Citation Nr: 19116167 Decision Date: 03/06/19 Archive Date: 03/05/19 DOCKET NO. 16-30 924 DATE: March 6, 2019 ORDER Entitlement to education benefits under Chapter 33, Title 38, United States Code, (Post-9/11 GI Bill) above the 60 percent rate is denied. FINDINGS OF FACT 1. According to the service department, the Veteran’s four years of active service from May 2011 through a portion of May 2015 was in fulfillment of an obligation under a Reserve Officer Training Corps (ROTC) scholarship; as such, it cannot be considered qualifying active duty for purposes of determining the rate of her Chapter 33 (Post-9/11 GI Bill) education benefits. 2. The Veteran served on active duty for another 370 days after fulfilling her ROTC scholarship obligation. 3. The record does not reflect the Veteran was discharged from a period of qualifying service due to service-connected disability. CONCLUSION OF LAW The criteria for entitlement to education benefits under Chapter 33 (Post-9/11 GI Bill) above the 60 percent rate have not been met. 38 U.S.C. §§ 3301, 3311, 3313; 38 C.F.R. §§ 3.203, 21.9505, 21.9640. REASONS AND BASES FOR FINDINGS AND CONCLUSION The record reflects the Veteran served on active duty in the United States Army from May 2011 to May 2016, to include service in Afghanistan. Her decorations include the Combat Action Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO determined that the Veteran was not entitled to education benefits under Chapter 33 above the 50 percent rate. In her substantive appeal, received in June 2016, the Veteran reported that she had received an updated certificate of eligibility that reflected her proper dates of active duty and established benefits at the 60 percent rate. As such, the issue on appeal has been characterized as set forth above. Entitlement to education benefits under Chapter 33 (Post-9/11 GI Bill) in excess of the 60 percent rate. The Board notes that the Veteran’s basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits is not in dispute. Rather, the dispute in this case is the percentage rate of the benefits to which she is entitled. The amount of educational assistance payable under Chapter 33, Title 38, United States Code, 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; 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is 40 percent with at least 90 days, but less than 6 months, of creditable active duty service (i.e., 90-179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (i.e., 180-364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (i.e., 365-544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (i.e., 545-729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (i.e., 730-909 days); 90 percent with at least 30 months, but less than 36 months, of creditable active duty service (i.e., 910-1094 days); and 100 percent with at least 36 months of creditable active duty service (i.e., 1095 days or more), or with at least 30 continuous days of creditable active duty service and a discharge from service due to a service-connected disability. 38 C.F.R. § 21.9640 (a). For the 40, 50, 60, and 70 percent creditable active duty service calculations, entry level and skill training is excluded. Id. at Note 1. For the 80, 90, and 100 percent creditable active duty service calculations, entry level and skill training is included. Id. at Note 2. If the creditable active duty service criteria are met for both the 70 percent and 80 percent criteria, the maximum percentage of 70 must be applied. Id. at Note 3. Initially, the Board acknowledges that the Veteran had over 36 months of active service after September 10, 2001, as the record reflects her total period of active duty was from May 2011 to May 2016. However, the record also reflects that the Veteran entered active duty as part of a service obligation for an ROTC scholarship. Further, the record reflects she had a four-year service obligation for her ROTC scholarship, which included the period from May 2011 through a portion of May 2015. The Veteran's ROTC scholarship did not disqualify her from the Chapter 33 program. As already noted, she has been awarded Chapter 33 benefits. However, VA regulations address the exclusion of ROTC obligations. In this case, the Veteran was commissioned for active duty service under a program of educational assistance pursuant to 10 U.S.C. § 2107, commonly known as ROTC. Her initial four years of service, from May 2011 through a portion of May 2015, which was required to satisfy her four-year obligation under the ROTC program, is not considered active duty for purposes of Chapter 33 benefits. 38 C.F.R. § 21.9505(3). In that regard, definitions provided under 38 U.S.C. § 3301 and 38 C.F.R. § 21.9505, governing the administration and payment of educational assistance under 38 U.S.C. Chapter 33, specifically provide that "active duty" does not include a period of service "required by an officer pursuant to an agreement under 10 U.S.C.§ 2107(b)." Moreover, the provisions of 38 U.S.C. § 3311(d), also addressing eligibility requirements under 38 U.S.C. Chapter 33, specifically prohibit treatment of certain service as a period of active duty. Under those provisions, a period of service on active duty as an officer pursuant to an agreement under 10 U.S.C. § 2107 shall not be considered as part of the period of active duty on which an individual's entitlement to education assistance under this chapter is based. 38 U.S.C. § 3311(d). The Veteran contends, in pertinent part, that her ROTC scholarship obligation was only two years. She has submitted a copy of her ROTC agreement in support of that contention. However, the Department of Defense (DoD) was contacted in this regard and responded in June 2016 that she had a four-year ROTC service obligation, at least for purposes of determining her qualifying service for Chapter 33 purposes. See 38 C.F.R. § 3.203; see also Duro v. Derwinski, 2 Vet. App. 530 (1992). Thus, it appears the Veteran’s disagreement regarding the extent of her ROTC obligation for Chapter 33 purposes is with the service department, and not VA. For these reasons, that portion of the Veteran's active service from May 2011 to May 2015 in fulfillment of her ROTC scholarship obligation is not considered qualifying active duty for purposes of determining the rate of her Chapter 33 (Post-9/11 GI Bill) education benefits. In addition, her qualifying active service subsequent to the end of her ROTC service obligation in May 2015 was 370 days, which is consistent with the 60 percent rate she has been assigned. See 38 C.F.R. § 21.9640. The Veteran does not contend, nor does the record otherwise reflect, that she was discharged from service due to a service-connected disability. In fact, the record does not reflect that service connection has been established for any disability. Consequently, the exception pertaining to circumstances in which a veteran has 30 days of active service and is discharged due to service-connected disability does not apply. Although the Board is sympathetic to the Veteran’s situation, it is constrained by the 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). In this case, as detailed above, the Board must find that the Veteran does not have qualifying service that warrants Chapter 33 (Post-9/11 GI Bill) education benefits in excess of the 60 percent rate. The benefit sought on appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel