Citation Nr: 18160448
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-27 542
DATE:	December 28, 2018
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 50-percent level, is denied.
FINDINGS OF FACT
1. The Veteran served on active duty from January 4, 1994, to January 3, 1999; he had additional service with the United States Army Reserve through November 2012, during which time he had a verified period of active duty service from January 28, 2003, to September 18, 2003.
2. The Veteran was not discharged from active duty service due to a service-connected disability. 
3. The Veteran had 234 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 50 percent have not been met.  38 U.S.C. §§ 3301, 3311, 3313 (2012); 38 C.F.R. §§ 21.9505, 21.9640 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 4, 1994, to January 3, 1999.  He had additional service with the United States Army Reserve through November 2012, during which time he had a verified period of active duty service from January 28, 2003, to September 18, 2003.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 Department of Veterans Affairs (VA) Regional Office (RO) determination that the Veteran’s son was entitled to educational assistance benefits under the Transfer of Entitlement provisions of Chapter 33 only at the 50 percent level.  The RO’s determination was made based on the Veteran’s length of creditable active duty service.  In January 2015, the Veteran disagreed with RO’s determination regarding his son’s entitlement and this appeal ensued.
The Veteran disagrees that his son is entitled to benefits only at the 50 percent level.  Specifically, the Veteran argues that his son is entitled to receive 100 percent of the benefits payable under the Transfer of Entitlement provisions of the Post-9/11 GI Bill program because he served at least 30 continuous days and was discharged from service due to a service-connected disability.
At the outset, the Board notes that entitlement to Chapter 33 educational assistance benefits for the Veteran’s son is not at issue, as entitlement to such has been established.  What is at issue in this case is the rate of payment to which the Veteran’s son is entitled.  
Specifically, the law provides that the amount of educational assistance payable under 38 U.S.C. 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 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). 
Furthermore, 38 C.F.R. § 21.9505 provides that for the purposes of this subpart (governing the administration and payment of educational assistance under 38 U.S.C. Chapter 33 (Post 9/11 GI Bill)), the following definitions apply: Active duty means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. §§ 688, 12301(a), 12301(d), 12301(g), 12302, or 12304.  Active duty does not include: (1) Full-time National Guard Duty performed under 32 U.S.C. orders; (2) Any period during which the individual (i) was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians; (ii) served as a cadet or midshipmen at one of the service academies; or (iii) served under the provisions of 10 U.S.C. § 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; (3) A period of service (i) required by an officer pursuant to an agreement under 10 U.S.C. 2107(b); (ii) required by an officer pursuant to an agreement under 10 U.S.C. 4348, 6959, or 9348; (iii) that was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or (iv) counted for purposes of repayment of an education loan under 10 U.S.C. Chapter 109; or (4) A period of Selected Reserve service used to establish eligibility under 38 U.S.C. Chapter 30 or 10 U.S.C. Chapter 1606 or 1607.  38 U.S.C. § 3301; 38 C.F.R. § 21.9505.
Turning to the Veteran’s argument that his son is entitled to 100 percent of Chapter 33 benefits payable on account of having service at least 30 continuous days and being discharged due to a service-connected disability, it is not disputed that the Veteran served on active duty for at least 30 continuous days of that he was medically retired from the Army Reserve by reason of physical disability.  What is at dispute is whether the Veteran’s Reserve discharge qualifies him, and/or any dependent entitled to benefits based on the Veteran’s service, for benefits payable at the 100 percent rate.
In this regard, the Board acknowledges that the payment table set forth in 38 C.F.R. § 21.9640, pertaining to rates of payment of educational assistance, does not specify that the discharge due to service-connected disability must be a discharge from active duty service.  Nevertheless, the table is entitled “[a]ggregate length of creditable active duty service” and the parenthetical following the “30 continuous days” provision cannot be read in isolation.  In other words, read as whole, the Board finds it to be clear that to be entitled to 100 percent of the benefits payable, one must have served at least continuous days of active duty service and must have been discharged from the period of active duty service due to a service-connected disability.  
Indeed, in describing individuals entitled to Chapter 33 educational assistance, 38 U.S.C. § 3311 provides for entitlement to benefits for any individual who “(A) commencing on or after September 11, 2001, serves at least 30 continuous days on active duty in the Armed Force” and who “(B) after completion of service described in subparagraph (A), is discharged or released from active duty in the Armed Forces for a service connected disability.”  38 U.S.C. § 3311(b)(2).  Section 3313 of Title 38, United States Code, which is the authority for 38 C.F.R. § 21.9640, then sets forth the amounts payable “to each individual entitled to educational assistance” under Chapter 33.  Read in connection with one another, the Board finds that the applicable statutes and regulations make clear that the service discussed is active duty service and that any discharge due to disability must be from active duty service in order to qualify for 100 percent of Chapter 33 benefits payable.
Here, the evidence fails to support a finding that the Veteran was discharged from any period of active duty service after September 10, 2011, due to a service-connected disability.  The Veteran’s DD Form 214 for his period of active duty from January 28, 2003, to September 18, 2003, shows that his discharge from this period service was by reason of “completion of required active service.”  This does not reflect a discharge due to service-connected disability.  
Accordingly, as official service records do not establish that the Veteran was discharged from active duty due to service-connected disability, neither he, nor any dependent eligible for educational assistance benefits based on the Veteran’s creditable active duty service, qualifies for payment of Chapter 33 educational assistance benefits at the 100 percent level by reason of having served 30 continuous days of active duty and being discharged from such active duty service due to service-connected disability.  38 U.S.C. §§ 33111, 3313; 38 C.F.R. §§ 21.9520; 21.9640.
Therefore, by virtue of the Veteran’s active duty service from January 28, 2003, to September 18, 2003, the Veteran’s son is entitled to only 50 percent of the maximum rate of educational assistance benefits under the Transfer of Entitlement provisions of Chapter 33, as the Veteran served at least 6 months, but less than 12 months, of creditable active duty service (i.e., 180-364 days) after September 10, 2001.  38 U.S.C. § 3313(c)(6); 38 C.F.R. § 21.9640(a).  
Ultimately, the Board understands that the Veteran believes that his son is entitled to a higher level of payment.  However, the Board is bound by the laws and regulations that apply. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a).  Those laws and regulations reflect that there is no legal basis upon which a higher rate of payment of Chapter 33 educational assistance benefits can be granted in this case.  As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).
Finally, the Board notes that where, as here, the law is dispositive in a matter, the notice provisions of the Veterans Clams Assistance Act of 2000 (VCAA) and, by analogy, the comparable educational assistance provisions, have no effect.  That is because no further notice or assistance to the claimant would result in a different outcome because, as discussed above, the facts make clear that entitlement to educational assistance benefits at a level greater than 50 percent are not warranted as a matter of law.  38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).
 
JACQUELINE E. MONROE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Neilson, Counsel 

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