BO v. Wilkie
| Decision Date | 15 August 2019 |
| Docket Number | 16-4134 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | BO, [1] Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee. |
Argued May 2, 2018
On Appeal from the Board of Veterans' Appeals
Timothy L. McHugh, with whom Kevin S. Elliker and David J DePippo, all of Richmond, Virginia, for the appellant.
Lavinia A. Derr, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; and James B. Cowden Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
Before SCHOELEN, BARTLEY, and ALLEN, Judges.
Congress has been generous in providing a wide array of benefits to those who served in the Armed Forces. An example of that generosity is support for veterans' educational endeavors. This appeal calls on us to discuss two such education-related programs. In particular, we address an important interplay between the Montgomery GI Bill education program (MGIB), chapter 30 of title 38 of the United States Code, and the Post-9/11 GI Bill education program (Post-9/11 GI Bill), chapter 33 of that title.
The appellant BO served the Nation honorably in the United States Army. BO had more than one period of service in the Army, having been both an enlisted person as well as an officer. As described in more detail below, BO's separate periods of service independently qualified him to receive benefits under both the MGIB and the Post-9/11 GI Bill. At its core, this case is about whether he, and others like him with two separate periods of qualifying service, may obtain the full benefits of both programs (subject to an overall cap).
In this appeal, which is timely and over which the Court has jurisdiction under 38 U.S.C. §§ 7252(a) and 7266(a), the appellant specifically contests a July 14, 2016, Board of Veterans' Appeals (Board) decision denying him entitlement to educational assistance benefits for more than
10months and 16 days under the Post-9/11 GI Bill. This was the amount of unused benefits the appellant had under the MGIB. The Board rejected the appellant's argument that he should be entitled to the full amount of Post-9/11 GI Bill benefits because, BO contends, his entitlement under that program was based on a period of qualifying service separate from the one that allowed him to receive benefits under the MGIB. This matter was referred to a panel of the Court with oral argument to address whether a veteran such as BO with more than one period of separately qualifying service must relinquish or exhaust entitlement under the MGIB program before receiving education benefits under the Post-9/11 GI Bill program. We hold that statutes require neither relinquishment nor exhaustion. Rather, they allow such a veteran to receive entitlement under both programs subject to a 36-month cap on utilization of each of the two separate programs and a 48-month cap overall. The Court will accordingly reverse the Board's decision and remand the matter for further proceedings consistent with this opinion.
The Nation has a long history of providing educational benefits to veterans. In 1944, Congress, faced with more than 16 million veterans returning from military service in World War II and reentering civilian life, enacted the Servicemen's Readjustment Act of 1944, Pub. L. 78-346, 58 Stat. 284, better known as the GI Bill. Record (R.) at 1245. This landmark legislation provided veterans with education benefits to avoid high levels of unemployment, aid servicemembers in readjusting to civilian life, and afford returning veterans an opportunity to receive the education and training they could not pursue while serving in the military. Id. Since the GI Bill's inception, Congress has established several iterations of education benefits for subsequent generations of veterans. See Veterans' Readjustment Assistance Act of 1952, Pub. L. No. 82-55, 66 Stat. 663 (Korean War GI Bill); Veterans' Readjustment Benefits Act of 1966, Pub. L. No. 89-358, 80 Stat. 12 (Cold War GI Bill); Veterans' Education and Employment Assistance Act of 1976, Pub. L. 94-502, 90 Stat. 2393 () (Post Vietnam Era Veterans Educational Assistance Program).
In 1985, Congress, seeking a recruiting tool for an all-volunteer military force, established two versions of the MGIB: one for active-duty service, 38 U.S.C. §§ 3001 et seq., and the other for service in the selected reserve, 10 U.S.C. §§ 16131 et seq. Department of Defense Authorization Act of 1985, Pub. L. No. 98-525, 98 Stat. 2492; see 38 U.S.C. § 3001 (). The MGIB provides education benefits to individuals who, among others, first entered on active duty after June 30, 1985, and continued to serve on active duty or received a qualifying discharge or release. 38 U.S.C. § 3011(a). An individual must have served continuously on active duty for 2 to 3 years depending on the obligated period of service. 38 U.S.C. § 3011(a)(1)(A)(i). An individual who meets the basic eligibility requirements is entitled to 36 months of education benefits. 38 U.S.C. § 3013. MGIB education benefits consist of a fixed monthly sum that varies based on length of service and school attendance. 38 U.S.C. § 3015; see MGIB Active Duty (chapter 30) Increased Educational Benefit, https://www.benefits.va.gov/GIBILL/resources/benefits_resources/rates /ch30/ch30rates100117.asp (effective Oct. 1, 2017) (for full-time school attendance and 3 years of continuous active service, the monthly rate is $1, 928; for less than 3 years of continuous active service the monthly rate is $1, 566).
In June 2008, Congress enacted the Post-9/11 Veterans Educational Assistance Act of 2008, which became effective on August 1, 2009. Pub. L. No. 110-252, tit. V, §§ 5001-03, 122 Stat. 2357 (2008) (codified at 38 U.S.C. §§ 3301 et seq.). The Post-9/11 GI Bill provides education benefits to each individual who served on active duty after September 11, 2001, and continued to serve on active duty or was discharged or released under specified conditions. 38 U.S.C. § 3311(a), (b). An individual who "serve[d] an aggregate of at least" 1 of 7 periods described in the statute as ranging from 90 days to 36 months is entitled to Post-9/11 education benefits. 38 U.S.C. § 3311(b).[2] An individual who meets the basic eligibility requirements is entitled to 36 months of education benefits. 38 U.S.C. § 3312(a). Post-9/11 education benefits, awarded per school term, include the net cost for in-state tuition and fees; a monthly stipend equal to the basic monthly military housing allowance in the area in which the campus is located; and a lump sum payment for books. 38 U.S.C. § 3313(a); see 38 C.F.R. § 21.9640(b) (2019). Because Post-9/11 education benefits include the net cost for in-state tuition and fees, the monthly Post-9/11 education benefits amount generally exceeds the corresponding amount of monthly MGIB benefits. See GI Bill Comparison Tool, https://www.vets.gov/gi-bill-comparison-tool/profile/11800116 (last visited Mar. 26, 2019) (for example, for full-time attendance at the University of Kansas and 3 years aggregate active service, i.e., factors warranting the 100% rate, the per semester rate is $5, 412 for tuition and fees, $6, 723 for housing allowance, and a $500 book stipend). The Post-9/11 GI Bill also includes several administrative provisions, 38 U.S.C. §§ 3322-27, some of which we will return to below.
Finally, for the moment on the statutory structure, several administrative provisions also guide an individual's entitlement to more than one education benefit program. Two of these provisions are particularly important here. Section 3695 provides that an eligible person may receive education benefits under all programs for a total of 48 months. 38 U.S.C. § 3695 (); see 38 U.S.C. §§ 3013(c) (); 3312(a) (same for Post-9/11 GI Bill benefits). In addition, section 3681(b)(1) bars the concurrent receipt of education benefits under two or more programs. 38 U.S.C. § 3681(b)(1) (); see 38 U.S.C. §§ 3033(a)(1) (), 3322(a) (same for Post-9/11 GI Bill benefits).
The appellant first served on active duty as an enlisted person in the U.S. Army from January 2000 to June 2002. Record (R.) at 109. This service qualified him to receive benefits through the MGIB. From July 2003 to approximately May 2004 he received MGIB education benefits that he applied to expenses for undergraduate studies. R. at 67. From June 2004 to December 2005, he again served on active duty as an enlisted person with an Army National Guard unit, through which he deployed to Iraq. See R. at 5, 76, 108. After discharge from this second period of active duty service, the veteran re-enrolled in university studies and received MGIB benefits from July 2003 to May 2007. R. at 67. Combined, these periods during which the appellant received benefits under MGIB total 25 months and 14 days. Id. From November 2007 to August 2011, he returned to active duty in the U.S. Army yet again, this time as a commissioned officer, and he deployed to Iraq and Afghanistan. R. at 107. This period of service qualified him for benefits under the Post-9/11 GI Bill. H...
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