Citation Nr: 18152247 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-13 214 DATE: November 21, 2018 REMANDED The claim of entitlement to educational assistance at a rate in excess of 50 percent under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) is remanded. REASONS FOR REMAND The Veteran had service with the Army National Guard, with verified periods of active duty from November 2008 to September 2009, October 2010 to September 2011, March 2013 to September 2013, and from October 2013 to September 2014. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, sitting at the Regional Office (RO). A transcript of this hearing has been associated with the record. In January 2015, the RO issued a Certificate of Eligibility, wherein it was determined that the Veteran was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill. The letter indicated that the Veteran was entitled to receive 50 percent of the benefits payable under the Post-9/11 GI Bill program, based on 347 days of active duty service after September 10, 2001. In so concluding, the RO indicated the Veteran’s post-September 10, 2001, qualifying active duty service was the period from October 2013 to September 2014. The Veteran disagreed with that determination, arguing that each of his periods of service should be included in the RO’s calculation of the aggregate length of creditable active duty service after September 10, 2001. In February 2015, the RO sought verification of the Veteran’s service from the Department of Defense (DoD). Regarding the Veteran’s period of eligibility for calculating Post 9/11 GI Bill benefits, DoD responded that the Veteran’s period of service from September 2010 to September 2011 was not a qualifying period of service for calculation of Chapter 33 educational assistance benefits because the Veteran was then serving on active duty training under Title 32. DoD further stated that the period from February 2009 to June 2009 did not qualify for Chapter 33 benefits because the Veteran had not yet reached a total of 24 months of Title 10, active duty mobilization time. At the outset, the Board notes that entitlement to Chapter 33 educational assistance benefits is not at issue, as entitlement to such has been established. What is at issue in this case is the aggregate length of the Veteran’s creditable active duty service after September 10, 2001. Specifically, the law provides that 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 (90 to 179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (180 to 364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (365 to 544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (545 to 729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (730 to 909 days); 90 percent with at least 30 months, but less than 36 months, of creditable active duty service (910 to 1094 days); and 100 percent with at least 36 months of creditable active duty service (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). Relevant to the instant claim, the Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. 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. § 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, or under 14 U.S.C. § 712. See 38 U.S.C. § 3301 (1)(B). Under the 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; see also 38 U.S.C. §§ 101 (21), (22)(C) (likewise defining “active duty” to exclude full-time duty in the National Guard under 32 U.S.C. § 502 ); 38 C.F.R. § 3.6 (c)(3) (defining full-time duty performed by members of the National Guard of any State under 32 U.S.C. § 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), 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, and (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. § 3301(1)(C). The amended definition is in 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). (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). At his October 2017 hearing, the Veteran submitted additional evidence, which consisted of copies of orders variously showing that he was ordered to active duty training under the authority of 32 U.S.C. § 502(f). The Veteran also testified that during these periods of active duty training, his primary duty was that of an instructor, providing legal training to members of the National Guard. It is the Veteran’s contention that these periods of service qualify as active duty under the revised and expanded definition of that term under Pub. L. No. 111-377. In a determination pertaining to entitlement to education benefits under Chapter 34, VA’s General Counsel noted that eligibility for such benefits was limited to those with full time duty in the Armed Forces other than active duty for training (ACDUTRA). VAOPGCPREC 25-90 (July 17, 1990). Specifically, it was held 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. See 38 U.S.C. § 101 (24). Accordingly, that veteran’s service as an instructor was deemed to be “active duty” for educational benefits purposes. See VAOPGCPREC 25-90. While this opinion is not directly applicable to the benefits in question here (Chapter 33 educational assistance benefits), the reasoning is still persuasive in the facts of this case. Overall, the Board finds that further clarification is needed regarding the Veteran’s periods of service and the characterization of the status of pertinent periods. This is so because DoD has not been asked to review the additional orders submitted by the Veteran at the October 2017 hearing. Further, and most importantly, it is not clear from DoD’s initial response whether the amended definition of “active duty” to include certain types of service performed under the authority of 32 U.S.C. § 5202(f) was taken into consideration. Indeed, when considering the Veteran’s lay testimony, it would appear he was performing “full-time service... in the National Guard of a state for the purpose of organizing, administering, recruiting, instructing, or training the National Guard.” Nevertheless, the orders submitted by the Veteran do not set forth with specificity the nature of the Veteran’s duties during the relevant periods, to include whether he was attending trainings or was acting as the instructor for such trainings. Accordingly, because 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 because 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, it is necessary to remand the matter for the RO to make another request with DoD. DoD should be asked 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. The RO should also take appropriate steps to ascertain all relevant periods of time that the Veteran was serving under the authority of 32 U.S.C. § 502 (f) and 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. The matter is REMANDED for the following action: 1. 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 the Veteran’s periods of active duty and active duty for training service occurring after September 10, 2001. For any period of active duty training or full-time National Guard duty to which the Veteran was ordered to after September 10, 2001, under the authority of 32 U.S.C. 502(f), the RO should seek to determine the nature/purpose of the Veteran’s responsibilities therein (including any pertinent service personnel records). 2. 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 Chapter 33 educational assistance benefits. DoD should be requested to consider specifically the expanded/revised definition of “active duty” pursuant to Pub. L. No. 111-377. The request should set forth with specificity all time periods during which the Veteran was serving under the authority of 32 U.S.C. § 502 (f), and should include copies of pertinent orders, to the extent deemed necessary. If it is determined that any pertinent periods during which the Veteran has reported his primary duties to be pre-mobilization training/instructing of national guardsmen are not periods of qualifying service for purposes of entitlement to Chapter 33 educational assistance benefits, DoD should explain, in detail, why such service is not to be considered “full-time service... in the National Guard of a state for the purpose of organizing, administering, recruiting, instructing, or training the National Guard.” MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel