Citation Nr: 21029875 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-03 741 DATE: May 17, 2021 REMANDED Entitlement to payment of educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill) at the 100-percent level is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2004 to January 2006 and from August 2009 to September 2010. He also served in the Army National Guard from September 2010 to September 2014. This matter comes to the Board of Veteran's appeals on appeal from an October 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a Board video conference hearing. A transcript of the hearing is of record. This matter was previously before the Board in August 2018 and December 2020 at which times the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development; namely, to obtain the October 2014 award letter (certificate of eligibility (COE)) from which this appeal is based, and to seek clarification from appropriate resources regarding the nature of the Veteran's National Guard Service. The matter is once again before the Board. The issue in this appeal, which is explained in detail in the Board's prior remands, concerns the Veteran's disagreement with the AOJ's October 2014 determination that awarded him Chapter 33 benefits at the 80 percent rate. This determination is based on his periods of service under Title 10 of the United States Code from November 2004 to January 2006, and from August 2009 to September 2010. The aggregate days for those two periods of service total 847 days which is consistent with an 80 percent rate. See 38 U.S.C. §§ 3311, 3313; 38 C.F.R. § 21.9640(a). The Veteran asserts that he is entitled to a 100 percent rate based on his subsequent service in the Army National Guard from September 2010 to September 2014. The purpose of the Board's prior remands was to clarify this period of service for Chapter 33 eligibility purposes. The Veteran testified in December 2016 that he had been deployed overseas under Title 10 in 2010 and when he returned from overseas his unit changed its status to special duty for the Homeland Response Force under Title 32. His separation record (DD Form 214) shows that he served on active duty in the ARMY/ARNGUS from September 2010 to September 2014. Military orders beginning October 1, 2011, show that he was assigned to ADOS (active duty for operational support) under Title 32. The Board explained in its remands that full-time National Guard duty performed pursuant to orders issued under Title 32, United States Code, was specifically excluded from the definition of "active duty." 38 C.F.R. § 21.9505; see also 38U.S.C. §§101 (21), (22)(C) (likewise defining "active duty" to exclude full-time duty in the National Guard under 32 U.S.C. § 502); 38C.F.R. §3.6(c)(3) (defining full-time duty performed by members of the National Guard of any State under 32 U.S.C. §502 as "active duty for training"). However, the Board went on to note that in January 2011, pursuant to Pub. L. No. 111-377 (the Post 9/11 Veterans Educational Assistance Improvements Act of 2010), the definition of "active duty" was expanded for purposes of Post 9/11 GI Bill eligibility to include certain full-time service in the National Guard, as follows: (1) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, and (2) in the National Guard under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38U.S.C. §3301(1)(C). The Veteran contends that his service under Title 32 falls under the amended definition of 38 U.S.C. § 3301(1)(C). In this regard, he testified that he had been activated for the "FEEMA [Federal Emergency Management Agency] Region 9-Homeland Response Force Team" which was a detail that he was assigned to in response to a national emergency. See also VA Form F9 dated in December 2014. In consideration of this assertion, the Board remanded the case to obtain additional information regarding the Veteran's Title 32 service. See February 2021 Supplemental Statement of the Case. Unfortunately, there remains uncertainty regarding the Veteran's National Guard service from September 30, 2010 to September 30, 2011. In this regard, information from VADIR (Veterans Affairs and Department of Defense (DoD) Identity Repository) in October 2016 and April 2017 shows that the Veteran's active duty service from September 2010 to September 2011 is qualifying service for Chapter 33 benefit purposes, while information from VADIR in October 2014, April 2016, November 2019 and January 2021 states that it "cannot be determined" whether this period of service constitutes qualifying service for Chapter 33 benefit purposes due to "Data quality issue in transaction". Adding to the uncertainty regarding this period of service is the DoD's tentative wording in an October 2014 note that the Veteran did not have additional qualifying service for Chapter 33 benefits purposes and that he was "most likely" on ADOS orders. Additionally, while the DoD similarly noted in February 2021 that the Veteran did not have additional qualifying orders for Chapter 33 benefit, it acknowledged that there were no military orders on file for the period from September 30, 2010 to September 30, 2011. In consideration of the missing military orders for the Veteran's service from September 30, 2010 and September 30, 2011 and the uncertainty from DoD regarding this period of service, a remand is in order so that the Veteran can be notified of the unavailability of his military orders and can be given the opportunity to present evidence (including copies of military orders) that supports his claim. 38 C.F.R. § 3.159(e). Also, the AOJ should undertake appropriate action, to include contacting the Veteran's Army National Guard unit, the National Personnel Records Center (NPRC), or any other appropriate entity, to obtain any outstanding/available documentation necessary to assess the nature/purpose of the Veteran's period of active duty from September 30, 2010 to September 30, 2011, to specifically include whether activation was (1) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, of (2) in the National Guard under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38U.S.C. §3301(1)(C). While the Board sincerely regrets the additional delay caused by yet another remand, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The matters are REMANDED for the following action: 1. Notify the Veteran in accordance with 38 C.F.R. § 3.159(e) that the military orders for his period of service from September 30, 2010 to September 30, 2011 are missing and offer him the opportunity to submit any records within his possession or alternative evidence to support his claim that this period of National Guard service falls under the expanded definition of active duty to include service: (1) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, or (2) in the National Guard under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38 U.S.C. § 3301(1)(C). He should be informed that examples of such evidence include a copy of his military orders for his period of service from September 30, 2010 to September 30, 2011, and evidence that he received federal pay rather than state pay. 2. Thereafter, undertake appropriate action, to include contacting the Veteran's Army National Guard units, the National Personnel Records Center, or any other appropriate entity, to obtain any outstanding/available documentation necessary to assess the nature/purpose of the Veteran's period of active duty from September 30, 2010 to September 30, 2011, to specifically include whether activation was (1) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, of (2) in the National Guard under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. 38 U.S.C. § 3301(1)(C). 3. Contact the Defense Finance and Accounting Service (DFAS) and requesting the Veteran's Master Military Pay Account (MMPA). 4. After completion of the above, readjudicate the claim. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.