Citation Nr: 1546396 Decision Date: 11/02/15 Archive Date: 11/10/15 DOCKET NO. 11-26 431A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a benefits payment rate of 70 percent of maximum for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The appellant is a Veteran who had active military service from May 2004 to September 2009 and from August 2010 to September 2011. In addition, he had honorable service in the Army National Guard from March 1, 2010, to June 24, 2010, and from July 17, 2010, to August 4, 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from administrative decisions by a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted the Veteran educational benefits of 60 percent of the maximum amount payable under 38 U.S.C.A. Chapter 33 (Post-9/11 GI Bill). The Veteran timely appealed the decision, and the Board remanded the issue in May 2014 for further evidentiary development and adjudication. The Veteran testified before the undersigned at a videoconference hearing in June 2012. A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT The Veteran's National Guard service for the periods March 1, 2010, to June 24, 2010, and from July 17, 2010, to August 4, 2010, constitutes active duty under Chapter 33, Title 38, United States Code, for the purpose of calculating his educational benefit. CONCLUSION OF LAW The Veteran's National Guard service for the periods March 1, 2010, to June 24, 2010, and from July 17, 2010, to August 4, 2010, satisfies the statutory definition for active duty under 38 U.S.C.A. § 3301(1)(C)(i) for the purpose of calculating his educational benefit. 38 U.S.C.A. § 3301 (West 2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required, in general, to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). For purposes of adjudicating the Veteran's claim, the Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to this issue, no further discussion of these VCAA requirements is required. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Analysis The RO has granted the Veteran 60 percent of the maximum amount payable under the Post-9/11 GI Bill program based on information showing that he had a total aggregate of 499 days service, as calculated from periods of creditable active duty service from May 29, 2004, to September 5, 2009, and from August 13, 2010, to September 16, 2011. He contends that his active duty service in the National Guard from March 1, 2010, to June 24, 2010, and from July 17, 2010, to August 4, 2010, qualify him for 70 percent of the maximum amount payable. In support of his claim, the Veteran has submitted copies of Hawaii Army National Guard Orders, dated in February 2010, April 2010, May 2010, and July 2010, which show that the Veteran was ordered either to active duty for training or to annual training, under the authority of Title 32, for the periods from March 1, 2010, to June 24, 2010, and from July 17, 2010, to August 4, 2010. The purpose of these orders was variously stated as for overseas deployment training as a project officer in support of Tiger Balm 2010 and as additional training in support of Operation Iraqi Freedom. In particular, the Veteran argues that his military orders show that he was mobilized prior to his August 2010 deployment for the purposes of training other National Guard troops as a project officer in support of exercise Tiger Balm 2010 and serving as a rear detachment commander for the same unit to which he was assigned during his August 2010 deployment. At his June 2012 hearing, the Veteran described his work with Tiger Balm, during the period from March 1, 2010, to June 24, 2010, as training Hawaii National Guard troops in a computer simulation exercise conducted to approximate real-world combat conditions in command control centers. The Veteran stated at the hearing that he had had served as an infantry staff officer while on active duty and had experience with command control procedures and was thus tasked during his National Guard service with training other National Guard troops in these procedures. He also stated that he served as rear detachment commander for the 171st Aviation Battalion during the period from July 17, 2010, to August 4, 2010-during a period of National Guard service-and continued to serve in that same position when deployed on active duty beginning later in August 2010. That work, the Veteran described, consisted of inventorying all equipment not transported by the deploying unit, as well as handling administrative issues for wounded and medically disqualified soldiers and developing a family readiness group to notify family of the death of soldiers. He asserts that in counting these periods of service, in addition to the previously considered periods of active duty, he should have a total of 634 days of creditable active duty service, which would make him eligible to receive 70 percent of the benefits payable under the Post-9/11 GI Bill program. For purposes of the Post-9/11 GI Bill, creditable active duty has various meanings. 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) (West 2014). For members of the reserve components of the Armed Forces, qualifying active duty includes service on active duty under a call or order to active duty under section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of Title 10. See 38 U.S.C.A. § 3301(1)(B). For members of the Army National Guard of the United States or the Air National Guard of the United States, in addition to service described above for members of the regular and reserve components of the Armed Forces, qualifying active duty includes full-time service (i) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or (ii) in the National Guard under section 502(f) of title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. See 38 U.S.C.A. § 3301(1)(C). This matter was remanded in May 2014 for the Department of Defense (DOD) to determine whether the Veteran's periods of service from March 1, 2010, to June 24, 2010, and from July 17, 2010, to August 4, 2010, constituted active duty service under Title 32 authority. A July 2015 response from DOD indicates that the Veteran had no qualifying periods of eligible service under Chapter 33 that had not already been considered in his award. However, DOD's determination appears to have been predicated on a finding that the Veteran had not been activated under 32 U.S.C.A. § 502(f) for the purpose of responding to a national emergency, which would establish eligibility under § 3301(1)(C)(ii). Unfortunately, the DOD responses did not clarify whether the periods of service in question constituted creditable service under § 3301(1)(C)(i), and the Board finds that further efforts to obtain clarification would prove futile, as DOD does not appear capable of providing further detail regarding the Veteran's service. However, the Board finds that based on the current evidence of record, a determination can be made as to whether the Veteran's service constituted active duty for purposes of calculating educational benefits. From a reading of the Orders submitted by the Veteran, and with consideration of his competent and credible descriptions of the work he performed during the periods from March 1, 2010, to June 24, 2010, the Board finds that this period is countable under 38 U.S.C.A. § 3301(1)(C)(i), as the Veteran was organizing, administering, recruiting, instructing, or training the National Guard. In so finding, the Board finds persuasive the Veteran's description of the training and administrative work he did in support of Tiger Balm 2010. Orders from this period reflect that the Veteran was serving under Title 32 authority, as required by 38 U.S.C.A. § 3301(1)(C)(i), and in his testimony the Veteran clearly described the work he did in conducting the training for the exercise. The Board finds no reason to discount the Veteran's description of this period of service. Thus, as this service consisted of "training the National Guard" as contemplated by 38 U.S.C.A. § 3301(1)(C)(i), this period of service is countable for purposes of calculating the Veteran's education benefits under the Post-9/11 GI Bill. The Board similarly finds that the Veteran's period of service from July 17, 2010, to August 4, 2010, is countable under 38 U.S.C.A. § 3301(1)(C)(i), as the Veteran was organizing, administering, recruiting, instructing, or training the National Guard for that period as well. In so finding, the Board finds persuasive the Veteran's description of the administrative work he did as rear detachment commander. This description is corroborated by a Recommendation for Award present in the Veteran's claims file, which documents that the Veteran served as rear detachment commander for 171st Aviation beginning in July 2010 and continuing through the end of the evaluation period in October 2010 (by which point the Veteran was on active duty). Orders from this period also reflect that the Veteran was serving under Title 32 authority, as required by 38 U.S.C.A. § 3301(1)(C)(i), and in his testimony the Veteran clearly described the organizational and administrative work he did as rear detachment commander. The Board finds no reason to discount the Veteran's description of this period of service. Thus, as this service consisted of "organizing [and] administering ... the National Guard" as contemplated by 38 U.S.C.A. § 3301(1)(C)(i), this period of service is countable for purposes of calculating the Veteran's education benefits under the Post-9/11 GI Bill. Based on the above, the Board finds that the Veteran's National Guard service is properly classified as active duty for the periods from March 1, 2010, to June 24, 2010, and from July 17, 2010, to August 4, 2010-a total of 135 days of service. These periods of service must thus be included when calculating the Veteran's educational benefit, which results in a total aggregate service of 634 days. This constitutes at least 18 months but less than 24 months of creditable active service, and thus the Veteran is entitled to receive 70 percent of the benefits payable under the Post-9/11 GI Bill program. 38 C.F.R. § 21.9640(a). The appeal is granted. (The evidence does not support any further periods of active duty which should be used to calculate the Veteran's education benefits, nor does he allege that there are any other periods to be considered.) ORDER Entitlement to 70 percent of the benefits payable under the Post 9/11 G.I. Bill Program, Chapter 33, is granted. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs