Citation Nr: 18154003 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-12 754 DATE: November 29, 2018 ORDER Entitlement to education benefits under Chapter 33 (Post-9/11 GI Bill) is denied. FINDING OF FACT 1. The service department has reported the Veteran a total of 69 days of service for Chapter 33 (Post-9/11 GI Bill) purposes. 2. The Veteran was discharged from National Guard/Reserves duty because of service-connected disability, but not a period of active duty for Chapter 33 (Post-9/11 GI Bill) purposes. CONCLUSION OF LAW The criteria for basic eligibility to education benefits under Chapter 33 (Post-9/11 GI Bill) have not been met. 38 U.S.C. §§ 3301, 3311; 38 C.F.R. § §§ 21.9505, 21.9520. REASONS AND BASES FOR FINDING AND CONCLUSION The record reflects the Veteran served on active duty in the United States Army from June 2002 to November 2002, and from July 2004 to September 2004. Further, the record reflects she had additional service in the Army National Guard/Reserves through 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a determination by an education center at a Department of Veterans Affairs (VA) Regional Office (RO) that the Veteran did not satisfy the basic eligibility criteria for Chapter 33 education benefits. 1. Entitlement to education benefits under Chapter 33 (Post-9/11 GI Bill) The governing law specifies that an individual may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (1) continues on active duty; (2) is discharged from service with an honorable discharge; (3) is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) is released from service characterized as honorable for further service in a reserve component; or (5) is discharged or released from service for - (i) a medical condition that preexisted such service and is not determined to be service-connected; (ii) hardship, as determined by the Secretary of the military department concerned; or (iii) a physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. See 38 U.S.C. §§ 3301, 3311; 38 C.F.R. § 21.9520(a). Under paragraph (b), a veteran is also eligible for benefits under 38 U.S.C. Chapter 33, if he or she serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. See 38 C.F.R. § 21.9520(b). The provisions of 38 C.F.R. § 21.9505 provides that for the purposes of this subpart (governing the administration and payment of educational assistance under 38 U.S.C. Chapter 33), the following definitions apply: 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. In addition, 38 C.F.R. § 21.9505 provides that 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 U.S.C. § 3301; 38 C.F.R. § 21.9505. The Board acknowledges that the record reflects the Veteran served on active duty from June 2002 to November 2002, and from July 2004 to September 2004. However, the record reflects the service department reported in February 2014 that the June 2002 to November 2002 period was initial active duty for training (IADT); i.e., it was for entry level and skill training purposes. VA's determination of whether a claimant's service meets basic threshold requirements is usually dependent upon service department records verifying the character of a claimant's service. 38 C.F.R. § 3.203; Duro v. Derwinski, 2 Vet. App. 530 (1992). As such, this period must be excluded for purposes of determining her eligibility for Chapter 33 (Post-9/11 GI Bill) education purposes pursuant to the requirements of 38 U.S.C. § 3301 and 38 C.F.R. § 21.9520. Her July 2004 to September 2004 does constitute active duty service for Chapter 33 purposes, which is a total of 69 days. Consequently, she does not have the minimum 90 days of qualified active service for Chapter 33 basic eligibility purposes. The Board also acknowledges that the record reflects the Veteran was discharged from the National Guard/Reserves in 2007 due to a right ankle disability and an acquired psychiatric disorder. Further, service connection has been established for such disabilities. However, the exception for Chapter 33 benefits when a veteran has 30 days of active service and is discharged due to service-connected disability is only applicable when such discharge is from a period of active service. Here, the Veteran’s discharge from the National Guard/Reserves does not constitute a period of active duty for Chapter 33 (Post-9/11) purposes. Consequently, the exception does not apply. Although the Board is sympathetic to the claim, it is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Here, the law specifically requires a certain period of active service subsequent to September 10, 2001, in order to have basic eligibility for Chapter 33 (Post-9/11) education benefits; and the Veteran does not have the requisite service.   For these reasons, the Board must find the Veteran has no legal entitlement to Chapter 33 (Post-9/11 GI Bill) education benefits, and her appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law.). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel