Citation Nr: 18158632
Decision Date: 12/18/18	Archive Date: 12/17/18

DOCKET NO. 15-26 849
DATE:	December 18, 2018
ORDER
The overpayment of educational assistance under the Post 9/11 GI Bill in the calculated amount of $3,549.92 was not properly created; the appeal is granted.
FINDING OF FACT
The overpayment of educational assistance benefits under the provisions of the Post 9/11 GI Bill in the calculated amount of $3,549.92 was due to mitigating circumstances beyond the Veteran’s control which prevented him from pursuing his program of education.
CONCLUSION OF LAW
The debt created by VA’s payment of educational assistance benefits under the Post 9/11 GI Bill in the calculated amount of $3,549.92 was not validly created. 38 U.S.C. §§ 3002, 3011 (2012); 38 C.F.R. §§ 21.7020 (b)(19), 21.7070, 21.7144, 21.7153 (2017). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from June 2001 to December 2001, and from January 2002 to January 2003. He also had subsequent service in the Army National Guard. The Veteran seeks a waiver of recovery of an overpayment of educational benefits in the amount of $3,549.92.
In the denial of waiver on appeal herein, it was determined that VA improperly paid educational assistance benefits for the Veteran, under the Post 9/11 GI Bill, in the amount of $3,549.92. Specifically, it was found that this debt was created when the Veteran withdrew from classes at the John Jay College of Criminal Justice in February 2013. The Veteran contends that this debt was improperly created, as his withdrawal was due to the fact that he had been offered a job in Georgia and had to geographically relocate in order to be trained. He asserts that his withdrawal was due to mitigating circumstances, and thus he should be granted a waiver of recovery of this overpayment. 
Based on the evidence of record, the Board agrees and finds that the overpayment of educational assistance benefits under the provisions of Post 9/11 GI Bill in the amount of $3,549.92 was due to mitigating circumstances beyond the Veteran’s control which prevented him from continuously pursuing a program of education. 38 C.F.R. §§ 21.7020 (b)(19). 
Specifically, the evidence of record shows that the Veteran was enrolled in the Spring 2013 semester, which began on January 28, 2013.  Two weeks later, on February 13, 2013, the Veteran notified the school that he was withdrawing from classes.  He has consistently maintained throughout his appeal that he was unemployed while attending school, that he withdrew only in order to take a full-time job, and that he informed the school’s VA liaison of his decision. The record shows that VA was informed of his withdrawal on February 14, 2013. 
Accordingly, the Board must find that the debt created by VA’s payment of educational assistance under the Post 9/11 GI Bill in the calculated amount of $3,549.92 was due to mitigating circumstances beyond the Veteran’s control which prevented him from continuously pursuing his program of education. See 38 C.F.R. § 21.4136 (b)(3) (mitigating circumstances include an unavoidable geographic transfer resulting from employment). As such, the Board must find that the debt was not properly created. 38 U.S.C. §§ 3002, 3011 (2012); 38 C.F.R. §§ 21.7020 (b)(19), 21.7070, 21.7144, 21.7153 (2017).
As the debt was not properly created, there is no overpayment, and the issue of a waiver of the recovery of overpayment of educational assistance in the amount of $3,549.92 is moot. As there is a suggestion from the record that the Veteran has repaid some of this amount, any payments made thus far towards recoupment of the debt must be restored to the Veteran. 
 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jeremy J. Olsen, Counsel