Citation Nr: 21070805 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-03 741 DATE: November 26, 2021 REMANDED Entitlement to payment of educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) at the 100-percent level is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2004 to January 2006 and from August 2009 to September 2010. He also served in the Army National Guard from September 2010 to September 2014. This matter comes to the Board of Veteran's appeals on appeal from an October 2014 decision of the Department of Veterans Affairs (VA) Regional Office. In December 2016, the Veteran testified at a Board video conference hearing. A transcript of the hearing is of record. This matter was previously before the Board in August 2018, December 2020, and May 2021 at which times the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. An essential component in this case is determining the status of the Veteran's service in the Army National Guard from October 1, 2010 to September 30, 2011. The Veteran testified in December 2016 that he was deployed overseas under Title 10 in 2010 and when he returned to the states his unit changed its status to special duty for the Homeland Response Force under Title 32. Notably, 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. However, in January 2011, pursuant to Pub. L. No. 111-377 (the Post 9/11 Veterans Educational Assistance Improvements Act of 2010), the definition of "active duty" was 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 Veteran testified that his service from October 1, 2010 to September 30, 2011 was under the authority of section 502(f) of Title 32 for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38U.S.C. §3301(1)(C). The Board directed in its May 2021 remand that the AOJ contact the Defense Finance and Accounting Service (DFAS) to verify the Veteran's duty status from October 1, 2010 to September 30, 2011 through his Master Military Pay Account (MMPA). In July 2021, the AOJ requested the Veteran's records from the DFAS but there has been no reply from the DFAS to date. Consequently, this matter must be remanded to obtain these relevant records, if available, from the DFAS or any other appropriate source. See Stegall v. West, 11 Vet. App. 268 (1998). While the Board sincerely regrets the additional delay caused by yet another remand, it finds that it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. The matters are REMANDED for the following action: Make continuing requests to the Defense Finance and Accounting Service (DFAS) for the Veteran's Master Military Pay Account (MMPA) for his pay records for the period from October 1, 2010 to September 30, 2011 until the records are obtained, that it is determined that they do not exist or that further efforts would be futile. See 38 C.F.R. § 3.159(c). T. MAINELLI 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.