Citation Nr: 1602706 Decision Date: 01/28/16 Archive Date: 02/05/16 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 Arif Syed, 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. In January 2015, the Board remanded the Veteran's claim. The agency of original jurisdiction (AOJ) continued the previous denial of the claim in a May 2015 supplemental statement of the case (SSOC). The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Following readjudication in the May 2015 SSOC of the Veteran's claim on appeal, additional evidence was associated with the Veteran's claims folder. In particular, the additional evidence included a newspaper article submitted by the Veteran. He reported that the newspaper article indicates that he served on creditable active duty at the Joint Forces Training base. The Veteran indicated that the article substantiated and validated that he was working active duty as a security officer at the Joint Forces Training base during the periods of January 28, 2004 to February 25, 2004, February 26, 2004 to August 22, 2004, and August 23, 2004 to October 23, 2004. As discussed in the previous remand, the Veteran contends 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-folder) 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. In working at the Joint Forces Training Base, the Veteran contends that he served on active duty as a security officer who patrolled the entire Joint Forces Training base which involved working at the main gate entrance, patrolling the military airfield, accounting for air craft on the field, investigating military and civilian complaints, checking incoming vehicles for explosives and contraband, checking incoming personnel for identification, working with local law enforcement agencies to ensure the safety of all military and civilian personnel on post, and protecting the entire base from outside threats. Pertinently, the Veteran had previously submitted copies of orders dated in January 2004, February 2004, and July 2004 that showed he was ordered to "active duty for special work (ADSW)," under the authority of 32 U.S.C. § 504. In this regard, 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, Department of Defense (DoD) Directive 1215.6 defines ADSW as a tour of active duty to fulfill support requirements. Under 38 C.F.R. § 20.1304(c), additional pertinent evidence must be referred to the AOJ if such evidence is not accompanied by a waiver of AOJ jurisdiction. In the present case, the Veteran has not submitted a waiver of the newly associated evidence. Also, the evidence is clearly pertinent to the Veteran's claim of entitlement to a benefits payment rate higher than 60 percent of maximum for educational assistance under Chapter 33, Title 38, United States Code. Further, there is no documentation from the DoD that references any service by the Veteran at the Joint Forces Training base. In light of the foregoing, the Board finds that remand is warranted for the AOJ to verify the Veteran's service at the Joint Forces Training base and if such service is verified, whether that service constituted active duty service under Title 32 authority. The Board additionally notes that in the January 2015 remand, the AOJ was instructed to readjudicate the Veteran's claim with consideration of the VA's Adjudication Procedure Manual guidance concerning duties performed under ADSW which may be for operational, support, or training purposes. However, these provisions were not addressed by the AOJ in continuing the denial of the Veteran's claim in the May 2015 SSOC. Therefore, the Board finds that in readjudicating the Veteran's claim on remand, the AOJ should address these provisions for compliance with the previous Board instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. 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 his complete service personnel records and 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, specifically referencing service at the Joint Forces Training base. 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. Thereafter, clarify with DoD 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 to include service at the Joint Forces Training base. See DoD response of May 2015 providing a point of contact and a telephone number for follow-up inquiry. The Veteran asserted in June 2015 that he worked active duty as a security officer during periods of service from January 2004 to October 2004, which required him to carry a M-16 rifle, M9 pistol, and a communication radio. 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 (previously identified as M21-1MR, Part III, Subpart v, 4.C.16.i, Note, currently identified as M21, Part III, Subpart v, 4.C.6.l,). 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 Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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) (2015).