Citation Nr: 20002933 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 17-41 022 DATE: January 14, 2020 REMANDED The claim of entitlement to a higher level of payment of educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), currently paid at the 40 percent level, is remanded. REASONS FOR REMAND The record reflects that the Veteran served with the United States Marine Corps Reserve, which service included a verified period of active duty from March 9, 2003, to July 18, 2003. The Veteran was also issued a DD Form 214 reflecting honorable active duty service for the period from June 17, 2002, to December 19, 2002. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2017 determination that the Veteran was entitled to Chapter 33 educational assistance benefits only at the 40 percent level. The RO’s determination was based on a finding that the Veteran had 132 days of creditable active duty service after September 10, 2001. The Veteran disagreed with RO’s determination regarding his entitlement and this appeal ensued. Specifically, the Veteran disagrees that he is entitled to benefits only at the 40 percent level, noting that it had previously been determined that he was entitled to receive Chapter 33 educational assistance benefits at the 70 percent level. At the outset, the Board notes that entitlement to Chapter 33 educational assistance benefits for the Veteran is not at issue, as entitlement to such has been established. What is at issue in this case is the level of payment to which the Veteran is entitled. Specifically, the amount of educational assistance payable under Chapter 33 of Title 38 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 due to a service-connected disability. 38 C.F.R. § 21.9640(a). Relevant to the instant claim, 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 under 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). The evidence of record shows that in February 2010, the RO issued to the Veteran a “Certificate of Eligibility” reflecting that the Veteran was entitled to receive 36 months of Chapter 33 educational assistance benefits at the 70 percent level. It was indicated that the RO had determined the Veteran’s percentage “based on the length of creditable active duty service,” but it was not stated the number of days used by the RO to determine the payment level. However, a Chapter 33 eligibility calculator worksheet is of record, which worksheets reflects a finding that the Veteran had active duty service from June 18, 2002, to December 20, 2002, and from March 9, 2003, to March 8, 2004, amounting to 552 days of creditable service. The Veteran then sought to use his Chapter 33 benefits for a program of training beginning in March 2017. Via letter dated in April 2017, the RO informed the Veteran that he had been awarded Chapter 33 educational assistance benefits and that, as of March 27, 2017, he was entitled to receive such benefits at the 40 percent rate. It was stated that the 40 percent rate was determined based on the Veteran’s 132 days of creditable active duty service after September 10, 2001, which service was from March 9, 2003, to July 18, 2003. It was also stated that dates of entry level and skill training could not be included in the calculation of creditable service because the Veteran’s total aggregate service was less than 24 months. See 38 C.F.R. § 21.9640 (providing for the exclusion of entry level and skill training for service less than 24 months). With regard to the calculation for creditable service for purposes of entitlement to Chapter 33 educational assistance benefits, the Board finds that additional development is necessary before it can reach the question of whether the Veteran is entitled to a higher rate of payment for such benefits. Notably, in February 2017, the agency of original jurisdiction (AOJ) initiated a request with the Department of Defense (DoD) requesting the DoD provide all dates of “Recruit Training and Marine Corps Training or School of Infantry Training.” Unfortunately, the record currently before the Board contains no response from DoD. Accordingly, as it does not appear that the development sought by the AOJ has been completed, the Board finds it necessary to again remand the matter for the AOJ to make another request with DoD to determine the aggregate length of the Veteran’s periods of active duty service for Post-9/11 GI Bill purposes. In finding that DoD verification of the Veteran’s service is necessary in this case, the Board points out that the Veteran’s DD Form 214 for his period of service from June 17, 2002, to December 19, 2002, indicates that that service was “active duty” as part of the “Reserve Special Enlistment Program.” Notably, it is indicated that the Veteran attended an eight week food service course and record also contains a certification of completion of the “Food Services Specialist Course” running from October 29, 2002, through December 18, 2002. To the extent that the food service course is considered to be “skill training,” a question remains as whether the remainder of the Veteran’s “active duty” from June 17, 2002, to October 29, 2002, is creditable for purposes of entitlement to Chapter 33 educational assistance benefits. The Board also questions whether the eight week food service course qualifies as entry level and skill training, as that term is defined by regulation for members of the Marine Corp as “[r]ecruit training and Marine Corps Training (School of Infantry Training).” 38 C.F.R. § 21.9505(4). In the instant case, the Veteran joined the Marine Corps Reserves in January 2002. Thus, it would not appear as though the period from June 17, 2002, to October 29, 2002, was the Veteran’s period of initial active duty training. Indeed, of record is a “Notice of Basic Eligibility,” which establishes eligibility for educational assistance benefits under Chapter 1606, Title 10, of the United States Code (known as the Montgomery GI Bill for Selected Reserves (MGIB-SR)), indicates that the Veteran became eligible for such benefits on June 17, 2002. As eligibility is not established until after completion of initial active duty for training, this would suggest that the Veteran had already completed such required training as of June 17, 2002. Accordingly, the Board finds it necessary to verify the exact nature of the Veteran’s June 17, 2002, to October 29, 2002, to include a determination as to whether that service, or any portion thereof, can be creditable service for purposes of entitlement to educational assistance benefits under Chapter 33. The Board further notes that information obtained from the Veterans Information Solutions (VIS), which is a web-based application that provides VA with access to information from the Defense Enrollment Eligibility Registration System (DEERS) indicates an additional two days of active duty service, from June 16, 2002, to June 17, 2002, and does not contain any indication of periods of basic or skills training that do not count as active duty for those claimants serving 24 months of less on active duty. It does not appear as though the AOJ credited the Veteran with these two days of service, and verification must be made as to whether the Veteran was in fact on active duty at that time. Lastly, the Board points out that the Veteran’s service personnel records contain a notification of activation stating that the Veteran would be on “active duty for a minimum period of 9 March 2003 to 8 March 2004 and up to a longer period as deemed necessary by the President of the United States.” In this regard, the Board notes that the Veteran maintains that he remained on active duty after the July 18, 2003, release from active duty date listed on his DD Form 214. Again, DoD verification of all dates of active duty service is required in this case to ensure that the correct facts regarding the Veteran’s service are before the Board. The matter is REMANDED for the following action: 1. Undertake appropriate action to obtain any outstanding/available documentation necessary to verify all the Veteran’s periods of active duty and active duty for training service occurring after September 10, 2001. The Board points out information obtained from the VIS indicates two days of active duty service, from June 16, 2002, to June 17, 2002; however, there are no orders of record to establish that the Veteran was serving on active duty at the time. The AOJ should specifically request copies of all active duty orders issued for the Veteran. 2. After the above development has been completed and all available records have been received, submit a request to the DoD to determine the Veteran’s periods of service that qualify as active duty service for purposes of entitlement to Chapter 33 educational assistance benefits. DoD should be requested to consider specifically whether the Veteran’s period of service from June 17, 2002, to October 29, 2002, which is indicated to be active duty service on his DD Form 214, is creditable service for purposes of entitlement to benefits under the Post-9/11 GI Bill. DoD should be asked to explain all findings regarding this specific period of service. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.