Citation Nr: 21072943 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-05 838A DATE: December 7, 2021 ORDER Entitlement to education benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is denied. FINDINGS OF FACT 1. Information from the Department of Defense (DoD) and the Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) reflect that he was commissioned pursuant to a Reserve Officers' Training Corps (ROTC) scholarship under 10 U.S.C. § 2107(b). 2. The Veteran has insufficient qualifying active service to establish basic eligibility for educational benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill). CONCLUSION OF LAW The criteria for basic eligibility for educational benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) have not been met. 38 U.S.C. §§ 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from September 14, 2011, to March 14, 2012, and on active duty from October 9, 2012, to September 8, 2013, in support of Operation Enduring Freedom. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 decision issued by a Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to education benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill). The Veteran asserts that his period of service from October 9, 2012, to September 8, 2013, in support of Operation Enduring Freedom, entitles him to education benefits under the Post-9/11 GI Bill, which is governed by 38 U.S.C. Chapter 33. In this regard, the educational assistance program under the Post-9/11 GI Bill was established for "individuals who served on active duty after September 10, 2001" and was made effective in August 2009. 38 C.F.R. § 21.9500. In this regard, while such was enacted almost a year after the Veteran signed his ROTC contract and do not affect the obligations outlined in such contract (and, thus, there is no retroactive applicability), such do define eligible service for education benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill). Eligibility for this benefit is based on certain qualifying periods and types of active duty service. 38 U.S.C. §§ 3301-3324; 38 C.F.R. § 21.9520. The individual must have served a minimum of 90 aggregate days of active duty excluding active duty for entry level and skill training and, after completion of such service, (1) continued on active duty; (2) was discharged from service with an honorable discharge; (3) was released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve; (4) was released from service characterized as honorable for further service in a reserve component; or (5) was discharged or released from service for a medical condition that preexisted such service and is not determined to be service connected; hardship, as determined by the Secretary of the military department concerned; or a physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(a). Alternatively, the individual must have served a minimum of 30 continuous days on active duty and, after completion of such service, was discharged or released from active duty under other than dishonorable conditions due to a service-connected disability. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(b). Pursuant to 38 U.S.C. § 3301(1)(A), qualifying active duty service for members of the regular components of the Armed Forces is full time duty other than ACDUTRA. 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 section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of title 10 or section 712 of title 14. See 38 U.S.C. § 3301(1)(B). For members of the Army National Guard of the United States or the Air National Guard of the United States, in addition to service described above for members of the regular and reserve components of the Armed Forces, qualifying active duty includes full-time service (i) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or (ii) 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). However, any period of active duty during which an individual served as a cadet or midshipman at one of the service academies is not considered active duty on which an individual's entitlement to educational assistance is based. 38 U.S.C. § 3002(6)(d). The following periods of service also shall not be considered a part of the period of active duty on which an individual's entitlement to educational assistance is based: (1) A period of service on active duty of an officer pursuant to an agreement under section 2107(b) of title 10; (2) A period of service on active duty of an officer pursuant to an agreement under section 7448, 8459, or 9448 of title 10 or section 182 of title 14; (3) A period of service that is terminated because of a defective enlistment and induction based on (A) the individual's being a minor for purposes of service in the Armed Forces; (B) an erroneous enlistment or induction; or (C) a defective enlistment agreement. 38 U.S.C. § 3311(d). At his August 2021 Board hearing and in documents of record, the Veteran reports that he was commissioned through ROTC, but never incurred an active duty service obligation (ADSO). He explained that he changed from an ADSO scholarship to a reserve scholarship under the Guaranteed Reserve Forces Scholarship (GRFD) so that, rather than incurring a four year ADSO, he incurred an eight year military service obligation. The Veteran also submitted a July 2016 Memorandum from his guidance counselor at the Pennsylvania Army National Guard that reiterates his contentions. Accordingly, he asserts that he is not precluded from Post-9/11 GI Bill benefits for periods of active duty that he served during his eight-year reserve period. VA contacted the DoD, namely the United States Army National Guard Command, to verify the dates and character of the Veteran's service, as well as his eligibility to Post-9/11 GI Bill education benefits. DoD responded to VA's inquiries in June 2016 and December 2016 and informed VA on both occasions that the Veteran participated in a ROTC scholarship program pursuant to 10 U.S.C. § 2107(b). This is consistent with the Veteran's Certificate of Release or Discharge from Active Duty (DD Form 214) for the period from October 2012 to September 2013 showing that he was commissioned through a ROTC Scholarship under 10 U.S.C. section 2107(b). It is also consistent with information from VADIR (VA/Department of Defense Identity Repository) in July 2016 showing that the Veteran was commissioned under ROTC/NROTC Scholarship under Section 2107(b), 10 USC, with May 28, 2011 as the beginning date of obligated service and May 28, 2015, as the end date of obligated service. The DoD informed VA in June 2016 that the Veteran was not eligible for Chapter 33 benefits until at least May 28, 2015. The DoD stated that "it appears as though [the Veteran] was on a 2107 Scholarship during the period 20080825-20110527 when he/she received his/her commission," and he was not eligible for Chapter 33 benefits for at least four years ADSO from date of commission or "TBD by the DVA". The DoD went on to state that the period of Enduring Freedom from October 9, 2012, to September 8, 2013, does not qualify for Chapter 33 benefits since it was during the ADSO period. The DoD provided a more definitive response in December 2016 when it was requested to investigate the Veteran's report that his scholarship had been converted to GRFD, and informed VA that "Per Cadet Command [the Veteran] was on a 2107 Scholarship during the period 20080825 20110527 when he/she received his/her commission" and he was not eligible for Chapter 33 benefits for at least four years ADSO from the date of commission. The DoD further stated that the period of Enduring Freedom from October 9, 2012 to September 8, 2013, and the initial active duty training period from September 14, 2011, to March 14, 2012, do not qualify for Chapter 33 since they were during the ADSO period. Service department findings (i.e., the Army, Navy, and Air Force) are binding on VA for purposes of establishing an individual's service. VA does not have the authority to alter the findings of the service department regarding dates or character of service. 38 C.F.R. § 3.203(c); Spencer v. West, 13 Vet. App. 376, 380 (2000); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). Accordingly, the Board is bound by the finding reflected in the Veteran's DD Form 214, the DoD's findings in June 2016 and December 2016, and the information from VADIR in July 2016, all which show that the Veteran's service was under section 2107(b) of Title 10, and his service prior to May 28, 2015, is not qualifying service for Chapter 33 benefit purposes. As to the Veteran's assertion that his obligation was not under clause (5) (A)(i)&(ii) of title 10 U.S.C. section 2107(b) requiring a four or more year active duty obligation, but rather was under clause (5)(B)(i)&(ii) requiring an eight year reserve obligation, the result would not change. In this regard, the Veteran contends that, because an obligation under clause (5)(B)(i)&(ii) requires only an obligation to serve in the reserve for eight years, any period of active duty during those eight years count for Chapter 33 benefit purposes. However, section 2107(b) specifically states that the performance of service under clause (5)(B) (or (5)(C)) may include periods of active duty, active duty training, and other service in an active or inactive status in the reserve component in which appointed, except that performance of service under clause (5)(C) shall include not less than two years of active duty. The Board interprets this to mean that active duty during the eight-year reserve obligation under clause (5)(B) is part of the Veteran's service agreement under 2107(b) of title 10. In short, as clauses 5(A) and 5(B) are both under section 2107(b) of Title 10 U.S.C., service under either clause is excluded for Chapter 33 benefit purposes. 38 C.F.R. § 21.9505. The proper course for the Veteran, if he believes there is a reason to dispute the DoD's determination or the content of military records, is to pursue such a disagreement with the DoD. Sarmiento v. Brown, 7 Vet. App. 80, 85 (1994). Thus, while the Veteran's service and his sincere belief in his appeal is appreciated, the Board must find that he does not have the requisite qualifying active service for the purpose of entitlement to basic eligibility for education benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) and his claim must therefore be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the disposition of this matter is based on the law, and not the facts of the case, the benefit of the doubt doctrine pursuant to 38 U.S.C. § 5107(b) does not apply. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A. JAEGER 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.