Citation Nr: 21031089 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-20 842 DATE: May 20, 2021 ORDER The claim of entitlement to a higher level of payment of educational assistance benefits under Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), currently paid at the 90-percent level, is denied. FINDING OF FACT The Veteran had 954 days of qualifying active duty for Post-9/11 GI Bill purposes. CONCLUSION OF LAW The criteria for payment of Chapter 33 educational assistance benefits at a rate higher than 90 percent are not met. 38 U.S.C. §§ 3301, 3311, 3313; 38 C.F.R. §§ 21.9505, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was a member of the United States Army National Guard and served on active duty from May 2008 to August 2008, from March 2010 to August 2010, and from February 2013 to April 2013. She had additional periods of Full-Time National Guard service, which were qualifying periods of "active duty" for purposes of Post 9/11 GI Bill eligibility. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2015 determination by a Department of Veterans Affairs (VA) Regional Office (RO) that the Veteran was entitled to Chapter 33 educational assistance benefits only at the 80-percent level, which was later reduced to 40 percent. The Veteran disagreed with RO's determination regarding her entitlement, arguing that she was entitled to 90 percent of the benefits payable, and this appeal ensued. In October 2019, the Board remanded the matter for further development, to include verification of all periods of qualifying active duty service for purposes of calculating entitlement to Post-9/11 GI Bill benefits. The matter was then again before the Board in January 2021, at which time the Board awarded Post-9/11 GI Bill benefits at the 90-percent level. The Board also remanded the issue of entitlement to Post-9/11 GI Bill benefits at a level greater than 90 percent for further development, noting that a Veterans Affairs/Department of Defense Identity Repository (VADIR) report associated with the Veteran's claims file indicated that the Veteran had additional service with the United States Army Reserve from March 1, 2017, to July 16, 2018, but that the nature or type of such service was not evident from the evidence of record. The Board thus instructed the agency of original jurisdiction (AOJ) to ascertain whether the Veteran was on active duty or full-time National Guard duty during the time period in question. Upon completion of the requested development, the AOJ issued a supplemental statement of the case (SSOC) in March 2021 in which is continued to deny Post-9/11 GI Bil benefits at a level greater than 90 percent. The matter was thereafter returned to the Board for further appellate consideration. Level of Payment of Post-9/11 GI Bill Benefits At the outset, the Board notes that entitlement to Chapter 33 educational assistance benefits for the Veteran is not at issue, as entitlement to such has been established. What is at issue in this case is the level of payment to which the Veteran is entitled. Relevant to the instant appeal, the Post 9/11 GI Bill provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. Specifically, the law provides that the amount of educational assistance payable under Chapter 33 of Title 38 is calculated in accordance with a table measuring the aggregate length of creditable active duty service after September 10, 2001. 38 U.S.C. §§ 3311(b)(3), 3313; 38 C.F.R. § 21.9640. The percentage of maximum amounts payable is 40 percent with at least 90 days, but less than 6 months, of creditable active duty service (i.e., 90-179 days); 50 percent with at least 6 months, but less than 12 months, of creditable active duty service (i.e., 180-364 days); 60 percent with at least 12 months, but less than 18 months, of creditable active duty service (i.e., 365-544 days); 70 percent with at least 18 months, but less than 24 months, of creditable active duty service (i.e., 545-729 days); 80 percent with at least 24 months, but less than 30 months, of creditable active duty service (i.e., 730-909 days); 90 percent with at least 30 months, but less than 36 months, of creditable active duty service (i.e., 910-1094 days); and 100 percent with at least 36 months of creditable active duty service (i.e., 1095 days or more) or with at least 30 continuous days of creditable active duty service and a discharge due to a service-connected disability. 38 C.F.R. § 21.9640(a). For members of the regular components of the Armed Forces, qualifying active duty service 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 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, or under 14 U.S.C. § 712. See 38 U.S.C. § 3301(1)(B). Under the regulations issued in March 2009, implementing the original provisions of the Post 9/11 GI Bill, 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 38 U.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 ); 38 C.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"). In January 2011, however, pursuant to Pub. L. No. 111-377 (the Post 9/11 Veterans Educational Assistance Improvements Act of 2010), the definition of "active duty" was expressly 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. 38 U.S.C. § 3301(1)(C). The amended definition is in effect as of August 1, 2009, as if included in the original enactment of the Post 9/11 GI Bill. Pub. L. No. 111-377, § 101(d). (Notably, the relevant regulation, 38 C.F.R. § 21.9505, has not yet been amended to incorporate the expanded definition of "active duty" as it now appears in the statute). Central to the issue on appeal is the aggregate length of creditable active duty service during the relevant time period. As noted above, in a January 2021 decision, the Board determined that the Veteran was entitled to Post-9/11 GI Bill payable at the 90-percent level. This was based upon a finding that the Veteran had 954 days of qualifying active duty service after September 10, 2001, to include 159 days of active duty service under 10 U.S.C. § 12304 and 795 days of full-time service in the National Guard for the purpose of organizing and administering military personnel services for mobilized troops, including entry level and skill training periods, which the Board found to be qualifying "active duty" service for purposes of calculating entitlement to Post-9/11 GI Bill benefits. However, as a VADIR report indicated an period of Reserve service from March 1, 2017, to July 16, 2018, the Board found it necessary to clarify the nature of that service to determine whether benefits were payable at the 100 percent rate. On remand from the Board, the AOJ obtained copies of the Veteran's orders, dated March 7, 2017, which reflected that, effective March 1, 2017, the Veteran was separated from the Army National Guard and assigned to the United States Army Reserve Control Group (Reinforcement) under the provisions of 10 U.S.C. § 12213(b). Effective August 31, 2017, the Veteran was reassigned to the Standby Reserve (Inactive List). Orders dated on July 16, 2018, then reflect that the Veteran was discharged from the United States Army Reserve. The AOJ also contacted the Department of Defense (DoD) and requested that DoD confirm whether the Veteran was called up for any type of service during the period from March 1, 2017, to July 16, 2018. DoD responded that during the period in question, the Veteran had no qualifying active duty service and was assigned only to a component of the Individual Ready Reserve (IRR). In consideration of the nature of the Veteran's service from March 1, 2017, to July 16, 2018, as verified by her Orders and confirmed by DoD, the Board finds that the Veteran's service from March 1, 2017, to July 16, 2018, is not qualifying active duty service for purposes of calculating entitlement to Post-9/11 GI Bill benefits. 38 U.S.C. § 3301(1)(B), (C). Further, as the evidence fails to demonstrate that the Veteran had any additional period of service not previously considered by the Board in the January 2021 decision, the Board finds no basis upon which to award Post-9/11 GI Bill benefits at a rate greater than 90 percent. Indeed, the Veteran herself does not allege that she is entitled to benefits at the 100 percent level. Rather, the Veteran asserted that the totality of her service qualified for benefits at the 90 percent level, entitlement to which was previously awarded by the Board. Accordingly, as there is no basis upon which to assume that the Veteran had any additional periods of qualifying active duty service not previously considered, the Board finds that the Veteran is entitled to only 90 percent of the maximum rate of educational assistance benefits under the Post-9/11 GI Bill, as the Veteran served at least 30 months, but less than 36 months, of creditable active duty service (i.e., 910-1094 days) after September 10, 2001. See 38 U.S.C. § 3313(c)(6); 38 C.F.R. § 21.9640(a). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.