Citation Nr: 21000921 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-35 714 DATE: January 6, 2021 REMANDED Educational assistance benefits under Chapter 33, Title 38, U.S.C., also known as the Post 9/11 GI Bill.   REASONS FOR REMAND The Veteran served on active duty from January 1999 to May 1999, with additional service in the Army National Guard (ARNG). Te case is on appeal from a December 2015 VA decision that denied entitlement to educational assistance benefits under the Post 9/11 GI Bill. In a March 2019 decision, the Board denied the Veteran’ claim seeking entitlement to the referenced educational assistance benefits. The Veteran appealed the Board’s March 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, on the basis of a June 2020 Joint Motion for Remand (JMR), the Court vacated and remanded the Board’s decision for further development and readjudication for the reasons set forth below. Educational assistance benefits under the Post 9/11 GI Bill. The June 2020 JMR states the Board erred in failing to provide an adequate statement of reasons or bases to enable the Veteran to understand the basis for the Board’s decision and to facilitate review by the Court. In essence, the parties agreed that while the Board did not find a period of qualifying active duty service longer than 90 days in order to be eligible for educational assistance benefits under the Post 9/11 GI Bill, an ARNG Retirement Points History Statement of record shows a period or “Army National Guard Mobilized Service” from September 8, 2004 to January 6, 2005, which the Board failed to address whether such period constitutes qualifying service pursuant to 38 U.S.C. § 3301, et seq. The parties further agreed that such Retirement Points History Statement indicating an active duty period greater than 90 days in turn suggests that there may be outstanding ARNG service personnel records. As such, the question for the Board is whether the Veteran’s service between September 2004 and January 2005, made reference to by the parties in the June 2020 JMR, can be considered as “qualifying active duty service” for purposes of the Post 9/11 GI Bill. 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 or a member of the Army or Air National Guard of the United States, 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.). With pertinence to the present appeal, 10 U.S.C. §12301(h) provides that when authorized by the Secretary of Defense, the Secretary of a military department may, with the consent of the member, order a member of a reserve component to active duty – (A) To receive authorized medical care; (B) To be medically evaluated for disability or other purposes; or (C) To complete a required Department of Defense health care study, which may include an associated medical evaluation of the member. The provision further indicates that “[a] member of the Army National Guard or the Air National Guard of the United States may be ordered to active duty under this subsection only with the consent of the Governor or other appropriate authority of the State concerned. See 10 U.S.C. §12301(h)(3). With that legal framework in mind, the Board notes that in February 2019, the Veteran submitted an ARNG Retirement Points History Statement which reflects that between September 8, 2004, and January 6, 2005, his “Military Membership Status Identifier” (MMSI) was characterized as B2, which in turn is described as “Army National Guard Mobilized Service.” The Veteran was credited 121 days (points) of active duty service. The statement was accompanied by Department of Defense and Accounting Services (DFAS) Leave and Earnings Statement (LES) reflecting full time duty pay due to incapacitation. Nevertheless, the foregoing documents nor the additional evidence of record indicate under which legal authority the Veteran performed such service. Orders number 230-725, dated on August 17, 2004, reflect that the Veteran was ordered to active duty effective September 8, 2004, in support of Operation Iraqi Freedom (OIF) and under the authority of 10 U.S.C. §12302. Thereafter, an October 5, 2004 Army Memorandum reflects that the Veteran had been on incapacitation pay since April 2004 due to a meniscus tear of the right knee for which an extension of the Veteran’s incapacitation pay was requested. See November 1, 2004 Memorandum. In his July 2016 VA Form 9, the Veteran indicated that while the right knee injury hindered him from deployment, he remained on active duty Orders pending a right knee surgery. The Board notes that while the August 2004 Orders No. 230-725 were specifically issued for the Veteran’s deployment to OIF which, as previously noted, such deployment never occurred given the Veteran’s right knee injury. However, while the evidence supports that he indeed remained on active duty from September 8, 2004 to January 6, 2005, it does not demonstrate whether the Veteran remained on active duty for medical treatment under 10 U.S.C. §12301(h) or any other authority. Moreover, additional Orders releasing the Veteran from active duty service either in 2004 or 2005 have not been associated with his claims file. Given that the record shows some indication that there may be outstanding ARNG personnel records as noted above, the Board finds that a remand is warranted for further development to clarify the nature and legal authority under which the Veteran was ordered to remain on active duty service, and to subsequently readjudicate the present appeal in accordance with the reasons herein discussed and the June 2020 JMR. The matters are REMANDED for the following action: 1. First, request from the Secretary of the Army, the California ARNG, NPRC, JSRRC, or any other official source, to investigate and attempt to verify and provide VA with the Veteran’s complete personnel service records, to include a copy of the Veteran’s military Orders ordering him to, or releasing him from active duty between 2004 and 2005, and under what section of Title 10 or Title 32, if applicable, such Orders were issued. All efforts to obtain these records must be documented in the claims file. 2. After all development has been completed and the records have been associated with the Veteran’s claims file, readjudicate the Veteran’s claim for entitlement to Post 9/11 G.I. Bill in accordance with the findings set forth in the Reasons for Remand section of this Remand, with particular attention to the statutes cited in regard to medical treatment under Title 10, U.S.C. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, Associate 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.