Citation Nr: 20003799 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 15-41 358 DATE: January 16, 2020 ORDER Entitlement to basic eligibility to educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is granted. FINDINGS OF FACT 1. The Veteran’s service from February 2009 to March 2009 constitutes active duty service for entitlement to educational assistance benefits under Chapter 33. 2. The Veteran served on active duty for 30 continuous days and was discharged due to a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to basic eligibility to educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) have been met. 38 U.S.C. §§ 3301, 3311; 38 C.F.R. § 21.9520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Army National Guard from February 2009 to March 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to eligibility to Post-9/11 GI Bill educational assistance benefits, because the Veteran did not have qualifying active duty service after September 10, 2001. (The Board notes, parenthetically, that a copy of the letter notifying the Veteran of the denial of his claim is not of record; however, as the Board is able to review the statement of the case (SOC), which provides reasons for the RO’s determination that the Veteran did not meet the basic eligibility requirements for receipt of Post-9/11 GI Bill educational assistance benefits, the Board’s inability to review the December 2014 determination is therefore not prejudicial to the Veteran. Accordingly, the Board finds no reason to delay adjudication of the matter currently before it to attempt to obtain a copy of the RO’s December 2014 determination.). The case was initially brought before the Board in November 2017, at which time the Board denied entitlement to basic eligibility to educational assistance benefits under the Post-9/11 GI Bill. The Veteran appealed the November 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2018 memorandum decision, the Court vacated the November 2017 decision denying entitlement to basic eligibility to educational assistance benefits under the Post-9/11 GI Bill and remanded the matter for readjudication. The case has been returned to the Board. Duties to Notify and Assist Given the Board’s favorable decision in granting entitlement to basic eligibility to Post-9/11 GI Bill educational assistance benefits, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Analysis 1. Entitlement to basic eligibility to educational assistance benefits under the Post-9/11 GI Bill As noted above, this case was appealed to the Court, which issued a memorandum decision in December 2018 concluding that the Board did not provide adequate reasons and bases for finding that the Veteran did not qualify for Post-9/11 GI Bill benefits under 38 U.S.C. § 3301(1)(B). The governing law specifies that an individual may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (1) continues on active duty; (2) is discharged from service with an honorable discharge; (3) is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) is released from service characterized as honorable for further service in a reserve component; or (5) is discharged or released from service for - (i) a medical condition that preexisted such service and is not determined to be service-connected; (ii) hardship, as determined by the Secretary of the military department concerned; or (iii) a physical or mental condition that interfered with the individual’s performance of duty but was not characterized as a disability and did not result from the individual’s own misconduct. See 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(a). Under paragraph (b), an individual is also eligible for benefits under 38 U.S.C. Chapter 33, if he or she serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. See 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(b). For members of the regular components of the Armed Forces, qualifying active duty service under the Post-9/11 GI Bill 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), 12301(h), 12302, 12304, 12304a, or 12340b or 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). (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.). In this case, the Veteran asserts that he warrants eligibility to Post-9/11 GI Bill educational assistance, because he had at least 30 days of continuous active duty service, and he was separated from service due to a service-connected disability. First, the Veteran asserts that his service from February 2009 to March 2009 qualifies as active duty service, because he was called or ordered to active duty under 10 U.S.C. § 12301(d). Second, the Veteran asserts that he was separated from service due to a low back injury, for which he was subsequently granted service connection. In January 2009, the Veteran was ordered to initial active duty for training (IADT) under 10 U.S.C. § 12301 with the consent of the Governor of Missouri. He was ordered to report in February 2009 for 10 weeks for basic training and 15 weeks and two days for military occupational specialty (MOS) training. See January 2009 Orders. In March 2009, the Veteran underwent a medical evaluation by the Entrance Physical Standards Board (EPSB). At the time, the Veteran was in the third week of basic training. He had persistent back pain since the first week, and an x-ray revealed that he had multilevel spondylosis. Finding that the Veteran had persistent level of incapacitating pain despite receiving treatment, the EPSB found that he was unable to complete basic training. It was recommended that the Veteran be separated from the U.S. Army for failure to meet medical procurement standards. According to the Veteran’s DD Form 214, the Veteran served in the Army National Guard from February 2009 to March 2009 for a total period of one month and 14 days. He was separated from service for failed medical/physical procurement standards. His service was noted as “uncharacterized.” In an October 2014 Department of Defense (DOD) correspondence, the DOD responded that the Veteran had never completed his IADT, and his discharge was uncharacterized. The DOD noted that when separated from training status, uncharacterized equates to an honorable discharge. The DOD also noted that the Veteran had no service for Chapter 33 purposes. The Board will first address the Veteran’s contention that he was called or ordered to active duty under 10 U.S.C. § 12301(d). The Board notes that the January 2009 orders is the only evidence in the record that identifies under what authority the Veteran was ordered to report for IADT. Those orders specify that the Veteran was ordered to report for IADT for basic training and MOS training under 10 U.S.C. § 12301. However, since no subsection was identified, the question remains what subsection of section 12301 could apply to the Veteran’s service. Orders to active duty under section 12301 are listed under subsections (a), (b), (d), (g) or (h). Subsection (b) does not apply in this case, as it pertains to service for a period of less than 15 days, and the orders clearly show that the Veteran was ordered to report for 10 weeks for basic training and 15 weeks and two days for MOS training. Subsection (g) only applies to service members who are in “captive status,” meaning those gone missing as a result of hostile action, which is clearly not the case here. Subsection (h) pertains to active duty for reservists while on medical hold, which also does not apply in this case. Thus, the evidence shows that the Veteran was ordered to service under either 10 U.S.C § 12301(a) or (d). Service under both subsection (a) and (d) of section 12301 qualify as active duty under 38 C.F.R. § 3301(1)(B). Subsection (a) applies to reservists who are ordered to active duty for the duration of a war or for a national emergency declared by Congress and for six months thereafter. The orders do not mention service in support of a war effort or a national emergency. Thus, the Board finds that subsection (a) does not apply in this case. However, subsection (d) specifically states that a reservist may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State. In this case, the January 2009 orders specifically provide that the Veteran was ordered to report “with the consent of the Governor of Missouri.” Therefore, the Board concludes that the Veteran was ordered to report to IADT for basic training and MOS training under the authority of subsection (d) of section 12301. Accordingly, the Board finds that the Veteran’s service from February 2009 to March 2009 qualifies as active duty service for entitlement to educational assistance benefits under Chapter 33. Furthermore, even though the Veteran did not complete his IADT, the evidence clearly shows that he served for one month and 14 days, which is more than the required 30 continuous days on active duty for Chapter 33 purposes. See 38 C.F.R. § 3311. Next, the Board must address the character of the Veteran’s discharge. The Board finds that VA regulations explicitly state that the individual’s discharge must be under other than dishonorable conditions for Chapter 33 purposes. See 38 C.F.R. § 21.9520(b). In this case, the Veteran’s discharge was noted as uncharacterized. Notably, when the DOD responded to VA’s request for additional information regarding the Veteran’s character of service, in its October 2014 response, the DOD indicated that the Veteran’s discharge was honorable, because he was separated from training status. (Continued on the next page)   Finally, the Board must consider whether the Veteran’s discharge from his active duty service was due to a service-connected disability. Clearly, the evidence shows that the Veteran was discharged in March 2009 for failure to meet medical procurement standards after he was diagnosed with multilevel spondylosis. In January 2014, the RO effectuated the Board’s December 2013 decision granting service connection for spondylosis, degenerative disc disease and lumbar spine strain. Based on this determination, the Board finds that the Veteran was separated from service due to a service-connected disability. Based on the foregoing, the Board finds that the Veteran served at least 30 continuous days of active duty service, that his uncharacterized service equated to honorable service, and that he was discharged from service due to a service-connected disability. Therefore, the Board finds that the Veteran has established his eligibility to Post-9/11 GI Bill educational assistance benefits. Accordingly, resolving all reasonable doubt in favor of the Veteran, his claim for entitlement to basic eligibility for educational assistance benefits under 38 U.S.C. Chapter 33 is granted. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.