Citation Nr: 21076065 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-49 845A DATE: December 22, 2021 ORDER Basic eligibility for Post 9/11 GI Bill (Chapter 33) educational benefits is denied. FINDING OF FACT The Veteran did not have any period of active duty service after September 10, 2001. CONCLUSION OF LAW The Veteran is not eligible for Chapter 33 educational benefits. 38 U.S.C. §§ 3002, 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9520, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 1966 to December 1970, with additional service in the Army Reserve, Army National Guard, Marine Corps Reserve, and Air Force National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 determination by a Department of Veterans Affairs (VA) Regional Office (RO) Education Center. In the instant case, the Veteran is seeking to establish entitlement to VA educational benefits under the Post 9/11 GI Bill. 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. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. A veteran may establish eligibility for Chapter 33 educational assistance benefits based on active duty service after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training, and, after completion of such service, he or she: (1) continues on active duty; (2) is discharged from service with an honorable discharge; (3) is 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) is released from service characterized as honorable for further service in a reserve component; or (5) is discharged or released from service for: (i) a medical condition that preexisted such service and is not determined to be service-connected; (ii) hardship, as determined by the Secretary of the military department concerned; or (iii) 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 C.F.R. § 21.9520(a); see also 38 U.S.C. § 3311. Active duty includes full-time service in a regular component of the Armed Forces or in the case of members of the reserve components of the Armed Forces under a call or order to active duty under 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. See 38 U.S.C. §§ 101(21)(A), 3301(1)(A), (B); 38 C.F.R. § 21.9505. In the case of a member of the Army National Guard or the Air National Guard, active duty also 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. §§ 101 (21)(A), 3301(1)(C). Active duty for these purposes does not include full-time National Guard duty performed under 32 U.S.C. orders, except as immediately described above under 38 U.S.C. § 3301(1)(C)(ii). 38 U.S.C. §§ 3301(1), 3002(6); 38 C.F.R. § 21.9505(1). The term active duty also does not include any period during which an individual (A) was assigned full time by the Armed Forces to a civilian institution for a course of education which was substantially the same as established courses offered to civilians, (B) served as a cadet or midshipman at one of the service academies, or (C) served under the provisions of 10 U.S.C. § 12103(d) pursuant to an enlistment in the Army National Guard or the Air National Guard, or as a Reserve for service in the Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve. 38 U.S.C. §§ 3301(1), 3002(6); 38 C.F.R. § 21.9505(2). The Board finds that the Veteran does not have the requisite qualifying service to be eligible for Chapter 33 education benefits. Here, the record contains the Veteran's DD Form 214 Certificate of Release or Discharge from Active Duty, which reflects that the Veteran served on active duty from August 1966 to December 1970. The Board notes that while the Veteran had active duty in the Marine Corps, this service is not qualifying active duty for the purposes of the Post-9/11 GI Bill because it occurred prior to September 10, 2001. Additional evidence, including the Veteran's VA/Department of Defense (DOD) Identity Repository (VADIR) profile, documents reserve service with the Air Force National Guard from January 1973 to May 1982, Marine Corps Reserve from May 1982 to April 1987, Army National Guard from April 1987 to August 1991, and from Army Reserve from August 1991 to June 1993, with no active duty or reserve service thereafter. The Veteran's VADIR profile also notes that the Veteran retired from the Army on June 20, 2000. Educational assistance benefits under Chapter 33 are predicated on specific and unambiguous legal requirements, which have not been met. The Veteran lacks qualifying service to be eligible for Post 9/11 GI Bill educational benefits under Chapter 33; he has not shown that he has served any periods of active duty after September 10, 2001, to establish eligibility. 38 C.F.R. § 21.9520. Although the Board is sympathetic to the Veteran's situation, it is constrained by the law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). For the reasons detailed above, the Board must find that the record does not establish that he has qualifying service for purposes of eligibility for Chapter 33 (Post 9/11 GI Bill) education benefits. The appeal is denied. N. PETTINE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.