Citation Nr: 19115489 Decision Date: 03/01/19 Archive Date: 03/01/19 DOCKET NO. 16-12 022 DATE: March 1, 2019 ORDER Eligibility to receive a transfer of educational benefits under Chapter 33, United States Code (Post 9/11 GI Bill), is denied. FINDING OF FACT The Veteran did not complete his service contract. CONCLUSION OF LAW The criteria for establishing eligibility for a transfer of educational benefits under Chapter 33, United States Code (Post 9/11 GI Bill) are not met. 38 U.S.C. §§ 3301, 3311, 3313, 3319; 38 C.F.R. §§ 21.9550, 21.9570. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to March 2015. The appellant is the Veteran’s daughter. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an September 2015 determination by a Department of Veterans Affairs (VA) Regional Office (RO) Education Center, which denied Chapter 33 eligibility, after finding that the Veteran was no longer eligible to transfer such Post-9/11 GI Bill benefits because he did not complete his obligated period of service. Eligibility for a transfer of educational benefits under Chapter 33, United States Code (Post-9/11 GI Bill). The appellant contends that the Veteran was asked to retire in January 2015 or have mandatory retirement chosen by the government with consequences. She contends that the Veteran did not choose to separate despite the voluntary assignation in the paperwork. She also contends that the Veteran did not receive counseling regarding the effects of separation on his transferred Chapter 33 benefits. The Post 9/11 GI Bill was enacted by Congress in June 2008. See Pub. L. No. 110-252, Title V, §§ 5001-5003, 122 Stat. 2357 (2008). The statutory provisions are codified at Title 38, U.S.C. Chapter 33. VA promulgated new regulations to implement the change in law in March 2009, and the regulations are now codified at 38 C.F.R. §§ 21.9500-21.9770. Under these provisions, an eligible individual is entitled to a maximum of 36 months of educational assistance under Chapter 33 and can transfer up to the full 36 months of his or her entitlement to a dependent. 38 C.F.R. §§ 21.9550, 21.9570. A transferor may not transfer an amount of entitlement that is greater than the entitlement he or she has available at the time of transfer. 38 C.F.R. § 21.9570. The Chapter 33 provisions that pertain to the authority to transfer unused education benefits to family members are found in 38 U.S.C. § 3319. An eligible individual is any member of the uniformed services who, at the time of the approval of the individual’s request to transfer entitlement to educational assistance under this section, has completed at least (1) six years of service in the armed forces and enters into an agreement to serve at least four more years as a member of the uniformed services; or (2) the years of service as determined in regulations pursuant to subsection (j). 38 U.S.C. § 3319(b). Further, an individual approved to transfer an entitlement to educational assistance under this section may transfer his or her entitlement to his or her spouse. 38 U.S.C. § 3319(c)(1). The provisions of 38 C.F.R. § 21.9570(l) pertain to when a transferor fails to complete the required service contract that afforded participation in the transferability program. Dependents are not eligible for transferred entitlement if the transferor fails to complete the amount of service he or she agreed to serve in the Armed Forces in order to participate in the transferability program, unless- (i) The transferor did not complete the service due to: (A) His or her death; (B) A medical condition that preexisted such service on active duty and that the Secretary of the military department concerned determines is not service-connected; (C) A hardship, as determined by the Secretary of the military concerned; or (D) A physical or mental condition that was not characterized as a disability and did not result from the individual’s own willful misconduct but interfered with the individual’s performance of duty, as determined by the Secretary of the military department concerned; or (ii) The transferor is considered to have completed his or her service agreement as a result of being discharged for- (A) A disability; or (B) A reduction in force. See also 38 U.S.C. §§ 3319(i), 3311(c)(4). In applying to transfer his Chapter 33 benefits, the Veteran agreed to serve until July 16, 2015. However, on March 31, 2015, the Veteran retired from active duty. Because his retirement date was prior to the July 16, 2015 obligated projected end date necessary for eligibility to transfer Chapter 33 benefits under the “Transfer of Entitlement” (TOE) program, the Department of Defense (DoD) terminated the Veteran’s eligibility to transfer his Chapter 33 education benefits. In this regard, 38 U.S.C. § 3319 and 38 C.F.R. § 21.9570 provide that a decision as to transferability of Chapter 33 benefits rests with the service department and not VA. Here, VA developed for verification that the Veteran completed his service obligation end date of July 16, 2015 as DoD records showed that the Veteran was discharged on March 31, 2015. In September 2015, VA was informed that the Veteran’s service end date could not be verified. At that time the DoD transfer of entitlement record reflected that the Veteran retired in March 31, 2015, prior to his obligated end date of July 16, 2015. Specifically, a DoD coordinator indicated that TOE eligibility was terminated effective the Veteran’s retirement date of March 31, 2015, and that no payments were to be made after that date. Although the Board is sympathetic to the appellant’s situation, the record does not show that the appellant has submitted any evidence demonstrating that the Veteran has received new approval from the service department of a transfer request for educational benefits on behalf of the appellant. The provisions of 38 U.S.C. § 3319 and 38 C.F.R. § 21.9570 indicate that the decision as to transferability of Chapter 33 benefits rests with the service department and not VA. Consequently, the appellant has not presented evidence in support of her claim. See 38 U.S.C. § 5107 (a) (a claimant has the responsibility to present and support a claim for VA benefits); Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the “support” requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim); Jones v. Shinseki, 23 Vet. App. 382, 391 (2009) (“Notwithstanding the duty to assist, it remains the claimant’s responsibility to submit evidence to support his claim”). In this case, the Board makes no judgment on whether or not the Veteran has met the requirements in order to be eligible for the transfer of education benefits program, as that determination is solely the province of the service department to decide. The Board’s determination is predicated on whether or not the appellant has met the requirements of basic VA eligibility for receipt of a transfer of education benefits under Chapter 33; DoD’s approval for the transfer of education benefits from the Veteran to the appellant is the first requirement. In summary, the service department terminated the Veteran’s eligibility to transfer educational benefits to the appellant effective March 31, 2015. The service department’s findings on such matters are conclusive and binding on VA. See e.g., Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115, 120 (1993). Thus, the appellant’s only recourse lies within the relevant service department, and not VA. See e.g., Soria v. Brown, 118 F.3d 747,749 (Fed. Cir. 1997). For the foregoing reasons, the appellant is not eligible for a transfer of benefits under the Post-9/11 GI Bill. Her claim for these benefits must therefore be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel