Citation Nr: 24013003 Decision Date: 03/27/24 Archive Date: 03/27/24 DOCKET NO. 18-34 707 DATE: March 27, 2024 ORDER Entitlement to a higher rate of payment of educational assistance benefits under the provisions of Chapter 33 of Title 38 of the United States Code (Chapter 33 or Post-9/11 GI Bill), currently paid at the 60 percent level, is DENIED. FINDING OF FACT The Veteran has 429 days (at least 12 months, but less than 18 months) of qualifying active-duty service 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 60 percent have not been met. 38 U.S.C. §§ 3301, 3311, 3313; 38 C.F.R. §§ 21.9505, 21.9640. FACTUAL AND PROCEDURAL BACKGROUND The Veteran served on active duty for training from March 1998 to June 1998. Thereafter, the Veteran served on active duty as a member of the Army National Guard (ARNG) from January 2004 to March 2005, and from June 2006 to December 2007. The Veteran had additional service with the ARNG. The case is on appeal to the Board of Veterans' Appeals (Board) from a May 2018 Department of Veterans Affairs (VA) Regional Office (RO) decision which reduced his Post-9/11 GI Bill benefits from the 90 percent rate to the 60 percent rate. In July 2018, following a June 2018 Statement of the Case (SOC), the Veteran perfected his appeal by submitting a VA Form 9 (Substantive Appeal). The Veteran's contention, in essence, is that his additional periods of active duty service in the ARNG entitles him to a rate higher than the 60 percent currently in place. Accordingly, the issue has been properly recharacterized to reflect the Veteran's main contention. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a higher rate of payment of Chapter 33 educational assistance benefits Entitlement to Chapter 33 educational assistance benefits is not at issue, as that entitlement has been established. What is at issue in this case is the aggregate length of the Veteran's creditable active-duty service after September 10, 2001. By way of background, a November 4, 2010 Certificate of Eligibility reflects that the Veteran was granted Chapter 33 benefits at the 90 percent rate for active duty service performed from January 17, 2004 to March 20, 2005, and from June 15, 2006 to December 31, 2007, for a total of 994 days of qualifying active duty service. The Veteran enrolled in school and continued to receive benefits at the same rate. In January 2017, the Veteran filed a claim for Chapter 33 benefits to begin a new program of education. In March 2017, the RO issued a COE confirming that the Veteran was entitled to Chapter 33 benefits at the 90 percent rate. Notwithstanding the above, the record shows that in February 2017, prior to the issuance of the March 2017 COE, the RO conducted further development in connection with this claim and specifically requested from the Department of Defense (DoD) to provide all honorable active service periods, to include any service under Title 10 of the United States Code (U.S.C.), sections 688, 672(d), 12301(a), 12301(d), 12301(g), 12302, and 12304 after September 11, 2001. The RO also requested from DoD to provide information of any National Guard service provided under Title 32 U.S.C. for organizing, administering, recruiting, instructing, or training the Army National Guard after September 11, 2001. Lastly, the RO requested from DoD to provide any honorable service provided under Title 38 U.S.C, section 502(f) in response to a national emergency after September 11, 2001. In a March 2017 response, DoD notified the RO that the only qualifying active duty service for purposes of Post-9/11 GI Bill benefits is the one provided in support of Operation Iraqi Freedom from January 17, 2004 to March 20, 2005. DoD also clarified that active duty service from June 15, 2006 to December 31, 2007, does not qualify for Chapter 33 purposes since that service was considered Active Duty for Special Work (ADSW) or Operational Support under Title 32. DoD indicated that there is nothing in the service member's file "indicating [] any other qualifying active duty periods that qualify for [Chapter] 33 other than those already listed." The record does not show subsequent adjudicative actions as a result of DoD's response until May 2018. In May 2018, the RO issued a decision that notified the Veteran of the discovery of an administrative error in considering his periods of active duty for full time National Guard service from June 15, 2006 to December 31, 2007, as qualifying for purposes of entitlement to Chapter 33 benefits at the 90 percent rate. The RO informed the Veteran that based on DoD's response, he was only entitled to educational assistance benefits under Chapter 33 at the 60 percent rate. The RO also noted that because prior payments at the 90 percent rate were made in error and not due the Veteran's fault, he will not be charged for any resulting overpayment. In the May 2018 Notice of Disagreement (NOD), the Veteran challenged the RO's decision reducing his rate of entitlement from a 90 percent to a 60 percent. The Veteran noted that the decision presented a financial hardship for him. The Veteran requested for the 90 percent to be reinstated, if possible. Along with his NOD, the Veteran submitted multiple copies of military orders in support of his claim for a higher rate of entitlement. In that regard, orders dated August 10, 2006, reflect that the Veteran was ordered to active duty from June 15, 2006 to September 30, 2006, under the authority of 38 U.S.C. § 502(f) for ADSW for Border Security/Operations. Orders dated April 27, 2007, reflect that the Veteran was again ordered to active duty from April 24, 2007, to September 30, 2007, under the authority of 38 U.S.C. § 502(f) for ADSW for Border Security/Operations. Orders dated September 19, 2007, reflect that the Veteran was ordered to active duty from October 1, 2007 to April 23, 2008, under the authority of 38 U.S.C. § 502(f) for ADSW as a welder, fence repairer. In the June 2018 SOC, the RO confirmed and continued the 60 percent rate. The RO explained, in pertinent part, that Title 32 U.S.C. § 502(f) is qualifying service for Post-9/11 GI Bill only when authorized by the President or the Secretary of Defense in response to a national emergency. At this time, Operation Noble Eagle from September 11, 2001 to May 31, 2002, is the only Title 32, section 502(f) mobilization/call-up period that qualifies for Post-9/11 GI Bill. All other periods of ADSW, Active Duty Operational Support (ADOS), Active Duty Training (ADT), and Active Duty Training School (ADTS) are not in response to a national emergency; therefore, ADSW; ADOS; ADT; and ADTS cannot be considered for Post-9/11 GI Bill purposes. The RO noted that according to DoD, the Veteran was a member of the Selected Reserve/National Guard. While in the Selected Reserve/National Guard, he had a mobilization/call-up from January 17, 2004 to March 20, 2005. The mobilization/call-up was under a qualified authority for Post-9/11 GI Bill consideration. The RO concluded that the Veteran's Post-9/11 GI Bill benefit level is solely based on this period of qualified active duty service. In summary, the RO indicated that the Veteran had at least 12 months, but less than 18 months of qualified service for Post-9/11 GI Bill consideration. In light of the evidence discussed above, the question for the Board is whether the Veteran's additional periods of active duty service, other than his service in support of Operation Iraqi Freedom from January 2004 to March 2005, constitute qualifying service for educational assistance benefits under Chapter 33. With particular relevance here, 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. 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, and in the case of a member of the Army National Guard of the United States or Air National Guard of the United States, 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. 38 U.S.C. § 3301 (1)(B), (C). 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 of the United States Code, was specifically excluded from the definition of "active duty." 38 C.F.R. § 21.9505; 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"). 38 U.S.C. § 3301(C)(ii) provides that service under 32 U.S.C. § 502(f) will be recognized as qualifying for Chapter 33 benefits, however, only 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. As correctly determined by the RO in its May 2018 SOC, at that time, Operation Noble Eagle from September 11, 2001 to May 31, 2002, was the only Title 32, section 502(f) mobilization/call-up period that qualifies for Post-9/11 GI Bill. Specifically, the law provides that the amount of educational assistance payable under Chapter 33 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 as follows: - 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). In the present case, the Veteran has submitted copies of various military orders that he believes support his assertion that he has additional periods of service that are qualifying active-duty service for purposes of calculating his rate of payment of Chapter 33 educational assistance benefits. The plain language of 38 U.S.C. § 3301(1)(B), (C) leaves little doubt that for members of the reserve components of the Armed Forces, such as the Veteran in the instant appeal as a member of the Army National Guard, 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. The Board has considered the copies of military orders submitted by the Veteran in support of this claim. However, none of those orders reflect that the Veteran was serving under the authority of 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, or under 14 U.S.C. § 712. The orders submitted by the Veteran reflect that he was ordered to active duty from June 15, 2006 to at least April 23, 2008, however, such service was for ADSW for Border Security/Operations. Additionally, while his service was provided under the authority of 32 U.S.C. § 502(f), such service was not provided as a result of a national emergency authorized by the President or Secretary of Defense. 38 U.S.C. § 3301(C)(ii). Accordingly, the law does not consider this particular service as qualifying active duty for purposes of Chapter 33 benefits. The Veteran's qualifying active-duty service for purposes of Chapter 33 educational benefits amounts to 429 days. His entry level and skill training cannot be considered as not only did these occur prior to September 11, 2001 (38 U.S.C. § 3311(b)(3)), but his aggregate period of service is less than 24 months. 38 C.F.R. § 21.9640, n.2. The Veteran's aggregate length of service corresponds to the current 60 percent rate, which is the rate for service of at least 12 months, but less than 18 months, of creditable qualifying active-duty service (i.e., 365-544 days). 38 C.F.R. § 21.9640(a). The Board has also considered whether a higher 100 percent rate is warranted by reason of separation due to a service-connected disability. Id. However, there is no evidence or argument supporting such a finding and a review of the record shows that the Veteran separated from the Army National Guard after 10 years of service. The Board has carefully considered the Veteran position and his sincere belief that his additional periods of active duty for special work in the Army National Guard are creditable towards the aggregate length of qualifying service and entitle him to a higher rate in excess of 60 percent for Chapter 33 benefits. The Board is grateful for the Veteran's honorable service and sympathetic to his claim. However, the Board is bound by the applicable law and regulations which make plain that there is no legal basis on which the Veteran's claim for a higher rate of payment of Chapter 33 educational assistance benefits can be granted. The Board has also considered the Veteran's contention that the reduction from a 90 percent rate to a 60 percent rate will present a financial hardship, of which the Board does not doubt, and views, essentially, as a request to balance the equities. However, no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992). In this case, the regulatory rate of payment for the Veteran's aggregate length of credible active-duty service for Chapter 33 benefit purposes of 429 days is 60 percent. 38 C.F.R. § 21.9640(a). Thus, entitlement to a higher rate in excess of 60 percent, for educational assistance benefits under Chapter 33, is not warranted, and the appeal is denied. Steven V. Adler Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, Associate 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.