Citation Nr: 21073493 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-28 302A DATE: December 8, 2021 ORDER The claim of entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits in excess of 1 month and 21 days for daughter M.S., under the Transfer of Entitlement provisions of Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), is granted, subject to the to the statutory cap of 48 months of aggregate benefits. FINDINGS OF FACT 1. The Veteran qualified for 36 months of VA educational assistance benefits under Chapter 30, Title 38, United States Code (known as the Montgomery GI Bill (MGIB) based on his service from October 1985 to January 1990. 2. The Veteran has used 17 months and 19 days of benefits under the MGIB. 3. The Veteran qualified for 36 months of Post-9/11 GI Bill benefits based on multiple periods of active duty service after September 10, 2001. 4. The Veteran was approved by the Department of Defense (DoD) to transfer his unused post-9/11 GI Bill benefits to his daughters C.S. and M.S.. 5. The law allows the Veteran to receive entitlement under both Chapters 30 and 33 subject to a 36-month cap on utilization of each of the two separate programs and a 48-month cap overall; thus, the ability to use transferred benefits is not limited by the Veteran's use of benefits under Chapter 30, except as use of those benefits applies to the 48-month cap overall. CONCLUSION OF LAW The criteria for entitlement to VA educational assistance benefits in excess of 1 month and 21 days for daughter M.S., under the Transfer of Entitlement provisions of the Post-9/11 GI Bill, subject to the to the statutory cap of 48 months of aggregate benefits, have been met. 38 U.S.C. §§ 3311, 3319, 3322; 38 C.F.R. § 21.9570; see Bo v. Wilkie, 31 Vet. App. 321 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1985 to January 1990. He then served in the Air National Guard of the United States, which service included periods of active duty September 11, 2001, to July 15,2003, from July 17, 2003, to November 11, 2003, from December 26, 2003, to June 30, 2004, from July 1, 2004, to December 15, 2005, from December 5, 2007, to December 18, 2007, and from December 19, 2007, to June 30, 2020. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2017 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that the Veteran's daughter M.S. was entitled to Chapter 33 educational assistance benefits, but that she had only 1 month and 21 days of transferred benefits to use as of that date. The Veteran disagreed with that determination, and this appeal ensued. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Additional Entitlement to Chapter 33 Educational Assistance Benefits Relevant to the issue currently before the Board, laws administered by VA provide a limit on training under two or more programs. Specifically, the aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent): (1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended; (2) Title II of the Veterans' Readjustment Assistance Act of 1952; (3) The War Orphans' Educational Assistance Act of 1956; (4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36; (5) 10 U.S.C. chapters 106a, 1606, and 1607; (6) Section 903 of the Department of Defense Authorization Act, 1981; (7) The Hostage Relief Act of 1980; and (8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986. 38 U.S.C. § 3695(a); 38 C.F.R. § 21.4020(a). Further, the law provides that an individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. Chapter 30, but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. Chapter 33 in lieu of educational assistance under the provisions of Chapter 30, will be limited to one month (or partial month) of entitlement under Chapter 33 for each month (or partial month) of unused entitlement under Chapter 30 (including any months of Chapter 30 entitlement previously transferred to a dependent that the individual has revoked). 38 U.S.C. § 3327(a)(1), (i); 38 C.F.R. § 21.9550(b)(1). The law also provides that that the Secretary of Defense or, in this case, the Secretary of the Army, may approve a member of the Armed Forces who is entitled to basic educational assistance under Chapter 33, under certain circumstances, to elect to transfer to one or more dependents the unused portion of entitlement to such assistance. 38 U.S.C. § 3319(a). To be eligible to transfer educational assistance benefits, a transferor must have served six years on active duty or in the Selected Reserve at the time of his approval by the Secretary of the Army and must have entered into an agreement to serve at least four more years as a member of the Armed Forces. 38 U.S.C. § 3319(b). A review of the record shows that the Veteran originally had 36 months of entitlement to VA educational assistance benefits under the MGIB and that he used 17 months and 11 days of that entitlement. (Parenthetically, the Board notes that the Veteran does not dispute his use of entitlement under Chapter 33, as discussed during the Veteran's August 2021 hearing). The Veteran also became entitled to Post-9/11 GI Bill educational assistance benefits, which he sought to transfer to his dependent daughters. Specifically, in February 2010, the Veteran requested to transfer entitlement to his three dependent children, to include his daughters C.S. and M.S.. As discussed during his Board hearing, his son was originally included in the transfer request, but due to his son later joining the military, the Veteran requested that the transferred amounts be reallocated. Via letter dated in January 2014, the Veteran was informed that he had been approved by the DoD to transfer his unused post-9/11 GI Bill benefits to his daughters C.S. and M.S.; the amount requested to transfer was ultimately 18 months to each daughter. At some point, M.S. applied for VA educational assistance under the Transfer of Entitlement provisions of Chapter 33. (The Board notes that her application for such is not of record). In December 2017, the Veteran's daughter M.S. was informed that she had remaining only 1 month and 21 days of entitlement. The Veteran disagreed with this decision, stating his belief that M.S. should have had six to seven months of entitlement remaining at that point. In support of his appeal, the Veteran provided an April 2010 "Certificate of Eligibility" informing him that he was entitled to benefits for an approved program of education of training under the Post-9/11 GI Bill and that he had 30 months and 19 days of full time benefits to use, which benefits were payable at the 100 percent rate. Via letter dated in August 2018, the RO informed the Veteran that the April 2010 "Certificate of Eligibility" contained erroneous entitlement information. The Veteran was informed that although he was initially informed that he had 30 months and 19 days of entitlement remaining, because he had previously used 17 months and 11 days under the MGIB, he had remaining only 18 months and 19 days of entitlement to transfer. (Continued on the next page) Notably, since the matter was last considered by the RO, there have been changes in the law that bear on the outcome of this case. In BO v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) held that veterans with two or more qualifying periods of service can receive benefits under both the Montgomery GI Bill and the Post-9/11 GI Bill. 31 Vet. App. 321, 324 (2019). The Court stated that a veteran need not relinquish or exhaust any remaining benefits under the Montgomery GI Bill to obtain benefits under the Post-9/11 GI Bill. Id. Thus, veterans who use, but do not exhaust MGIB benefits and who then apply for Post-9/11 GI Bill benefits after a separate period of service, are not limited to the total of 36 months provided for the MGIB program. This is so because, as explained by the Court, 38 U.S.C. § 3327 does not apply "in cases of individuals with dual entitlement based on multiple periods of service," but rather, applies only in cases of "individuals with dual entitlement based on a single period of service." Id. at 334. Notably, the Court's holding in BO v. Wilkie was recently affirmed by the United States Court of Appeals for the Federal Circuit in Rudisill v. McDonough, 4 F.4th 1297 (Fed. Cir. 2021). Although the issue in BO v. Wilkie centered around the Veteran's use of his own benefits and not a dependent's use of transferred benefits, the underlying facts in the instant case are indistinguishable from the facts in BO v. Wilkie. Here, the Veteran qualified for VA educational assistance benefits under the MGIB based on his period of active duty from October 1985 to January 1990. He then joined the Air National Guard of the United States and had multiple qualifying periods of service for purposes of entitlement to benefits under the Post-9/11 GI Bill. Consequently, the law allows the Veteran to receive entitlement under both programs subject to a 36-month cap on utilization of each of the two separate programs and a 48-month cap overall. See BO, supra. It follows, therefore, that the Veteran may transfer up to 36 months of unused Chapter 33 benefits, subject to the 48-month cap overall. Accordingly, as the Veteran's request to transfer of Post-9/11 GI Bill benefits has already been approved, his claim for VA educational assistance benefits in excess for 1 month and 21 days for daughter M.S., under the Transfer of Entitlement provisions of the Post-9/11 GI Bill, is granted, subject to the to the statutory cap of 48 months of aggregate benefits. Given that the record is unclear as to the amount of transferred benefits that M.S. has already used, the Board will leave it for the RO to determine the exact number of months and days of transferred Post-9/11 GI Bill benefits remaining for use by M.S.. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.