Citation Nr: 21030430 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 19-22 372A DATE: May 18, 2021 ORDER Entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill) is denied. FINDING OF FACT The Veteran did not have any period of active duty, apart from active duty for training, after September 2001. CONCLUSION OF LAW The Veteran is not eligible for Post 9/11 GI Bill (Chapter 33) educational assistance benefits. 38 U.S.C. §§ 3002, 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9520, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1988 to August 1990, to include a period of service in the Army Reserves from January 1991 to March 1991. 1. Entitlement to educational assistance benefits under Chapter 33 of Title 38 of the United States Code (Post-9/11 GI Bill). The Veteran contends that he is entitled to Chapter 33 benefits as he had active duty for training (ADT) after September 2001. The Post 9/11 GI Bill (Chapter 33) was established for "individuals who served on active duty after September 10, 2001"; thus, eligibility for Chapter 33 benefits turns on whether the claimant served on "active duty." 38 C.F.R. § 21.9500. A veteran may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 based on active duty after September 10, 2001, if he or she serves a minimum of 90 aggregate days excluding entry level and skill training (such training may be included in the total creditable length of service for longer periods, as set forth in 38 C.F.R. § 21.9640 (a)), 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 characterized as honorable 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; or, 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. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520(a). For the Post-9/11 GI Bill, creditable active duty has various meanings. For members of the regular components of the Armed Forces, qualifying active duty 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 section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of title 10 or section 712 of title 14. See 38 U.S.C. § 3301 (1)(B). For members of the Army National Guard of the United States or the Air National Guard of the United States, in addition to service described above for members of the regular and reserve components of the Armed Forces, qualifying active duty includes full time service (i) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or (ii) 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. See 38 U.S.C. § 3301 (1)(C). Notably, operational or support duties that are performed under "active duty for special work" (ADSW) are considered active duty, but such duty for training purposes is not considered active duty. To that point, VA General Counsel Precedential Opinion 25-90 concluded that temporary service for purposes other than training could be defined as active duty, not active duty for training. Further, Department of Defense (DoD) Directive 1215.6 defines ADSW as a tour of active duty to fulfill support requirements. Here, the Veteran's DD-214 and military personnel records show that post-September 10, 2001 as a member of the Army National Guard, he was ordered to ADT for accelerated officer candidate school from January 2011 to March 2011, for initial skill acquisition from August 2011 to October 2011, and for the leaders training program in March 2012. No other active service is of record, and the Veteran does not assert any further active service. The Veteran does not assert, and the record does not reflect, that these periods of service were under a call or order to active duty under 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. The Veteran also does not assert, nor does the record reflect, that these periods of service were for the purpose of organizing, administering, recruiting, instructing, or training the National Guard or authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency. All orders to ADT of record reflect the Veteran was a student of various courses, to include officer candidate school, and all orders of record to active duty for training purposes are authorized by the state of California. As the periods discussed are "active duty for training," these periods do not constitute eligible active duty for Chapter 33 benefits. To be eligible for Chapter 33 benefits, the Veteran must have 90 aggregate days minimum, excluding entry level and skill training, of service after September 10, 2001. Periods of ADT are not qualifying service for Post-9/11 GI Bill benefits, unless a claimant has at least 24 months of qualifying service, not including training. The Board is sympathetic to the Veteran's claim; however, educational assistance benefits under Chapter 33 are prefaced on specific and unambiguous legal requirements, which have not been met. In view of the foregoing discussion, the Board finds that the Veteran lacks qualifying service to be eligible for Post 9/11 GI Bill educational assistance benefits under Chapter 33. Accordingly, his claim must be denied. 38 U.S.C. §§ 3002, 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9520, 21.9640. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Peden 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.