Citation Nr: 1326481 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-22 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE 1. Whether the termination of the Veteran's Montgomery GI Bill (MGIB) benefits effective April 27, 2011, was proper, such that an overpayment of benefits was created in the amount of $190.13. 2. Entitlement to a waiver of recovery of the overpayment of MGIB benefits in the amount of $190.13. ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active service from June 1997 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. The Veteran was awarded an educational allowance for a Business Communication for Accountants course at the University of Phoenix that began on March 29, 2011. 2. In May 2011, the Veteran was notified that his educational assistance for the course was terminated, effective April 27, 2011, because the school had certified that the term had ended earlier than was anticipated, resulting in an overpayment of $190.13. 3. The Veteran submitted credible information from his University of Phoenix online account stating that the course ended on May 2, 2011, and also showing that he had satisfactorily completed the course. 4. The Veteran did not withdraw from the March 2011 course, and the course itself was not discontinued, interrupted, or terminated. 5. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the ending date of the March 2011 course was May 2, 2011. 6. The Veteran's indebtedness did not result from fraud, misrepresentation, or bad faith, and a waiver of indebtedness does not result in unjust enrichment. CONCLUSIONS OF LAW 1. The criteria for payment of educational assistance benefits for the Veteran's Business Communication for Accountants course at the University of Phoenix, for the period from April 27, 2011, to May 2, 2011, have been met. 38 U.S.C.A. §§ 3001, 3011, 3680, 3685 (West 2002); 38 C.F.R. §§ 21.4135, 21.7042 (2012). 2. The overpayment of $190.13 was not properly created, and the debt against the Veteran is not valid. 38 U.S.C.A. § 5302; 38 C.F.R. §§ 1.962 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The educational assistance allowance paid to eligible dependents of veterans under Chapter 35, Title 38, United States Code, will be reduced or terminated on the last date of attendance if the individual withdraws from courses with mitigating circumstances. 38 C.F.R. §§ 21.3135(c), 21.4135(e)(2)(i). If there are no mitigating circumstances, the educational allowance will be reduced or terminated as of the first day of the term in which the withdrawal occurs. 38 C.F.R. § 21.4135(e)(1). Examples of qualifying mitigating circumstances include: illness in the individual or his family; family death; an unavoidable geographical transfer resulting from the individual's employment; an unavoidable change in employment conditions; immediate family or financial obligations beyond the individual's control that require him to suspend pursuit of the program of education in order to obtain employment; discontinuance of the course by the school; unanticipated active duty for training; or unanticipated child-care difficulties. See 38 C.F.R. § 21.4136(b)(2012). In this case, the Veteran was awarded MGIB educational assistance to attend a course in Business Communication for Accountants that began on March 29, 2011. He was also approved for two other courses which began on May 3, 2011, and on June 7, 2011. However, in May 2011, the VA terminated the Veteran's benefits after receiving notice that he had withdrawn from the latter two terms, and that his last date of attendance had been April 27, 2011. The Veteran had already received benefits up until April 30, 2011. The VA stated that it had been verified that the March 29, 2011, school term had "ended earlier than was anticipated," ending on April 27, 2011, creating an overpayment of $190.13. The VA later stated that it had been verified that April 27, 2011, was the last day that the Veteran had attended the school. The Veteran submitted information from his eCampus account showing that he had completed the Business Communication for Accountants course, and that the course dates had run from March 29, 2011, to May 2, 2011. He had received an A- in the course. The Board finds that the Veteran did not withdraw from the Business Communication for Accountants course. While his last date of attendance of that course may have been April 27, 2011, the Veteran has submitted sufficient and credible documentation that the official end date of the course was May 2, 2011. His withdrawal from the subsequent courses does not affect the course in question, for which he received a satisfactory grade. Accordingly, the provisions of 38 C.F.R. § 21.4135 were not properly applied in this case because the Veteran did not withdraw from the course. Therefore, because the course ended on May 2, 2011, despite the date of the Veteran's last date of attendance in the course, he should receive educational assistance until the end date of the completed course. Moreover, the effective date of a reduction of benefits without mitigating circumstances should instead be the first day of the term in which the withdrawal occurred which, in this case, appears to be May 3, 2011, the first date of the course from which he was stated to have withdrawn. Recovery of overpayment of any benefits made under laws administered by VA shall be waived if there is no indication of fraud, misrepresentation of a material fact, bad faith, or a lack of good faith on the part of the person or persons having an interest in obtaining the waiver, and recovery of the indebtedness would be against equity and good conscience. See 38 U.S.C.A. § 5302(c); 38 C.F.R. §§ 1.963, 1.965. In other words, any indication that the appellant committed fraud, misrepresentation of a material fact, or bad faith/lack of good faith in connection with the receipt of VA benefits precludes the granting of a waiver of recovery of the overpayment. In this case, there is no indication that the $190.13 overpayment was created by fraud, misrepresentation of a material fact, bad faith, or a lack of good faith on the part of the Veteran. He has submitted verification of the end date of the course for which he received educational assistance. There is no indication that the eCampus verification of the course dates is in anyway not credible, or procured through fraudulent means. For these reasons, the Board finds that a waiver of recovery of the overpayment of VA education benefits in the amount of $190.13 is warranted. ORDER Chapter 30 educational assistance benefits for a Business Communication for Accountants course at the University of Phoenix for the period from April 27, 2011, to May 2, 2011, is granted. The overpayment of $190.13 was not properly created, and to this extent, the appeal is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs