Citation Nr: 20005409 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 16-24 607 DATE: January 24, 2020 ORDER Entitlement to Post-9/11 GI Bill educational benefits under Chapter 33, Title 38, of the United States Code is denied. FINDING OF FACT The Veteran did not have 90 days of qualifying active duty for Chapter 33 educational benefit purposes. CONCLUSION OF LAW The criteria for entitlement to Post-9/11 GI Bill educational benefits under Title 38, Chapter 33 of the United States Code have not been met. 38 U.S.C. §§ 3301, 3311 (2012); 38 C.F.R. §§ 21.9520, 21.9640 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard (ANG) from August 21, 2009 to September 30, 2013. The Veteran was separated from the reserves (ANG) in September 2013 due to medical disqualification, but he has no service-connected disabilities. The Veteran seeks educational benefits payable under Chapter 33 (or the post-9/11 GI Bill), which was established for “individuals who served on active duty after September 10, 2001,” and was made effective in August 2009. 38 C.F.R. § 21.9500. Based on a review of the evidence and the applicable laws and regulations, the Board finds that entitlement to educational benefits under Chapter 33 is not warranted. VA promulgated provisions for eligibility for this benefit based on certain qualifying periods and types of active duty service. See 38 U.S.C. §§ 3301-24 (2012); 38 C.F.R. § 21.9520. An individual may establish eligibility for basic educational assistance under Chapter 33 by showing that he or she had active duty service after September 10, 2001, and: (a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service, (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; or (b) 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. 38 C.F.R. § 21.9520. The Veteran contends that he has more than 90 days of qualifying active duty service after September 10, 2001. On his November 2016 VA Form 9, the Veteran asserted that his DD214 is incorrect because it only showed service from September 28, 2009 to August 8, 2010. He maintains that he was in the service for four years, one month and 10 days. The Veteran submitted his Army National Guard “Report of Separation and Record of Service” which shows that he had a total of four years, one months and 10 days of Army National Guard service. The Veteran asserts that this document and an “Army National Guard Retirement Points History Statement” (Retirement Statement) verify that he had more than 90 days of active duty service and that he was honorably discharged. The record reflects the Veteran enlisted in the Army National Guard on August 21, 2009. He was subsequently ordered to initial active duty for training (IADT) from September 28, 2009 to August 11, 2010. Under 38 C.F.R. § 21.9640(a), entry level and skills training must not be counted in an individual’s aggregate length of creditable service until the individual has at least 24 months of other qualifying active duty service. This Veteran does not have 24 months of other qualifying active duty service. For members of the Army, the phrase “entry level and skills training” is defined as basic combat training and advanced individual training. 38 C.F.R. § 21.9505. The Veteran’s DD214 specifically notes in box 12h that the Veteran’s entire 10 months and 14 days of active duty between September 28, 2009 and August 11, 2010 was initial entry training. Consequently, this period of active duty is not countable towards the 90 days of required active duty for eligibility for Chapter 33 benefits. See 38 C.F.R. § 21.9520(a). The Board notes that although the Veteran’s Report of Separation and Record of Service does verify that the Veteran was in the Army National Guard (reserves) for four years, one month and 10 days, however, it does not verify whether the Veteran had any days of qualifying active duty for VA Chapter 33 eligibility purposes. Furthermore, the Retirement Statement submitted by the Veteran verifies that the Veteran does not have 90 days of qualifying active duty. It shows that the Veteran only had 39 days of active duty after completing the 10 months and 14 days (318 days) of noncountable initial entry training. The “AD Pts” column on this document shows that the Veteran had 24 days of active duty between August 21, 2010 and August 20, 2011, and 15 days of active duty between August 21, 2011 and August 20, 2012, for a total of 39 days. Consequently, even if all 39 days were to be countable active duty days, they would not total the required 90 days necessary for Chapter 33 benefit eligibility. Furthermore, in September 2017 the Department of Defense (DoD) reviewed the Veteran’s records and stated that the Veteran’s periods of active duty, after completing the initial active duty for training in August 2010, were all periods of “Active Duty for Annual Training under Title 32.” This verifies that all of the 39 days shown on the Retirement Statement were active duty for training and not qualifying active duty days toward the required 90 days of active duty for Chapter 33 eligibility purposes. In this case, the Board finds that the Veteran has insufficient qualifying active duty service to establish eligibility for Chapter 33 educational benefits. As indicated above, an individual may establish eligibility for basic educational assistance under Chapter 33 based on active duty service after September 10, 2001, if he or she served a minimum of 90 aggregate days excluding entry level and skill training. 38 C.F.R. § 21.9520(a). The record reflects that all of the Veteran’s active duty military service consisted of entry level and skill training. This is consistent with documents submitted by the Veteran and with correspondence from the Department of Defense. On September 17, 2019, the DoD verified that all of the Veteran’s active duty was entry level and skill training. Based on a review of the evidence and the applicable laws and regulations, the Board finds that entitlement to educational benefits under Chapter 33 is not warranted. Accordingly, the appeal is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.