Citation Nr: 18158962 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-23 957 DATE: December 18, 2018 ORDER Entitlement to a benefits payment rate of 60 percent for educational assistance under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is granted, subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s National Guard service for the period from July 1, 2013 to September 30, 2013, was for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, and therefore it constitutes creditable active duty service for VA educational benefits purposes. 2. The Veteran completed more than 12, but less than 18, months of aggregate, honorable, and creditable active duty service after September 10, 2001. CONCLUSION OF LAW The criteria for a 60 percent educational assistance benefit level under the Post-9/11 GI Bill are met. 38 U.S.C. §§ 3301, 3311, 3313 (2012); 38 C.F.R. §§ 21.9505, 21.9640 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty, as relevant here, from October 2013 to October 2014. Initially, the Board notes that there is no dispute that the Veteran satisfies the eligibility requirements for Chapter 33 (Post 9/11 GI Bill) education benefits as he has already been deemed eligible for such. Rather, the Veteran appealed the assignment of 50 percent of the maximum benefits payable under the Post-9/11 GI Bill, asserting that the Regional Office erred in failing to consider a period of his active duty service as a member of the National Guard as creditable service for purposes of determining the amount of educational assistance benefits payable under Chapter 33. Here, the Regional Office granted the Veteran 50 percent of the maximum amount payable under the Post 9/11 GI Bill program based on information showing that he had a total aggregate of 362 days of service, as calculated from a period of creditable active duty service from October 12, 2013 to October 8, 2014. He contends that his active duty service in the National Guard for the period prior to this service qualifies him for a rating of 60 percent, as he was mobilized under Title 32 for the purposes of instructing and training the National Guard. Thus, his service for the period from July 1, 2013 to September 30, 2013 should be counted as creditable service for purposes of determining the amount of educational assistance benefits payable under the post-9/11 GI Bill. As 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) (2012). 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 14 U.S.C. § 712. 38 U.S.C. § 3301(1)(B) (2012). 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 (2017); see also 38 U.S.C. §§ 101 (21), (22)(C) (2012) (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), § 101, 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 was given 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) (effective dates) (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). Here, as discussed, the Veteran has asserted that he was ordered to full-time service in the National Guard for the purpose of organizing, administering, recruiting, instructing, or training the National Guard for his period of service from July 1, 2013 to September 30, 2013. In support of his claim, in addition to his own statements, he submitted a letter from his commander, who explained that the Veteran was activated to prepare the 115th Facilities Engineer Detachment for its deployment to Afghanistan. The commander described the Veteran as “instrumental” in training the unit for its deployment, and that the entirety of his service during the 90 days was dedicated to deployment preparation. The Board notes that the Veteran’s orders do not note his duties or primary specialty, or the purpose of the mobilization. Nevertheless, the Veteran has competently maintained in statements throughout the pendency of the appeal that his duty during his period of service from July 1 to September 30 was to organize, prepare and train his unit in preparation for its deployment. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Moreover, his competent statements concerning his primary responsibilities during the period at issue are further supported by the statement made by his commanding officer, which indicated that the Veteran’s duties included training for the purposes of preparing his unit for deployment. Thus, based on the foregoing, and in the absence of any evidence to the contrary, the Board finds the Veteran’s statements concerning the nature of his active reserve service for the period from July 1, 2013 to September 30, 2013 to be credible. Accordingly, when including the additional 90 days of creditable active duty service with the 362 days of service already calculated, the record reflects that the Veteran completed 452 days (approximately 15 months) of aggregate, honorable, and creditable active duty service after September 10, 2001. See 38 U.S.C. § 3301 (1); 38 C.F.R. § 21.9505. The aggregate length of creditable active duty service after September 10, 2001 determines the percentage of maximum amounts payable. A 60 percent rating is given where at least 12 months, but less than 18 months, of creditable active duty service have been completed. 38 U.S.C. § 3311, 3313 (2012); 38 C.F.R. § 21.9640 (2017). With all reasonable doubt resolved in his favor, the Veteran now has 15 months of creditable active duty service. Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, he is therefore entitled to payment of Post-9/11 GI Bill benefits at the 60 percent rate. See 38 C.F.R. § 21.9640 (a). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel