Citation Nr: A25035583 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210407-150805 DATE: April 17, 2025 ORDER The overpayment of educational assistance benefits under the Transfer of Entitlement provisions of 38 U.S.C. Chapter 33 (Chapter 33 or Post-9/11 GI Bill) in the amount of $12,775.37 for tuition/fees and $1,875 for books/supplies totaling $14,650.37 was not validly created. FINDINGS OF FACT 1. In 2015, the Veteran transferred his entitlement to educational assistance benefits under Chapter 33 to his spouse, the Appellant; the request was conditionally approved by the service department upon the Veteran's obligated service end date of October 21, 2019. 2. On January 29, 2019, the Veteran was honorably discharged from the Armed Forces for "failure to complete course of instruction" and his DD Form 214 notes "soldier separated due to medical elimination." 3. Providing the benefit of the doubt, the Veteran did not complete his service obligation due to a physical or mental condition that was not characterized as a disability, did not result from his own willful misconduct, and interfered with the individual's performance of duty, as determined by the Secretary of the Army. 4. VA awarded the Appellant Chapter 33 education benefits in the amount of $12,775.37 for tuition/fees and $1,875 for books/supplies totaling $14,650.37 for a course of study from August 2016 to April 2018; the debt was not properly created. CONCLUSION OF LAW The debt created by the overpayment of transferred Chapter 33 educational assistance benefits in the amount of $12,775.37 for tuition/fees and $1,875 for books/supplies totaling $14,650.37 is not valid. 38 U.S.C. §§ 3301, 3311, 3313, 3319; 5302; 38 C.F.R. §§ 1.962, 1.965, 21.9550, 21.9570. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 2008 to January 2019. The Appellant is the Veteran's spouse. She appeals a June 2020 decision letter by the Department of Veterans Affairs (VA) St. Louis Regional Office (RO) finding valid the overpayment debt stemming from her use of transferred benefits under Chapter 33 transfer of entitlement provisions and denying the Appellant's request for waiver. See January 2021 VA Form 10182. The Appellant requested the Board of Veterans' Appeals (Board) review the appeal under the evidence docket. Id. Under the evidence docket, the Board may only consider the evidence of record at the time of the June 2020 decision letter, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the September 2019 RO determination letter on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the September 2020 VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. The Post-9/11 GI Bill provides 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. § 21.9520. Here, there is no dispute the Veteran is eligible for Chapter 33 education benefits based on his periods of active service. Relevant to the instant case, the Post-9/11 GI Bill provides that eligible individuals are entitled to a maximum of 36 months of educational assistance and can transfer some or all of his or her entitlement to a dependent. 38 U.S.C. § 3319; 38 C.F.R. §§ 21.9550, 21.9570. 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.A. § 3319(b). In October 2015, the Veteran applied to transfer his Chapter 33 entitlement to the Appellant. See May 2017 VADIR information report. In return, the Veteran agreed to an obligated service end date of October 21, 2019 (four years from the transfer request date). Id. The transfer was approved. Id. While the Veteran served in the Army, the Appellant began using transferred benefits from August 2016 through March 2018 working towards a bachelor's degree in nursing. See, e.g., August 2016 VA Form 22-1999b; March 2018 VA Form 22-1995. For the duration of the Appellant's studies, VA provided her with Chapter 33 benefits. Specifically, she received $12,775.37 for tuition/fees and $1,875 for books/supplies totaling $14,650.37 in Chapter 33 transferred benefits. See September 2019 Muskogee RO initial letter of debt. The record reflects the Veteran was discharged from the Army on January 29, 2019, prior to his service obligation date of October 21, 2019. In August 2019, the Appellant filed a request to change her place of training, noting she moved and enrolled in a course of study at Georgia Southern University. See August 2019 VA Form 22-1995. A school certifying official submitted certification to VA for coursework from August 2019 to December 2019. See August 2019 VA Form 22-1999. The request for Chapter 33 benefits alerted VA to a change in the Veteran's active duty status and it was discovered he separated in January 2019, prior to his service obligation date. As a result, VA found the Veteran not entitled to transfer benefits to the Appellant, the entire amount of Chapter 33 education benefits received by the Appellant became an overpayment debt, and this appeal ensued. 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). Here, there is no question that the Veteran was discharged from military service on January 29, 2019 and did not complete his obligated service contract for participation in the transfer program as his service obligation date was October 21, 2019. See May 2017 VADIR information report. Generally, dependents are not eligible for a transferred Chapter 33 overpayment debt 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 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 (e) The transferor is considered to have completed his or her service as a result of being discharged for a disability or a reduction in force. 38 C.F.R. § 21.9570(l); 38 U.S.C. §§ 3311(c)(4), 3319(i). It is important to note that any exception regarding a medical condition above requires a determination by the Secretary of the military department concerned, not VA. The Appellant stated that after the Veteran served for nine years in the Army with multiple deployments to combat zones as a helicopter repairman, he was accepted into flight school as a warrant officer. See September 2019 Appellant letter. After Warrant Officer Candidate School, the Appellant stated she noticed a change in the Veteran's behavior and described on occasion where he had a serious panic attack. Id. The Veteran agreed to attend counseling and was diagnosed with posttraumatic stress disorder (PTSD). Id. The Veteran was unable to begin flight school while in therapy, and the Army agreed to postpone his start until the psychiatrist cleared him and provided a waiver. Id. Eventually, the Army stated he could not be waived as a student, he was dropped from the program, and honorably discharged. Id. Service Treatment records (STRs) confirm the Veteran's mental health treatment, beginning in March 2018, and subsequent diagnosis of PTSD. See September 2018 VA treatment records. July 2018 STRs note the Veteran was removed from flight duties and would be discharged from the Army upon completion of his treatment. In September 2018, STRs note the Veteran "resolved not to fight the separation...the reason for separation is stated as unable to complete training for medical reasons...felt he has been given a huge injustice but also realizes that after the panic attack he had with his family in the car that he should not be in the seat of a cockpit." November 2018 STRs reflect the Veteran reported he was medically separating from service and his May 2018 separation examination notes a diagnosis of PTSD, among other physical and mental conditions. Thus, the Board finds the Appellant's statements credible and probative as they are corroborated by the record. Importantly, the Veteran's DD Form 214 notes that he was discharged for "failure to complete course of instruction" and under Remarks it states, "soldier separated due to medical elimination." The Veteran was discharged for a medical condition that was not characterized as a disability, as it was not listed as a disability on his separation papers. Further, the record does not reflect the Veteran's mental condition was the result of his own willful misconduct as STRs note the Veteran wanted to continue serving but the condition interfered with his performance of duty. As the Veteran's DD Form 214, a document created by the Department of Defense (DoD), notes the Veteran was discharged due to medical elimination, the Board finds the Veteran's service meets one of the exceptions that allows a veteran transfer entitlement of Chapter 33 education benefits without completing their obligated service. See 38 C.F.R. § 21.9570(l)(1)(i)(D). 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). In summation, the evidence persuasively reflects that the Veteran met one of the exceptions under 38 C.F.R. § 21.9570(l) pertaining to when a transferor fails to complete the required service contract for the transferability program, specifically, 38 C.F.R. § 21.9570(l)(1)(i)(D). As such, the Veteran was entitled to transfer benefits to the Appellant. Thus, the overpayment in the amount of $12,775.37 for tuition/fees and $1,875 for books/supplies totaling $14,650.37 was not properly created and is invalid. The appeal is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bona, J.F. 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.