Citation Nr: 1645343 Decision Date: 12/02/16 Archive Date: 12/19/16 DOCKET NO. 14-28 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Education Center in Buffalo, New York THE ISSUE Entitlement to a benefits payment rate in excess of 60 percent of the maximum amount available for educational assistance under Chapter 33 of Title 38 of the United States Code (post-9/11 GI Bill). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from January 2010 to January 2011. The Veteran has further periods of service with the Army National Guard. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2011 decision of the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he has sufficient Reserve and National Guard service to receive GI Bill benefits in excess of 60 percent of the maximum amounts payable. The AOJ has determined that the Veteran's aggregate length of creditable active. duty service was at least 12 months, but less than 18 months (excluding entry level and skill training), and accordingly the Veteran was found to be entitled to 60 percent of the maximum amount payable under 38 C.F.R. § 21.9640 (2015). The Veteran contends that he completed significantly more creditable active duty service than the AOJ's determination recognized, and seeks to establish entitlement to a greater percentage rate of the maximum amounts payable. Key questions in this case feature the matter of correctly identifying the Veteran's pertinent periods of service and correctly characterizing what service durations are creditable for the purposes of establishing the rate of payment of educational assistance under the law. An individual is eligible for educational assistance under the provisions of the Post-9/11 GI Bill if, among other things, commencing on or after September 11, 2001, he or she serves an aggregate of at least 90 days on active duty in the Armed Forces (excluding entry level and skill training), and continues on active duty. 38 U.S.C.A. § 3311(b)(8) (West 2014); 38 C.F.R. § 21.9520(a)(1) (2015). The percentage of maximum amounts payable is determined by aggregate length of creditable active duty service after September 10, 2001. The maximum amount payable with at least 12 months, but less than 18 months, of creditable active duty service is 60 percent. A 70 percent rate is payable with at least 18 months, but less than 24 months, of creditable active duty service; an 80 percent rate is payable with at least 24 months, but less than 30 months, of creditable active duty service; a 90 percent rate is payable with at least 30 months, but less than 36 months, of creditable active duty service; and a 100 percent rate is payable with at least 36 months of creditable active duty service or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 U.S.C.A. §§ 3311, 3313 (West 2014); 38 C.F.R. § 21.9640 (2015). The Post-9/11 GI Bill defines "active duty" as full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C.A. §§ 688, 12301(a), (d), (g), 12302, 12304 (West 2014). See 38 C.F.R. § 21.9505 (2015). In pertinent part, active duty does not include any period during which the individual served under the provisions of 10 U.S.C. § 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve. 38 C.F.R. § 21.9505 (2)(iii) (2015); see also 38 U.S.C.A. § 3301 (West 2014). Under regulations issued in March 2009, implementing the original provisions of the Post-9/11 GI Bill, full-time National Guard duty performed pursuant to orders issued under Title 32, United States Code, was specifically excluded from the definition of "active duty." 38 C.F.R. § 21.9505 (2015); see also 38 U.S.C.A. § 101(22)(C) (West 2014) (likewise defining "active duty" to exclude full-time duty in the National Guard under 32 U.S.C.A. § 502); 38 C.F.R. § 3.6(c)(3) (2015) (defining full-time duty performed by members of the National Guard of any State under 32 U.S.C.A. § 502 as "active duty for training"). However, in January 2011, pursuant to Pub. L. No. 111-377 (the Post-9/11 Veterans Educational Assistance Improvements Act of 2010), § 101, the definition of "active duty" was expressly expanded for purposes of Post-9/11 GI Bill eligibility to include certain full-time service in the National Guard, as follows: (1) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, or (2) 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. 38 U.S.C.A. § 3301(1)(C) (West 2014). The amended definition was given effect as of August 1, 2009, as if included in the original enactment of the Post-9/11 GI Bill. Pub. L. No. 111-377, § 101(d) (effective dates) (notably, the relevant regulation, 38 C.F.R. § 21.9505, has not yet been amended to incorporate the expanded definition of "active duty" as it now appears in the statute). Accordingly, the Veteran's claim turns on whether any of his Reserve and / or National Guard service meets the criteria of active duty for Post-9/11 GI Bill purposes. Of particular relevance in this case is VA's Adjudication Procedure Manual, M21-1, Part III, Subpart v, Chapter 4, Section C.7.l (M21-1), which states that duties performed under ADOS-RC/ADSW may be for operational, support, or training purposes. See also Department of the Army Office of the Assistant Secretary, Manpower and Reserve Affairs Memorandum for Deputy Chief of Staff G-1, G-3, (February 21, 2008) (regarding the "Policy for Management of Reserve Component Soldiers on Active Duty for Operational Support" and reflecting that "[t]he term ADOS Reserve Component (ADOS-RC) replaces RC-funded, voluntary active duty formerly known as Active Duty for Special Work (ADSW)"). If the duty was for the purpose of receiving training, it is not considered active duty. All other duties performed under ADOS-RC/ADSW are considered active duty. See M21-1, Part III, Subpart v, Chapter 4, Section C.7.l. See also VAOPGCPREC 25-90 (July 17, 1990) (holding that an individual serving as an instructor during a training period, rather than a trainee, was not performing ACDUTRA under the DoD definition of the term. Accordingly, that particular Veteran's service as an instructor was deemed to be "active duty" for educational benefits purposes). Initially, the Board finds that further clarification is needed regarding the Veteran's periods of service and the characterization of the status of pertinent periods. The AOJ's November 2011 determination concluded that the Veteran had 383 days of total aggregate creditable service, counting only a period from January 3, 2010 to January 20, 2011. The AOJ's January 2012 determination concluded that the Veteran had 477 days of total aggregate creditable service: the AOJ recognized 94 days of creditable service from August 2, 2009 to November 3, 2009, in addition to the 383 days of creditable service from January 3, 2010 to January 20, 2011. The AOJ repeated these findings in a February 2012 determination. In an October 2012 determination, the AOJ recognized only the 383 day period of creditable service; these changes in the findings did not result in a change in the Veteran's entitlement to 60 percent of the maximum amount payable, but did change the distance between his recognized total and the threshold for entitlement to a higher rate. The Veteran has presented his contentions in this matter in correspondence, including his July 2014 substantive appeal filing. The Veteran stated: "I agree with the determination that my Federal Active Service (Title 10) lasted for a period of 383 days that resulted in the 60% entitlement, I believe that all of my Active Duty (Title 32) and Initial Entry Training (IET) service results in over 24 months of active duty time and an 80% entitlement of the Post-9/11/GI Bill." The Veteran directs attention to an attached copy of an August 2011 DD214 that he properly describes as showing "an aggregate active duty time of 02 Years 04 Months 02 Days." The Veteran acknowledges that "I realize that a good amount of this active service, ~7 months, falls under Title 32 Section 502 and is therefore rendered ineligible for the Post 9/11 GI Bill." The Veteran argues: "this ~ 7 months of service is eligible according to public law 111-377," and emphasizes his assertion that pertinent periods of service that have been deemed non-creditable were in fact "full-time service ...(i) in the National Guard of a state for the purpose of organizing, administering, recruiting, instructing, or training the National Guard" (emphasis as presented in Veteran's statement). The Veteran goes on to describe service from December 2009 to January 2010 in which he "served as a Battalion Signal Officer for a unit that was preparing for a deployment in January 2010," and described "handling outstanding administrative items, conducting training, and preparing battalion required training." The Veteran submitted a copy of the November 2009 National Guard Orders for this period and directs attention to the fact that the Orders list the "Purpose" of the period of service as "MOB SUPPORT." The Veteran then describes service from January 2011 to April 2011, which he acknowledges was not continuous through the date range but he asserts "I was active for an aggregate time of ~ 3 months ... with the Massachusetts Army National Guard Pre-Mobilization Training and Assistance Element (PTAE)" (emphasis as presented in Veteran's statement). The Veteran submitted a copy of a March 2011 amended Orders sheet with the described reference to "PRE-MOB TRNG ASST ELEM (PTAE) CRITICAL SKILLS." The Veteran described that the "responsibilities of this position [were] training units who were preparing for upcoming deployments to Afghanistan and making sure administratively that they had fulfilled all of the pre-requisites needed to proceed to their mobilization stations." Finally, the Veteran identified service from April 2011 to July 2011 during which he was "state-wide coordinator for Massachusetts' R3SP (Resiliency Risk Reduction Suicide Prevention) program. The Veteran submitted a copy of a DD Form 214 for this period. The Veteran described that "this time was spent handling administrative duties .... I received regulations from the Department of Defense or National Guard Bureau and wrote state policies that complied with the new regulations," that he "would track training down to the company level within the state," and that he "creat[ed] training programs for the Army's new suicide prevention program and distributing them throughout the state" (emphases as presented in Veteran's statement). The Veteran's July 2014 statement argues that "[t]hese three periods of service are supported by enclosed documentation. In my opinion these three periods fall under qualifying service for the Post 9/11 GI Bill under the updated definitions ... from Public Law 111-377." Finally, the Veteran asserts that "[c]ombining the 383 day deployment (12.5 months), along with the ~7 months from the three periods described above, and the 7 months of Initial Entry training ... surpass the 24 month minimum required for 80% entitlement of the Post 9/11 GI Bill." The Board observes that 38 C.F.R. § 21.9640 (2015) provides particular rules for including or excluding "entry level and skill training" in determinations for creditable service such that aggregate service that is at least 18 months in length but which only exceeds 24 months in length with the inclusion of "entry level and skill training" qualifies only for the 70 percent rate and not the 80 percent rate. Regardless, however, the Veteran's assertions and arguments on their face identify a potential basis for an award of a higher rate than the 60 percent rate currently assigned. The Veteran's April 2014 written statement further explains that "[b]eing a member of the National Guard, most of my orders were not >90 days and did not require a DD214 after completion of service," and asserts that "[f]rom 01 December 2009 - 05 July 2011 I was almost on continuous orders and this does not include [entry level and skill training]." The Veteran also suggests that the August 2011 DD214's report of active service in excess of 24 months "does not even account for the three weeks I was activated in November 2009 to prepare for the 2010 Afghanistan Deployment and other ADOS or ADSW orders I was on during my service." There remains some confusion with regard to the details of identifying the Veteran's periods of service that may be for consideration in this case. A VA profile sheet (reprinted multiple times in the record, from August 2009 to October 2012) includes a section listing "Periods of Active Service while in Reserves or National Guard" that includes periods of 180 days from June to December 2006 and 48 days from June to July 2009 that do not appear to correspond to periods considered in the determinations of record. The Board also observes that the summary of the Veteran's service recorded in the Veteran's profile available within the Veterans Benefits Management System (VBMS) includes a period from March 15, 2006 to August 7, 2008 that also does not appear to correspond to periods considered in the determinations of record. Additionally, two of the periods discussed by the Veteran's contentions in detail (December 2009 to January 2010, and January 2011 to April 2011) do not appear to have been contemplated in the determinations of record. Documentation in the claims-file includes an undated document showing that the AOJ sent an inquiry to the Department of Defense (DoD) concerning whether "service from 04/05/11 to 07/05/11" was "qualifying for ch33 purposes," and the DoD reply was: "No, period is Title 32 ADOS and does not count for Chap 33...." The Board notes that this explanation for deeming the service non-creditable is inadequate in light of the expanded/revised definition of "active duty" pursuant to Pub. L. No. 111-377; it is unclear whether the revised/expanded definition was contemplated or considered by the DoD's response. Furthermore, the period of service referenced by the inquiry is only one of the periods of service the Veteran has sought to be considered creditable in this case. A May 2014 Army National Guard reply to an inquiry indicates that the Veteran's only creditable period of service for the purposes of this case was the January 2010 to January 2011 period of active duty service that is not in dispute. However, the May 2014 Army National Guard reply addresses the period addressed by the prior DoD statement of service, and draws the same conclusion with the same rationale. The May 2014 Army National Guard reply states: "The period of 20110405-20110705 does not qualify since the soldier was ADSW (Active Duty Special Work/Operational Support) Title 32." It does not provide information allowing for a determination that the Veteran's description of his duties and the revised/expanded definition of "active duty" pursuant to Pub. L. No. 111-377 was contemplated in this statement. The May 2014 Army National Guard reply also addresses one other period, the August 2009 to November 2009 period that the AOJ had in two determinations accepted as creditable before an October 2012 determination no longer counted it as creditable. The May 2014 Army National Guard reply stated that "[t]his period does not count, because it was under Title 32, USC 505 Active Duty Training code." The Board notes the United States Court of Appeals for Veterans Claims has held that a service department's determinations as to an individual's service are binding on VA. Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). In the present case, the record contains service department determinations that indicate that certain specified periods of the Veteran's service were "under Title 32, USC 505," which is not in dispute. The service department determinations of record do not clearly address each of the periods to which the Veteran's arguments direct attention, and the assertion that a period "does not count, because it was under Title 32, USC 505 Active Duty Training code" appears to be a legal conclusion rather than a binding determination of service details. As discussed above, the original provisions of the Post-9/11 GI Bill specifically excluded full-time National Guard duty performed pursuant to orders issued under Title 32, United States Code from the definition of "active duty." However, in January 2011, pursuant to Pub. L. No. 111-377 (the Post-9/11 Veterans Educational Assistance Improvements Act of 2010), § 101, the definition of "active duty" was expressly expanded for purposes of Post-9/11 GI Bill eligibility to include certain full-time service in the National Guard. The Veteran's contentions in this case directly and specifically reference the expansion of the pertinent definition of "active duty" pursuant to Pub. L. No. 111-377, and the Board is unable to conclude from the determinations of record whether the Veteran's contentions and the revised law have been contemplated in consideration of each of the Veteran's pertinent periods of service at issue. Accordingly, once the dates and nature of the Veteran's periods of service are confirmed, another request must be made to DoD to determine the aggregate length of the Veteran's periods of active duty service for Post-9/11 GI Bill purposes with attention to the current revised/expanded definition "active duty" under Pub. L. No. 111-377. In summary, in the interest of fully informed appellate review of the Veteran's detailed contentions in this case, the Board finds that a remand is warranted for additional development. Appropriate steps should be taken to clearly identify and verify the pertinent periods of service for consideration in this case, including consideration of each of the periods specifically discussed in the Veteran's contentions in addition to the various other periods of potentially pertinent service that are suggested in various parts of the record, as discussed above. Appropriate steps should be taken to seek better documentation from the service department (including any pertinent service personnel records) concerning the nature of the Veteran's responsibilities during pertinent periods of service. For the sake of clarity, requests for official determinations and the AOJ's own findings should clearly specify each period of the Veteran's service considered in drawing conclusions regarding the aggregate creditable service counted in this case. For each pertinent period of service the AOJ determines to be non-creditable, an explanation of the determination for that period with consideration of the expanded/revised definition of "active duty" pursuant to Pub. L. No. 111-377 would be of great assistance to the Board's appellate review. Consideration should be made of VA's Adjudication Procedure Manual, M21-1, Part III, Subpart v, Chapter 4, Section C.7.l (M21-1), which states that duties performed under ADOS-RC/ADSW may be for operational, support, or training purposes, and that all duties performed under ADOS-RC/ADSW are considered active duty unless "the purpose for going on ADSW was to receive training." See M21-1, Part III, Subpart v, Chapter 4, Section C.7.l. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice that advises him of the information and evidence necessary to substantiate his claim for educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill). This letter should inform him that, to be eligible for VA educational assistance under the Post-9/11 GI Bill, he must have served on active duty for a minimum of 90 aggregate days, excluding entry level and skill training and that, for purposes of the Post-9/11 GI Bill, creditable active duty has various meanings, including, for members of the reserve components of the Armed Forces, 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 or 14 U.S.C. § 712; and, for members of the Army National Guard of the United States or the Air National Guard of the United States, 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) 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. 2. Undertake appropriate action, to include contacting the Veteran's Army National Guard units, the National Personnel Records Center (NPRC), or any other appropriate entity, to obtain any outstanding / available documentation necessary to verify all of the Veteran's periods of active duty service and the nature / purpose of the Veteran's responsibilities therein (including any pertinent service personnel records). Attention is directed to the fact that the Veteran contends that as much as all of the 28 months of aggregate "active service" shown on an August 2011 DD Form 214 may be considered creditable service, with detailed arguments presented (including in his July 2014 statement) asserting that at least 18 months of specified service qualified to be considered creditable due to the nature and purpose of his duties during those periods. 3. If any periods of active duty service are identified for which there are not corresponding orders, request from the appropriate entity any available documentation regarding the authority and nature / purpose of each period of active duty service. If any of these records are unavailable, it should be documented in the claims file and the Veteran should be notified in accordance with 38 C.F.R. § 21.1032(e) (2015). 4. After the above development has been completed and all available records have been received, submit a request to the DoD to determine the Veteran's periods of service that qualify as active duty service for purposes of entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill). Please ensure that each period of service pertinent to the Veteran's contentions (including each period identified in the Veteran's July 2014 written statement) is specifically brought to the DoD's attention in this request and contemplated in the determination, with attention as necessary to the purpose/nature of the Veteran's duty during each period of service. Please also ensure that the expanded/revised definition of "active duty" pursuant to Pub. L. No. 111-377 is specifically contemplated in the determination. The request should specifically address the following questions: a. Does the Veteran's period of service from December 2009 to January 2010 qualify as active duty service for purposes of entitlement to educational assistance benefits under Chapter 33 of Title 38? He reported he "served as a Battalion Signal Officer for a unit that was preparing for a deployment in January 2010," and described "handling outstanding administrative items, conducting training, and preparing battalion required training." Except for receiving training, all other duties performed under ADOS-RC/ADSW are considered active duty. b. Do the Veteran's intermittent periods of service from January 2011 to April 2011 qualify as active duty service for purposes of entitlement to educational assistance benefits under Chapter 33 of Title 38? He reported during that time he was with the Massachusetts Army National Guard Pre-Mobilization Training and Assistance Element when he was "training units who were preparing for upcoming deployments to Afghanistan and making sure administratively that they had fulfilled all of the pre-requisites needed to proceed to their mobilization stations." Except for receiving training, all other duties performed under ADOS-RC/ADSW are considered active duty. c. Does the Veteran's period(s) of service from April 2011 to July 2011 qualify as active duty service for purposes of entitlement to educational assistance benefits under Chapter 33 of Title 38? During this time he reported his duties as "state-wide coordinator for Massachusetts' R3SP (Resiliency Risk Reduction Suicide Prevention) program . . . handling administrative duties .... I received regulations from the Department of Defense or National Guard Bureau and wrote state policies that complied with the new regulations," that he "would track training down to the company level within the state," and that he "creat[ed] training programs for the Army's new suicide prevention program and distributing them throughout the state." 5. Thereafter, readjudicate the claim. If the benefit sought remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). An appropriate period should be allowed for a response, then return the claim to the Board as warranted. For each pertinent period of the Veteran's service the AOJ determines to be non-creditable, an explanation of the determination for that period with consideration of the expanded/revised definition of "active duty" pursuant to Pub. L. No. 111-377 (including full-time service in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard) would be of great assistance to the Board's appellate review. Consideration should also be made of VA's Adjudication Procedure Manual, M21-1, Part III, Subpart v, Chapter 4, Section C.7.l (M21-1), which states that duties performed under ADOS-RC/ADSW may be for operational, support, or training purposes, and that all duties performed under ADOS-RC/ADSW are considered active duty unless "the purpose for going on ADSW was to receive training." See M21-1, Part III, Subpart v, Chapter 4, Section C.7.l. 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) (2015).