Citation Nr: 21024701 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-31 722A DATE: April 23, 2021 REMANDED Entitlement to educational assistance benefits under Chapter 33 of Title 38, U.S.C., also known as the Post 9/11 GI Bill. REASONS FOR REMAND The Veteran served on Active duty for training (ACDUTRA) from August 2005 to January 2006, with a period of active duty from February 2009 to September 2010, and with additional service in the Army Reserve through July 2013. The case is on appeal from a July 2014 VA decision which denied entitlement to Chapter 33 benefits. In February 2021, 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. Entitlement to educational assistance benefits under the Post 9/11 GI Bill. The present matter involves basic eligibility to Post 9/11 GI Bill benefits. 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). For the reasons set forth below, the Board finds that the evidence of record is not sufficient to decide the Veteran’s claim at this time. As previously noted, the Veteran served in the Army Reserve from August 2005 to July 2013. With particular relevance here, 38 U.S.C. § 3301(1)(B) provides that 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. During the February 2021 Board hearing, the Veteran testified that for the period from September 30, 2008 to September 30, 2010, he was mobilized to Ft. Knox, Kentucky to serve on active duty at the U.S. Army Drill Sergeant School (DSS). The Veteran contends that such period constitutes active duty for GI Bill purposes. See also September 2014 VA Form 9. A Defense Personnel Records Information Retrieval System (DPRIS) inquiry reflects that the Veteran received an award recognition for service provided from January 4, 2007 to September 30, 2007, at the U.S. Army DSS. The Veteran also received Non-Commissioned Officer (NCO) Evaluations on December 12, 2008; March 13, 2009; June 12, 2009; September 11, 2009; January 8, 2010; April 9, 2010; and July 9, 2010, for his service as a human resources specialist at the U.S. Army DSS. A copy of Military Orders No. 000471 dated on October 1, 2008, indicate that the Veteran was ordered to annual training for the period beginning on October 1, 2008. However, a subsequent copy of Military Orders No. 007872 dated on October 24, 2008, reflect that the Veteran was to provide operational support duty under Title 10 of U.S.C. at the U.S. Army DSS. See also Orders No. 019565 dated on December 1, 2008 (noting the Veteran’s service under 10 U.S.C. for service at the U.S. Army DSS). A separate DD-214 of record shows that the Veteran was called up to active duty, but from February 1, 2009 to September 30, 2010, under the authority of Title 10 of the U.S.C. Here, the question turns on whether the Veteran served under a qualifying section of Title 10 pursuant to 38 U.S.C. § 3301(B). With regard to that question. 10 U.S.C. § 688 corresponds to service for retired members called up to active duty; 10 U.S.C. § 12301(a) corresponds to service of reserve components during time of war of national emergency; 10 U.S.C. § 12301(g) refers to captive status; 10 U.S.C. § 12301(h) involves active duty period for medical care; 10 U.S.C. § 12302 addresses service of the Ready Reserve in time of national emergency; 10 U.S.C. § 12304(b) involves activation of reserve components during an emergency other than during war or national emergency; and 14 U.S.C. § 712 addresses active duty for emergency augmentation of regular forces. None of the foregoing provisions seem to apply to the present matter. Notwithstanding, the Board notes that 10 U.S.C. § 12301(d) is of potential applicability to the facts of the present case. The statute provides, in pertinent part, the following: “At any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member.” A simple read of the statute shows that any member of a reserve component can be called up to active duty, the only requirement being the consent of that member. For its part, 10 U.S.C. § 12304(a) provides the following: “Notwithstanding the provisions of section 12302(a) or any other provision of law, when the President determines that it is necessary to augment the active forces for any named operational mission or that it is necessary to provide assistance referred to in subsection (b), he may authorize the Secretary of Defense and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, without the consent of the members concerned, to order any unit, and any member not assigned to a unit organized to serve as a unit of the Selected Reserve (as defined in section 10143(a) of this title), or any member in the Individual Ready Reserve mobilization category and designated as essential under regulations prescribed by the Secretary concerned, under their respective jurisdictions, to active duty for not more than 365 consecutive days.” The statute authorizes the augmentation of active forces as necessary, to include for “any named operational mission” without the consent of the members concerned. In the present matter, the NCO Evaluations referenced above suggest that the Veteran was in fact called up to active duty to provide operational support at the U.S. Army DSS at Ft. Knox, Kentucky. Such evaluations do not suggest a period of ACDUTRA. He received evaluations for work performed and not training conducted. Additionally, when comparing the DD-214s of record with the Military Orders associated with the Veteran’s claims file, the Board notes a discrepancy regarding his active duty service dates. Ultimately, while service personnel records (SPRs) account for active duty service under Title 10 of the U.S.C., it is without specifying under what section of Title 10 the Veteran performed his active duty service. As noted, there are two provisions under Title 10 U.S.C. of potential applicability to facts of this case. However, further clarification is necessary. For the reasons set forth above, the Board finds that a remand is warranted for further development of the Veteran’s service records in order to clarify his active duty service periods, to include the section of Title 10 of the U.S.C. under which such service was provided. The matters are REMANDED for the following action: 1. Arrange for further development to obtain from JSRRC, the U.S. Army Reserve Command, or any other official source, any evidence reflecting the Veteran’s active duty, ACDUTRA or INACDUTRA service, to include the nature of any service provided between January 4, 2007 to September 30, 2007 at the U.S. Army DSS, and a specific inquiry as to under what section of Title 10 the Veteran performed service between September 2008 and July 2010. 2. Once all development has been conducted, readjudicate the matter on the merits. If the benefits sought are not granted in full, issue a supplemental statement of the case (SSOC) and return the matter to the Board for further appellate consideration. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pagan-Diaz, William 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.