Citation Nr: 19154303 Decision Date: 07/12/19 Archive Date: 07/12/19 DOCKET NO. 19-01 049 DATE: July 12, 2019 REMANDED Entitlement to educational assistance benefits in excess of 90 percent under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from December 2005 to November 2006 and in the U.S. Army from December 2009 to February 2011 with additional periods of service in the Navy Reserves, Coast Guard Reserves, and Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 Certificate of Eligibility by the Department of Veterans Affairs (VA) Regional Office (RO), which found that the Veteran was entitled to receive 80 percent of the benefits payable under the Post-9/11 GI Bill program. The Veteran appealed for a higher rate of benefits. During the pendency of the appeal, the RO issued a May 2018 Certificate of Eligibility, which found that the Veteran was entitled to receive 90 percent of the benefits payable under the Post-9/11 GI Bill program. The Veteran continued to appeal for a higher rate of benefits. 1. Entitlement to educational assistance benefits in excess of 90 percent under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is remanded. The Board notes that it has already been established that the Veteran meets the eligibility requirements for Post-9/11 GI Bill educational assistance benefits. Rather, the dispute is over whether the Veteran has additional periods of National Guard or Navy Reserve service that qualifies as a period of service to be counted towards eligibility for a higher level of Post-9/11 GI Bill educational assistance. The Veteran is specifically asserting that his periods of National Guard service from May 12, 2013 to September 30, 2013 and from October 1, 2013 to September 30, 2014 qualify as active duty, because he was performing full-time duty in the National Guard for the purpose of organizing, administering, recruiting, instructing, or training the National Guard. The Post-9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. For members of the regular components of the Armed Forces, qualifying active duty service is full-time duty other than active duty for training. 38 U.S.C. § 3301(1)(A). For members of the reserve components of the Armed Forces, qualifying active duty includes service on active duty under a call or order to active duty under 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 or 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). Under the regulations issued in March 2009, implementing the original provisions of the Post 9/11 GI Bill, full-time National Guard duty performed pursuant to orders issued under Title 32, United States Code, was specifically excluded from the definition of “active duty.” 38 C.F.R. § 21.9505; see also 38 U.S.C. §§ 101(21), (22)(C) (likewise defining “active duty” to exclude full-time duty in the National Guard under 32 U.S.C. § 502); 38 C.F.R. § 3.6(c)(3) (defining full-time duty performed by members of the National Guard of any State under 32 U.S.C. § 502 as “active duty for training”). However, in January 2011, pursuant to Pub. L. No. 111-377 (the Post-9/11 Veterans Educational Assistance Improvements Act of 2010), § 101, the definition of “active duty” was expressly expanded for purposes of Post-9/11 GI Bill eligibility to include certain full-time service in the National Guard, as follows: (1) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, or (2) in the National Guard under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38 U.S.C. § 3301(1)(C). The amended definition was given effect as of August 1, 2009, as if included in the original enactment of the Post-9/11 GI Bill. Pub. L. No. 111-377, § 101(d) (effective dates). (Notably, the relevant regulation, 38 C.F.R. § 21.9505, has not yet been amended to incorporate the expanded definition of “active duty” as it now appears in the statute.). The Board notes that in the May 2018 Certificate of Eligibility, the RO listed seven periods of qualifying active duty service. On that basis, the RO awarded the Veteran Post-9/11 educational assistance benefits at the 90 percent rate. However, the record shows that there appears to be a discrepancy as to whether the Veteran has additional periods of qualifying active duty service. According to a DD Form 214, the Veteran served from May 12, 2013 to June 6, 2014. It also shows that he completed and was released from active duty. A May 2018 Information Report from the VA/Department of Defense (DOD) Identity Repository (VADIR) indicates that the Veteran’s service in the Navy Reserves from August 4, 2003 to August 20, 2003, from July 2, 2004 to July 20, 2004, from September 19, 2005 to September 22, 2005, from September 26, 2005 to September 29, 2005, and from March 23, 2008 to March 28, 2008 and in the Army National Guard from October 1, 2013 to September 30, 2014 were all qualifying active duty periods. In September 2018, the DOD responded to the RO’s request for information on the Veteran’s qualifying active service. The DOD stated that the Veteran’s service from May 12, 2013 to June 6, 2014 and from June 7, 2014 to September 30, 2014 was Title 32 Section 502(f) Active Duty Operational Support. Both periods were characterized by the DOD as not qualifying service. However, the DOD did not provide any information regarding the qualifying status of the Veteran’s service from August 4, 2003 to August 20, 2003, from July 2, 2004 to July 20, 2004, from September 19, 2005 to September 22, 2005, from September 26, 2005 to September 29, 2005, or from March 23, 2008 to March 28, 2008. The Board finds that there is an inconsistency between the May 2018 Information Report from VADIR and the September 2018 DOD response as to which of the Veteran’s periods of service qualify as active duty. Because DOD’s findings as to Veteran’s periods of service are binding on VA, the Board must have an accurate and complete record of such service. Accordingly, before adjudicating the Veteran’s claim for a higher level of Post-9/11 GI Bill benefits, a remand is required in order for the DOD to clarify the inconsistencies in the record regarding the Veteran’s periods of qualifying active duty service. The matter is REMANDED for the following actions: 1. Contact the DOD or any other appropriate official source to clarify whether any of the following Veteran’s periods of service qualify as active duty: August 4, 2003 to August 20, 2003; July 2, 2004 to July 20, 2004; September 19, 2005 to September 22, 2005; September 26, 2005 to September 29, 2005; March 23, 2008 to March 28, 2008; and October 1, 2013 to September 30, 2014. If a determination is made that any of these service periods do not qualify as active duty service, explain the inconsistency found in the May 2018 VADIR report, which indicates that these service periods are qualifying active duty periods. If a determination is made that any of these service periods do not qualify as active duty service, specify how the Veteran’s service does not qualify as active duty under 38 U.S.C. § 3301. 2. Document and associate any findings made by the relevant service departments with the claims file. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw 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.