Citation Nr: 21001135 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-38 888 DATE: January 7, 2021 REMANDED The issue of a higher level of payment of educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), currently paid at the 90-percent level, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1978 to April 1984. He had additional service as a member of the United States Naval Reserve with a verified period of active duty from January 5, 2002, to November 11, 2003, and as a member of an Army National Guard unit, with a period of active duty for training from September 21, 2010, to January 28, 2011, and a verified period of active duty from August 21, 2012, to October 10, 2013. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2016 administrative determination by a Department of Veterans Affairs (VA) Regional Office (RO) that the Veteran was entitled to Chapter 33 educational assistance benefits only at the 90 percent level. The Veteran disagreed with the determination, arguing that he was entitled to Chapter 33 educational assistance benefits payable at the 100-percent rate, and subsequently perfected an appeal of that issue to the Board. In April 2019, the Board denied payment of Chapter 33 educational assistance benefits at the 100-percent level. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). Thereafter, in April 2020, the Veteran’s attorney and VA’s General Counsel filed a Joint Motion for Remand (Joint Motion) with the Court to vacate the Board’s April 2019 decision; subsequently, the Court granted the motion that same month and the matter was remanded to the Board for further proceedings consistent with the Joint Motion. In light of points raised in the Joint Motion, and upon further review of the record, the Board finds it necessary to remand the matter currently before it for further development by the agency of original jurisdiction (AOJ). Relevant to the instant appeal, the Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. For members of the regular components of the Armed Forces, qualifying active duty service 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), 12302, or 12304, or under 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). Under the regulations issued in March 2009, implementing the original provisions of the Post 9/11 GI Bill, full-time National Guard duty performed pursuant to orders issued under Title 32, United States Code, was specifically excluded from the definition of “active duty.” 38 C.F.R. § 21.9505; see also 38 U.S.C. §§ 101(21), (22)(C) (likewise defining “active duty” to exclude full-time duty in the National Guard under 32 U.S.C. § 502 ); 38 C.F.R. § 3.6(c)(3) (defining full-time duty performed by members of the National Guard of any State under 32 U.S.C. § 502 as “active duty for training”). In January 2011, however, pursuant to Pub. L. No. 111-377 (the Post 9/11 Veterans Educational Assistance Improvements Act of 2010), the definition of “active duty” was expressly expanded for purposes of Post 9/11 GI Bill eligibility to include certain full-time service in the National Guard, as follows: (1) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, and (2) in the National Guard under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38 U.S.C. § 3301(1)(C). The amended definition is in effect as of August 1, 2009, as if included in the original enactment of the Post 9/11 GI Bill. Pub. L. No. 111-377, § 101(d). (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). At issue in the instant case is the nature of the Veteran’s service for the period from September 21, 2010, to January 28, 2011. In its April 2019 decision, the Board determined that this period of service was not qualifying active duty service for purposes of calculating entitlement to Chapter 33 educational assistance benefits because such service was not authorized by the President or the Secretary of Defense, but rather, was authorized by the Arizona state Adjutant General. In their Joint Motion, the parties found that the Board had failed to provide an adequate statement of reasons or bases for its finding in this regard, noting that the record failed to contain a copy of the Veteran’s orders ordering him to active duty training for the period from September 21, 2010, to January 28, 2011. (The Board has verified that a copy of the Veteran’s orders for this period of service is of record and can be located within the Veteran’s “Education Appeal” file.) In this regard, the Board notes that on September 8, 2010, the Veteran was ordered to active duty for training to begin on September 21, 2010, under the authority of 32 U.S.C. § 502(f). The orders appear to have come from the “Joint Force Headquarters—Arizona, Office of the Adjutant General” and there is no indication that the Veteran was called to active duty for training “for the purpose of responding to a national emergency declared by the President and supported by Federal funds.” The Veteran, however, has asserted that he was under Title 32 orders for more than a month conducting training. Notably, it does not appears as though the AOJ has sought to determine whether the Veteran was ordered to active during for training during the period from September 21, 2010, to January 28, 2011, “for the purpose of organizing, administering, recruiting, instructing, or training the National Guard,” which would be considered qualifying active duty service for the purposes of calculating entitlement to Chapter 33 educational assistance benefits. Additionally, it does not appear as though the Board previously considered whether the Veteran’s service during this period qualified as active duty under that portion of the expanded definition of active duty. Given the Veteran’s assertion regarding his Title 32 service, the Board finds that further clarification is needed regarding the Veteran’s period of service from September 21, 2010, to January 28, 2011, and the characterization of his duty status during this period. Accordingly, the Board finds it necessary to remand the matter for the AOJ to obtain all relevant documentation pertaining to that period of service and to then make a request with the Department of Defense (DoD) to determine whether the Veteran’s periods of service from September 21, 2010, to January 28, 2011, was qualifying active duty service for Post-9/11 GI Bill purposes with attention to the current revised/expanded definition “active duty” under Pub. L. No. 111-377. Additionally, the Board notes that the Veteran’s DD Form 214 for his period of service from September 21, 2010, to January 28, 2011, stated that he was “separated from service on temporary records and soldier’s affidavit//DD Form 215 will be issued to provide missing information//nothing follows.” In their Joint Motion, it was found that the Board had erred in failing to discuss this DD Form 214 and seems to suggest that a duty-to-assist error may have been committed. As such, on remand, the AOJ should ensure that all relevant personnel records have been obtained, to specifically include any DD Forms 215 that may contain further information regarding the Veteran’s service from September 21, 2010, to January 28, 2011. The matter is REMANDED for the following action: 1. Obtain any DD Form 215 issued to the Veteran. 2. Undertake appropriate action, to include contacting the Veteran’s Army National Guard unit, to determine the nature/purpose of the Veteran’s responsibilities/duties during his period of active duty for training, authorized under the authority of 32 U.S.C. § 502(f), for the period from September 21, 2010, to January 28, 2011. 3. After the above development has been completed and all available records have been received, submit a request to the DoD to determine the whether the Veteran’s period of service from September 21, 2010, to January 28, 2011, qualifies as active duty service for purposes of entitlement to Chapter 33 educational assistance benefits. DoD should be requested to consider specifically the expanded/revised definition of “active duty” pursuant to Pub. L. No. 111-377. If it is determined that the period from September 21, 2010, to January 28, 2011, is not a period of qualifying service for purposes of entitlement to Chapter 33 educational assistance benefits, DoD should explain why such service is not to be considered “full-time service . . . in the National Guard of a state for the purpose of organizing, administering, recruiting, instructing, or training the National Guard.” JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.