Citation Nr: 0000980	
Decision Date: 01/12/00    Archive Date: 01/27/00

DOCKET NO.  98-19 647A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, 
Oklahoma


THE ISSUE

Whether a request for waiver of recovery of an overpayment of 
Dependents' Educational Assistance benefits paid pursuant to 
Chapter 35, Title 38, United States Code, in the amount of 
$491.06, was timely filed.


ATTORNEY FOR THE BOARD

J. D. Parker, Counsel


INTRODUCTION

The veteran's period of active service has not been verified 
in connection with this appeal.  The appellant is the 
veteran's stepchild.  Her appeal to the Board of Veterans' 
Appeals (Board) ensues from a July 1998 determination of the 
Committee on Waivers and Compromises (Committee) of the 
Department of Veterans Affairs (VA) Regional Office in 
Muskogee, Oklahoma (RO).  

In September 1999, this case was remanded by the Board to the 
RO to obtain verification of letter notice to the appellant 
of appellate rights and the 180 day time limit for filing a 
request for waiver of recovery of an overpayment of Chapter 
35 educational assistance benefits that had been established 
in May 1996.  That development was completed and the case 
returned to the Board for continued appellate consideration. 


FINDINGS OF FACT

1.  In a letter dated June 8, 1996 addressed to her last 
known address, and not returned as undeliverable, the 
appellant was notified of an overpayment of VA Chapter 35 
educational assistance in the amount of $491.06, of the right 
to request waiver of recovery of the overpayment, and of the 
180 day time limit to request waiver. 

2.  In May 1998, a request for waiver of recovery of the 
overpayment of educational assistance benefits was submitted 
on the appellant's behalf; a waiver was not received within 
180 days from June 8, 1996, nor has it been demonstrated that 
the appellant did not receive that June 1996 letter in a 
timely fashion.


CONCLUSION OF LAW

The appellant did not file a timely request for waiver of 
recovery of an overpayment of VA Chapter 35 educational 
assistance benefits in an amount originally calculated as 
$491.06.  38 U.S.C.A. § 5302(a) (West 1991); 38 C.F.R. § 
1.963 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The issue before the Board is whether the appellant submitted 
a waiver request within 180 days of being notified that an 
overpayment of Chapter 35 benefits had been created.  Under 
the applicable criteria, a request for waiver of an 
indebtedness shall only be considered if it is made within 
180 days following the date of a notice of indebtedness and 
of the right to request a waiver, by VA to the debtor.  38 
U.S.C.A. § 5302 (West 1991); 38 C.F.R. § 1.963(b)(2) (1999).  

The 180 day period may be extended if the individual 
requesting waiver demonstrates to the Chairperson of the 
Committee on Waivers and Compromises that, as a result of an 
error by either the VA or the postal authorities, or due to 
other circumstances beyond the debtor's control, there was a 
delay in such individual's receipt of the notification of 
indebtedness beyond the time customarily required for mailing 
(including forwarding).  If the requester does substantiate 
that there was such a delay in the receipt of the notice of 
indebtedness, the Chairperson shall direct that the 180 day 
period be computed from the date of the requester's actual 
receipt of the notice of indebtedness.  38 C.F.R. § 1.963(b); 
see also 38 U.S.C.A. § 5302(a).

The record indicates that the RO notified the appellant on 
May 22, 1996 that her Chapter 35 educational assistance 
benefits had been reduced as a result of a reported change in 
her enrollment status.  This letter did not advise the 
appellant to take any action in response to the reduction.  

On June 8, 1996, however, in a first demand letter, addressed 
to the appellant's last known address and not returned as 
undeliverable, the appellant was notified (in an attached 
"Notice of Rights") of an overpayment of VA Chapter 35 
educational assistance in the amount of $491.06, of the right 
to request waiver of recovery of the overpayment, and of the 
180 day time limit to request such waiver.  That the 
appellant was notified in June 1996 is evidenced by an 
October 21, 1999 Certification of First Demand Letter from 
the Chief of Operations (389/OPS) to the Committee, as well 
as a printout of the screen from the Centralized Accounts 
Receivable Online System (CAROLS) that indicates the date of 
dispatch of the Debt Management Center's initial notice to 
the debtor in June 1996.  See OF Bulletin 99.GC1.04 (May 14, 
1999). 

The appellant's request for waiver of overpayment was dated 
May 18, 1998 (received by the RO on May 21, 1998), nearly two 
years after notice of overpayment.  This appellant's request 
for waiver of recovery of the overpayment of educational 
assistance was not received within 180 days from June 8, 
1996, it has not been demonstrated that she did not receive 
that June 1996 notice letter in a timely fashion, and there 
is no evidence suggesting that there was non-receipt of the 
notice by the appellant.  Nor is there any evidence to show 
that the appellant was incompetent, or otherwise incapable of 
handling her affairs at the time that the notice was sent and 
presumably received.  The evidence reflects that, through 
involuntary commitment, in July 1997 the appellant became a 
patient at a psychiatric facility.  However, this occurred 
well over 180 days after she was notified of overpayment, the 
right to request waiver of indebtedness, and the need to do 
so within 180 days of notice of indebtedness.  

Essentially, the Board finds that the record indicates that a 
request for waiver of recovery of an overpayment of Chapter 
35 educational assistance benefits was not received within 
the 180 time limit set forth in the regulation.  The United 
States Court of Appeals for Veterans Claims has held that, in 
cases such as this, where the law and not the evidence is 
dispositive, the appeal should be terminated because of the 
absence of legal merit or the lack of entitlement under the 
law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  As the 
appellant did not file a timely claim for waiver of recovery 
of an overpayment of VA Chapter 35 educational assistance in 
the amount of $491.06, the Board must deny her claim.  38 
U.S.C.A. § 5302(a); 38 C.F.R. § 1.963. 


ORDER

As the claim for waiver of recovery of an overpayment of VA 
Chapter 35 Dependents' Educational Assistance in the amount 
of $491.06 was not timely filed, the appeal is denied. 


		
	S. L. KENNEDY
	Member, Board of Veterans' Appeals