Citation Nr: 21013512 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-37 395 DATE: March 9, 2021 ORDER The overpayment in the amount of $52,120.61 for educational assistance benefits under the Transfer of Entitlement (TOE) provisions of 38 U.S.C. Chapter 33 (Post-9/11 GI Bill) was properly created; to that extent, the appeal is denied. FINDINGS OF FACT 1. VA awarded to the appellant transferred education benefits under the Post-9/11 GI Bill from the Veteran for the academic terms from August 2014 to December 2016 in the calculated amount of $18,111.89 for tuition and fees, $31,425.39 for a housing allowance, and $2,583.33 for books and supplies. 2. The Veteran was obligated to serve on active duty until August 7, 2018 to be eligible to transfer education benefits to his dependents; however, the Veteran separated from active duty on January 31, 2017. 3. In September 2019, the Department of Defense (DOD) confirmed that the Veteran did not satisfy the service requirements for eligibility to transfer Post-9/11 GI Bill education benefits to the appellant. 4. The appellant received educational assistance benefits to which she was not legally entitled. CONCLUSION OF LAW The overpayment in the amount of $52,120.61 for educational assistance benefits under the Post-9/11 GI Bill was legally created, thus, the debt is valid. 38 U.S.C. §§ 3311, 3319, 5302; 38 C.F.R. §§ 1.911, 1.956, 1.962, 21.9505, 21.9570, 21.9695. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1981 to September 191, from January 1985 to February 1994, and from March 2006 to January 2017. The appellant is the Veteran’s daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Jurisdiction of the case is now before the RO in Muskogee, Oklahoma. In November 2018 and May 2019, the Board remanded the issue on appeal for additional development. As the actions specified in the remands have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist VA's duties to notify and assist (commonly referred to as "VCAA") do not apply where validity of the debt and waiver of overpayment are at issue. See Barger v. Principi, 16 Vet. App. 132 (2002). Otherwise, the Board finds that the appellant has been afforded full due process in this matter. A debtor has the right to notification of the debts, the specific reasons for the debt, and her rights and remedies. See 38 C.F.R. § 1.911(d). Her appeal rights consist of the right to informally dispute the existence or amount of a debt, to request waiver of collection of the debt, to a hearing on the waiver request, and to appeal the VA decision underlying the debt. 38 C.F.R. § 1.911(c). Here, the appellant has been notified of all of these rights and has been given a meaningful opportunity to exercise them. Thus, the Board finds that the underlying due process requirements have been satisfied and it will proceed to issue its decision. Analysis 1. Whether the overpayment in the amount of $52,120.61 for educational assistance benefits under the TOE provisions of the Post-9/11 GI Bill was properly created The appellant is challenging the validity of the debt. An overpayment is created when VA determines that a beneficiary or payee has received benefit payments in excess of the amount due or to which such beneficiary or payee is entitled. 38 C.F.R. § 1.962. The debtor may challenge the validity or amount of the debt owed. See 38 C.F.R. § 1.911(c)(1); see also VAOPGCPREC 6-98; Schaper v. Derwinski, 1 Vet. App. 430, 437 (1991). The debtor may also apply for a waiver of any debt found to be valid. See 38 U.S.C. § 5302; 38 C.F.R. §§ 1.911(c)(2), 1.963. In this case, the Veteran has only challenged the validity of the debt. For a determination that the overpayment was not properly created, such that the debt was not valid, it must be established that the claimant was either legally entitled to the benefits in question or, if the claimant was not legally entitled, then it must be shown that VA was solely responsible for the claimant being erroneously paid benefits. 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). In order for the overpayment to be considered the result of sole administrative error, and for the appellant to consequently not be liable for the debt, the appellant must not have known, or should not have known, that the VA educational benefits were erroneous. In other words, a finding of sole administrative error requires not only error on the part of VA, but that the beneficiary is unaware that the payments are erroneous. 38 U.S.C. § 5112 (b)(9), (10); 38 C.F.R. § 3.500(b)(2); Jordan v. Brown, 10 Vet. App. 171 (1997) (sole administrative error is not present if the payee knew, or should have known, that the payments were erroneous). The Post-9/11 GI Bill, 38 U.S.C. Chapter 33, provides for VA educational assistance for members of the Armed Forces based on active duty service after September 10, 2001. 38 U.S.C. § 3311; 38 C.F.R. §§ 21.9500 - 21.9770. The appellant, as the Veteran's child, was awarded Chapter 33 educational benefits under the Post-9/11 GI Bill, because the Veteran had transferred the benefits to her. See 38 C.F.R. § 21.9570. In this case, the validity of the debt concerns whether the appellant received educational assistance benefits that she was not entitled to, because the Veteran did not complete his obligated service to transfer his Post-9/11 GI Bill benefits. An individual who is entitled to educational assistance under Chapter 33 based on his or her own active duty service, and who is approved by a service department to transfer entitlement, may transfer up to a total of 36 months of his or her entitlement to a dependent (or among dependents). 38 U.S.C. § 3319; 38 C.F.R. § 21.9570. VA will pay this transfer of entitlement (or TOE) benefits to the dependent and/or the dependent's institution of higher learning if the dependent is using transferred entitlement to pursue and complete the requirements of a secondary school diploma or equivalency certificate the amounts of educational assistance payable under Chapter 33 in the same manner and at the same rate as if the transferor were enrolled in the dependent's program of education. The DOD is charged with making determinations of eligibility for transfer of Chapter 33 entitlement to dependents; VA has no authority to determine such eligibility. See 38 U.S.C. § 3319; 38 C.F.R. § 21.9570; 74 Fed. Reg. 14,654 (2009); Garza v. McDonald, 28 Vet. App. 222, 230 (2016). 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). 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 one of the following circumstances exists: (1) 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 department concerned; (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 (2) The transferor is considered to have completed his or her service as a result of being discharged for (a) a disability); or (b) a reduction in force. 38 C.F.R. § 21.9570(l); 38 U.S.C. §§ 3311(c)(4), 3319(i). If an individual transferring Chapter 33 entitlement fails to complete the service agreed to by the individual, the amount of any transferred entitlement 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). In the event of an overpayment of Chapter 33 educational assistance benefits with respect to a dependent to whom entitlement is transferred, the dependent and the individual making the transfer shall be jointly and severally liable for the amount of the overpayment. 38 U.S.C. § 3319(i)(1). A careful review of the record shows that in September 2014, the appellant filed an Application for Family Member to Use Transferred Benefits (VA Form 22-1990E), which was approved based on the Veteran’s request to transfer his benefits to his dependents. After VA received enrollment certification forms (VA Form 22-1990) from the appellant, VA awarded transferred Post-9/11 GI Bill benefits to her for the academic terms from August 2014 to December 2016. When VA received a Notice of Change in Student Status (VA Form 22-1999b) in January 2017, VA reviewed a February 2017 Information Report from the VA/Department of Defense (DOD) Identity Repository (VADIR), which indicated that the Veteran had separated from service on January 31, 2017, prior to his obligated end date. In a February 2017 decision, VA informed the appellant that she had an incurred education debts, because the Veteran failed to meet his obligated end date of August 7, 2018 when he retired on January 31, 2017. Therefore, the appellant was not eligible to receive TOE benefits. In three separate April 2017 VA Debt Management Center letters, the appellant was informed that she had a total debt in the amount of $18,111.89 for tuition and fees, $31,425.39 for a housing allowance, and $2,583.33 for books and supplies. The appellant has not asserted that the amount of debt was incorrectly calculated. Further, the appellant does not dispute that the Veteran separated from service in January 2017, prior to his obligated end date. However, the appellant indicates that the Veteran was forced to retire early under the Qualitative Management Program (QMP), so he was unable to meet his TOE requirements. The appellant contends that she should not be penalized for the Veteran’s inability to complete his service requirement, when it was not his fault; so, she should be able to continue to use the Post-9/11 GI Bill benefits. VA sought clarification from the DOD as to whether the Veteran was forced to retire under the QMP or was discharged for another reason beyond his control. In a September 2019 response, the DOD responded: [Servicemember (SM)] has 2 negative actions in file, which caused his file to be considered for the Qualitative Management Program (QMP) SM voluntarily retire (sic) instead of going before the QMP board and maybe stayed to his OED date. SM voluntarily retired in Lieu of QMP Board, which caused his TEB to be rejected...SM did not meet TOE. The Board is sympathetic to the appellant’s contention that she believed that the Veteran had been forced to retire, and thus, for that reason, he was unable to meet his service obligation under the TOE. Nevertheless, the DOD clearly explained that the Veteran chose to retire rather than proceed with the process of the QMP board, which may have afforded him the opportunity to complete his service obligation. As noted above, the determination of an individual's eligibility to transfer education benefits is made by the DOD and not by VA. See 38 U.S.C. § 3319; 38 C.F.R. § 21.9570. VA does not have the authority to determine such eligibility and it cannot alter the DOD's determination on such eligibility. Furthermore, the appellant does not contend, and the evidence does not show that the Veteran meets any exception for when 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. See 38 C.F.R. § 21.9750(l). In that regard, the evidence does not show that the Veteran did not complete his service contract due to: death; a medical condition that preexisted such service on active duty and that the Secretary of the military department concerned determined is not service-connected; a hardship, as determined by the Secretary of the military concerned; 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; a disability; or, reduction in force. Id. Finally, the Board finds that the overpayment was not due to sole administrative error on the part of VA. In this case, VA discontinued the appellant’s Post-9/11 GI Bill benefits in February 2017 once VA learned that the Veteran had retired early in January 31, 2017, which was prior to his August 7, 2018 obligated end date. All educational assistance benefits paid prior to February 2017 was based on the TOE approval that the Veteran had received and his continued active duty service to fulfill his service obligation as required under the TOE provisions. However, the evidence shows that once the Veteran failed to meet those service obligations, the appellant was no longer eligible to receive transferred Post-9/11 GI Bill benefits. Thus, the overpayment was not due to sole administrative error. Accordingly, the Board finds that the creation of the overpayment in the amount of $52,120.61 for Post-9/11 GI Bill benefits is valid. To that extent, the appeal is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.