Citation Nr: A21016360 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 191022-63392 DATE: October 5, 2021 ORDER Entitlement to an effective date of October 1, 2018, for payment of Department of Veterans Affairs (VA) educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) is granted. FINDINGS OF FACT 1. The Veteran filed an application for benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) in lieu of benefits under Chapter 1606, Title 10, United States Code (Montgomery GI Bill for Selected Reserves (MGIB-SR)) in April 2019 for an apprenticeship/on-the- job program commencing October 9, 2018; he signed the application on March 28, 2019, electing March 28, 2019, as the effective date of the election. 2. Via a Certificate of Eligibility (COE) in May 2019, VA informed the Veteran that he had been approved for payment of Post-9/11 GI Bill educational assistance benefits in lieu of receiving such benefits under MGIB-SR, effective on October 1, 2018, and that he had 30 days within which to disagree this decision, or the Secretary's alternative election would become irrevocable. 3. The Veteran did not disagree with the alternative election of Post-9/11 GI Bill educational assistance benefits effective October 1, 2018, within 30 days of the May 2019 COE. CONCLUSION OF LAW The criteria for an effective date of October 1, 2018, for the payment of Post 9/11 GI Bill benefits are met. 38 U.S.C. §§ 3311, 3327, 5107(b); 38 C.F.R. §§ 3.102, 21.9520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2017 to January 2018. This appeal before the Board of Veterans' Appeals (Board) arose from a June 2019 decision of a VA Education Regional Processing Office (RPO). In the June 2019 decision, the RO informed the Veteran that he had been approved for payment of Post-9/11 GI Bill educational assistance benefits, effective March 28, 2019. In his October 2019 appeal to the Board, the Veteran requested the evidence submission review option. Accordingly, the Board will consider the evidence before the Agency of Original Jurisdiction (AOJ) at the time of the June 2019 decision on appeal, and the evidence received from the 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. Here there is no dispute that the Veteran meets the basic eligibility requirements for receipt of Chapter 33 educational assistance benefits, as set forth in 38 U.S.C. § 3311 and 38 C.F.R. § 21.9520(b). Furthermore, the law provides that individuals entitled to educational assistance benefits under the Post 9/11 GI Bill who are also eligible for educational assistance under other programs, including MGIB-SR, may not receive assistance under two or more such programs concurrently but shall elect (in such form and manner as the Secretary may prescribe) under which chapter or provisions to receive educational assistance." 38 U.S.C. § 3322(a). The law also provides that an individual who meets the minimum service requirements for basic eligibility for Post 9/11 GI Bill educational assistance, and who is eligible for educational assistance under another program, may receive Post 9/11 GI Bill educational assistance if he/she makes an irrevocable election to receive benefits under Post 9/11 GI Bill in lieu of receiving such benefits under the other program. 38 C.F.R. § 21.9520(c)(1). An individual may make an irrevocable election to receive benefits under Post 9/11 GI Bill by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following: (i) identification information (including name, social security number, and address); (ii) if applicable, an election to receive benefits under chapter 33 in lieu of benefits under, e.g., the MGIB; (iii) the date the individual wants the election to be effective; and (iv) an acknowledgement that the election is irrevocable (e.g., "I understand that my election is irrevocable and may not be changed."). 38 C.F.R. § 21.9520(c)(2). Also, in the case of an individual who, on or after January 1, 2017, fails to make a required election "the Secretary may make an alternative election on behalf of the individual that the Secretary determines is in the best interests of the individual." 38 U.S.C. § 3327(h). If the Secretary makes an election on behalf of an individual under 38 U.S.C. § 3327(h), "the Secretary shall notify the individual by not later than seven days after making such election and shall provide the individual with a 30-day period, beginning on the date of the individual's receipt of such notice, during which the individual may modify or revoke the election made by the Secretary on the individual's behalf." Id. The facts of this case show that in March 2019 the Agency of Original Jurisdiction (AOJ) received a VA Enrollment Certification from the Veteran's school certifying his enrollment in a firefighter program from October 9, 2018 to October 9, 2021. The AOJ also received a Monthly Certification of On-The-Job Training and Apprenticeship Training (VA Form 22-6553d-1) from the school showing that he participated in 120 hours of on-the-job training each month from October 2018 to February 2019. In addition, the AOJ received an apprenticeship form from the New Jersey State Approving Agency (SAA) showing that the Veteran participated in the apprenticeship/OJT training at Morris County Fire Academy from October 9, 2018 to October 9, 2021. In April 2019, the AOJ received the Veteran's application for VA Education Benefits (VA Form 22-1990) requesting Chapter 33 -Post 9/11 GI Bill benefits effective March 28, 2019 in lieu of MGIB-SR benefits. He indicated that he was requesting the benefits for an apprenticeship or on-the-job training at Morris County Public Safety Academy to be a Jersey City Firefighter and he signed the application on March 28, 2019. He enclosed copies of the enrollment certifications from the school and the State Approving Agency noted above. In May 2019, the AOJ issued a Certificate of Eligibility (COE) informing the Veteran that in accordance with Section 3327 (h) of Title 38, United States Code, it made an alternative election on his behalf to relinquish Chapter 1606 MGIB effective October 1, 2018 to establish eligibility for Post-9/11 GI Bill benefits. The AOJ explained that it did so because the Veteran did not provide an election. The AOJ further explained that this election would be irrevocable after 30 days from the date of the letter. The AOJ additionally informed the Veteran that if he disagreed with the actions, to send VA written notice within 30 days from the date he received the letter. Thereafter, in June 2019, the AOJ informed the Veteran that he was entitled to receive Chapter 33 benefits at the 60% rate effective March 28, 2019. In both NODs, the Veteran reported that he elected to receive Chapter 33 benefits on the wrong effective date. He explained in the July 2018 NOD that he accidentally reported March 28, 2019 as the effective date which was the date that he filled out the application for Post-9/11 GI Bill benefits rather than the intended date of October 8, 2018. It appears from the evidence outlined above that the AOJ issued the Veteran the COE in May 2019 in response to the enrollment certifications it received from his school and the State Approving Agency in March 2019, and not his application for Post-9/11 GI Bill benefits that it received in April 2019. This is evident by the fact that the AOJ informed him in the COE that it had made the alternative election from MGIB-SR to Post 9/11 GI Bill benefits because he had not done so. As noted, the AOJ also informed the Veteran in the COE that it made the alterative election effective October 1, 2018, and that the election was irrevocable unless he disagreed with the election within 30 days. The AOJ's subsequent award letter in June 2019, from which this appeal arises, awarding the Veteran Post-9/11 GI Bill benefits effective March 28, 2019, appears based on its subsequent review of the Veteran's April 2019 application on which he elected March 28, 2019 as the effective date. However, the fact remains that he did not disagree with the May 2019 COE within 30 days awarding him Post-9/11 benefits effective October 1, 2018. His April 2019 application cannot be construed as a disagreement with the COE since it was filed prior to the COE. Moreover, when filing the April 2019 application, the Veteran included copies of the enrollment certifications from the school and State Approving Agency certifying his enrollment in the firefighter program from October 9, 2018 to October 9, 2021. It is clear from the evidence, as the Veteran explained in his NODs, that he accidentally put down March 28, 2019 as the effective date of the election on his application rather than the intended date of October 8, 2018 because that is the date that he completed and signed the application. In sum, the evidence clearly shows that the AOJ made an irrevocable election on behalf of the Veteran for his receipt of Post-9/11 GI Bill benefits in lieu Chapter 1606 MGIB benefits effective October 1, 2018, which the Veteran did not disagree with and in fact supports. Accordingly, the Board finds that the criteria for an effective date of October 1, 2018, for the payment of VA educational assistance benefits under the Post-9/11 GI Bill are met. 38 U.S.C. §§ 3327(h), 5017(b); 38 C.F.R. §§ 3.102, 21.9520(c). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.