Citation Nr: 21004801 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-20 842 DATE: January 28, 2021 ORDER Entitlement to a 90 percent rate for educational assistance benefits under Chapter 33 of Title 38, U.S.C., (also known as the Post 9/11 GI Bill) is granted. REMANDED Entitlement to a higher rate in excess of 90 percent for educational assistance benefits under the Post 9/11 GI Bill is remanded. FINDING OF FACT The Veteran has 5 months and 9 days (e.g. 159 days) if active duty service under 10 U.S.C. §12304 after September 10, 2001. The Veteran also has an additional 26 months and 13 days (e.g. 795 days) of full-time qualifying National Guard service, for the purpose of organizing and administering military personnel services for mobilized troops, including entry level and skill training periods. The Veteran’s total qualifying service is 31 months and 22 days (e.g. 954 days). CONCLUSION OF LAW The criteria for Chapter 33 education benefits at the 90 percent rate are met. 38 U.S.C. § 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9520, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2008 to August 2008, from March 2010 to August 2010, and from February 2013 to April 2013. The Veteran also has additional intermittent Full-Time National Guard (FTNG) service periods beginning in August 2011, through August 2014. The case is on appeal from a March 2015 VA decision which denied educational assistance benefits under the Post 9/11 GI Bill in excess of the 80 percent rate. The case was most before the Board in October 2019. At that time, the Board remanded the matter on appeal for further development, clarification, and adjudication. The Board finds that the issue of a higher rate in excess of 80 percent can be partially adjudicated on the merits at this time. While the Veteran has consistently indicated that the benefit sought was the 90 percent rate, the issue of whether entitlement to an even higher rate in excess of 90 percent is warranted has been raised by the development during remand and the issue has been properly added. The matter will be further addressed in the remand portion of this decision. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation). 1. Entitlement to a higher rate in excess of 80 percent rate for educational assistance benefits under the Post 9/11 GI Bill. Legal Criteria The Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on creditable active duty service after September 10, 2001. On January 4, 2011, the Post-9/11 Veterans Educational Improvements Act of 2010 was enacted. Pub. L. No. 111-377, 124 Stat. 4106 (2011). This Act made changes to Chapter 33 of Title 38, U.S.C., which included adding provisions to allow certain National Guard service to be considered as qualifying active duty service for purposes of Chapter 33 eligibility. See Pub. L. No. 111-377, §101(a), 124 Stat. 4106, 4107 (2011). Prior to the Act, National Guard service, to include service under Title 32, was explicitly excluded as qualifying active duty service for purposes of Chapter 33 eligibility; however, subparagraph (C) of 38 U.S.C. § 3301(1) was added by Pub. L. No. 111-377. Id. That amendment took effect on August 1, 2009, as if included in the enactment of Chapter 33 of Title 38, United States Code, pursuant to the Post-9/11 Veterans Educational Assistance Act of 2008. See Pub. L. No. 111-377, §101(d), 124 Stat. 4106, 4108 (2011). It is notable that 38 C.F.R.§ 21.9505(1) still reflects that active duty does not include full-time National Guard Duty performed under the authority of Title 32. 38 C.F.R. § 21.9505(1). Amendments to the regulations have yet to be promulgated. Pursuant to the amendments set forth above, 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), 12301(h), 12302, or 12304, 12304a, 12304b, or 14 U.S.C. §712. See 38 U.S.C. § 3301(1)(B). In the same case of a member of the Army or Air National Guard of the United States, in addition to the service described above in § 3301(1)(B), full-time service will be recognized for service: (i) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or (ii) for full-time service in the national Guard under 32 U.S.C. § 502(f) when authorized by the President or the Secretary of Defense for the purposes of responding to a national emergency declared by the President and supported by federal funds. See 38 U.S.C. § 3301(1)(C). Chapter 33 benefits are paid as a percentage of maximum payable amounts based on length of service after September 10, 2001. A 40 percent rate of pay is warranted for at least 90 days of service, but less than 6 months of qualifying service; A 50 percent rate of pay is warranted for at least 6 months of service, but less than 12 months of qualifying service; A 60 percent rate of pay is warranted for at least 12 months, but less than 18 months of qualifying service A 70 percent rate of pay is warranted for at least 18 but less than 24 months of qualifying service; An 80 percent rate of pay is warranted for at least 24 but less than 30 months of qualifying service; A 90 percent rate of pay is warranted for at least 30 but less than 36 months of qualifying service; and A 100 percent rate is warranted for at least 36 months of qualifying service. See 38 C.F.R. § 21.9640. Analysis The Veteran contends that entitlement to a rate in excess of 80 percent for educational assistance benefits under the Post 9/11 GI Bill is warranted. She specifically asserts that the nature of her full-time National Guard service under Title 32, section 502(f) in support of the mobilization and demobilization of troops is full-time service per 38 U.S.C. § 3301 and, therefore, VA should recognize such period as qualifying service for Chapter 33 benefits purposes. See September 2016 Notice of Disagreement (NOD). As a preliminary matter, in its October 2019 remand, the Board requested clarification as to whether the Veteran had been provided Reserve Officer Training Corps (ROTC) educational benefits and/or scholarship that required a period of obligated service that would have made any such period of obligated service not creditable for Post 9/11 GI Bill benefits. In a September 2020 Supplemental Statement of the Case (SSOC), the AOJ determined the pursuant to the development conducted while on remand, the Veteran did not receive an ROTC scholarship as shown by the Veterans Information Solution (VIS) system, and therefore, she did not have a period of obligated service. See September 2020 SSOC at p.6. With that matter clarified, the Board will now proceed to address the Veteran’s contentions. Service personnel records (SPRs) reflect that the Veteran worked as a human resources specialist as an enlisted service member, and later as a commissioned officer for the Wisconsin Army National Guard (WIARNG). A DD-214 of record reflects that the Veteran was ordered to active duty in support of Operation Iraqi Freedom (OIF), from March 5, 2010 to August 10, 2010, under the authority of 10 U.S.C. §12302. In August 2011, the Veteran was Ordered to full-time National Guard Duty – Operational Support (FTNG-OS), from August 2, 2011 to September 7, 2011, for purposes of providing assistance with the mobilization of Headquarters Company (HHC), 157th Maneuvers Enhancement Brigade (MEB) and under the authority of 32 U.S.C. §502(f). See Orders No. 180-033 dated on August 8, 2011. SPRs show additional full-time service under 32 U.S.C. §502(f) from June 6, 2012 to June 8, 2012, for “demobilization administrative support” for HHC 127th MEB (see Orders No. 118-022 dated on June 8, 2012); from September 16, 2012 to September 30, 2012, for demobilization support of HHC, 127th MEB (see Orders No. 025-047 dated on August 2, 2012); from October 1, 2012 to October 5, 2012, for mobilization support (see Orders No. 276-020 dated on October 12, 2012); from October 15, 2012 to November 2, 2012, for mobilization reset support of HHC, 127th MEB (see Orders No. 298-007 dated on October 24, 2012); from November 5, 2012 to November 21, 2012, for demobilization reset support for HHC, 127th MEB (see Orders No. 311-001 dated on November 6, 2012); from November 26, 2012 to January 18, 2013, for S1 mobilization support of HHC 127th, MEB (see Orders No. 326-014 dated on November 21, 2012, and corresponding amendment Orders No. 003-077 dated on January 3, 2013); from April 30, 2013 to May 31, 2013, to serve as a Yellow Ribbon Reintegration Program Liaison for returning troops (see Orders No. 025-046 dated on January 25, 2013); from June 16, 2013 to September 30, 2013, to serve as a Yellow Ribbon Reintegration Program Liaison for returning troops (see Orders No. 025-047 dated on January 25, 2013, and corresponding amendment Orders No. 104-101 dated on June 13, 2013); from October 8, 2013 to May 31, 2014, as part of the SMSD (Service Member Support Division) which provides transition assistance services for returning troops to civilian life; the Soldiers Readiness Program (SRP) in support of mobilizing troops; and as a Yellow Ribbon Reintegration Program Liaison (see Orders No. 280-007 dated on October 7, 2013, Orders No. 003-035 dated on January 3, 2014, and Orders No. 023-095 dated on January 23, 2014); and lastly, from June 15, 2014 to August 1, 2014, to serve with the mobilization operational support as part of the WIARNG’s Badger Yellow Ribbon Program (BYR), a program designed to coordinate activities and events for deploying soldiers of the WIARNG (see Orders No. 147-038 dated on May 27, 2014). The Board also notes that the Veteran served on ative duty from May 29, 2008 to August 2, 2008 for basic training (entry level training), from May 11, 2009 to July 17, 2009, for her advanced individual training (AIT or skills training), and from February 2, 2013 to April 30, 2014, for Basic Officer Leadership Training (also skills training). As for the period under 10 U.S.C. § 12304 for service in support of OIF, the Board notes the Veteran served a total of 5 months and 9 days (from March 5, 2010 to August 10, 2010). There is no dispute that the foregoing active duty period qualifies for educational benefits under Chapter 33. Accordingly, in its September 2014 Certificate of Eligibility, VA warranted Chapter 33 benefits at a 40 percent rate as during this period, the Veteran had at least 90 days, but less than 6 months of qualifying service pursuant to 38 U.S.C. § 3301(1)(B). With respect to the period of full-time service under 32 U.S.C. § 502(f), the Board notes that a plain and simple review of the statute would render the Veteran’s service under that authority ineligible for Chapter 33 benefits. The evidence of record does not reflect that such periods of service stemmed from Presidential authorization or by the Secretary of Defense for the purposes of responding to a national emergency as set forth in subsection (ii) of 38 U.S.C. § 3301. As such, the requirements for full-time service under 38 U.S.C. § 3301(1)(C)(ii) are not met. However, the question turns as to whether the Veteran’s full-time service with the Army National Guard is otherwise encompassed within the meaning of active duty set forth in the remaining subsection (i) of 38 U.S.C. § 3301. As previously noted, the referenced subsection indicates that “full-time service will be recognized for service in the National Guard of a State for the purpose of organizing, [or] administering, [] the National Guard.” See 38 U.S.C. § 3301(1)(C)(i). The subsection does not include nor exclude as specific legal authority but is limited to provide the types of service. The Board notes that the terms “organizing” or “administering” are not defined by the applicable law. To that effect, the Cambridge English Dictionary defines “administer” as “to control the operation or arrangement of something.” See Cambridge Advanced Learner’s Dictionary & Thesaurus accessed through https://dictionary.cambridge.org/us/dictionary/english/administering. For its part, the Merriam-Webster dictionary defines “organizing” as to set up an administrative structure and/or to arrange by a systematic planning and united effort. The Cambridge English Dictionary defines “organize” as “to make arrangements for something to happen.” Following the September 2014 award of Post 9/11 GI Bill benefits at the 40 percent rate, the Veteran submitted multiple DD-214s for her full-time service in support of a higher rate. Thereafter, the Veteran’s Post 9/11 GI Bill eligibility rate has been increased and decreased multiple times throughout the pendency of the appeal, mainly due to the inconsistency and inaccuracy of DoD and ARNG responses with respect to her “qualifying service,” which consequently created confusion as to whether her full-time National Guard service was within the meaning of full-time service for Chapter 33 purposes. See September 2020 SSOC (based on inaccurate evidence from the Army National Guard, the VA removed all eligible service). See also July 2016 SOC (an October 2014 Certificate of Eligibility increased her eligibility at the 70 percent rate; a March 2015 Certificate of Eligibility increased her eligibility at the 80 percent rate; VA found an administrative error and the Veteran’s rate was reduced to 40 percent). See also September 18, 2020 VA letter (service records have been corrected and eligibility rate was increased from 40 percent to 50 percent); and September 23, 2020 email communication (the Veteran was informed that she now qualified under the 60 percent rate). During a February 2019 Board hearing, the Veteran testified that during her full-time service with the National Guard, her duties involved flying all over the United States to bring home soldiers returning from deployment. This is supported by the multiple DD-214s of record noticeably indicating that the Veteran was ordered to full-time ARNG service in support of the administration and organization of the WIARNG’s mobilizations and demobilizations of its troops. Moreover, the Board finds the Veteran’s statements as to the nature of her service plausible, particularly given her military occupational specialty (MOS) during such service as a human resources specialist. After a careful and sympathetic review of the Veteran’s claim consistent with the Department’s policy of liberal interpretation and application of existing laws and regulations, including all documents and oral testimony in the record in accordance with Brannon v. West, 12 Vet. App. 32 (1998); and Solomon v. Brown, 6 Vet. App. 396 (1994), the Board finds that the Veteran’s full-time ARNG service is encompassed within the meaning of 38 U.S.C. § 3301(1)(C)(i). As noted, the Veteran’s full-time service consisted of providing organizational and administrative support and assistance with (1) the mobilization and demobilization of the WIARNG; (2) the Yellow Ribbon Reintegration Program as a Liaison for returning troops; (3) the SMSD support program which provides transition assistance services to WIARNG returning troops to civilian life; (4) the Soldiers Readiness Program (SRP) in support of mobilizing troops; (5) the WIARNG’s BYR which as previously noted, is a program designed to coordinate activities and events for deploying soldiers of the WIARNG. The nature of the foregoing responsibilities and duties easily fall under the definitions of “administration” and “organization” set forth above, and which were intentionally included in the amendments made to 38 U.S.C. § 3301 through Pub. L. No. 111-377 (2011) for full-time service of members of the Army National Guard. Such full-time service for the purpose of “administering or organizing the National Guard” is recognized as qualifying service for Chapter 33 benefits under 38 U.S.C. § 3301(1)(C)(i). It follows that such full-time service accounts for a total of 19 months and 3 days (e.g. 573 days). As previously noted, the Veteran had an additional 5 months and 9 days (e.g. 159 days) for service under 10 U.S.C. §12302. The foregoing accounts for a total of 24 months and 12 days. Pursuant to 38 C.F.R. § 21.9640, for a length of creditable active duty service of at least 24 months, but less than 30 months, the Veteran’s entry level and skill training periods must be considered as creditable service. See Note 1 to 38 C.F.R. § 21.9640. Here, the Veteran has an additional 7 months and 10 days (e.g. 222 days) of entry level, AIT, and Basic Officer Leadership Course. As a matter of fact, in the September 2020 SSOC, the RO determined that the Veteran’s AIT training period and Basic Officer Leadership Course were eligible periods of service for Chapter 33 purposes. As such, the Veteran’s total aggregate length of creditable active duty service is 31 months and 22 days. In view of the clearly enunciated congressional intention to include within the meaning of ative duty for Chapter 33 benefits purposes, full-time service performed by National Guard members for the purpose of, as applicable to the present case, administering, or organizing the National Guard, which is in turn a reasoning persuaded by the applicability of the definitions set forth above to the nature of the Veteran’s duties and responsibilities, the Board finds that the Veteran’s full-time service for the National Guard from August 2, 2011 to September 7, 2011, from June 6, 2012 to June 8, 2012, from September 16, 2012 to September 30. 2012, from October 1, 2012 to October 5, 2012, from October 15, 2012 to November 1, 2012, from November 15, 2012 to November 21, 2012, from November 26, 2012 to January 18, 2013, from April 30, 2013 to May 31, 2013, from June 16,, 2013, to September 30, 2013, from October 8, 2013 to May 31, 2014, and from June 15, 2014 to August 1, 2014, is creditable towards the required full-time service for eligibility of Chapter 33 benefits. As a result, the Veteran’s total length of qualifying service totals 31 months and 19 days. This length of service in turn corresponds to a 90 percent rate pursuant to 38 C.F.R. § 21.9640 (at least 30 months, but less than 36 months). In light of the above and given the Veteran’s qualifying active duty/full-time service in the Army national Guard, the Board finds that a 90 percent rate for educational assistance benefits under the Post 9/11 GI Bill is warranted. REASONS FOR REMAND 1. A higher rate in excess of 90 percent for educational assistance benefits under the Post 9/11 GI Bill. Pursuant to the Board’s October 2019 remand, additional development was conducted in support of the present appeal. A Veterans Affairs/Department of Defense Identity Repository (VADIR) report associated with the Veteran’s claims file indicates that the Veteran had additional service with the Army Reserve from March 1, 2017 to July 16, 2018. This corresponds to an approximate length of service of a little over 16 months. Nevertheless, the report does not indicate the nature or type of such service, to include whether such service qualifies within the meaning of full-time service pursuant to 38 U.S.C. § 3301. Accordingly, the issue of whether entitlement to Chapter 33 benefits in excess of the 90 percent rate is warranted must be remanded in order to obtain additional information with regard to such service and to clarify whether it is considered, or not, full-time service for purposes of Chapter 33.   The matters are REMANDED for the following action: Arrange for further development to obtain from NPRC, JSRRC, the U. S. Army Human Resources Command, or any other official source, any evidence reflecting the Veteran’s ARNG or Army Reserve service, to include whether she was on active duty or full-time ARNG duty between 2017 and 2018. Nathaniel J. Doan 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.