14-31 338

• Court: Board of Veterans' Appeals
• Decided: May 23, 2018
• Docket: 14-31 338
• Status: Unpublished

Opinion

Citation Nr: 18104742 Decision Date: 05/23/18 Archive Date: 05/22/18

DOCKET NO. 14-31 338 DATE: May 23, 2018 ORDER The appellant’s request to receive a transfer of education assistance benefits under the Post 9/11 GI Bill program is granted. FINDING OF FACT The Veteran’s November 2012 discharge from the Air National Guard was not due to a then-service-connected disability or his willful misconduct. CONCLUSION OF LAW The criteria for the appellant to receive a transfer of education assistance benefits under the Post 9/11 GI Bill program have been satisfied. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520, AFI 36-3209, Paragraph 3.18.10. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1983 to August 1983 and Air National Guard service from September 2009 to February 2010 and from July 2010 to November 2012. The Veteran died in late 2016, the appellant is the Veteran’s daughter. The appellant is seeking a transfer of education assistance benefits under the Post 9/11 GI Bill program The post-9/11 GI Bill, 38 U.S.C. Chapter 33, provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. A veteran may establish eligibility for educational assistance under 38 U.S.C. Chapter 33 based on active duty (A) commencing service after September 10, 2001, serves an aggregate of at least 36 months on active duty in the Armed Forces (including service on active duty in entry level and skill training); and (B) after completion of service described in subparagraph (A)- (i) continues on active duty; or (ii) is discharged or released from active duty as described in subsection (c). A discharge or release from active duty in the Armed Forces after service on active duty in the Armed Forces characterized by the Secretary concerned as honorable service for- (C) a physical or a mental condition that was not characterized as a disability and did not result from the individual’s own willful misconduct but did interfere with individual’s performance of duty, as determined by the Secretary concerned in accordance with regulations prescribed by the Secretary of Defense. 38 U.S.C. § 3311 (c)(4)(C). Discharge from the Air National Guard is described under AFI 36-3209, Paragraph 3.18.10: 3.18. Substandard (Unsatisfactory) Performance. Process members who fail to meet Air Force standards of performance or conduct for discharge as prescribed. If a member’s discharge is contemplated because of acts not related to causes listed in this section, or may warrant consideration of separation or discharge for misconduct, do not discharge the member for substandard performance, but process under another section. Unit commanders will continuously screen personnel for early identification of substandard performance and recommend discharge action when appropriate. A member may be discharged when it is determined that the member is unqualified for further military service due to substandard performance. This reason shall not be used if the member is in entry level status. Service will be characterized as Honorable, unless the military record warrants characterization as Under Honorable Conditions (General) under guidance in Attachment 2. The fact that the member is being discharged for substandard performance does not, in itself, warrant characterization as General. The notification procedures shall be used unless the member is otherwise board entitled (refer to 4.10). Discharge processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies. Counseling requirements are of particular importance with respect to this reason for discharge. Because military service is a calling different from any civilian occupation, a member should not be discharged when substandard performance is the sole reason, unless there have been efforts at rehabilitation. One or more of the following may be used as the basis for discharge under this paragraph: 3.18.10. School Requirement. Failure to complete a mandatory technical school requirement which was a condition of enlistment or assignment action. A member who fails to complete or is eliminated from training will be discharged from the state ANG and as a Reserve of the Air Force. If the member has at least a 3-skill level in an AFSC authorized on the UMD, use command discretion to assign member to this authorization. AFI 36-3209, Paragraph 3.18.10. A September 2008 enlistment document indicates the Veteran enlisted for an additional six years of service in the Air National Guard. The Veteran’s period of service was set to begin September 30, 2008. An electronic Air National Guard record indicates a projected service end date of June 15, 2014. The Veteran’s November 2012 NGB FORM 22 EF indicated the Veteran was honorably released from service and the provided reason was: “AFI 36-3209, Paragraph 3.18.10.: Substandard/Unsatisfactory performance – School Requirement, SPD: GHJ.” In her March 2017 hearing testimony, the appellant stated that her father was discharged from active duty due to a condition that was not a disability and did not result from the Veteran’s willful misconduct but did interfere with his abilities to perform his duty. The Board finds the Veteran’s discharge from service occurred prior to the completion of his obligation which would ordinarily preclude his daughter’s access to educational benefits. However, the Board also finds that the Veteran’s discharge falls into the exception outlined in 38 U.S.C. § 3311 (c)(4)(C). The Veteran was discharged from the Air Force National Guard for inability to perform his duty for reasons other than a then-existing service-connected disability. The Board also finds the Veteran’s discharge was not due to willful misconduct. Therefore the appellant is granted a transfer of educational benefits.

Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Wozniak, Joshua