after September 10, 2001, if he or she--

(a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service,--

     (1) Continues on active duty;
     (2) Is discharged from service with an honorable discharge;

     (3) Is released from service characterized as honorable and placed  on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve;

     (4) Is released from service characterized as honorable for further service in a reserve component; or

     (5) Is discharged or released from service for--

(i) A medical condition that preexisted such service and is not determined to be service-connected;

(ii) Hardship, as determined by the Secretary of the military department concerned; or

(iii) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct;

(b) Serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability; or

(c)(1) After meeting the minimum service requirements in paragraph (a) or (b) of this section--

(i) An individual makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607;

(ii) A member of the Armed Forces who is eligible for educational assistance under 38 U.S.C. chapter 30 and who is making contributions towards such educational assistance under 38 U.S.C. 3011(b) or 3012(c) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33; or

(iii) A member of the Armed Forces who made an election not to receive educational assistance under 38 U.S.C. chapter 30 in accordance with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33.

(2) An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following--

(i) Identification information (including name, social security number, and address);

(ii) If applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., "I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill--Active Duty (chapter 30) program.");

(iii) The date the individual wants the election to be effective (e.g., "I want this election to take effect on August 1, 2009.").  An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and

(iv) An acknowledgement that the election is irrevocable (e.g., "I understand that my election is irrevocable and may not be changed.").

The Board finds that the appeal in this case must be granted.  With regard to whether a properly competed VA Form 21-1990 is of record, the Board finds that it is not.  This case was previously remanded in December 2012 to obtain the completed application, but the RO only submitted a blank VA Form 22-1990.  There is an electronic copy of the Veteran's filed VA Form 21-1990.  However, the Board notes that on a properly completed VA Form 21-1990 there is a section on which a veteran must indicate via a checkmark that he understands that electing Chapter 33 benefits is in lieu of entitlement to Chapter 30 benefits and that his election is irrevocable.  See VA Form 21-1990, page 1.  The electronic version of the VA Form 21-1990 submitted by the Veteran does not contain any checkboxes in this section nor any similar space or marking in which the Veteran might express acknowledgement that he understood that his election was irrevocable.  Furthermore, the electronic copy of the VA Form 21-1990 is not signed and has no content in the section for "Certification and Signature of Appellant."

As such, the Board concludes that a properly executed VA Form 21-1990 is not of record for the purposes of making an irrevocable election.  

There is no evidence or suggestion that the Veteran submitted a transfer-of-entitlement designation to the Department of Defense.  Therefore, the only remaining avenue for the Veteran to have made an irrevocable election for educational benefits under the Post-9/11 GI Bill is by meeting the four specific criteria under 38 C.F.R. § 21.9520(c)(2).  Notably, the criteria under 38 C.F.R. § 21.9520(c)(2) use the conjunctive "and" which means that irrevocability does not occur unless all criteria have been met.  See generally Melson v. Derwinski, 1. Vet. App. 334 (1991) (the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met).

In this case, the irrevocability criteria of 38 C.F.R. § 21.9520(c)(2) have not been met, as the record does not contain a statement from the Veteran acknowledging that he was making an "irrevocable" election for educational benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB program.  There is no document in evidence to show that the Veteran was notified that an election for benefits under the Post-9/11 GI Bill program was irrevocable.  Additionally, there is no document of record to show that the Veteran acknowledged that he was aware of the irrevocability criteria.  In this regard, the Board acknowledges that a printout from an electronic application for VA education benefits is contained in the claims-file, but this printout does not contain any manner of signature from the Veteran and does not include any meaningful indication that the Veteran acknowledged notice of critical information including that concerning making an irrevocable election.  

In summary, the regulation promulgated by VA requires a properly completed VA Form 21-1990, a submission of a transfer-of-entitlement designation under this chapter to the Department of Defense, or an acknowledgement by the Veteran that his election for educational benefits under the Post-9/11 GI Bill program was irrevocable before such election becomes irrevocable.  The evidence of record shows that none of these criteria are met.  The irrevocability requirements set forth under 38 C.F.R. § 21.9520(c) (2) have not been met.  Therefore, the Board finds that the Veteran did not make an irrevocable election for benefits under the Post-9/11 GI Bill program in lieu of benefits under the MGIB.  The appeal is granted.  


ORDER

The Veteran did not make an irrevocable election for educational benefits under the Post-9/11 GI Bill program (Chapter 33) in lieu of benefits under the Montgomery GI Bill (MGIB) program (Chapter 30).  The appeal is granted.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs