Citation Nr: 20009643 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-62 189A DATE: February 6, 2020 ORDER Entitlement to a benefits payment rate in excess of 90 percent for education benefits under the Post-9/11 GI Bill (Chapter 33) is denied. FINDINGS OF FACT 1. The first five years of the Veteran’s active duty service were required to satisfy the service obligation for his participation in an academic program at the Army Academy and is specifically excluded from active duty service for the purpose of calculating the percentage of payment benefits under Chapter 33. 2. At the time of his involuntary discharge, the Veteran had 922 days of service that were qualifying active duty for calculating the percentage of payment benefits under Chapter 33. 3. The Veteran’s discharge was not due to a service-connected disability. CONCLUSION OF LAW The criteria for payment of Chapter 33 education benefits at a rate higher than 90 percent have not been met. 38 U.S.C. §§ 3301, 3311, 3313 (2012); 38 C.F.R. §§ 21.9505, 21.9640 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the Caseflow timeline for this case shows that an informal hearing presentation (IHP) was requested from the VFW on August 26, 2018, and again on October 9, 2019. Although given the opportunity, the VFW has not provided such an IHP, consequently the Board will proceed in adjudicating the Veteran’s claim. The Veteran served on active duty from May 23, 2009 until December 1, 2016 and he is a graduate of the United States Military Academy at West Point (Army Academy). The Veteran has appealed his award of Chapter 33 educational benefits at the 90 percent rate. He asserts that his award should be at the 100 percent rate. The amount of educational assistance payable under 38 U.S.C. Chapter 33 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 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). However, certain periods of service are specifically excluded from qualifying active duty service. “Active duty” does not include, among other types of service, any period of service during which the individual served as a cadet or midshipmen at one of the service academies, or a period of service required by an officer pursuant to an agreement under 10 U.S.C. §§ 4348 (Cadets: agreement to serve as officer (Army)), 6959 (Midshipmen: agreement for length of service), 9348 (Cadets: agreement to serve as officer(Air Force) (redesignated §§7448, 8459, 9348, effective February 1, 2019; Pub. L. 115232, div. A, title VIII, §808(c)(1)(A)(ii), Aug. 13, 2018, 132 Stat. 1839). Officers graduating from the Army Academy have a five-year service obligation. 10 U.S.C. §§ 7448. Thus, the Veteran’s initial five-year period of active service as a commissioned officer was properly excluded from the service countable for Post-9/11 GI Bill benefit purposes. The remaining 922 days (from May 24, 2014 to December 1, 2016) of qualifying active duty service entitles him to 90 percent of the maximum rate (i.e., at least 910 days but less than 1095 days of active duty). 38 U.S.C. § 3313(c)(7); 38 C.F.R. § 21.9540(a). (Continued on the next page)   The Veteran does not question that he only meets the criteria for the 90 percent rating based on his amount of qualifying active service. He maintains that he intended to serve an additional six months which would have entitled him to the 100 percent rate. He requests that he be provided the 100 percent rate because he was involuntarily separated due to a reduction in force. He asserted that the Department of Defense did not adequately consider the effects of the involuntary separation on the officers and enlisted during the downsizing of the military. He noted that not allowing him the additional six months of service put him at a great disadvantage, unable to receive benefits at the 100 percent rate or take advantage of the Yellow Ribbon Program. The Board recognizes the inequity caused to the Veteran when he was involuntarily discharged prior to qualifying for the 100 percent rate. Unfortunately, there is no law or regulation providing the benefit he seeks based on involuntary separation. The regulation, 38 C.F.R. § 21.9640(a), provides for a 100 percent rate if a veteran is discharged prematurely due to service-connected disability, but there is no law or regulation that provides such an exception for those who receive an involuntary discharge due to a reduction in force. Accordingly, based on the evidence of record and the Veteran’s contentions, there is no legal basis by which the Veteran’s claim for a 100 percent rate of payment can be granted. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 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.