Citation Nr: 21022419 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-37 213 DATE: April 15, 2021 ORDER The application to reopen the previously denied claim of entitlement to basic eligibility for Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) educational benefits, is granted. Entitlement to basic eligibility for Post-9/11 GI Bill educational benefits is granted. FINDINGS OF FACT 1. The newly submitted evidence includes a DD Form 215 (Correction to DD Form 214) that verifies that the Veteran completed a period of honorable service and this evidence is material to his claim. 2. The Veteran is eligible for Post-9/11 GI Bill educational benefits based on a qualifying period of honorable active service, from March 7, 2011 to March 4, 2013. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to basic eligibility for Chapter 33 (Post-9/11 GI Bill) educational benefits. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for basic eligibility for education benefits under Chapter 33 (Post-9/11 GI Bill) have been met. 38 U.S.C. §§ 101, 3311; 38 C.F.R. §§ 3.12, 3.13, 21.9520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been received to open a claim of entitlement to basic eligibility for Chapter 33 educational benefits. The Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s claim for Post-9/11 GI Bill educational benefits in a December 2014 determination letter. The Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Therefore, the prior determination is now final, and the Veteran’s claim for eligibility to Post-9/11 GI Bill educational benefits may only be reopened if new and material evidence is received. “New” evidence means existing evidence not previously submitted to agency decision makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). When evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should consider whether such evidence, in its entirety, could at least trigger the duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 117. Moreover, when determining whether a claim should be reopened, the credibility of any newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The December 2014 RO letter informed the Veteran that his claim for Post-9/11 GI Bill educational benefits had been denied because he did not receive an honorable discharge, which is a requirement for Post-9/11 GI Bill eligibility. This decision was based on the Veteran’s DD Form 214 which indicates only one period of active service, from March 2011 to September 2014, and which indicates that separation was under other than honorable conditions. The Veteran maintains that he did have a qualifying period of active duty from which he was honorably discharged. At his hearing he testified that he first extended his period of active duty so that he could be deployed to Afghanistan. He stated that while in Afghanistan he completed his first period of enlistment with an honorable discharge and that he immediately reenlisted. The Veteran maintains that his first period of service, which was completed while he was in Afghanistan, was honorable, and therefore he is entitled to Post-9/11 GI Bill educational benefits based on that qualifying period of service. The newly submitted records include a decision of the Army Board for Correction of Military Records (ABCMR) finding that the Veteran had an honorable period of service prior to reenlisting. The newly submitted records also include a DD Form 215 (Correction to DD Form 214) that verifies that the Veteran completed a period of honorable service, from March 7, 2011 to March 4, 2013. This new evidence is material to the Veteran’s claim. Accordingly, new and material evidence has been received and the Veteran’s claim is reopened. 2. Entitlement to basic eligibility for Post-9/11 GI Bill educational benefits. The Veteran asserts that he is entitled to Post-9/11 GI Bill educational benefits. He acknowledges that he was discharged from service in September 2014 with an other than honorable discharge. He asserts that although he received an other than honorable discharge in September 2014, he is entitled to Post-9/11 GI Bill educational benefits based on his discharge from an earlier period of service from which he separated with an honorable discharge. Governing law specifies that an individual may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 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. See 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(a). Under paragraph (b), a veteran is also eligible for benefits under 38 U.S.C. Chapter 33 if he or she serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. See 38 C.F.R. § 21.9520(b). As noted above, the Veteran’s original DD Form 214 indicates that the Veteran had but one period of service and that he received an other than honorable discharge on separation from service. The Board notes that the Veteran originally signed up for two years and 16 weeks of active duty, and that during that period he extended his enlistment for seven months so that he could serve in Afghanistan. The fact that the Veteran’s original DD Form 214 showed that he was discharged from service with more active service than the original enlistment, plus the added seven-month extension, is supportive of his claim. The RO, however, found it determinative that there is no reenlistment contract in the Veteran’s file which would indicate that the Veteran had more than one period of service and denied eligibility. The Veteran applied to the Army Board for Correction of Military Records (ABCMR) to have his DD Form 214 corrected. In November 2020 the ABCMR approved the Veteran’s request. The ABCMR determined that the Veteran completed his first full term of service, from March 2011 to March 2013, and that this period of service was continuous and honorable. As the Department of the Army has verified that the Veteran completed an honorable period of active duty of longer than 90 days (excluding entry level and skill training), the Veteran has met the criteria for basic eligibility for Post-9/11 GI Bill education benefits. Accordingly, basic eligibility for Post-9/11 GI Bill education benefits is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.