Citation Nr: 18153678 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-14 826A DATE: November 28, 2018 ORDER Education benefits in excess of the 90 percent level under the provisions of Chapter 33, Title 38, United States Code based on active duty service after September 10, 2001 (Chapter 33 or Post-9/11 GI Bill) is denied. FINDING OF FACT The Veteran did not have at least 36 months of creditable active duty service, or at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability, after September 10, 2001. CONCLUSION OF LAW The criteria for education benefits in excess of the 90 percent level under Chapter 33 are not met. 38 U.S.C. §§ 3301, 3311, 3313, 5107 (2012); 38 C.F.R. §§ 3.102, 21.9505, 21.9640 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1980 to August 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which determined the Veteran was entitled to Chapter 33 education benefits at the 90 percent level. The Veteran was scheduled to testify before a Veterans Law Judge in March 2018, but did not appear for his hearing and has not requested that the hearing be rescheduled. Accordingly, the Board will proceed with appellate review. See 38 C.F.R. § 20.704(d) (2017) (providing that failure to appear for a scheduled hearing will be processed as though the request for hearing had been withdrawn). 1. Entitlement to education benefits in excess of the 90 percent level under the provisions of Chapter 33, Title 38, United States Code based on active duty service after September 10, 2001. Initially, the Board notes that the Veteran’s basic eligibility for Chapter 33 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 (2012); 38 C.F.R. § 21.9640 (2017). The percentage of maximum amounts payable is 40 percent with at least 90 days, but less than 6 months, of creditable active duty; 50 percent with at least 6 months, but less than 12 months, of creditable active duty service; 60 percent with at least 12 months, but less than 18 months, of creditable active duty service; 70 percent with at least 18 months, but less than 24 months, of creditable active duty service; 80 percent with at least 24 months, but less than 30 months, of creditable active duty service; 90 percent with at least 30 months, but less than 36 months, of creditable active duty service; and 100 percent 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 C.F.R. § 21.9640(a). In this case, it was determined that the Veteran’s aggregate length of creditable active duty service after September 10, 2001, for educational assistance benefits under Chapter 33 purposes was a period of at least 30 months, but less than 36 months, of creditable active duty service. There is no evidence to refute the calculation of the Veteran’s aggregate length of this credible service, as the Veteran’s DD Form 214 shows that he served from April 2, 1980, to August 31, 2004. In March 2015 e-mail correspondence, a VA employee noted the Veteran’s assertion that he would have retired on September 30, 2004, but for a conversation with an Army counselor who informed the Veteran that his flight pay would begin to decrease in September 2004, and thus, he retired on August 31, 2004, instead. In his May 2015 substantive appeal (VA Form 9), the Veteran asserted that his retirement date of August 31, 2004, was originally “September 31, 2004,” but it was adjusted after a consultation with retirement services at a VA office. He asserts that he would have had the requisite 36 months had he not relied on VA advice. The Board is sympathetic to the Veteran’s claim, but finds that he does not have at least 36 months of creditable service after September 10, 2001, which the Veteran does not dispute. Additionally, the evidence does not show that he was discharged due to a service-connected disability. Thus, the appeal must be denied as a matter of law. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel