Citation Nr: 21015283 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-15 622 DATE: March 17, 2021 ORDER Basic eligibility for educational assistance benefits under Chapter 33 of Title 38 U.S.C., also known as the Post 9/11 GI Bill, is denied.   FINDING OF FACT The Veteran served as a cadet in the United States Coast Guard Academy from June 2011 to May 2016, without a qualifying period of active duty service. CONCLUSION OF LAW The criteria for basic eligibility for educational assistance benefits under the Post 9/11 GI Bill are not met. 38 U.S.C. §§ 101, 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 from June 2011 to May 2016, as a cadet in the United States Coast Guard Academy (USCGA). The case is on appeal from a March 2016 VA decision which denied entitlement to basic eligibility for education benefits under the Post 9/11 GI Bill. In a February 2017 VA Form 9, the Veteran elected an in-person hearing at the Board of Veterans’ Appeals (Board) in Washington D.C. The record reflects that in November 2020, the Veteran received a letter encouraging him to choose a virtual tele-hearing instead of an in-person hearing due to the COVID-19 pandemic. In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. Additional evidence has been either received or associated with the Veteran’s claims file subsequent to the statement of the case (SOC) issued in January 2017. As the evidence is either cumulative or not pertinent to the claim on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to Post 9/11 GI Bill (Chapter 33) education benefits. Legal Criteria 38 U.S.C. § 101(21)(D) provides that, in general, active duty includes service as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as an Airmanship at the United States Naval Academy. The Post 9/11 GI Bill was established for “individuals who served on active duty after September 10, 2001.” See 38 C.F.R. § 21.9500. However, for the Post 9/11 GI Bill, creditable active duty has various meanings. Thus, eligibility for Chapter 33 benefits turns on whether the claimant served during a “qualifying period of active duty” as set forth by VA laws and regulations and “subject to the limitations specified in 38 U.S.C. § 3002(6)” and 3311(b). See 38 U.S.C. § 3301(1). With particular relevance to the present matter, 38 U.S.C. § 3002(6) provides, in pertinent part, that the term “active duty” does not include any period during which an individual “served as a cadet or midshipman at one of the service academies. See also 38 C.F.R. § 21.9505(1)(ii). For members of the regular components of the Armed Forces, qualifying active duty service under the Post-9/11 GI Bill is full-time duty other than active duty for training.  38 U.S.C. § 3301 (1)(A). 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 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12301(h), 12302, 12304, 12304a, or 12340b or 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). 38 U.S.C. § 3301(2)(E) provides that entry level and skill training also include Basic Training and Skill Training (also called “A” training) for members of the Coast Guard. (Notably, the relevant regulation for the foregoing provisions, 38 C.F.R. § 21.9505, has not yet been amended to incorporate the expanded definition of “active duty” as it now appears in the statute.). Ultimately, as relevant to this case, 38 U.S.C. § 3311(b)(2) provides that entitlement to basic eligibility for Chapter 33 benefits is established for an individual who: (A) commencing after September 11, 2001, serves at least 30 continuous days on active duty in the Armed Forces; and (B) after completion of such service is discharged or released from active duty in the Armed Forces for a service-connected disability. Analysis The Veteran contends that entitlement to education benefits under Chapter 33 must be warranted as some of his active duty service in the USCGA must be deemed as “qualifying” for purposes of education assistance benefits pursuant to 38 U.S.C. § 3311(b)(2). See February 6, 2017 Notice of Disagreement (NOD). In essence, the Veteran indicates that from June 27, 2011 to January 6, 2015, he served in the USCGA in New London, Connecticut, as a cadet, where he had been pursuing a civil engineering degree as part of his commissioning contract agreement. Thereafter, the Veteran began experiencing some health issues requiring extensive medical treatment, to include hospitalizations and subsequent surgical interventions. As a result, the Veteran was placed on convalescence leave from January 15, 2015 to May 26, 2015. Thereafter, on May 27, 2015, the Veteran asserts he was on an “Official Medical Suspension from the Corps of Cadets” until September 20, 2015. The Veteran acknowledges that the foregoing periods do not qualify for purposes of education assistance under the Post 9/11 GI Bill. See NOD at p.1-2. Accordingly, it is undisputed that the Veteran’s service as a cadet in the USCGA prior to September 21, 2015 does not qualify as active duty service in accordance with 38 U.S.C. § 3301. The Veteran, however, indicates that on September 21, 2015, he was officially recalled to full-time active duty and assigned to the U.S. Coast Guard Facilities Engineering Branch, also located within the USCGA, where he remained until his medical separation on May 8, 2016, and thus, such period must be considered as active duty for Post 9/11 GI Bill purposes. He indicates that such assigment did not encompass a reinstatement to the Corps of Cadets for he was no longer a Cadet/Student, but an assigment to active duty as he was not authorized to attend academic classes, was not authorized to attend cadet activities, athletics, military training or professional development events, was not permitted to reside in cadet dorms and was assigned to active duty quarters, was not permitted in the cadet dining facility, was assigned a duty office at the Facilities Engineering Office, and had a full-time schedule from 7:30 a.m. to 4:00 p.m. In support of his claim, the Veteran submitted a letter prepared by J.W.F., PE, the Veteran’s Commander during his temporary assignment and Chief of the Facilities Engineering Branch “at the United States Coast Guard Academy.” The letter indicates that the Facilities Engineering Branch was responsible for operations, maintenance, repair and construction efforts that take place “at the Academy” on a daily basis. Commander F. noted that the “Cadet [] was assigned to [the] Coast Guard Academy Facilities Engineering branch while on active duty, from September 21, 2015 until his honorable discharge on May 8, 2016. The letter further described the Veteran’s duties during his assigment, and that the Veteran did not earn academic credit from the USCGA for this active duty assigment. See June 20, 2016 Letter of Employment Verification. Service treatment records (STRs) reflect that in a January 2015 letter, the Veteran’s attending physician indicated that the he had been experiencing serious gastroenterological problems for which he was placed on convalescent leave. The letter also shows that an additional extension for 60 days of convalescent leave was requested, until April 2, 2015. See January 26, 2015 letter from the Penn Presbyterian Medical Center. Shortly thereafter, the Veteran’s Commander indicated that the convalescent leave was recommended as his chronic abdominal pain was affecting his academic, athletic and military performance. See January 30, 2015 Memorandum. In March 2015, a Medical Evaluation Board (MEB) physician opined that the Veteran was unfit for unrestricted worldwide Coast Guard duties for several months. The opinion noted that per the Veteran’s attending physician, he will likely proceed with a surgical intervention in the near future, and after the surgical intervention, the Veteran will require eight to twelve weeks recovery until he can resume full duties. Accordingly, the Veteran was referred to a Formal Physical Evaluation Board (FPEB) for separation. See March 11, 2015 Narrative Summary report. In March 17, 2015, the Veteran underwent a laparoscopic small bowel resection. See April 3, 2015 progress notes. In a May 2015 Memorandum, the Veteran’s Command suspended him from the Corps of Cadets until a final disposition of the MEB process. See May 27, 2015 Memorandum of Command Endorsement of MEB Report. In an October 21, 2015 email, the Veteran communicated to a USCGA health provider that his medical board process has not been completed yet and instead of participating in school, he was working at “Facilities Engineering from 0730 to 1600.” A 1/c accompanied the Veteran’s signature which stands for Cadet First Class. Ultimately, a FPEB report was issued in February 2016. The report indicates that the “cadet [] is unfit for continued duty by reason of physical disability.” As part of VA’s duty to assist, the Agency of Original Jurisdiction (AOJ) requested from the United States Coast Guard clarification with respect to the Veteran’s service. In a July 2016 response, the Coast Guard point of contact indicated that while the Veteran’s character of discharge was an honorable one, and that he had been separated from service due to a disability, his period of service from June 27, 2011 to May 8, 2016 was not creditable time towards the Post/11 GI Bill as his entire service was as a cadet in the Coast Guard Academy. The Board has considered the Veteran’s contentions and statements in support of his claim, and the clearly enunciated provisions addressing the basic requirements for entitlement to Chapter 33 educational assistance benefits. After careful review of the evidence of record, the Board finds that the Veteran’s service as a cadet in the USCGA does not constitute qualifying active duty service for the purposes of education benefits under the Post 9/11 GI Bill. First, while the evidence indeed reflects that the Veteran was suspended from the Corps of Cadets in May 2015, meaning that he was no longer required to perform the necessary training that his commissioning contract entailed, and was recalled for full-time duty and temporarily assigned to the Facilities Engineering Branch while pending a final determination from the FPEB regarding his medical separation, such full-time service does not translate to active duty for purposes of education benefits under the Post 9/11 GI Bill. The Veteran’s service was still as a cadet in a different department of the Academy. This is supported by the October 2015 email in which the Veteran referred to himself as a First Class Cadet (1/c); the June 2016 letter from the Veteran’s former Chief of Facilities Engineering during the Veteran’s temporary assigment, as he refers to the Veteran as a “Cadet, ” and the DD-214 of record indicating that he was separated from service as a Cadet. As previously noted, “active duty” [under the Post 9/11 GI Bill] does not include any period during which an individual “served as a cadet [] at one of the service academies. See 38 U.S.C. § 3002(6); see also 38 C.F.R. § 21.9505(1)(ii). To that effect, the Veteran’s assignment to the Facilities Engineering Branch was a temporary one, while on some sort of holdover status, and not permanent in nature. Given his inability to perform the duties required by the Corps of Cadets, he was assigned to full-time duty with the USCGA’s Facilities Engineering Branch, as a cadet, as it was considered appropriate to his duty status until a final determination was made from the Physical Disability Evaluation Board. See May 27, 2015 Memorandum of Notification of Suspension. Such type of active duty service is not encompassed within the meaning of active duty, as enunciated by Congress, for establishing eligibility under the Post 9/11 GI Bill. The Board is aware that the Veteran was separated from service due to a disability deemed service-connected. However, as the Veteran did not serve at least 30 continuous days on active duty as defined by 38 U.S.C. § 3301, the provisions set forth in 38 U.S.C. § 3311(b)(2) are not applicable to the particular facts of the present appeal. Additionally, the record does not show evidence, and the Veteran has not asserted at any time, that he had any qualifying active duty service under call or order to active duty pursuant to 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12301(h), 12302, 12304, 12304a, or 12340b or 14 U.S.C. § 712. The Board acknowledges that the Veteran believes he is entitled to education benefits under the Post-9/11 GI Bill. However, the Board is bound by the applicable law and regulations. Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In this case it is the law, and not the facts, which is dispositive of the matter in question and, therefore, there is no legal basis for granting the Veteran’s claim. Accordingly, entitlement to basic eligibility for educational assistance benefits under the Post-9/11 GI Bill is not warranted, including on an equitable basis. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, Associate 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.