Citation Nr: 21062074 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-45 925 DATE: October 6, 2021 ORDER Entitlement to education benefits under Chapter 33, Title 38, United States Code, (Post-9/11 GI Bill) above the 80 percent rate is denied. FINDING OF FACT 1. According to the service department, the Veteran's four years of active service from October 2004 through October 2008 was in fulfillment of an obligation under a Reserve Officer Training Corps (ROTC) scholarship; as such, it cannot be considered qualifying active duty for purposes of determining the rate of her Chapter 33 (Post-9/11 GI Bill) education benefits. 2. The Veteran's qualifying active service subsequent to the end of his ROTC service obligation in October 2008 was a period of less than 30 months. 3. The record does not reflect the Veteran was discharged from a period of qualifying service due to service-connected disability. CONCLUSION OF LAW The criteria for education benefits under Chapter 33 (Post-9/11 GI Bill) in excess of the 80 percent rate have not been met. 38 U.S.C. §§ 3301, 3311, 3313; 38 C.F.R. §§ 21.9505, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 2004 to October 2008, and from April 2012 to May 2013. He also had additional periods of Army Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 decision of the Department of Veterans Affairs (VA) Regional Office. In March 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in May 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. During the pendency of the appeal, the AOJ increased the Veteran's rate of payment for Chapter 33 benefits to the 80 percent level in a July 2021 decision. Since the Veteran has not indicated that this satisfies his appeal and in light of potential higher rates of payment under the Chapter 33 education program, the issue for a higher rate of payment remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). After taking further action, the AOJ returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to education benefits under Chapter 33, Title 38, United States Code, (Post-9/11 GI Bill) above the 80 percent rate. The Board notes that the Veteran's basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits is not in dispute. Rather, the dispute in this case is the percentage rate he is entitled to for such benefits. 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 40 percent with at least 90 days, but less than 6 months, of creditable active duty service (i.e., 90-179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (i.e., 180-364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (i.e., 365-544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (i.e., 545-729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (i.e., 730-909 days); 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). Initially, the Board acknowledges that it does appear the Veteran had over 36 months of active service after September 10, 2001, as the record reflects a total period of active duty was from October 2004 through October 2008. However, the record also reflects that the Veteran entered this period of active duty as part of a service obligation for ROTC scholarship. Further, the record reflects he had a 4-year service obligation for his ROTC scholarship, which included the period from October 2004 through October 2008. The Board notes that the Veteran's ROTC scholarship did not disqualify him from the Chapter 33 program. As already noted, he has been awarded Chapter 33 benefits. However, VA regulations do address the exclusion of the ROTC obligation. In this case, he was commissioned for active duty service under a program of educational assistance pursuant to 10 U.S.C. § 2107, commonly known as ROTC. His initial 4 years of service, October 15, 2004, until October 14, 2008, to satisfy his 4-year obligation of the ROTC program, is not considered active duty for purposes of Chapter 33 benefits. 38 C.F.R. § 21.9505(3). In that regard, definitions provided under 38 U.S.C. § 3301 and 38 C.F.R. § 21.9505, governing the administration and payment of educational assistance under 38 U.S.C. Chapter 33, specifically state that "active duty" does not include a period of service "required by an officer pursuant to an agreement under 10 U.S.C.§ 2107(b)." Moreover, the provisions of 38 U.S.C. § 3311(d), also addressing eligibility requirements under 38 U.S.C. Chapter 33, specifically prohibit treatment of certain service as a period of active duty. A period of service on active duty as an officer pursuant to an agreement under 10 U.S.C. § 2107 shall not be considered as part of the period of active duty on which an individual's entitlement to education assistance under this chapter is based. 38 U.S.C. § 3311(d). The Veteran contends, in pertinent part, that his ROTC scholarship obligation was not pursuant to 10 U.S.C.§ 2107(b) as the ROTC contract was breached by changing major. See, e.g., March 2021 Hearing Transcript. Pursuant to the Board's May 2021 remand directives, the AOJ obtained the Veteran's ROTC contract and received additional information from the Department of Defense (DoD) and assistant Professor of Military Science (PMS) at Slippery Rock University. Critically, the ROTC contract's terms state that "if I request and am granted written approval to change my major, and the change make me ineligible to remain on scholarship status, I am not relieved of the terms of this contract and I will be required to fulfill the obligations under this contract." See ROTC Contract at p. 2. In June 2021 correspondence, DoD indicated that there was no evidence of amendments to the contract and that the servicemember must provide proof. Finally, in August 2021 correspondence, the PMS confirmed that "a change of major does not constitute a breach/void of contract and the Cadet must have/had served their required time of service [in accordance with] their original contracting criteria in either an active or reserve status." For these reasons, that portion of the Veteran's active service from October 2004 through October 2008 in fulfillment of his ROTC scholarship obligation is not considered qualifying active duty for purposes of determining the rate of his Chapter 33 (Post-9/11 GI Bill) education benefits. In addition, his qualifying active service subsequent to the end of his ROTC service obligation in October 2008 was 746 days, which is consistent with the 80 percent rate he has been assigned. See 38 C.F.R. § 21.9640; July 2021 determination letter. Pursuant to the May 2021 remand directives, an information report was obtained from the VA/DOD Identity Repository (VADIR) in June 2021 showing that the Veteran had qualifying service for Chapter 33 benefit purposes. Additionally, in June 2021 correspondence, DoD confirmed all the Veteran's periods of calls to active duty for training under 10 U.S.C. §12301(d). Following the receipt of this additional evidence, the AOJ confirmed the Veteran's eligible service days increased from 411 days to 746 days of service, therefore increasing his eligibility from 60 percent to 80 percent. See July 2021 determination letter; August 2021 Supplemental Statement of the Case. No other creditable active duty service was identified. Finally, the Veteran does not contend, nor does the record otherwise reflect, that he was discharged from service due to a service-connected disability. In fact, the record does not reflect that service connection has been established for any disability. Consequently, the exception pertaining to circumstances in which a veteran has 30 days of active service and is discharged due to service-connected disability does not apply. In view of the foregoing, the Board must find the Veteran has no legal entitlement to Chapter 33 (Post-9/11 GI Bill) education benefits in excess of the 80 percent level. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.