Citation Nr: 21026491 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-43 643 DATE: May 3, 2021 ORDER 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 1. The Veteran served during a single period of active duty from December 2012 to May 2017. 2. In January 2016, the Veteran applied for Montgomery GI Bill (Chapter 30) education benefits; Chapter 30 benefits were granted in February 2016. 3. The Veteran applied for Post-9/11 GI Bill education benefits in August 2017, after having elected Chapter 30 benefits. CONCLUSION OF LAW The criteria for educational assistance benefits under the Post-9/11 GI Bill are not met. 38 U.S.C. §§ 3311, 3322; 38 C.F.R. § 21.9520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2012 to May 2017. The case is on appeal from a September 2017 decision which denied entitlement of Chapter 33 benefits in lieu of Chapter 30 education benefits. 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). Educational assistance benefits under the Post 9/11 GI Bill. The present matter involves the Veteran's desire to switch from educational assistance benefits under the Montgomery GI Bill (MGIB) (Chapter 30), to the Post 9/11 GI Bill (Chapter 33) once an election for one of the programs was previously made. The Veteran is seeking Post-9/11 GI Bill benefits. The Veteran described that when she applied for Chapter 30 benefits back in 2016, she was never told that once she used one of the education benefits to which she was entitled, she had to have a separate period of active duty service to change to the other benefits. She added that had she been given accurate information; she would have switched to the Post 9/11 GI Bill immediately. See May 2018 Notice of Disagreement (NOD). A careful review of the record shows that, in January 2016, the Veteran applied for VA Education Benefits (VA Form 22-1990) for MGIB benefits to pursue an Associate of Science degree to become a Veterinary Technician at Penn Foster College. Shortly thereafter, the Veteran was granted the benefit sought. Enrollment certification forms in April 2016 and June 2017 (VA Form 22-1999) show that the Veteran was enrolled in academic terms at Penn Foster College from March 2016 to June 2017 using her MGIB. Nevertheless, in December 2016 the Veteran submitted another application for VA education benefits, on which she indicated that she was seeking to change the VA education program for Chapter 33 benefits in lieu of her Chapter 30 benefits to use towards her Bachelor of Science degree in Electrical Engineering at Olympic College. In a September 2017 decision, the RO explained to the Veteran that her claim for Post-9/11 GI Bill benefits was denied, because she had already elected to use another benefit for her active duty service beginning on December 2012. The Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on service after September 10, 2001. Here, there is no question that the Veteran had the required period of active duty after September 10, 2001, and thus meets the basic eligibility requirements for receipt of Chapter 33 educational assistance benefits. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(b). The law provides that individuals entitled to educational assistance benefits under Chapter 33 who are also eligible for educational assistance under Chapter 30, among other programs, may not receive assistance under two or more such programs concurrently, but shall elect (in such form and manner as the Secretary may prescribe) under which chapter or provisions to receive educational assistance. 38 U.S.C. § 3322(a). In addition, the law bars "duplication of eligibility" based on a single period of service that began on August 1, 2011, or later. In other words, service that began on August 1, 2011, or later cannot be credited towards both Chapter 30 benefits and Chapter 33 benefits. Specifically, the law provides that "[a]n individual with qualifying service in the Armed Forces that establishes eligibility on the part of such individual for educational assistance under [chapter 33], chapter 30 or 32 of this title, and chapter 1606 or 1607 of title 10, shall elect (in such form and manner as the Secretary may prescribe) under which authority such service is to be credited." 38 U.S.C. § 3322(h). This bar to duplication of eligibility based on a single event or period of service was due to amendments enacted by Congress, which were made effective August 1, 2011. See Post-9/11 Veterans Educational Assistance Improvements Act of 2010, Pub. L. No. 111-377, § 111, 124 Stat. 4106, 4120-21 (Jan. 4, 2011). In Bo v. Wilkie, 31 Vet. App. 321 (2019), in which the United States Court of Appeals for Veterans Claims found that in cases in which a Veteran has two separate periods of service independently, entitlement to educational assistance benefits under both the MGIB and the Post-9/11 GI Bill may be warranted. However, the present appeal involves one period of active duty service after August 1, 2011, and for which the Veteran has already elected used Chapter 30 benefits for her education goals. In sum, here the Veteran only had one period of active duty service and is therefore precluded from establishing eligibility under both programs pursuant to 38 U.S.C. § 3322, which in turn is in compliance with the amendments enacted by Congress through PL 11-377 of January 1, 2011. Accordingly, because the Veteran's period of service beginning in December 2012 was used for eligibility and receipt of Chapter 30 educational assistance benefits, that same period cannot be used to establish separate entitlement to Chapter 33 educational assistance benefits. 38 U.S.C. § 3322 (h)(1). This is because the bar to duplication of eligibility based on a single event or period of service was already in effect when the Veteran entered into active service in December 2012. The Board has carefully considered the Veteran's contention that she was never informed that once she elected Chapter 30 benefits, she could switch to Chapter 33 benefits following separation from active duty. Nonetheless, a claimant's mistaken knowledge of the law and/or her rights cannot be used as an excuse for failure to follow a promulgated regulation. Morris v. Derwinski, 1 Vet. App. 260 (1991). VA regulations are "binding on all who seek to come within their sphere," regardless of whether a claimant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220 (2012). The law provides that an individual who meets the minimum service requirements for basic eligibility for Chapter 33 educational assistance, and who is eligible for educational assistance under Chapter 30, may receive Chapter 33 educational assistance if he/she makes an irrevocable election to receive benefits under Chapter 33 in lieu of receiving such benefits under Chapter 30. 38 C.F.R. § 21.9520 (c)(1). However, that is unfortunately not an option in situations such as the Veteran's, where the 38 U.S.C. § 3322 (h) prohibition applies to determinations of eligibility based upon the same period of service. Although the Board is sympathetic to the Veteran and is mindful of her honorable service in the U.S. Navy, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c). Accordingly, because the Veteran's period of service beginning in December 2012 was used to establish eligibility for receipt of Chapter 30 educational assistance benefits, that same period cannot be used to establish entitlement to Chapter 33 educational assistance benefits. 38 U.S.C. § 3322 (h)(1). There is no basis under the law on which the Veteran can elect to receive Chapter 33 educational assistance benefits in lieu of receiving such benefits under Chapter 30 if she is not independently entitled to Chapter 33 benefits. As previously noted, per Congress's enactments contained in PL 11-377 of January 1, 2011, service that began on August 1, 2011, or later cannot be credited towards both Chapter 30 benefits and Chapter 33 benefits. Therefore, educational assistance benefits under the Post-9/11 GI Bill is not warranted. RYAN T. KESSEL 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.