Citation Nr: 22040140 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 15-03 741 DATE: July 13, 2022 ORDER Entitlement to education benefits under the Post-9/11 GI Bill (Chapter 33) in excess of the 80 percent rate is denied. FINDINGS OF FACT 1. The Veteran's qualifying active service was a period of more than 24 months, but less than 30 months. 2. The record does not reflect that the Veteran was discharged from a period of qualifying service due to service-connected disability. CONCLUSION OF LAW The criteria for education benefits under Chapter 33, Title 38, of the United States Code in excess of the 80 percent rate have not been met. 38 U.S.C. §§ 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9520, 21.9640. REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 Certificate of Eligibility from the Department of Veterans Affairs (VA) Regional Office. 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, December 2020, May 2021, and November 2021 at which times the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The educational assistance program under Chapter 33, Title 38, of the United States Code was established for "individuals who served on active duty after September 10, 2001" and was made effective in August 2009. 38 C.F.R. § 21.9500. The provisions of the Act are codified at 38 U.S.C. §§ 3301-3324 with the implementing regulations found at 38 C.F.R. §§ 21.9500-21.9770. In this case the Veteran's basic eligibility for Chapter 33 education benefits is not in dispute. Rather, what is in dispute is the percentage rate that he is entitled to for such benefits. 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 50 percent with at least 90 days, but less than 6 months, of creditable active duty service (i.e., 90-179 days); 60 percent with at least 6 months, but less than 18 months, of creditable active duty service (i.e., 180-544 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); 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). The above percentages reflect the changes made by the Harry W. Colmery Veterans Educational Assistance Act of 2017, Pub. L. No. 115-48, § 101 (enacted Aug. 16, 2017). In the instant case, the AOJ determined in October 2014 that the Veteran was entitled to 80 percent of the maximum amount payable under the Post-9/11 GI Bill based on the Veteran having served at least 24 months, but less than 30 months, of active service after September 10, 2001. The AOJ based its calculation on the Veteran having 431 days of qualified active service from November 23, 2004, to January 27, 2006, and 416 days of qualified active service from August 10, 2009, to September 29, 2010, totalling 847 days. 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. In this regard, he testified in December 2016 that he was 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. He said the purpose of the unit was to be on a 24-hour deployment status to respond to biological and natural disasters with neighboring states. His separation record (DD Form 214) shows that he served on active duty in the ARMY/ARNGUS from September 2010 to September 2014, and that the narrative reason for separation was completion of required active service. Military orders beginning October 1, 2011, show that he was assigned to ADOS (active duty for operational support) under Title 32. 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); 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, 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 purpose of the Board's prior remands was to clarify the Veteran's period of service with the Army National Guard for Chapter 33 eligibility purposes. The Board pointed out in the May 2021 remand that 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 Accordingly, pursuant to the Board's May 2021 and November 2021 remand orders, the AOJ obtained the Veteran's pay records from Defense Finance and Accounting Service (for the period from October 1, 2010, to September 30, 2011. These records show that he was on active duty for training for this period. The AOJ forwarded these records to the DoD requesting clarification as to whether the Veteran's National Guard service from September 2010 to September 2014 was eligible for Chapter 33 benefits. The DoD informed VA that from September 30, 2010, to September 30, 2014, the Veteran was serving on Active Duty Special Work, Active Duty for Training, or Active Duty Operational Support under Title 32 that was not in support of a national emergency, declared by the President, and supported by federal funds. The Board is bound by the laws and regulations that apply to the claims before it. 38 U.S.C. § 7104(c). Moreover, VA is bound by the service department's certification as to a claimant's military service. See Soria v. Brown, 118 F. 3d 747, 749 (1997); see also 38 C.F.R. § 3.203. Thus, in view of the DoD's finding that the Veteran's National Guard service from September 30, 2010, to September 30, 2014, does not meet the exception for Chapter 33 eligibility under 32 USC 502(f), and is not considered qualifying service for Chapter 33 benefits purposes, the aggregate length of his creditable service is based on his active service from November 2004 to January 2006 and August 2009 to September 2010. As noted, this service totals 847 days. Moreover, the Veteran neither asserts nor does the evidence show that he was discharged from service due to a service-connected disability. See 38 C.F.R. §21.9640. For the foregoing reasons, the Board finds that the Veteran is not entitled to a rate of education benefits under Chapter 33 in excess of the 80 percent rate. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.