Citation Nr: 19144841
Decision Date: 06/10/19	Archive Date: 06/10/19

DOCKET NO. 17-63 290
DATE:	June 10, 2019

REMANDED

Entitlement to Post-9/11 GI Bill (Chapter 33) education benefits is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1985 to February 1998 as well as August 1998 to September 2007.

The case is on appeal from a July 2017 rating decision.

Entitlement to Chapter 33 education benefits.

A remand is necessary in this case to determine the authority pursuant to which the Veteran was called to service after September 10, 2001.  The Veteran claims that he is entitled to Chapter 33 education benefits because he served on active duty after September 10, 2001.  In support, he has submitted orders calling him to active service during his time in the reserves.

Relevant to this case, an individual may establish eligibility for Chapter 33 education benefits if, after September 10, 2001, if he or she serves a minimum of 90 aggregate days on active duty excluding entry level and skill training.  38 U.S.C. §§ 3301, 3311; 38 C.F.R. § 21.9520(a).  

For Chapter 33 education benefits, active duty means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304.  38 C.F.R. § 21.9505. Relevant to this case, active duty does not include full-time National Guard Duty performed under 32 U.S.C. orders.  38 U.S.C. § 3301; 38 C.F.R. § 21.9505.

In October 2017, the Veteran submitted to VA the orders calling him to active service during his time in the reserves (from August 1998 to September 2007).  These orders reveal that the Veteran was called to service in the Air National Guard under authority of 10 U.S.C. § 12301(d) and 10 U.S.C. § 12310.  Further, a DD 214 of record notes that the Veteran retired in September 2007 and that the Veteran had over nine years of active service since August 1998.  Under 38 C.F.R. § 21.9505, service under orders issued pursuant to 10 U.S.C. § 12301(d) is considered active duty service, but orders issued pursuant to 10 U.S.C § 12310 are not.

This evidence has raised the possibility that the Veteran may be entitled to Chapter 33 benefits.  Therefore, the Board finds that a remand is necessary so that the agency of original jurisdiction may contact the appropriate agencies within the Department of Defense (DoD) to attempt to resolve the ambiguity as to the authority under which the Veteran was called to service and the nature of his service.

The matter is REMANDED for the following action:

Contact the appropriate agencies (to include DoD) to clarify the authority under which the Veteran was called to service and nature of his service for his periods of service after September 10, 2001.

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In doing so, please note that a DD 214 indicates that the Veteran had 9 years of active service between August 1998 and September 2007 as well as the orders submitted by the Veteran indicating that he was called to service pursuant to 10 U.S.C. § 12301(d) and 10 U.S.C. § 12310.

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	J. George

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.