Citation Nr: 19192541 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 17-24 095 DATE: December 10, 2019 ORDER Eligibility for education benefits under Chapter 33, Title 38 of the United States Code, Post 9/11 GI Bill, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his service in the United States Army from November 16, 2009, to November 30, 2010, includes a minimum of 90 aggregate days of active duty excluding entry level and skill training. CONCLUSION OF LAW The criteria for eligibility for educational assistance under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) have been met. 38 U.S.C. §§ 3311, 5107(b) (2012); 38 C.F.R. §§ 3.102, 21.9505, 21.9520(a), 21.9640 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2017 determination of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2019 at which time the matter was remanded for further development. As noted, the issue here involves the question of whether the Veteran meets the eligibility requirements for Chapter 33 educational assistance benefits. Applicable law and regulation provide that an individual may be eligible 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 skill training and, (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 retire list, temporary disability retired list, or transferred to a Reserve fleet or component; or (4) is discharged or released from service for: a medical condition that preexisted such service and is not determined to be service-connected, hardship, or 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. 38 U.S.C. § 3311 (c); 38 C.F.R. § 21.9520 (a). An individual may also be eligible for Chapter 33 education benefits if he or she serves a minimum of 30 continuous days and is discharged under other than dishonorable conditions due to a service-connected disability. 38 C.F.R. § 21.9520 (b). Entry level and skill training may be considered in determining aggregate length of creditable service after September 10, 2001, if a Veteran has at least 24 months of service. 38 C.F.R. § 21.9640 (a). Here, the Veteran’s separation record, DD Form 214, shows that he served on active duty from November 16, 2009, to November 30, 2010, and that his primary specialty was “RA Trainee”. It also shows that he was discharged due to a condition, not a disability. The nature of his condition as shown in his service records was severe depression related to the death of a family member and insomnia. He was determined to be unable to make adequate adjustment or a positive contribution to the military due to his depression. See Department of the Army Memorandum dated November 10, 2010. The service information on the Veteran’s DD Form 214 is consistent with an “Information Report” dated in June 2017 from the VA/DOD (Department of Defense) Identity Repository (VADIR) showing that that the Veteran had 380 days of honorable qualifying service for Chapter 33 benefits from November 16, 2009 to November 30, 2010. The nature of his discharge was noted as physical or mental condition interfering with performance of duty. In June 2011, the Agency of Original Jurisdiction (AOJ) awarded the Veteran Chapter 33 educational assistance benefits with an elected effective date of December 20, 2010. 38 U.S.C. § 3311 (c); 38 C.F.R. § 21.9520 (a). Thereafter, in January 2017, the AOJ determined that an error had been made in awarding the Veteran Chapter 33 educational assistance benefits as he did not actually meet the eligibility criteria. The AOJ based that determination on information it obtained from the DoD during an audit in December 2016. In this regard, in response to the AOJ’s December 2016 request to provide the dates of the Veteran’s Combat basic training and Advanced Individual Training or One Station Unit Training, the DoD responded as follows, “20091123 – 20100219 // SM began IADT on 20100222 but no proof of completion prior to separation date of 20101130.” The Veteran disagrees with the AOJ’s January 2017 determination and asserts that at no time during his enlistment was he ever considered anything other than being on active duty. See March 2017 Notice of Disagreement. In this regard, his service treatment records include a September 2010 Report of Medical Examination showing his rank as “E2” and his service component as “Active Duty”. Pursuant to the Board’s April 2019 remand directives, the AOJ sought clarification from the DoD regarding the Veteran’s specific training dates. The DoD’s response in August 2019 was that the Veteran served on active duty from November 16, 2009, to November 30, 2010, and he was discharged due to a condition, not a disability. The DoD did not provide any further service information. Also, in August 2019, another information report was obtained from VADIR again showing that the Veteran had qualifying service for Chapter 33 benefit purposes from November 16, 2009, to November 30, 2010. In weighing the pertinent evidence outlined above regarding the Veteran’s eligibility for Chapter 33 education benefits under 38 C.F.R. § 21.9520(a), the Board finds that the evidence is at least in equipoise. In this regard, the December 2016 response from DoD suggests that the Veteran does not have 90 days of active duty excluding entry level and skill training, while the reports from VADIR and the DoD’s August 2019 reply suggest that he does have qualifying active service. Thus, by resolving reasonable doubt in his favor, his claim for eligibility for Chapter 33 educational assistance benefits is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.