Citation Nr: 21001864 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-60 785 DATE: January 12, 2021 REMANDED The issue of entitlement to waiver of recovery of an overpayment of payment of educational assistance benefits under the Transfer of Entitlement provisions of Chapter 33, Title 38, United States Code (known as the Post-9/11 GI Bill), in the amount of $7,674.64, is remanded. REASONS FOR REMAND Information of record indicates that the Veteran served on active duty in the United States Navy from June 1993 to November 2014. The appellant in this case is the Veteran’s daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from an August 2015 decision by a Department of Veterans Affairs (VA) Regional Office (RO) wherein the RO’s Committee on Waivers and Compromises (COWC) denied the Veteran’s request for waiver of recovery of an overpayment of Chapter 33 educational assistance benefits in the total amount of $7,674.64. The appellant disagreed with that decision and perfected an appeal to the Board. Notably, in her VA Form 9 (Appeal to the Board of Veterans’ Appeals), the appellant requested a Board hearing before a Veterans Law Judge at a local RO. The record reflects that the appellant was scheduled for a Board hearing to be held on February 12, 2019, at the Montgomery, Alabama, RO. The appellant, however, failed to report for the scheduled hearing. As good cause was not shown for why the appellant failed to report for her hearing and she has not otherwise requested that the hearing be rescheduled, the Board will proceed as though the hearing request has been withdrawn Waiver of Recovery of Overpayment At the outset, the Board notes that it does not appear as though the appellant has disagreed with the validity of debt created in this case. Nevertheless, because the issue of the validity of a debt is a threshold determination that must be made prior to a decision on a request for waiver of the indebtedness, see Schaper v. Derwinski, 1 Vet. App. 430 (1991)), the Board must consider whether the debt was validly created. In the instant case, the record shows that in September 2011, the Veteran transferred his Post-9/11 GI Bill educational assistance benefits to his four children, to include the appellant, transfer of which was approved that same month. At that time, the Veteran’s obligated service end date was indicated to be September 11, 2015. In May 2014, the Veteran increased, to 12, the months transferred to the appellant. In June 2014, the RO received the appellant’s application for use of transferred educational assistance benefits. In July 2014, Tidewater Community College certified that the appellant was enrolled in an undergraduate degree program at that institution, which program was to begin in August 2014. Specifically, it was indicated that she was enrolled in 1 resident credit hour for the term running from August 25, 2014, to October 20, 2014, and for 13 resident credit hours for the term running from August 25, 2014, to December 19, 2014. Payment of Chapter 33 educational assistance benefits was then made to, or on behalf of, the appellant. Then, in December 2015, the RO sent to the appellant a letter in which the RO stated that information received from the Department of Defense (DoD) revealed that the Veteran was discharged from service on November 30, 2014, which was prior to service obligation end date. The RO informed the appellant that because the Veteran did not complete his service obligation, she was not eligible for VA educational assistance benefits under the Transfer of Entitlement provisions of Chapter 33. The appellant was informed that because of this change, VA had paid her more than she was due, which resulted in an overpayment of $7,674.64 books and supplies, tuition and fees, and monthly housing allowance for the term outlined above. Relevant to the issue on appeal, the law provides that that the Secretary of Defense or, in this case, the Secretary of the Navy, may approve a member of the Armed Forces who is entitled to basic educational assistance under Chapter 33, under certain circumstances, to elect to transfer to one or more dependents the unused portion of entitlement to such assistance. 38 U.S.C. § 3319(a). To be eligible to transfer educational assistance benefits, a transferor must have served six years on active duty or in the Selected Reserve at the time of his approval by the Secretary of the Army and must have entered into an agreement to serve at least four more years as a member of the Armed Forces. 38 U.S.C. § 3319(b). The law further provides that if an individual transferring entitlement under 38 U.S.C. § 3319 fails to complete the service agreed to in accordance with the terms of the agreement of the individual under 38 U.S.C. § 3319(b)(1), the amount of any transferred entitlement under this section that is used by a dependent of the individual as of the date of such failure shall be treated as an overpayment of educational assistance. 38 U.S.C. § 3319(i)(2)(A). Exceptions however exist and subparagraph (A) will not apply in the case of an individual who fails to complete service agreed to by the individual (1) by reason of the death of the individual or (2) for a reason referred to in 38 U.S.C. § 3311(c)(4). 38 U.S.C. § 3319(i)(2)(B). In accordance with 38 U.S.C. § 3311(c)(4), if the individual transferring entitlement fails to complete the service agreed to due to early discharge or release from active duty for (1) a medical condition which preexisted the applicable period of service of the individual and which the Secretary determines is not service-connected; (2) hardship; or a physical or mental condition that was not characterized as a disability and did not result from the individual’s own willful misconduct but did interfere with the individual’s performance of duty, as determined by the Secretary concerned in accordance with regulations prescribed by the Secretary of Defense, an overpayment of education assistance benefits will not be assessed. 38 U.S.C. § 3311(c)(4); 38 C.F.R. § 21.9750(l). In the instant case, the Board has before it no records related to the circumstances of the Veteran’s discharge from service. Indeed, not only are the Veteran’s service personnel records not of record, but the record also does not include the Veteran’s DD Form 214. Additionally, although the RO indicated that it had received from DoD information regarding the Veteran’s discharge from service, no such information is of record. Furthermore, a printout from the VA Department of Defense Identity Repository (VADIR) does not contain the Veteran’s release from active duty date. Overall, the Board finds that before it can reach the question of whether a waiver of recovery of the debt resulting from the overpayment of Chapter 33 educational assistance benefits is warranted, the matter must be remanded to obtain information relevant to the threshold determination of whether the debt was validly created. Specially, the agency of original jurisdiction (AOJ) must obtain all relevant records related to the Veteran’s discharge from service, so as to determine whether the circumstances of his separation from service prior to his service obligation date qualify for an exception to the general rule that failure to complete the service agreed to in accordance with the terms of the agreement of the individual under individual under 38 U.S.C. § 3319(b)(1) will result in an overpayment of educational assistance benefits used by a transferee. (Continued on next page) The matter is REMANDED for the following action: Obtain and associate with the claims file the Veteran’s service personnel records, to include all records related to his discharge from service. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.