Citation Nr: A25035563 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 230303-338319 DATE: April 17, 2025 REMANDED The validity of the debt due to an overpayment of Post-9/11 GI Bill (Chapter 33) education benefits under the transfer of entitlement (TOE) program is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 2005 to December 2009, with additional service in the Air Force Reserve. The rating decision on appeal was issued in March 2022 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2022 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). The validity of the debt due to an overpayment of Chapter 33 education benefits under the TOE program. The Veteran contends that he was unaware of an obligated end date for his military service in order to successfully transfer his Chapter 33 education benefits to his dependents. Alternatively, the Veteran states that he was not given a choice regarding his separation date. 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); 38 C.F.R. § 21.9571(l). In the current matter, the Veteran separated from the Air Force Reserve on September 23, 2017. However, the Veteran's obligated end date under the Transfer of Entitlement program was October 24, 2018. As a result, an overpayment was created as a result of the Veteran's dependent using Chapter 33 benefits. A January 2022 Veterans Affairs/Department of Defense Identity Repository (VADIR) report notes that the Veteran's most recent service in the Air Force Reserve was from September 24, 2013, to September 23, 2017. Additionally, the VADIR report states that the Veteran's transfer of benefits was approved on October 25, 2014. A February 2022 response from the Air Force Reserve states that the Veteran's obligated end date was October 24, 2018. The response stated that the Veteran was 'voluntarily discharged' on September 23, 2017, and therefore should not retain his transfer of education benefits. A lay statement from the Veteran states that he was unaware of an obligated end date for his service and argues that he did not have a choice in his discharge. As the Veteran's service personnel records are not in the Veteran's claims file, the Board finds that a remand is warranted to correct a pre-decisional duty to assist error. Specifically, although the AOJ contacted the Air Force Reserve regarding the Veteran's separation date and asked for a separation reason, they did not properly ascertain whether the Veteran met any of the exceptions under 38 C.F.R. § 21.9571(l), for failing to complete the amount of service he agreed to. Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records, to include all documents pertaining to service in the Air Force Reserve. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. (continued on next page) ? 2. The AOJ should ask the Air Force Reserve whether the Veteran's September 23, 2017, separation was the result of a reduction in force. The AOJ should also seek to obtain any information regarding the Veteran's request to transfer his education benefits to include an application, approval letter, agreement, and any other documents that may include his obligated end date. Wendy Daknis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.