Citation Nr: 20004352 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 17-10 472 DATE: January 17, 2020 ORDER Entitlement to an additional refund of basic contribution to Chapter 30 (Montgomery GI Bill (MGIB)) education benefits in the amount of $175 is granted. FINDING OF FACT The Board finds that it is as likely as not that the Veteran made a basic contribution of $1200 to Chapter 30 (MGIB) education benefits. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to an additional refund of basic contribution to Chapter 30 education payments in the calculated amount of $175 are met. 38 U.S.C. §§ 3011(b)(1), 5107(b) (2012); 38 C.F.R. §§ 21.7042, 21.9520, 21.9550, 21.9645(b) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to August 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 determination of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia. This matter was previously before the Board in April 2019 at which time the case was remanded for additional development. The Veteran in this case was initially in receipt of educational assistance benefits under Chapter 30 (MGIB). The governing law and regulations for the MGIB program are found under 38 U.S.C. §§ 3001-3035 and 38 C.F.R. §§ 21.7000-21.7320. He subsequently made an irrevocable election via VA Form 22-1990 to receive educational assistance under the provisions of Chapter 33 (post 9/11 GI Bill), effective in September 2011. The governing law and regulations for the post 9/11 GI Bill program are found under 38 U.S.C. §§ 3001-3035 and 38 C.F.R. §§ 21.9500-21.9750. Such law and regulations provide that an individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. Chapter 30, but retains unused entitlement under that chapter, and makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33, will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 C.F.R. § 21.9550 (b)(1). At the time of the Veteran’s election to receive Chapter 33 benefits, he had 31 months and 15 days (945 days) remaining of Chapter 30 benefits. Also, the aggregate period for which any person may receive assistance under two or more programs (i.e., Chapter 30 and Chapter 33) may not exceed 48 months, or the part-time equivalent. 38 C.F.R. § 21.4020. If, however, Chapter 30 benefits have not been exhausted, as in this case, or used at all, the veteran must irrevocably elect to receive Chapter 33 benefits in lieu of Chapter 30 benefits, and is limited to no more than 36 months of total entitlement. 38 C.F.R. §§ 21.7072, 21.9520, 21.9550. The issue at hand involves a refund of contributions that the Veteran made for Chapter 30 education benefits. In this regard, Veterans who irrevocably elect to use Chapter 33 education benefits in lieu of Chapter 30 education benefits, under certain conditions, may receive a refund of contributions made to receive Chapter 30 education benefits, up to $1200. 38 C.F.R. § 21.9645 (a). The contributions will be refunded as an increase to the monthly housing allowance at the time entitlement to Chapter 33 educational benefits is exhausted. See 38 C.F.R. § 21.9645 (c). Here, the Veteran is shown to have exhausted his Chapter 33 benefits in February 2016, and his entitlement to a refund under 38 C.F.R. § 21.9645 (a) is not in dispute. Rather, what is in dispute is the amount of the refund that he is entitled to. VA regulation provides that the amount of any payment made to the individual who made the contributions (for Chapter 30 benefits) will be equal to the total amount of contributions toward basic educational assistance made by the individual as provided in 38 C.F.R. § 21.7042(g) multiplied by the fraction with - (a) A numerator equal to - (i) The number of months of entitlement under 38 U.S.C. chapter 30 remaining to the individual at the time of the election and the number of months, if any, of transferred entitlement under 30 U.S.C. chapter 30 that the individual revoked; or (ii) 36 for individuals making contributions in accordance with § 21.9645(a)(iii); and (2) A denominator equal to 36. 38 C.F.R. § 21.9645 (b). In November 2015, a VA education officer informed the Veteran that he was entitled to a portion of his $1200 contribution for Chapter 30 educational assistance benefits in the amount of $1050 ((945 days (31 months, 15 days) of Chapter 30 entitlement remaining, divided by 1080 days (36 months) = .875 multiplied by $1200). However, in December 2015, VA informed the Veteran that he had contributed $1000 for Chapter 30 educational assistance benefits and he was thus entitled to a portion of this contribution in the amount of $875 (.875 multiplied by $1000). The Veteran disagrees with the December 2015 determination. He asserts that he made contributions totaling $1200 ($100 a month x 12 months), rather than $1000 ($100 x 10 months), and that this fact should be recognized in his refund calculation. Pertinent evidence includes information from the Department of Defense (DoD) in February 2016 and October 2019 showing that the Veteran’s total contribution was $1000. However, the DoD also noted that the Defense Finance Accounting Service (DFAS) could have different information. Pay records obtained from DFAS for the Veteran’s first 12 months of active service, from January 1989 to December 1989, show 10 deductions of $100 beginning in March 1989. Thus, the total amount of contributions shown by these records for this period is $1000. In asserting that he contributed $1200 for Chapter 30 educational assistance, the Veteran points out that eligibility for the MGIB program requires a $1200 contribution and that the remaining two months of contributions could have been deducted from his pay in January 1990 and February 1990. Unfortunately, the DFAS informed VA in December 2016 that the Veteran’s pay records for the period from January 1990 through March 1990 could not be located. The Veteran is correct in reporting that the pertinent law and regulations governing the reduction of basic pay for the purpose of participating in the MGIB program specify that the basic pay of any participant shall be reduced by $100 for each of the first 12 months. 38 U.S.C. § 3011 (b) (1); 38 C.F.R. § 21.7042. Furthermore, to the extent that basic pay is not so reduced before the individual’s discharge or release from active duty, regulations require that VA will collect from the individual an amount equal to the difference between $1200 and the total amount of the reductions described in this paragraph. Moreover, if the basic pay of an individual is not so reduced and/or VA does not collect from the individual an amount equal to the difference between $1200 and the total amount of the pay reductions, that individual is ineligible for educational assistance. Accordingly, the Veteran asserts that since he was awarded Chapter 30 educational assistance benefits, he ipso facto made the full $1200 contribution. VA regulation further provides that if the failure to reduce the individual’s basic pay and/or the failure to collect from the individual was due to administrative error on the part of the Federal government or any of its employees, the individual may be considered for equitable relief depending on the facts and circumstances of the case. See section 2.7 of this chapter. 38 C.F.R. § 21.7042(g)(5)(ii). Based on the available evidence, it is plausible that the Veteran only contributed $1000 of the required $1200 contributions for entitlement to the MGIB program without VA collecting the difference and that VA erred in awarding him Chapter 30 benefits. Certainly, in such a case, he is only entitled to a portion of the $1000 contribution pursuant to the formula under 38 C.F.R. § 21.9645 (b). However, it is equally plausible that since the Chapter 30 pay deductions of $100 began in the Veteran’s third month of active duty, in March 1989, the contributions were extended by two months ending in February 1990. In such a case, the Veteran is entitled to a portion of his $1200 contribution pursuant to the formula under 38 C.F.R. § 21.9645 (b). As noted, attempts to obtain the Veteran’s pay records from January 1990 to March 1990 were unsuccessful. In cases such as this where there are missing service records, there is a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005); Russo v. Brown, 9 Vet. App. 46, (1996). (Continued on the next page)   Thus, by resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran contributed the full required amount of $1200 for the MGIB program and he is thus entitled to an additional refund of basic pay for Chapter 30 benefits in the calculated amount of $175 (.875 x $200). See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 21.9645 (b). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.