Citation Nr: 21011933 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-12 001A DATE: March 3, 2021 ORDER An overpayment of Chapter 33 (Post-9/11 GI Bill) education assistance under the Transfer of Entitlement provision, in the amounts of $2,885.10 for housing and $250 for books and supplies, was properly created and the appeal is denied. FINDING OF FACT The appellant received $3,135.10 in Post-9/11 GI Bill educational benefits for college courses scheduled from October 13, 2014 to December 11, 2014, and he withdrew from the courses prior to the beginning of the term, resulting in the $3,135.10 overpayment. CONCLUSION OF LAW The overpayment of educational assistance benefits under the Chapter 33 Post-9/11 GI Bill is valid. 38 U.S.C. § 3685; 38 C.F.R. §§ 21.9635, 21.9640. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1998 to July 2018. The appellant is the Veteran’s son. The appellant’s claim was remanded by the Board in February 2019 in order to obtain additional documentation from the appellant. The appellant did not respond to a VA letter requesting that he submit the documents. Accordingly, the appeal will be decided based on the current evidence of record which contains all the documents necessary for evaluating the appellant’s appeal. The February 2019 Board remand decision noted that the appellant’s contentions amounted to a claim for a waiver of the overpayment. However, the record does not indicate that a denial of a waiver of overpayment is currently in appellate status before the Board. Accordingly, the decision below only addresses the validity of the overpayment issue currently on appeal before the Board. The February 2019 Board decision indicated that the appellant also had an overpayment in the amount of $948 for tuition and fees. The record indicates that the tuition/fees debt has been established against the school and is not part of the appellant’s overpayment. Accordingly, the overpayment discussed below includes only the appellant’s $3,135.10 overpayment consisting of housing allowance and books assistance. It does not include the $948 overpayment of tuition/fees that was established against the school. 1. Whether the overpayment of Chapter 33 education assistance benefits was validly created. The Board notes that the appellant’s basic eligibility for Chapter 33 (Post-9/11 GI Bill) education benefits under the Transfer of Entitlement (TOE) provisions is not in dispute. As relevant here, the appellant was awarded Chapter 33 benefits under the TOE provisions in a May 2014 letter. The appellant registered for courses at Armstrong State University from October 13, 2014 to December 11, 2014. In January 2015, VA received notice from Armstrong State University that the appellant withdrew from his classes on October 12, 2014, prior to the beginning of the term. When a student withdraws from classes prior to the beginning of a term he is not entitled to any of the funds disbursed for such term and the provisions pertaining to mitigating circumstances do not apply. See 38 C.F.R. § 21.9635. The overpayment of Post-9/11 GI Bill benefits in the amount of $3,125.10, resulted from the appellant’s withdrawal from 6-credit hours at Armstrong State University prior to commencement of the term which began on October 13, 2014. The January 2015 determination on appeal informed the appellant that he had been paid $250 for books and supplies, and $2885.10 for housing allowance ($3,135.10 total), for classes he had registered to take during the October 13, 2014 term. An overpayment is created when VA determines that a beneficiary or payee has received monetary benefits to which he or she is not entitled. See 38 U.S.C. § 5302; 38 C.F.R. § 1.962. An overpayment may arise from virtually any benefits program administered pursuant to VA law, including pension, compensation, dependency and indemnity compensation, educational assistance benefits and subsistence allowance, insurance benefits, burial and plot allowances, clothing allowance, and automobile or other conveyance and adaptive equipment allowances. See 38 C.F.R. § 1.956(a). For a determination that an overpayment was not properly created, such that the debt is not valid, it must be established that the appellant was either legally entitled to the benefits in question or, if the appellant was not legally entitled, then it must be shown that VA was solely responsible for the appellant being erroneously paid benefits. Sole administrative error connotes that the appellant neither had knowledge of nor should have been aware of the erroneous award. Administrative errors include all administrative decisions of entitlement, whether based upon mistake of fact, misunderstanding of controlling regulations or instructions, or misapplication of law. VAOPGPREC 2-90 (July 17, 1989), 55 Fed. Reg. 27757 (1990). Under the provisions of 38 U.S.C. Chapter 33, an individual, other than one on active duty, who is pursuing a program of education at more than one-half time at an institution of higher learning located in the United States may receive a lump sum for established charges (tuition and fees) paid directly to the institution of higher learning, a monthly housing stipend and for the first month of each quarter, semester or term as applicable, a lump sum amount for books, supplies, equipment, and other educational costs. 38 U.S.C. § 3313; 38 C.F.R. § 21.9640. On his October 2015 notice of disagreement (NOD), and his February 2016 VA Form 9, the appellant reported that he had been registered to take four courses during the October 13, 2014 term and that the school made him drop two of the courses. He asserted that it was the school’s fault that he was not allowed to take all four courses. He further pointed out that he had to pay rent during the time he took his remaining two courses that he continued during that term. He thought that he was entitled to receive the VA housing allowance during the October 13, 2014 term based on the two courses he did take during that time. A review of the record shows that the appellant originally registered to take two courses (6 credit hours) during a term beginning on August 18, 2014 and ending on December 11, 2014. He was also registered to take two additional courses (6 credit hours) during a term beginning on October 13, 2014 and ending on December 11, 2014. These two registrations resulted in terms that overlapped from October 13, 2014 to December 11, 2014. Thus, the appellant had preregistered to take four courses (12 credit hours) as of October 13, 2014. The appellant was awarded the housing allowance based on his being enrolled in school more than half time. See 38 C.F.R. § 21.9640(b). The withdrawal from two courses (6 credit hours) effective October 13, 2014, resulted in the appellant becoming only a half time student effective October 13, 2014. Consequently, he was not entitled to any housing allowance from October 13, to December 11, 2014. A housing allowance is not payable to students who are considered one-half time or less. See 38 C.F.R. § 21.9640(c). The Board acknowledges that from October 13 to December 11, 2014 the appellant continued to take the two classes that commenced on August 18, 2014 and that he had to pay rent during that time. Regardless, as explained above, under the regulation for the payment of Post-9/11 GI Bill education benefits, taking only two courses (6 credits) did not entitle him to any housing allowance and the payment of such to him became an overpayment for which he is liable. Due to the withdrawal from the two courses that began on October 13, 2014, the appellant was not entitled to the benefits he received for those courses, $250 for books and supplies, and $2885.10 for housing allowance. Accordingly, the overpayment created in the total amount of $3,135.10 is valid. The Board also acknowledges the appellant’s assertions that his withdrawal from the two courses was not his fault. He maintains that it was the fault of the school. Regardless, even if that is the case, such would not change the outcome of this appeal. As noted above, the appellant is not legally entitled to the benefits. Furthermore, there was no VA error in the creation of the overpayment. Without legal entitlement or VA error, the Board must find that the overpayment was properly created. Accordingly, the appeal must be denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.