Citation Nr: 1825874	
Decision Date: 04/30/18    Archive Date: 05/07/18

DOCKET NO.  14-37 175	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to Department of Veterans Affairs educational assistance benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) to be paid at a rate higher than 60 percent.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active duty for training (ACDUTRA) in the U.S. Army Reserve from August 1981 to September 1981 and from July 1986 to December 1986.  She subsequently served in the North Carolina Army National Guard and had active duty from October 2004 to January 2006 and active duty for special work (ADSW) from September 2007 to September 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In January 2015, the Board remanded the claim to provide the Veteran with her requested hearing.  She later testified before the undersigned Veterans Law Judge at a Board video hearing in September 2015.


FINDING OF FACT

The Veteran's period of ADSW from September 2007 to September 2010 was for the purpose of organizing and administrating the National Guard.


CONCLUSION OF LAW

The criteria for establishing entitlement to Post-9/11 GI Bill educational assistance at the 100 percent rate are met.  38 U.S.C. §§ 3311, 3313 (2012); 38 C.F.R. § 21.9640 (2017).



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REASONS AND BASES FOR FINDING AND CONCLUSION

The Post-9/11 GI Bill, or 38 U.S.C. Chapter 33, provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001.  The level of benefit received is a percentage of the maximum payable amount, and that percentage is determined based on the aggregate length of creditable active duty service after September 10, 2001.  38 C.F.R. § 21.9640(a).

For purposes of the Post-9/11 GI Bill, creditable active duty includes full-time duty other than active duty for training for members of the regular components of the Armed Forces.  38 U.S.C. § 3301(1)(A).  The Veteran's active service from October 2004 to January 2006 qualifies her for the 60 percent rate she is currently assigned.

She has further contended that her period of ADSW from September 2007 to September 2010 should also be counted as creditable active duty.  For members of the Army National Guard of the United States, in addition to service described above, qualifying active duty includes full-time service in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard.  38 U.S.C. § 3301(1)(C)(i).

Thus, the pertinent question is whether the Veteran's ADSW satisfied one or more of these enumerated purposes.  Copies of her orders for this service have been associated with the claims file.  Orders dated July 2007 show that she was ordered to active duty for special work as a J1 project officer.  Additional documentation shows this position was involved with developing courses of action to prepare for a deployment, including identifying personnel shortfalls, filling the unit to the prescribed mobilization standard, and certifying the unit's personnel tasks for deployment.  A specific notation in the orders themselves states that the work involved supporting the mobilization of soldiers in the global war on terror.

Additional orders issued in October 2008 show a continuation of this role, and include a notation indicating that it was in support of Operation Iraqi Freedom pre-deployment.

Her orders issued in October 2009 were for the purpose of Yellow Ribbon Overseas Contingency Operations.  

"Yellow Ribbon" is a national combat veteran reintegration program to provide National Guard and Reserve members and their families with sufficient information, services, referral and proactive outreach opportunities through the entire deployment cycle.  The pre-deployment phase focuses on educating members, families and affected communities on combat mobilization, and consists of reintegration activities at the 30-60-90 day interval after unit demobilization.  The focus is on reconnecting members and their families with the service providers (i.e., TRICARE, JAG, Department of Veteran Affairs) to ensure a clear understanding of the entitled benefits.  In addition, issues of combat stress and transition and how members and their families can address them is also integral to the post-deployment phase.  See http://www.saffm.hq.af.mil/Portals/84/documents/Air%20National%20Guard%20Operation%20and%20Maintenance%20OCO%20FY18.pdf?ver=2017-05-23-155110-983 (last visited March 13, 2018).  

During her September 2015 hearing, the Veteran testified that her duties included managing travel orders, pay, and other issues associated with the mobilization, deployment, and return of National Guard personnel.

Based on the above, the Board concludes that the Veteran's period of ADSW from September 2007 to September 2010 is creditable active duty service for the purposes of eligibility to educational assistance under the Post-9/11 GI Bill, as the nature of the Veteran's duties during this time were clearly related to "organizing" and "administering" the National Guard, based on a plain reading of 38 U.S.C. § 3301(1)(C)(i).

This 3-year period of service, alone, would qualify for the 100 percent rate under 38 C.F.R. § 21.9640.  With considering her prior active service from October 2004 to January 2006, she has more than enough creditable active service to meet the criteria for the 100 percent rate.


ORDER

Eligibility for the 100 percent rate for educational assistance under the Post-9/11 GI Bill is granted.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs