Entitlement to Post 9/11 GI Bill (Chapter 33) education benefits at a rate higher than 60 percent is denied.

Citation Nr: A26069914 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 210413-240350 DATE: July 30, 2026 ORDER Entitlement to Post 9/11 GI Bill (Chapter 33) education benefits at a rate higher than 60 percent is denied. FINDING OF FACT The Veteran has at least 6 months, but less than 18 months, of aggregate creditable active duty after September 10, 2001. CONCLUSION OF LAW The criteria for payment of Chapter 33 educational assistance benefits at a rate in excess of 60 percent have not been met. 38 U.S.C. §§ 3301, 3311, 3313; 38 C.F.R. §§ 21.9505, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army National Guard from May 2007 to August 2007, from September 2010 to April 2012, and from June 4, 2020 to May 22, 2021. This matter comes to the Board of Veterans' Appeals (Board) from a June 2021 higher level review decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) under the modernized appeals system known as the Appeals Modernization Act (AMA). In July 2021, the Veteran filed a timely Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested a hearing before a Veterans Law Judge, which was conducted on November 12, 2024. A transcript of the hearing is associated with the record. Thus, the Board's review is limited to the evidence of record at the time of the issuance of the April 13, 2021 administrative decision which was the subject of the June 2021 higher level review, as well as any evidence submitted by the Veteran or his attorney at the hearing or within 90 days following the hearing. Entitlement to Chapter 33 educational assistance benefits at a rate in excess of 60 percent. At the outset, the Board notes that entitlement to Chapter 33 educational assistance benefits is not at issue, as eligibility 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, and therefore the percentage to which he is entitled based on his active duty service. The amount of educational assistance benefits 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. Aggregate length of creditable active duty service after September 10, 2001 and percentage of maximum amounts payable: at least 90 days, but less than 6 months (90-179 days) 50 percent at least 6 months, but less than 18 months (180-544 days) 60 percent at least 18 months, but less than 24 months (545-729 days) 70 percent at least 24 months, but less than 30 months service (730-909 days) 80 percent at least 30 months, but less than 36 months (910-1094 days) 90 percent at least 36 months (1095 days or more) 100 percent A 100-percent rate may also be awarded where there is 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). However, the Veteran does not contend he was discharged due to a service-connected disability. When a person has an aggregate of at least 24 months of creditable active duty service after September 10, 2001, entry level and skill training service may also be included in the calculation of the rate of payment. 38 U.S.C. § 3311(b)(1)-(4). 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), 12301(h), 12302, 12304(a), 12304(b) or under 14 U.S.C. § 712 (reclassified as section 3713). 38 U.S.C. § 3301(1)(B). For members of the Army National Guard of the United States or the Air National Guard of the United States, in addition to service described above for members of the regular and reserve components of the Armed Forces, qualifying active duty includes full-time service: (i) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or (ii) in the National Guard under 32 U.S.C. § 502(f) 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). While the amendments set forth in Pub. L. No. 111-377, 124 Stat. 4106 (2011), included some types of full-time service for National Guard members, the statute specifically describes the type of service under Title 32 U.S.C. § 502(f) considered within the meaning of Active Duty for purposes of Chapter 33 eligibility. The Board notes these specific periods of service are Southwest Border Support (SWB)/Operation Guardian Shield, from February 15, 2019 through January 20, 2021; COVID-19 Response, from March 20, 2020 through July 1, 2022; In Support of the Capitol Police (59th Presidential Inauguration) from January 11, 2021 through May 23, 2021; and Operation Noble Eagle, from September 11, 2001 to May 31, 2002, which corresponds to a Presidential authorization to activate National Guard units in response to the terrorist attacks of September 11, 2001. Specifically, these are the only 32 U.S.C. § 502(f) mobilization/call-up periods that qualify for Post-9/11 GI Bill purposes. In this case, the Veteran was provided a May 5, 2020, Certificate of Eligibility (COE) indicating that he was entitled to Chapter 33 benefits at the 80 percent rate for his active duty service from September 20, 2010 to September 30, 2012. However, in April 2021 the Veteran received a corrected COE noting that he was entitled to Chapter 33 benefits at the 60 percent rate for active duty service from April 15, 2020 to May 23, 2020 and from June 4, 2020 to April 13, 2021, the date of the COE letter, which equates to 353 days or just under 12 months. The Veteran contends that the 60 percent benefit level provided for the April 2021 COE is in error because that COE did not calculate his earlier period of service from September 20, 2010 to September 30, 2012. In May 2021, the Veteran submitted the question of why his benefit rate was reduced on the May 5, 2020 COE through the eBenefits website. A May 17, 2021 response explained that the period of September 20, 2010 to September 30, 2012 was originally counted as qualifying service by the May 2020 COE, but subsequent correspondence with the Department of Defense (DoD) indicated that period was not qualifying service, and that the correct eligibility percentage is 60 percent. See May 17, 2021 eBenefits email response. The Veteran submitted copies of orders for the September 20, 2010 to September 30, 2012 timeframe. After a review of those orders, the Board also finds that such service is not qualifying for Chapter 33 educational benefits. Specifically, such service was not for the purpose of responding to a national emergency declared by the President and supported by Federal Funds, as they are not periods of service identified as 32 U.S.C. § 502(f) mobilization/call-up periods (noted above) that qualify for Post-9/11 GI Bill purposes. As indicated on the Veteran's most recent DD-214, the Veteran served on active duty from June 4, 2020 to May 22, 2021, for a total of 353 days. The Veteran had additional service from April 15, 2020 to May 23, 2020 for a total of 39 days. As shown on the Veteran's corresponding DD-214, some of this service was in support of the COVID-19 Response and thus counts towards Chapter 33 benefits. The aggregate total is 395 days, commensurate with the 60 percent benefit level. The Board notes the Veteran had an additional period of service from May 2, 2007 to August 17, 2007. While this service was not counted in either the May 2020 or April 2021 COE, it is instructive to understand why. In this regard, as noted on the corresponding DD-214, this service was a 14 week OSUT [One Station Unit Training]. In other words, this was entry level and skill training service, which does not count for the purposes of Chapter 33 benefits unless the Veteran has an aggregate of at least 24 months of creditable active duty service after September 10, 2001,which as calculated above, the Veteran does not. (See 38 U.S.C. § 3311(b)(1)-(4)). Nonetheless, even if the 108 days from May 2, 2007 to August 17, 2007 counted, the Veteran's aggregate days would equal 503, which is still commensurate with the 60 percent benefit rate. Therefore, given the length and nature of the Veteran's service as established by the service department, there is no legal basis to award the benefits he seeks. Accordingly, the claim for entitlement to a benefit level in excess of 60 percent under Chapter 33 must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107 (b) do not apply. Rebecca Feinberg Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.M. Kelly, 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.