Citation Nr: 1326475 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-20 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the creation of an overpayment of $557.06 in education benefits payments was proper. ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The service member had active military service from January 1980 to December 1983. He is currently on active duty for a period that began in September 1988. The appellant is the service member's daughter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. In July 2010, the appellant was awarded education benefits at the 100 percent rate under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill) as a transfer of entitlement to a dependent from the service member. 2. During the semester dated from January 2011 to May 2011, the appellant withdrew from a course resulting in a reduction from 16 to 13 credit hours. 3. The appellant's school informed VA that the tuition and fees did not change during the January 2011 to May 2011 semester because a flat rate is charged for 12 or more credits. 4. In March 2011, the appellant was informed by the RO that she was overpaid education benefits. An April 2011 letter informed her that the overpayment was in the amount of $557.06. 5. A May 2011 statement of the case reflects that the appellant's housing allowance was reduced in April 2011 to clear the debt. 6. There is no valid basis for the debt of $557.06; the appellant's housing allowance should be restored in that amount. CONCLUSION OF LAW Creation of an overpayment of $557.06 in education benefits payments was not proper; restoration of that amount in reduced housing allowance is warranted. 38 U.S.C.A. §§ 3319, 3323 (West Supp. 2013); 38 C.F.R. §§ 21.9570, 21.9635, 21.9695 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In the March 2011 decision, the RO informed the appellant that her education benefits were being reduced because she reduced her training in February 2011 and that an overpayment debt would be created. In April 2011, the appellant was sent a letter from VA's Debt Management Center indicating that she owed a debt of $557.06 on account of overpaid education benefits. A May 2011 statement of the case reflects that the appellant's housing allowance was reduced in April 2011 to clear the debt. The appellant contends that the debt was not validly created because there was no change in tuition cost when she withdrew from one course during the semester dated from January 2011 to May 2011. By way of background, the appellant applied for Post-9/11 GI Bill education benefits in July 2010. Later that month, she was awarded the education benefits at the 100 percent rate as a transfer of entitlement to a dependent from the service member. See 38 U.S.C.A. § 3319 (West Supp. 2013); 38 C.F.R. § 21.9570 (2012). The appellant began to attend Auburn University beginning with the August 2010 semester and utilized her VA education benefits. In February 2011, during the semester dated from January 2011 to May 2011, the appellant withdrew from a course resulting in a reduction from 16 to 13 credit hours. Auburn University informed VA of this reduction in March 2011. Significantly, the appellant's school informed VA that the tuition and fees did not change during the January 2011 to May 2011 semester because a flat rate is charged for 12 or more credits. According to the March 2011 decision, it was on the basis of the course withdrawal that the appellant's education benefits were reduced. A March 2011 RO work product summary lists an amount of $557.06 as part of a Tuition & Fees payment. However, based on the information provided by Auburn University, the appellant's tuition and fees remained the same for the January 2011 to May 2011 semester after the course withdrawal because a flat rate is charged for 12 or more credits. The appellant also submitted a schedule of tuition rates indicating the same-that the tuition remained the same so long as there were at least 12 credit hours. Thus, there should not have been a reduction in education benefits as a result of the appellant's course withdrawal in February 2011. Additionally, in the March 2011, the RO notified the appellant that her course withdrawal from 3 credit hours was being excused. See 38 U.S.C.A. § 3323 (West Supp. 2013); 38 C.F.R. § 21.9635(b) (2012) (VA will consider mitigating circumstances in the first instance of a withdrawal). Moreover, there are no other reasons evident in the record for the reduction of education benefits that would create an overpayment debt. See 38 U.S.C.A. § 3323; 38 C.F.R. §§ 21.9635, 21.9695 (2012). Accordingly, there is no valid basis for the debt of $557.06; restoration of that amount in reduced housing allowance is warranted. ORDER Creation of an overpayment of $557.06 in education benefits payments was not proper; the appeal is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs