Citation Nr: 21011810 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-39 217 DATE: March 2, 2021 ORDER Eligibility for VA educational assistance benefits under Chapter 33, Title 38, United States Code (also known as the Post-9/11 GI Bill) is granted. FINDING OF FACT The Veteran has qualifying service for Chapter 33 educational assistance benefits. CONCLUSION OF LAW The criteria for basic eligibility for education benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) are met. 38 U.S.C. §§ 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Air Force – Air National Guard of the United States from December 1986 to May 1987, and from August 2005 to February 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 decision of the Department of Veterans Affairs (VA) Regional Office (RO) that terminated the Veteran’s Chapter 33 educational assistance benefits. The RO explained in the decision that the benefits had been awarded in error and that the Veteran was not eligible for these benefits because he did not have qualifying service. On February 23, 2021, the Veteran appeared before the undersigned Veterans Law Judge at a Board virtual hearing. This appeal is being adjudicated under the Board's One Touch program. An individual is eligible for educational assistance under the provisions of the Post-9/11 GI Bill if, among other things, commencing on or after September 11, 2001, he or she serves an aggregate of at least 90 days on active duty in the Armed Forces (excluding entry level and skill training), and continues on active duty. 38 U.S.C. § 3311(b)(8); 38 C.F.R. § 21.9520(a)(1). In this case, the Veteran was found eligible for Chapter 33 educational assistance benefits in 2015 and he was also found eligible for the transfer of entitlement (TOE) program under 38 C.F.R. § 21.9570. See VA award letters dated from July 2015 to November 2015. In June 2017, after utilizing these benefits for three years under the TOE program for his two dependent daughters, VA informed the Veteran that he did not have qualifying service for Chapter 33 benefits and terminated the benefits. Regarding National Guard service, under regulations issued in March 2009, implementing the original provisions of the Post-9/11 GI Bill, 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; see also 38 U.S.C. § 101(22) (C) (likewise defining "active duty" to exclude full-time duty in the National Guard under 32 U.S.C. 502); 38 C.F.R. § 3.6(c)(3) (defining full-time duty performed by members of the National Guard of any State under 32 U.S.C. § 502 as "active duty for training"). However, in January 2011, pursuant to Pub. L. No. 111-377 (the Post-9/11 Veterans Educational Assistance Improvements Act of 2010), § 101, the definition of "active duty" was expressly 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, or (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 amended definition was given effect as of August 1, 2009, as if included in the original enactment of the Post-9/11 GI Bill. Pub. L. No. 111-377, § 101(d) (effective dates). The Veteran asserts that his Air Force (AF) National Guard (NG) service from August 2005 to February 2006 was in support of Hurricane Katrina and was in response to a national emergency declared by the President. He explained in the substantive appeal filed in July 2018 that he initially volunteered prior to Hurricane Katrina hitting land which is why his orders (in 2005) show state NG service, but that due to the extent of the destruction caused by the hurricane the NG was federalized per an order by the President of the United States in September 2005. Thus, he contends that he meets the definition of active duty for Chapter 33 benefit purposes under 38 U.S.C. § 3301(1)(C). This appeal thus turns on whether the Veteran’s AFNG service from August 2005 to February 2006 meets the criteria of active duty for Chapter 33 benefit purposes. In denying him Chapter 33 benefit eligibility, the Agency of Original Jurisdiction (AOJ) relied on information from the Department of Defense (DoD), as well as the Veteran’s DD Form 214 which shows that he served in support of Hurricane Katrina under Title 32, USC, § 505 for the period from August 2005 to February 2006. However, the Veteran submitted a memorandum dated in September 2005 from the Director, Personnel and Training, of the United States AF regarding Hurricane Katrina Support. In this memorandum the Director explained that there was some confusion with respect to publishing Title 32 orders for individuals in support of Hurricane Katrina relief and that the ANG order writing system would not allow a member to be placed in a special training status while using 32 USC 502(f)(2) as the authority. Accordingly, he said that the authority would reflect 32 USC 505. He went on to instruct that orders under 32 USC 505 were to be disregarded for purposes of individuals supporting Hurricane Katrina relief in this status and that the remarks section of the order must note that, “Member is called to duty under authority of 32 U.S.C 502(f)(2), Hurricane Katrina Support." . Consistent with the memorandum above is the Veteran’s April 2012 military special order (AQ-84) from Joint Force Headquarters of the Louisiana Army and Air National Guard which states that for the period from August 27, 2005 to February 23, 2006, the Veteran was "Called to duty under authority of 32 U.S.C 502(f)(2), Hurricane Katrina Support." Also on file is a June 2015 memorandum from the Department of the AF, Headquarters Air Reserve Personnel Center, stating that the Veteran was eligible for Chapter 33 benefits based on his qualifying active service under Title 32, § 502(f) from August 2005 to February 2006. Further evidence that supports the Veteran’s claim is his hearing testimony that he was paid by federal funds for this period of service. Additionally, it is noteworthy to point out that in finding in April 2017 that the Veteran did not have qualifying service for Chapter 33 benefits purposes, the DoD stated that the Veteran’s service was “all Title 32 (non-AGR [active guard reserve])”. The DoD went on to suggest that VA obtain the Veteran’s orders to verify his title. In this regard, as noted, his orders verify that he had qualifying service for Chapter 33 benefits under section 502(f) of Title 32. As a result, the Board finds that the weight of evidence supports a finding that the Veteran’ AFNG service in support of Hurricane Katrina from August 2005 to February 2006 was in response to a national emergency declared by the President and supported by Federal funds and thus meets the criteria for active service under U.S.C. § 3301(1)(C)(ii). Accordingly, he is considered to have qualifying active duty service for Chapter 33 VA educational assistance benefits, to include under the TOE program, and his claim for reinstatement of these benefits is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.