Citation Nr: 21011875 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-20 295 DATE: March 2, 2021 ORDER A 100 percent rate of educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) is granted. [The Board finds that any outstanding payments of education benefits owed to the Veteran, on the basis of this decision, should be provided to him directly rather than paid to any institution of higher learning.] FINDING OF FACT The Veteran served on active duty in the U.S. Army from February 2001 to May 2006, and he had at least 36 months of creditable active duty service for purposes of payment of Chapter 33 benefits. CONCLUSION OF LAW The criteria for a 100 percent rate of educational assistance benefits under 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) have been met. 38 U.S.C. §§ 3301, 3311, 3313; 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. Army from February 2001 to May 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a January 2021 Virtual hearing. A transcript of this hearing is of record. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board’s favorable decision in granting the maximum level of benefits payable for Post-9/11 GI Bill benefits, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. 1. Entitlement to a higher than 70 percent level of educational assistance benefits under the Post-9/11 GI Bill The Veteran asserts that he is entitled to a higher level of Post-9/11 GI Bill benefits, because he had at least 36 months of qualifying active duty service. 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. There is no dispute that the Veteran meets the basic eligibility requirements to receive Post-9/11 GI Bill benefits. The amount of educational assistance payable under 38 U.S.C. Chapter 33 is calculated in accordance with a table measuring the aggregate length of creditable active duty service after September 10, 2001. 38 U.S.C. §§ 3311(b)(3), 3313; 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is 40 percent with at least 90 days, but less than 6 months, of creditable active duty service (i.e., 90-179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (i.e., 180-364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (i.e., 365-544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (i.e., 545-729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (i.e., 730-909 days); 90 percent with at least 30 months, but less than 36 months, of creditable active duty service (i.e., 910-1094 days); and 100 percent with at least 36 months of creditable active duty service (i.e., 1095 days or more) or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 C.F.R. § 21.9640(a). For the 40 percent, 50 percent, 60 percent, and 70 percent creditable active duty service calculations, entry level and skill training are excluded. Id. at Note 1. For the 80 percent, 90 percent, and 100 percent creditable active duty service calculations, entry level and skill training are included. Id. at Note 2. If the creditable active duty service criteria are met for both the 70 percent and 80 percent criteria, the maximum percentage of 70 must be applied. Id. at Note 3. Under 38 C.F.R. § 21.9505, active duty means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. However, certain periods of service are specifically excluded from qualifying active duty service. Active duty does not include: (1) Full-time National Guard Duty performed under 32 U.S.C. orders; (2) Any period during which the individual (i) was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; (ii) served as a cadet or midshipmen at one of the service academies; or (iii) served under the provisions of 10 U.S.C. § 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; (3) A period of service (i) required by an officer pursuant to an agreement under 10 U.S.C. 2107(b); (ii) required by an officer pursuant to an agreement under 10 U.S.C. 4348, 6959, or 9348 [redesignated §§ 7448, 8459, 9348, effective February 1, 2019; National Defense Authorization Act for Fiscal Year 2019, 115 Pub. L. 232, § 808, Aug. 13, 2018, 132 Stat. 1636]; (iii) that was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or (iv) counted for purposes of repayment of an education loan under 10 U.S.C. Chapter 109; or (4) A period of Selected Reserve service used to establish eligibility under 38 U.S.C. Chapter 30 or 10 U.S.C. Chapter 1606 or 1607. 38 C.F.R. § 21.9505. (The Board notes that under 38 U.S.C. § 3301, the definition of active duty service has been expanded to include service under 38 C.F.R. § 12301(h) and certain full-time service in the National Guard. Notably, the relevant regulation, 38 C.F.R. § 21.9505, has not yet been amended to incorporate that definition of "active duty" as it now appears in the statute. Nevertheless, that expanded definition does not apply in this case.). In this case, a March 2017 Certificate of Eligibility indicated that the Veteran had 828 days of qualifying active duty service beginning on February 3, 2001 and ending on May 10, 2006. Based on that information, the RO determined that the Veteran was entitled to an 80 percent level of the maximum benefits payable under the Post-9/11 GI Bill program. The Veteran appealed that decision seeking a higher level of benefits. During the pendency of the appeal, the RO issued a February 2018 statement of the case, in which it recalculated the Veteran’s rate of benefits. After receiving new information, the RO found that the 80 percent level of benefits was incorrect. The RO reduced the Veteran’s rate of payable benefits from 80 percent to 70 percent. The Veteran contends that he is entitled to a 100 percent of the benefits payable as he completed over five years on active duty. He indicated that he did not have a service obligation or received any financial benefit to which he owed a financial obligation to the Department of Defense. He explained that he did not attend any service academy, did not receive any ROTC scholarship and never had any loan repayment obligations. He described how he entered active duty service in May 2001 as an “obligated volunteer,” that he completed his initial three-year volunteer obligation, and he was released from active duty in May 2006. The Veteran asserts that the three-year obligation should count towards his qualifying active duty service. See November 2017 Notice of Disagreement, April 2018 VA Form 9, and January 2021 Board hearing transcript. A careful review of the record reveals that in November 2000, the Veteran was appointed as a Reserve Commissioned Officer of the Army under Title 10, U.S.C. §§ 1201 and 12203. A DD Form 214 reflects that from January 2001 to April 2001, the Veteran had served a period of active duty for training to attend a 12-week Judge Advocate General Officer Basic Course. In April 2001, the Veteran filed an Application for Active Duty (DA Form 160-R). The application noted that the Veteran had selected to volunteer to enter active duty for a period of three years and was available for entry on active duty on date of receipt of orders. According to May 2001 orders, the Veteran was ordered to report to active duty on May 21, 2001 as an obligated volunteer officer for a period of three years. The purpose of his active duty commitment was noted as “Fulfill Active Army Requirement.” A DD Form 214 reflects that the Veteran entered active duty on February 3, 2001 and was released with an honorable discharge on May 10, 2006. In a January 2017 Application for VA Education Benefits (VA Form 22-1990), the Veteran did not indicate that he had graduated from a military service academy or received a commission as the result of a ROTC Scholarship Program. He also indicated that he did not have a period of active duty that the Department of Defense (DOD) counts for purposes of repaying an education loan. A February 2018 Information Report from the VA/DOD Identity Repository (VADIR) indicated that the Veteran did not have any periods of service obligated by a loan repayment program, a commission as a result of a ROTC program under 10 U.S.C. § 2107(b), or graduation from a service academy. The RO requested that the DOD provide information concerning the Veteran’s periods of creditable service for Post-9/11 GI Bill purposes and verify all periods that might be obligated periods due to ROTC or Service Academy Obligations. In March 2017, the DOD responded that the Veteran served in the Regular Army from February 3, 2001 to May 10, 2006 and had an obligated period from February 2, 2001 to February 2, 2004. The RO sought clarification from the DOD on the nature of the obligated period. In February 2018, the DOD responded that the Veteran’s active duty order had him as an “Obligated Volunteer Officer” for three years. The purpose was to “Fulfill Active Army Requirement” from May 21, 2001 to May 20, 2004. The regulations specify the circumstances under which a period of the Veteran’s active duty service from February 2001 to May 2006 would not qualify under Chapter 33. The evidence shows that the Veteran had an obligation to complete his three-year active duty service period, which was accomplished. The DOD confirmed that this obligation was the Veteran’s only obligated period of service as well as the nature of such obligation to “Fulfill Active Army Requirement.” The regulations do not provide that this explicit period of service as an obligated volunteer officer would not count as active duty service. Based on the above, the Board finds that the Veteran’s active duty service from February 2001 to May 2006 did not include any disqualifying periods for purposes of calculating the rate of payment for Post-9/11 GI Bill benefits. While there appears to be a slight discrepancy between the Veteran’s DD Form 214 and his May 2001 orders as to when the Veteran actually entered active duty service (February 3, 2001 or May 21, 2001), the discrepancy does not materially impact the calculation of the Veteran’s creditable service. Regardless of the correct active duty start date, the evidence still shows that the Veteran has at least 36 months of creditable active duty service after September 10, 2001. Thus, the Veteran is entitled to receive the maximum 100 percent rate of Post-9/11 GI Bill. 38 C.F.R. § 21.9640(a). [CONTINUED ON NEXT PAGE] Accordingly, the Veteran's claim for educational assistance benefits at the 100 percent rate under the Post 9/11 GI Bill is granted. The Board finds that any outstanding payments of education benefits owed to the Veteran, on the basis of this decision, should be provided to him directly rather than paid to any institution of higher learning. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.