Citation Nr: 1503586 Decision Date: 01/26/15 Archive Date: 02/09/15 DOCKET NO. 12-28 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a benefits payment rate higher than 60 percent of maximum for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill). ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant is a Veteran who had honorable active duty service from October 2004 to February 2006. He also had various periods of inactive and/or active duty for training in the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 administrative decision 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 disagreed with the percentage awarded to him and perfected an appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND 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 481 days service, as calculated from a period of creditable active duty service from October 24, 2004 to February 16, 2006. He contends that his active duty service in the National Guard qualified him for 80 percent of the maximum amount payable. He argues that his military orders show he was mobilized prior to his deployment on October 24, 2004, for the purpose of "Force Protection/Support of Operation Noble Eagle" (as listed on the set of orders in the claims-file) for the consecutive periods from January 28, 2004 to February 25, 2004; from February 26, 2004 to August 22, 2004; and from August 23, 2004 until being called to deploy overseas on October 24, 2004. He asserts, including in his May 2012 notice of disagreement, that in counting this period of service he should have a total of 24 months of aggregate creditable active duty service required to receive 80 percent of the benefits payable under the Post-9/11 GI Bill program. See 38 C.F.R. § 21.9640(a) (Authority: 38 U.S.C. §§ 3311, 3313). He essentially charges, including in his September 2012 VA Form 9 substantive appeal, that the Department of Defense (DoD) erroneously characterized a large portion of his Title 32 active duty service as "Active Duty for Special Work" when it should have been characterized otherwise; the Veteran directs attention to the listed "Purpose" on the orders for each period of duty in question; each indicates the purpose was "Force Protection" and "Support of Operation Noble Eagle." (The Veteran also describes the duty as being for "Operational Training.") In support of his claim, the Veteran has submitted copies of orders, dated in January 2004, February 2004, and July 2004. These show that the Veteran was ordered to "active duty for special work (ADSW)," under the authority of 32 U.S.C. § 504. The periods covered by these particular orders incorporate the following: from January 28, 2004 to February 25, 2004; from February 26, 2004 to August 22, 2004; and from August 23, 2004 to February 17, 2005 (with the last period interrupted by the Veteran being called to deploy overseas on October 24, 2004). The purpose of these orders was stated in each instance as "Force Protection/Support of Operation Noble Eagle." For purposes of the Post-9/11 GI Bill, creditable active duty has various meanings, as follows. 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). 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 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 [i.e., under Title 10 authority]. 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 in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or, in the National Guard under 32 U.S.C. § 502(f) [i.e., under Title 32 authority] 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. 38 U.S.C.A. § 3301(1)(C). Of particular relevance in this case is that according to VA's Adjudication Procedure Manual, duties performed under ADSW may be for operational, support, or training purposes. If a DD Form 214 is issued for such duty, or if ADSW is reported by the claimant, even though the duration may be less than 180 days, development is to be undertaken to determine the type of duty performed under ADSW. If the duty was for training purposes, it is not considered active duty. All other duties performed under ADSW are considered active duty. VAOPGCPREC 25-90 concluded that temporary service for purposes other than training could be defined as active duty, not active duty for training. Further, DoD Directive 1215.6 defines ADSW as a tour of active duty to fulfill support requirements. See M21-1MR, Part III, Subpart v, 4.C.16.i, Note. The Board notes that a July 2012 response from DoD indicates that the Veteran had no qualifying periods of eligible service under Chapter 33 after September 11, 2001, except for the period of October 24, 2004 to February 16, 2006. However, DoD's determination was predicated on the Veteran's type of service characterized as ADSW under Title 32 (the DoD determination states: that they "do not qualify since the soldier was ADSW... Title 32"), which (as noted previously) may in fact be considered creditable active duty under the law. The Veteran himself has described the ADSW periods in question as involving "Operational Training," but the orders for those periods do not clearly list training as the purpose. Rather, the orders describe the purpose of the duty as "Support of Operation Noble Eagle," which at least suggests that the duty may have involved support or operational purposes other than training. In light of the foregoing, clarification and certification of the Veteran's service dates by the service department, and a request to DoD to determine whether his service constituted active duty service under Title 32 authority, are necessary. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate source(s), including the Veteran's Army National Guard unit, to request documentation regarding all periods of his active duty service since September 10, 2001, including the authority for each period of service and the nature/purpose of each period of service. The request should include any relevant personnel records, pay records, orders, etc. that might contain information pertaining to any active duty service. Such periods should specifically include from January 28, 2004 to October 23, 2004. 2. Following the completion of the above development, and the receipt of any outstanding records, submit a request to the DoD to determine whether the Veteran had any periods of service after September 11, 2001 (other than October 24, 2004 to February 16, 2006) that qualified as active duty service either (a) under 32 U.S.C. § 502(f), or (b) as full-time service in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard. The DoD should specifically consider the Veteran's National Guard orders showing ADSW under Title 32 as well as his contentions that his service from January 28, 2004 to October 23, 2004 constituted active duty to qualify as creditable service for purposes of the Post-9/11 GI Bill program. 3. After the development sought is completed, readjudicate the claim for a benefits payment rate higher than 60 percent of maximum for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), in light of all of the evidence of record, including DoD's response. The AOJ should complete this readjudication with consideration of the VA's Adjudication Procedure Manual guidance concerning duties performed under ADSW which may be for operational, support, or training purposes (M21-1MR, Part III, Subpart v, 4.C.16.i, Note). If the claim remains denied, the AOJ should issue the Veteran a supplemental statement of the case and afford him opportunity to respond before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. C. Graham Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).