Citation Nr: 18145611 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-27 557 DATE: October 29, 2018 REMANDED Entitlement to Chapter 33 (Post-9/11 GI Bill) education benefits in excess of the 80 percent rate is remanded. REASONS FOR REMAND The record reflects the Veteran had active service in the United States Army from May 1981 to August 1981, May 1982 to July 1982, August 1985 to November 1985, May 2005 to January 2006, January 2008 to December 2008, and October 2009 to May 2011. Further, the record reflects he had additional service in the Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a determination by an Education Center located at a Department of Veterans Affairs (VA) Regional Office (RO) which determined the Veteran was entitled to Chapter 33 (Post-9/11 GI Bill) education benefits at the 80 percent rate. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in January 2016. A transcript of that hearing is of record. 1. Entitlement to Chapter 33 (Post-9/11 GI Bill) education benefits in excess of the 80 percent rate is remanded. The Board notes that the Veteran's basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits is not in dispute. Rather, the dispute in this case is the percentage rate he is entitled to for such benefits. The amount of educational assistance payable under 38 U.S.C. Chapter 33 is calculated in accordance with a table measuring the aggregate length of creditable active duty service after September 10, 2001. 38 U.S.C. §§ 3311(b)(3), 3313; 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is 40 percent with at least 90 days, but less than 6 months, of creditable active duty service (i.e., 90-179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (i.e., 180-364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (i.e., 365-544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (i.e., 545-729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (i.e., 730-909 days); 90 percent with at least 30 months, but less than 36 months, of creditable active duty service (i.e., 910-1094 days); and 100 percent with at least 36 months of creditable active duty service (i.e., 1095 days or more) or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 C.F.R. § 21.9640(a). For the 40 percent, 50 percent, 60 percent, and 70 percent creditable active duty service calculations, entry level and skill training is excluded. Id. at Note 1. For the 80 percent, 90 percent, and 100 percent creditable active duty service calculations, entry level and skill training is included. Id. at Note 2. If the creditable active duty service criteria are met for both the 70 percent and 80 percent criteria, the maximum percentage of 70 must be applied. Id. at Note 3. Active duty means 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. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. 38 C.F.R. § 21.9640. Active duty does not include: (1) Full-time National Guard Duty performed under 32 U.S.C. orders; (2) Any period during which the individual-(i) Was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; (ii) Served as a cadet or midshipmen at one of the service academies; or (iii) 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; (3) A period of service-(i) Required by an officer pursuant to an agreement under 10 U.S.C. § 2107(b); (ii) Required by an officer pursuant to an agreement under 10 U.S.C. §§ 4348, 6959, or 9348; (iii) That was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or (iv) Counted for purposes of repayment of an education loan under 10 U.S.C. Chapter 109; or (4) A period of Selected Reserve service used to establish eligibility under 38 U.S.C. Chapter 30 or 10 U.S.C. Chapter 1606 or 1607. 38 C.F.R. § 21.9505. The record reflects it was determined below the Veteran had 875 days of credible active service for Chapter 33 purposes; or at least 24 months, but less than 30 months, which is consistent with the 80 percent rate. However, the Veteran has contended, to include in his July 2015 Substantive Appeal and January 2016 hearing, that he had periods of Reserve service that should be considered as credible active service as it was pursuant to 10 U.S.C. § 12301(d). He has specifically identified the following such periods in his Substantive Appeal: November 2005 to January 2006, April to May 2009, May to June 2009, and August 2009 to September 2009. In addition, he submitted copies of his orders for certain of these periods in support of these contentions. The Board finds that it is not clear from the record whether the aforementioned periods of service from 2005 to 2006, and in 2009, constitute credible active service for Chapter 33 purposes. Further, 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). Although information was obtained from the Department of Defense (DoD) regarding this case, it does not appear DoD explicitly addressed the 2005 to 2006 and 2009 periods identified by Veteran as also being credible active service for Chapter 33 purposes. Consequently, the Board concludes that a remand is required to clarify the nature of these periods of military service, to include obtaining the Veteran’s complete service personnel records and confirmation from the DoD as to whether he was ordered to service in these periods pursuant to 10 U.S.C. § 12301(d). The matter is REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his service in the Army Reserve. Verify all active duty for training and inactive duty training dates for alleged service in the Army Reserve from 2005 to 2009. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Submit a request through official channels, to include to the Department of Defense (DoD) to determine whether the Veteran had any additional 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). In pertinent part, confirmation should be obtained whether the November 2005 to January 2006, April 2009 to May 2009, May 2009 to June 2009, and August 2009 to September 2009 periods identified by the Veteran were pursuant to 10 U.S.C. § 12301(d) as contended in his July 2015 Substantive Appeal. The DoD must furnish an explanation of its determination, to include the reason why any evidence provided by the Veteran does not show qualifying active duty service. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel