Citation Nr: 18146732 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-39 047A DATE: November 1, 2018 ORDER Entitlement to education benefits under the provisions of Chapter 33, Title 38, United States Code (Post-9/11 GI Bill), in excess of the 60 percent rate is denied. FINDING OF FACT The record reflects the Veteran had less than 18 months (545 days) of creditable active duty service for Chapter 33 (Post-9/11 GI Bill) education benefits purposes, and was not discharged from a qualifying period of active duty service due to a service-connected disability. CONCLUSION OF LAW The criteria for education benefits under Title 38, Chapter 33 (Post-9/11 GI Bill), in excess of the 60 percent rate have not been met. 38 U.S.C. §§ 3301, 3311, 3313; 38 C.F.R. §§ 21.9505, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army/Army National Guard which included periods of active duty from July 2008 to March 2009 and from August 2010 to October 2011. 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). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in September 2016. A transcript of that hearing is of record. 1. Entitlement to education benefits under Title 38, Chapter 33 (Post-9/11 GI Bill), at the 100 percent rate 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 the Veteran’s July 2008 to March 2009 period of active duty was part of his initial active duty training, and, as such, would not be taken into consideration when determining his amount of qualifying active service. In addition, it was determined that he had a total of 419 days of qualifying active duty service for purposes of Chapter 33 (Post-9/11 GI Bill) education benefits based upon his August 2010 to October 2011 period of active service. Stated another way, the Veteran had less than 18 months (545 days) of creditable active duty service for Chapter 33 (Post-9/11 GI Bill) education benefits purposes. This amount of qualifying service is consistent with the 60 percent rating. The Board further notes that the Veteran has not disputed the number of days of qualifying active duty service calculated for his Chapter 33 education benefits. Rather, he has contended, to include in his Substantive Appeal and September 2016 hearing, that he is entitled to such benefits at the 100 percent level because he was discharged from service due to a service-connected disability. Specifically, his service-connected right shoulder disability. The Board acknowledges that the record indicates the Veteran was discharged from the National Guard due to his service-connected right shoulder disability. For example, his original NG Form 22 reflects he was discharged due to “other designated physical or mental condition.” Although this was subsequently revised to “medically unfit for retention,” the underlying rationale still appears to be the right shoulder. The Board notes, however, that his DD Form 214 for his August 2010 to October 2011 period of active duty reflects that it ended due to “completion of required active service.” Moreover, the service personnel records for his subsequent period of National Guard service indicates it does not constitute active duty for purposes of Chapter 33 (Post-9/11 GI Bill) education benefits. See 38 C.F.R. § 20.9505. These records do not reflect he was ordered to active service during this period pursuant to the provisions of 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. Consequently, even though it appears the Veteran was discharged from National Guard service due to a service-connected disability, it is not service that would provide the benefit sought on appeal. It is noted that the Department of Defense determines the Veteran’s period of active duty and the reasons for separation. Any corrections in this regard must be made by that department. While the Board empathizes with the Veteran’s plight, the Board must conclude that the Veteran’s claim for Chapter 33 (Post-9/11 GI Bill) education benefits in excess of the 60 percent rate must be denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel