Citation Nr: 21031543 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-45 925 DATE: May 24, 2021 REMANDED Entitlement to education benefits under Chapter 33, Title 38, United States Code, (Post-9/11 GI Bill) above the 60 percent rate is remanded. REASONS FOR REMAND The Veteran had active service from October 2004 to October 2008, and from April 2012 to May 2013. He also had additional periods of Army Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 decision of the Department of Veterans Affairs (VA) Regional Office. In March 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to education benefits under Chapter 33, Title 38, United States Code, (Post-9/11 GI Bill) above the 60 percent rate is remanded. 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. Specifically, 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). Relevant to the instant claim, 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. 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). Additionally, definitions provided under 38 U.S.C. § 3301 and 38 C.F.R. § 21.9505, governing the administration and payment of educational assistance under 38 U.S.C. Chapter 33, specifically provide that "active duty" does not include a period of service "required by an officer pursuant to an agreement under 10 U.S.C.§ 2107(b)." Moreover, the provisions of 38 U.S.C. § 3311(d), also addressing eligibility requirements under 38 U.S.C. Chapter 33, specifically prohibit treatment of certain service as a period of active duty. Under those provisions, a period of service on active duty as an officer pursuant to an agreement under 10 U.S.C. § 2107 shall not be considered as part of the period of active duty on which an individual's entitlement to education assistance under this chapter is based. 38 U.S.C. § 3311(d). With regard to the calculation for creditable service for purposes of entitlement to Chapter 33 educational assistance benefits, the Board finds that additional development is necessary before it can reach the question of whether the Veteran is entitled to a higher rate of payment for such benefits. As noted, certain periods of service are excluded from qualifying active duty service; specifically, periods pursuant to an agreement under 10 U.S.C. § 2107. In the instant case, it is not disputed that the Veteran had service from October 2004 through October 2008. See DD 214, Certificates of Release or Discharge from Active Duty. Nevertheless, this period has been denied by the agency of original jurisdiction (AOJ) as it was pursuant to a Reserved Officer Training Corp (ROTC) agreement; therefore, the period under dispute is pursuant to 10 U.S.C. § 2107(b) and not creditable. Even so, the Veteran has consistently asserted that his active duty service from October 2004 through October 2008, in whole or in part, should be creditable service under Chapter 33. In support, the Veteran has essentially argued that the period under appeal was not pursuant to 10 U.S.C.§ 2107(b) as the ROTC contract was breached. See, e.g., March 2021 Hearing Transcript. However, a copy of the signed ROTC contract has not been associated with the record. As the Board is unable to review the document, a remand is necessary for further development. Additionally, the Veteran has asserted he was called to active duty for training under 10 U.S.C. § 12301(d). The Veteran has submitted copies of various military orders purporting to be calls to active duty for training pursuant to 10 U.S.C. § 12301(d). He has also submitted tables claiming to show periods of active duty for training from 2009 through 2017. The Board notes that the AOJ has recognized periods from April 2012 through May 2013, August 7, 2016 through August 20, 2016, and July 23, 2017 through August 5, 2017, as creditable service. See February 2018 Correspondence. However, it is unclear whether the remaining orders the Veteran has provided were pursuant to 10 U.S.C. § 12301(d), or whether all military orders are associated with the claims file. Thus, the Board finds it necessary to remand the matter to attempt to obtain all relevant documentation pertaining to the Veteran's service, to include the Veteran's orders ordering him to service, so as to verify whether any period was in fact active duty for training pursuant to 10 U.S.C. § 12301(d) or whether it can otherwise be considered qualifying active duty service. Furthermore, Department of Defense (DoD) verification of all dates of active duty service is required in this case to ensure that the correct facts regarding the Veteran's service are before the Board. The matters are REMANDED for the following action: 1. With any assistance from the Veteran, take all necessary steps to identify the significance of the respective ROTC contracts, and the corresponding obligations under such contract, including contacting the DoD and/or other relevant sources. Additionally, determine whether any identified contract was changed, amended, and/or cancelled prior to entry onto active duty in October 2004. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Also, undertake appropriate action, to include contacting the Veteran's Army Reserve unit, the National Personnel Records Center (NPRC), or any other appropriate entity, to obtain any outstanding/available service personnel records necessary to verify all the Veteran's periods of active duty and active duty for training service occurring after September 10, 2001. Specifically seek copies of the military orders ordering the Veteran to service for the period from 2009 through 2017. 3. After the above development has been completed and all available records have been received, submit a request to the DoD, with copies of all relevant orders, ROTC contract(s), and DD 214 Forms, to determine the Veteran's periods of service that qualify as active duty service for purposes of entitlement to Chapter 33 educational assistance benefits. DoD should make a specific finding regarding whether the periods from October 2004 through October 2008, and/or from 2009 through 2017 (pursuant to 10 U.S.C. § 12301(d)), are or are not periods of qualifying service for purposes of entitlement to Chapter 33 educational assistance benefits. (Continued on the next page) 4. Ensure the entire Chapter 33 education folder has been scanned and associated with the electronic claims file. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, 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.