Citation Nr: 19124166 Decision Date: 04/02/19 Archive Date: 03/30/19 DOCKET NO. 17-10 433 DATE: April 2, 2019 ORDER Entitlement to Post 9-11 GI Bill (Chapter 33) education benefits at a rate higher than 70 percent is denied. FINDINGS OF FACT 1. The Veteran served on active duty from September 6, 2011, to October 17, 2013. 2. The Veteran participated in entry level and skill training from September 16, 2011, to December 22, 2011. CONCLUSION OF LAW The criteria for Chapter 33 education benefits at a rate higher than 70 percent are not met. 38 U.S.C. §§ 3301, 3311, 3313, 5107 (West 2014); 38 C.F.R. §§ 3.102, 21.9505, 21.9640 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to Post 9-11 GI Bill (Chapter 33) education benefits at a rate higher than 70 percent The Veteran is seeking Chapter 33 benefits at a rate higher than 70 percent. The Veteran was awarded Chapter 33 benefits at the 80 percent rate in August 2016. See December 2016 Statement of the Case (SOC). In December 2016 the Department of Defense (DOD) responded to a request for information noting that the Veteran was training from September 16, 2011, to December 22, 2011. The Veteran’s Chapter 33 education benefits were then reduced to the 70 percent rate because his service from September 16, 2011, to December 22, 2011 was entry-level training and therefore not creditable for Chapter 33 education benefits purposes. The Veteran contends that this period of service should be creditable for Chapter 33 education benefits purposes. The amount of educational assistance payable under 38 U.S.C. Chapter 33 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 70 percent rate is payable with at least 18 months, but less than 24 months, of creditable active duty service and the 80 percent rate is payable with at least 24 months, but less than 30 months, of creditable active duty service. 38 C.F.R. § 21.9640 (a). For the 70 percent creditable active duty service calculations, entry- level and skill training is excluded. Id. at Note 1. For the 80 percent creditable active duty service calculations, entry-level and skill training are 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. The December 2016 SOC indicates that the Veteran’s active service was from September 16, 2011, to October 17, 2013. The adjudicative actions section of the SOC noted that the December 2016 response from DOD stated the Veteran’s service began on September 16, 2011. However, the December 2016 DOD response stated the Veteran’s training began on September 16, 2011, not his entire period of active service. In addition, the Veteran’s DD Form 214 notes active service from September 6, 2011 to October 17, 2013. As such, the Board finds the Veteran’s service began on September 6, 2011, not September 16, 2011. The Veteran served on active duty from September 6, 2011, to October 17, 2013. He participated in entry level skill training from September 16, 2011, to December 22, 2011. As such, the Veteran’s aggregate creditable active duty training, excluding his entry-level training from September 16, 2011, to December 22, 2011, is from September 6, 2011, to September 15, 2011 and December 23, 2011, to October 17, 2013. This service equates to 675 days, approximately 22 months. This entitles the Veteran to Chapter 33 benefits at the 70 percent rate. The Veteran’s active service from September 6, 2011 to October 17, 2013, including entry-level training equates to 773 days, approximately 25 months, which would entitle him to the 80 percent rate. However, under 38 C.F.R. § 21.9640 (a) Note 3, when the creditable active duty service criteria are met for both the 70 percent and 80 percent criteria, as is the case here, the maximum percentage of 70 must be applied. As such, the Veteran is entitled to the 70 percent rate of payment of Chapter 33 benefits. The Veteran does not disagree with the classification of any of his active service but states that his entry level training should be counted towards his aggregate creditable active service. See February 2017 VA Form 9. However, the law dictates that when a Veteran is entitled to the 70 percent rating when excluding his entry level training and 80 percent when including his entry level training the 70 percent rate of payment must be awarded. 38 C.F.R. § 21.9640 (a) Note 3. (Continued on the next page)   In view of the foregoing, the Board must find the Veteran has no legal entitlement to Chapter 33 education benefits more than the 70 percent level. 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. See Sabonis v. Brown, 6 Vet. App. 426 (1994). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel