Citation Nr: 18147420 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-15 929 DATE: November 5, 2018 ORDER The overpayment debt of Department of Veterans Affairs (VA) Chapter 33 educational benefits in the amount of $20,560.89 was proper and the appeal is denied. The overpayment debt of VA Chapter 33 educational benefits in the amount of $2,625.00 was proper and the appeal is denied. The overpayment debt of VA Chapter 33 educational benefits in the amount of $8,823.00 was proper and the appeal is denied. FINDING OF FACT The Veteran did not complete the active service obligation required for eligibility to transfer Post-9/11 GI Bill educational benefits (Chapter 33) to the appellant. CONCLUSIONS OF LAW 1. The overpayment of VA educational benefits in the amount of $20,560.89 was properly created. 38 U.S.C. §§ 3311, 3319; 38 C.F.R. §§ 21.9520, 21.9570, 21.9635. 2. The overpayment of VA educational benefits in the amount of $2,625.00 was properly created. 38 U.S.C. §§ 3311, 3319; 38 C.F.R. §§ 21.9520, 21.9570, 21.9635. 3. The overpayment of VA educational benefits in the amount of $8,823.00 was properly created. 38 U.S.C. §§ 3311, 3319; 38 C.F.R. §§ 21.9520, 21.9570, 21.9635. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1994 to May 2014. The appellant is his school-aged daughter. Initially, the Board notes that the appellant requested the overpayment debts be waived in her December 2015 notice of disagreement and submitted an additional claim for waivers of the overpayment debts in March 2016 with a VA Form 5655, financial status report. See 38 C.F.R. § 1.963(b)(2) (requests for waiver of an indebtedness are to be made within 180 days following the date of the notice of indebtedness). The claims were referred to the Committee on Waivers and Compromises (COWC) in April 2016; however, there is no indication that the issues have been adjudicated by the COWC. Therefore, the Board finds the issues of entitlement to waivers of the overpayment debts of VA educational benefits in the amounts of $20,560.89, $2,625.00, and $8,823.00 must be referred to the COWC for appropriate action. The overpayment debts are all due to the Veteran’s retroactive ineligibility for Post-9/11 GI Bill assistance due to failing to complete his obligated term of active service to qualify for the transfer of his Chapter 33 education benefits to the appellant. See 38 U.S.C. § 3311; 38 C.F.R. § 21.9520 (the Chapter 33 Post-9/11 GI Bill provides educational assistance for members of the Armed Forces that served after September 10, 2001 that meet the prescribed criteria for eligibility); see also 38 C.F.R. § 21.9570 (individuals that are entitled to Chapter 33 educational assistance may transfer up to 36 total months of his entitlement among dependents with approval by a service department). The appellant does not dispute the amount of the debts. Rather, she contends that the debts were not validly created because the Veteran’s discharge was under the Qualitative Management Program (QMP) for reduction of the workforce. See 38 C.F.R. § 21.9570(l)(ii)(B) (Generally, dependents are not eligible for transferred entitlement if the transferor fails to complete the amount of service he agreed to serve in the Armed Forces in order to participate in the transferability program. However, an exception exists if the transferor is considered to have completed his service as a result of being discharged for a reduction in force.). In support of her claims, she submitted the Veteran’s April 2013 Department of the Army notification for the potential denial of continued active duty service under the QMP. However, the Board notes that a discharge under the QMP program is not a discharge for a reduction in force but includes considerations of merit. Moreover, VA has no authority to determine the Veteran’s eligibility for the Post-9/11 GI Bill assistance as the Department of Defense (DOD) is charged with making determinations of eligibility for transfer of Chapter 33 entitlement to dependents. 74 Fed. Reg. 14,654 (2009); Garza v. McDonald, 28 Vet. App. 222, 230 (2016) (upholding VA’s interpretation of 38 U.S.C. § 3319 that DOD is responsible for making determinations of eligibility and effective dates). The Board is sympathetic to the appellant’s contentions that the Veteran was not able to complete his service term required for eligibility to transfer Chapter 33 benefits due to circumstances outside of his control, but it is bound by the laws and regulations dictating eligibility for Chapter 33 educational benefits. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (“no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.”). As such, there simply is no provision of law under which the Board may grant the relief sought by the appellant in this appeal. The Board concludes that the overpayments were properly created as the Veteran was not eligible to transfer Chapter 33 benefits to the appellant. The appeal is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel