OTHERS

H.M. WALKER · 2026 · Case ID: A26039585

MIXED

Summary

The veteran, who served in the U.S. Army from January 2017 to March 2022, appeals an administrative decision that reduced his Post-9/11 GI Bill payment rate from 100 percent to 70 percent due to an initial VA calculation error. The veteran sought an exemption from tuition payments for the Spring 2023 semester, arguing VA's error unfairly impacted him. The Board denied this request, citing clear law and regulation (38 U.S.C. § 5112(b)(10) and 38 C.F.R. § 21.9636(r)) that mandates reductions to the correct rate when an administrative error is discovered, with no authority for equitable waivers. The Board found the veteran's initial service period from January 2017 to May 2019 qualified for VA benefits due to an honorable discharge upon re-enlistment, totaling 841 days (27 months, 21 days) of creditable service. However, his subsequent service from May 2019 to March 2022, ending in a general (under honorable conditions) discharge for misconduct, did not qualify for Chapter 33 benefits. Based on the qualifying service, the Board granted an 80 percent payment rate, finding this met the criteria under 38 C.F.R. § 21.9641 for 24-30 months of creditable service, and denied the claim for a 100 percent rate.

Rationale

Law mandates reduction to correct rate upon discovery of administrative error.; No equitable waiver authority for tuition payment errors.; Veteran's request for 100% payment denied as per 38 U.S.C. § 5112(b)(10) and 38 C.F.R. § 21.9636(r).

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230929-394817

Full Decision Text

Citation Nr: A26039585
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 230929-394817
DATE: April 28, 2026

ORDER

The claim of entitlement to a 100 percent payment rate under the Post-9/11 GI Bill (Chapter 33) VA education benefit program for the Spring 2023 semester is denied.

Entitlement to an 80 percent payment rate, but not higher, under the Post-9/11 GI Bill (Chapter 33) VA education benefit program, is granted.

FINDINGS OF FACT

1. The Veteran enlisted on active duty in the U.S. Army on January 23, 2017.

2. The Veteran re-enlisted for immediate discharge on May 13, 2019 with an honorable discharge. The Department of Veterans Affairs (VA) made a favorable finding that the period from January 23, 2017 to May 13, 2019 is qualifying active service for purposes of entitlement to education assistance under Chapter 33. This period reflects aggregate creditable service of at least 24 months, but less than 30 months.

3. The Veteran was discharged from service in March 2022 with a general under honorable conditions discharge. The character of discharge in March 2022 prevents his period of service, from May 14, 2019 to March 3, 2022, from being considered qualifying active service for the limited purposes of entitlement to Post 9/11 GI Bill benefits. The available evidence does not reflect that the Veteran was discharged from service due to a service-connected disability or that he is in a recipient of the Purple Heart Medal.

4. The Veteran received an overpayment for Chapter 33 (Post-9/11 GI Bill) benefits paid prior to an April 2023 administrative error discovered by VA in his payment rate and prior to the May 2023 spring semester tuition bill being owed to Central Texas College.

CONCLUSION OF LAW

The criteria for education benefits under Chapter 33 (Post-9/11 GI Bill) in excess of an 80 percent benefit level are not met. 38 U.S.C. §§ 3301, 3311; 38 C.F.R. §§ 21.9505, 21.9636, 21.9640, 21.9505.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from January 2017 to March 2022.

The matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2023 Appeals Modernization Act (AMA) administrative decision from the Department of Veterans Affairs (VA) Regional Office (RO) that reduced the Veteran's GI Bill payment rate from 100 percent to 70 percent after VA discovered an administrative error in the previous calculation.

In the appellant's September 2023 AMA Notice of Disagreement (NOD), he elected the Evidence Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his or her representative with the VA Form 10182 or within 90 days of receipt of the VA Form 10182. 38 C.F.R. § 20.303.

Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

EDUCATION CLAIM

Qualifying Service and Eligibility for Post-9/11 GI Bill Benefits

The Veteran served on active duty in the U.S. Army from January 2017 to March 2022.

According to his DD-214 Form, he re-enlisted on May 13, 2019. The service record also noted that he completed his first full term of service. He was discharged on March 3, 2022 under honorable conditions (general) for misconduct (serious offense).

To have eligibility for Post-9/11 GI Bill benefits, a claimant must have at least 90 aggregate days on active duty
Specific instructions for filing a Supplemental Claim are included with this decision.

EDUCATION CLAIM

Qualifying Service and Eligibility for Post-9/11 GI Bill Benefits

The Veteran served on active duty in the U.S. Army from January 2017 to March 2022.

To have eligibility for Post-9/11 GI Bill benefits, a claimant must have at least 90 aggregate days on active duty service after September 10, 2001 and, after completing such service and/or continuing on in such service, be discharged "with an honorable discharge". 38 C.F.R. § 21.9520(a).

The Board highlights the eligibility requirements found under § 21.9520(a) each require an honorable discharge without conditions, to include honorable discharges due to a pre-existing condition, hardship, or medical conditions that interfered with the performance of duty but not due to the individual's own misconduct (on or after January 4, 2011). 38 C.F.R. §§ 21.9520 (a)(1) - (a)(5)(ii).

In this case, the Board finds the Veteran's general under honorable conditions discharge does not meet the criteria under any of the options listed in 38 C.F.R. § 21.9520(a) for Chapter 33 eligibility because each requires an honorable discharge, for which the Veteran does not have.

Moreover, a claimant may alternatively establish eligibility under the Post-9/11 GI Bill if the individual "[s]erves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability." 38 C.F.R. § 21.9520(b).

Here, however, the Veteran was discharged following commission of a serious offense and not due to a service connected disability of any kind. As such, the character of discharge review is not requested or required in this particular claim. 38 C.F.R. § 21.9520(b).

Given the above, the Veteran does not meet the requirements for eligibility under Chapter 33 based solely on his June 2022 general under honorable conditions discharge. See 38 C.F.R. § 21.9520.

However, with the above in mind, due to the Veteran's re-enlistment in May 2019, he received an immediate discharge for re-enlistment characterized as honorable from the service department and VA has already determined that his period of service from January 23, 2017 (initial entry) to May 13, 2019 (first re-enlistment) would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. See April 2023 Administrative Decision; see also 38 C.F.R. §§ 3.12, 3.13(c) ("[d]espite the fact that no unconditional discharge [for re-enlistment] may have been issued, a person shall be considered to have been unconditionally discharged or released from active...service [if] the following conditions are met...(3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.").

In this regard, the Board will not disturb this favorable finding on the application of 38 C.F.R. § 3.13. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c) ("...a finding means a conclusion... on an application of law to facts made by an adjudicator concerning the issue(s) under review.").

Accordingly, his initial period of service from January 23, 2017 (initial entry) to May 13, 2019 (re-enlistment) is determined to have resulted in an honorable discharge for VA purposes and is considered qualifying and creditable active duty service after September 10, 2001 for Post-9/11 GI Bill benefits under 38 C.F.R. § 21.9520.

Unfortunately, his remaining period of service from May 14, 2019 to March 3, 2022 is characterized by the service department as under honorable conditions (general) discharge, and cannot be used as qualifying service by VA for Post-9/11 GI Bill benefits, for the reasons already explained above (e.g., an honorable discharge or service connected
23, 2017 (initial entry) to May 13, 2019 (re-enlistment) is determined to have resulted in an honorable discharge for VA purposes and is considered qualifying and creditable active duty service after September 10, 2001 for Post-9/11 GI Bill benefits under 38 C.F.R. § 21.9520.

Unfortunately, his remaining period of service from May 14, 2019 to March 3, 2022 is characterized by the service department as under honorable conditions (general) discharge, and cannot be used as qualifying service by VA for Post-9/11 GI Bill benefits, for the reasons already explained above (e.g., an honorable discharge or service connected disability discharge is required). See 38 U.S.C. § 3311; 38 C.F.R. § 21.9520. Importantly, the Veteran does not dispute the findings on the character of his discharge, in either period.

Given all the above, the Veteran's qualifying service for Post-9/11 GI Bill benefit purposes is from January 23, 2017 to May 13, 2019, but no more, and this means that the Veteran served 841 days (or 27 months and 21 days) of aggregate active service, for purposes of entitlement to education assistance under the Post-9/11 GI Bill program.

1. The claim of entitlement to a 100 percent payment rate under the Post-9/11 GI Bill (Chapter 33) VA education benefit program for the Spring 2023 semester

The Veteran contends that he should be exempt from paying tuition for the spring 2023 semester. See September 2023 Ask VA Inquiry Summary. He asserts that it was not fair that VA did not cover the full cost of tuition for the Spring 2023 semester due to no fault of his own but rather VA's own error. Id. He contends that VA should pay the full tuition for the Spring 2023 semester and that he would not have enrolled for classes if he would have known VA was not going to pay for full tuition. Id.

Unfortunately, the law is crystal clear and is against the Veteran's particular claim in this appeal.

In this regard, when an administrative error or error in judgment by VA is the sole cause of an erroneous award, the award will be reduced or terminated, effective the date of the last payment. 38 C.F.R. § 21.9636(r); see also 38 U.S.C. § 5112(b)(10) ("The effective date of a reduction or discontinuance of compensation...by reason of an erroneous award based solely on administrative error or error in judgment shall be the date of last payment").

In this case, the Veteran applied for Post-9/11 GI Bill benefits in November 2022. He was initially approved at the 100 percent benefit level rate due to VA error.

The Veteran certified enrollment at Central Texas College in January 2023 for the Spring 2023 semester, ending May 2023. At the time, he was certified at the 100 percent benefit level.

In April 2023, the VA discovered an error in calculating his payment rate and sent the Veteran a notification identifying that the error had been made and that his Post-9/11 GI Bill payment rate would be reduced to the 70 percent rate level based on his re-calculated creditable active duty service.

As noted above, only the period from January 2017 to May 2019 is credible qualifying service for the limited purpose of calculating eligibility under Chapter 33 in this case.

Prior to receiving the April 2023 notification of error, the Veteran was paid Post-9/11 GI Bill benefits at the 100 percent benefit level. See April 2011 Administrative Decision ("Because payment was made in error and due to no fault of yours, you will not have to repay the debt. However, any future payments made will be paid to you at the 70% rate.").

In this regard, re-calculating the Veteran's qualifying service, reduced the payment rate from 100 to 70 percent and was made effective the date of the last payment, which occurred prior to the April 2023 notice. Notably, the appellant was informed that "any future payments made will be paid...at the 70 [percent] rate." See also 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 21.9636(r).

The School Certifying Officer (SCO) certified payment for the Spring 2023 semester in May 2023.

Accordingly, the 70 percent rate was in effect at that time and VA paid tuition for the Spring 2023 semester at the 70 percent payment rate, as
, reduced the payment rate from 100 to 70 percent and was made effective the date of the last payment, which occurred prior to the April 2023 notice. Notably, the appellant was informed that "any future payments made will be paid...at the 70 [percent] rate." See also 38 U.S.C. § 5112(b)(10); 38 C.F.R. § 21.9636(r).

The School Certifying Officer (SCO) certified payment for the Spring 2023 semester in May 2023.

Accordingly, the 70 percent rate was in effect at that time and VA paid tuition for the Spring 2023 semester at the 70 percent payment rate, as required by law.

Put simply, the law and VA regulations are clear. Once the error was discovered, the corrected error becomes effective as of the date of the last payment, and all future payments will be made at the reduced rate from the date when the error gets discovered.

In this case, the error was discovered in April 2023 and a prior payment had been made prior to the May 2023 tuition bill being received. As such, VA was obligated to pay it at the 70 percent rate by law. See 38 C.F.R. § 21.9636(r).

Importantly, what the Veteran is requesting in this case, in effect, for VA to waive the effective date of his reduction, goes beyond what the Board is allowed to do as established by law and regulation, and cannot be waived on the basis of equity. See Smith v. Derwinski, 2 Vet. App. 429 (1992) (no plea for equity, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.).

Although the Board is certainly sympathetic to the Veteran's situation, the Board is bound by the applicable law and regulation and does not have authority to grant benefits on an equitable basis, as requested by the Veteran. 38 U.S.C. §§ 503, 7104(c). As the disposition of this matter is based on the law and not the facts of the case, the Veteran's appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Where the law, rather than the facts, is dispositive, the benefit-of-the-doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. The Veteran's request for 100 percent payment for the Spring 2023 semester is denied.

2. Entitlement to an 80 percent payment rate, but not higher, under the Post-9/11 GI Bill (Chapter 33) VA education benefit program

In determining the above, the Board also finds a re-calculation of the Veteran's payment rate for purposes of Chapter 33 is required.

For training that begins after July 31, 2011, as in this case, VA will determine the amount of educational assistance payable under 38 U.S.C. chapter 33 as provided in § 21.9641(Rates of payment of educational assistance-for provisions effective after July 31, 2011), as follows:

If aggregate length of creditable service is at least 18 months, but less than 24 months, the number of days (excluding entry training) is from 545 to 729 days, then a 70 percent payment rate is warranted. 38 C.F.R. § § 21.9641 (emphasis added).

If aggregate length of creditable service is at least 24 months, but less than 30 months, the number of days (including entry training) is from 730 to 909 days, then an 80 percent payment rate is warranted. 38 C.F.R. § § 21.9641 (emphasis added).

Turning to the evidence, the Veteran's qualifying creditable service is from January 23, 2017 to May 13, 2019, which is a period of 27 months and 21 days.

This is an aggregate length of credible service of at least 24 months, but less than 30 months. See 38 C.F.R. § § 21.9641.

In this regard, the Board highlights that the Veteran's aggregate length of credible service is more than 24 months and therefore, the provision pertaining to the 70 percent payment rate level cannot apply here simply because that provision requires a period of creditable active service of "less than 24 months."

Accordingly, where the Veteran has an aggregate length of credible service of more than 24 months, his entry training period must be included in the calculation and the Veteran is credited with having a total of 841 days of
of 27 months and 21 days.

This is an aggregate length of credible service of at least 24 months, but less than 30 months. See 38 C.F.R. § § 21.9641.

(Continued on the next page)

Therefore, as aggregate service (including entry training) is from 730 to 909 days, an 80 percent payment rate is warranted. 38 C.F.R. § § 21.9641. To this extent only, the appeal is granted.

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Davidson, Christopher M.

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.

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