Citation Nr: 18131275
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-34 992A
DATE:	August 31, 2018
ORDER
Entitlement to educational assistance at the maximum 100 percent rate under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) is granted.
FINDINGS OF FACT
1. The Veteran’s Army National Guard service for the period of February 27, 2012 to September 30, 2013 was full time National Guard service for the purpose of organizing, administering, recruiting, instructing, or training the National Guard, and therefore constitutes creditable active duty service for Department of Veterans Affairs (VA) education benefits purposes.  
2. The Veteran completed more than 36 months of creditable active duty service after September 10, 2001. 
CONCLUSION OF LAW
The criteria for the 100 percent educational assistance benefit level under the Post-9/11 GI Bill are satisfied.  38 U.S.C. §§ 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9640.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from May 2002 to June 2003, December 2009 to May 2010, and February 2011 to November 2011; he served on active duty training from March 1987 to December 1987, April 2005 to August 2006, and February 2012 to September 2013, to include service in Iraq and Afghanistan.  The Veteran was awarded a Combat Action Badge, among other decorations.
In December 2016, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.
I.	Argument
The record reflects that in October 2015 the National Guard Bureau determined the Veteran’s service qualified him for the Post-9/11 GI Bill program at the 80 percent payment tier.  The National Guard indicated that the Veteran had qualifying service under Title 10, Section 12301(d) from October 24, 2002 to June 27, 2003; December 1, 2009 to May 24, 2010; October 1, 2010 to January 28, 2011; February 11, 2015 to February 25, 2015; and February 26, 2015 to March 12, 2015; as well as qualifying service under Title 10 Section 12302 from February 7, 2011 to November 14, 2011 for an aggregate total of 853 days.
In December 2015 the Regional Office (RO) awarded the Veteran 80 percent of the maximum amount payable under the Post-9/11 GI Bill program for six periods of service for an aggregate total of 853 days of creditable active duty service from October 24, 2002 to March 12, 2015.  
The Veteran asserts that the RO failed to consider multiple periods of his service as creditable for purposes of determining the amount of educational assistance benefits payable under the Post-9/11 GI Bill.  Specifically, in an October 2014 VA Form 9 he asserted that he served under Title 10 orders from April 28, 2005 to August 23, 2006 to attend Special Forces training and under Title 32 orders from February 27, 2012 to September 30, 2013 to train National Guard members for deployment.  In a December 2016 statement the Veteran explained that additional periods of service should qualify towards the 100 percent rate.  He asserted that his total period of service from May 1, 2002 to June 27, 2003 should qualify as it was under Title 10 as service in support of Operation Enduring Freedom and Noble Eagle and that his September 4, 2007 to October 6, 2007 service and May 30, 2009 to June 30, 2009 service qualifies as he was under Title 10 orders on duty overseas in a foreign country.
II.	Legal Criteria
As relevant to the present 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.  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 14 U.S.C. § 712. 38 U.S.C. § 3301(1)(B).
In January 2011, pursuant to Pub. L. No. 111-377 (the Post-9/11 Veterans Educational Assistance Improvements Act of 2010), § 101, 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 was given 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) (effective dates). (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).
The aggregate length of creditable active duty service after September 10, 2001 determines the percentage of maximum amounts payable, in accordance with a table, which provides for 80 percent with at least 24 months, but less than 30 months, of creditable active duty service; 90 percent with at least 30 months, but less than 36 months, of creditable active duty service; and 100 percent with at least 36 months of creditable active duty service 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.
Notes associated with the provisions of 38 C.F.R. § 21.9640 indicate that where the aggregate length of active duty is at least 90 days but less than 24 months, periods of entry level and skill training must be excluded for purposes of determining the length of creditable service and maximum rate payable for Chapter 33 educational benefits.  See 38 C.F.R. § 21.9640(a).  However, when the aggregate length of active duty service is 24 months or greater, entry level and skill training are to be included.  Id.  Here, the aggregate length of the Veteran’s creditable active duty service exceeds 24 months.  Accordingly, periods of entry level and skill training are to be included in the calculation of the total creditable length of service.
III.	Evidence of Record
Here, as discussed, the Veteran asserted that he was ordered to full-time service in the National Guard for the purpose of organizing, administering, recruiting, instructing, or training the National Guard for multiple periods of service.
May 1, 2002 to June 27, 2003
The Veteran testified that he has not received credit for his entire period of service from May 1, 2002 to June 27, 2003; he asserts that the period May 29 to October 23, 2002 was not determined to be creditable service.  The Veteran’s Certificate of Release or Discharge from Active Duty (DD-214) from May 1, 2002 to June 27, 2003 reflects that the Veteran was ordered to active duty in support of Operation Enduring Freedom and Noble Eagle under 10 U.S.C. 12302.  The Veteran’s DD-214 reflects he completed an 18-week basic signal officer course in October 2002 and was honorably discharged from active duty for completion of required active service.
April 28, 2005 to August 23, 2006
The Veteran testified that his period of service from April 28, 2005 to August 23, 2006 was creditable active duty service because he was reclassifying as a Special Forces officer.  He testified that he was a Signal Officer but received additional training to qualify through the Green Beret program.  The Veteran’s DD-214 from this period of service reflects he was a Signal Officer and was honorably discharged from active duty training for completion of required active service.  The record reflects the Veteran completed an advanced Signal Officer training course in March 2005.   
September 4, 2007 to October 6, 2007
The Veteran testified that he served overseas in the Joint Combined Exchange Training (JCET) program in Senegal and Romania.  He reported he served under Title 10 orders during both periods of service.  An October 2007 National Guard Memorandum and an Officer Evaluation Report (OER) from the period October 2006 to October 2007 reflects that the Veteran served as Commander of a Special Forces Operational Detachment in Senegal providing training to Senegalese soldiers.   
May 30, 2009 to June 30, 2009
As noted, the Veteran testified that he served overseas in the JCET program in Senegal and Romania under Title 10 orders.  A July 2009 National Guard Memorandum and an OER from the period August 2008 to May 2009 reflects that the Veteran planned and prepared to execute the JCET with the Romanian Special Operations Forces.  National Guard Memorandums from December 2008 and April 2009 provide guidance on travel outside the United States and indicate that all travel outside the continental United States is served under Title 10 orders.

February 27, 2012 to September 30, 2013
The Veteran testified that he trained aviation units preparing for mobilization.  He testified he served as part of the Pre-mobilization Training and Assistance Evaluation Group under Title 32 orders.  To support his claim the Veteran submitted February 2012 orders that reflect the Veteran was ordered to active duty for training from February 27, 2012 to September 30, 2012 for the Pre-mobilization Training Assistance Elements (PTAE) under Title 32, Subsection 505.  October 2012 orders reflect the Veteran was ordered to active duty for training from October 1, 2012 to September 30, 2013 for the Aviation Training Assistance Team (ATAT) under Title 32, Subsection 502(f).  In February 2013 the Veteran’s October 2012 orders were amended and he was ordered to Full-Time National Guard Duty-Operational Support under Title 32, Subsection 502(f).  The record reflects that the Veteran was awarded the Army Reserve Components Overseas Training Ribbon as validated by his corresponding exercise orders for the Chairman of the Joint Chiefs of Staff (CJCS) directed exercise EPIC GUARDIAN 2013.  See June 2013 Award Letter.
An OER from the period November 2011 to October 2012 reflects that the Veteran represented the ATAT to the National Guard Bureau (NGB), Forces Command (FORSCOM), the 1st Army and other organizations with aviation interests.  Notably, he managed the annual ATAT budget, drafted a strategic plan for safety and standardization oversight for Army National Guard Aviation and worked with the 1st Army, NGB and PTAE to identify and document pre-mobilization training requirements for National Guard Aviation units.  An OER from the period November 2012 to January 2013 reflects that the Veteran served as the Deputy Commander for the Special Operations Command-Forward-Marlin (SOCFWD-MARLIN) during exercise EPIC GUARDIAN in the Republic of Malawi.  During this time the Veteran maintained the annual ATAT budget, performed a cost-benefit analysis for the NGB Training Directorate and summarized the FORSCOM pre-mobilization training requirements for National Guard Aviation.  The Veteran submitted an August 2008 operational manual for the ATAT that reflects the mission of the organization is to provide evaluation and training assistance to National Guard Aviation Units that have been identified for mobilization.
IV.	Analysis
The Board acknowledges the Veteran’s assertions that he has multiple periods of service that the RO failed to deem as creditable service for education assistance benefits.  As noted, he has been awarded 80 percent of the maximum amount allowable for educational assistance for 853 days of creditable service (more than 28 months).  To warrant the maximum 100 percent rate (more than 36 months) the Veteran would need to show he has, at least, an additional 242 days of creditable service.  
In the present case, the Board finds that the Veteran has competently maintained in statements and testimony throughout the pendency of the appeal that his primary duty during his period of active duty training from February 27, 2012 to September 30, 2013 was training National Guard soldiers.  See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge).  Based on the foregoing, and in the absence of any evidence to the contrary, the Board finds the Veteran’s statements concerning the nature of his active duty training for the period from February 27, 2012 to September 30, 2013 to be competent and credible.  Moreover, his competent statements concerning his primary responsibilities during this period are further bolstered by his personnel records which indicate he served under Title 32 orders to train Army National Guard Aviation units for pre-mobilization and deployment.  As such, the Board finds that from February 27, 2012 to September 30, 2013 the Veteran was ordered to full-time service in the National Guard for the purpose of organizing, administering, recruiting, instructing, or training the National Guard and constitutes creditable active duty service for education benefits purposes.  38 U.S.C. § 3301(1).
Accordingly, when including the additional 582 days of creditable active duty service from February 27, 2012 to September 30, 2013, the record reflects that the Veteran completed 1435 days (more than 36 months) of aggregate, honorable, and creditable active duty service after September 10, 2001.  See 38 U.S.C. § 3301(1); 38 C.F.R. § 21.9505.  Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence of record reflects that the Veteran is entitled to payment of Post-9/11 GI Bill benefits at the 100 percent rate.  38 C.F.R. § 21.9640; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

 
Nathan Kroes
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Gonzalez, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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