[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14654-14694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7052]
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Part III
Department of Veterans Affairs
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38 CFR Part 21
Post-9/11 GI Bill; Final Rule
Federal Register / Vol. 74 , No. 60 / Tuesday, March 31, 2009 / Rules
and Regulations
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AN10
Post-9/11 GI Bill
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is issuing this final
rule to establish regulations regarding a new educational assistance
program for individuals who serve on active duty after September 10,
2001. The new program, known as the Post-9/11 GI Bill, was authorized
by title V of the Supplemental Appropriations Act, 2008 (Post-9/11
Veterans Educational Assistance Act of 2008). This final regulation
includes the rules necessary to implement the provisions of the Post-9/
11 Veterans Educational Assistance Act of 2008 that govern the Post-9/
11 GI Bill.
DATES: Effective Date: This final rule will become effective on August
1, 2009.
FOR FURTHER INFORMATION CONTACT: Brandye R. Terrell, Regulation
Development Team Leader, Education Service, Department of Veterans
Affairs (225C), 810 Vermont Avenue, NW., Washington, DC 20420.
Telephone: (202) 461-9822. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: In a document published in the Federal
Register on December 23, 2008 (73 FR 78876), VA published a proposal to
establish VA regulations to implement the provisions of the Post-9/11
Veterans Educational Assistance Act of 2008 that govern the Post-9/11
GI Bill. Interested persons were invited to submit written comments on
or before January 22, 2009. We received comments from 38 organizations
and 8 individuals. We have made several changes based on these
comments.
Eligibility
One commenter stated that the period of eligibility for retirees is
not specifically addressed and noted that there is no definition of
``retiree'' in title 38, CFR. We did not define the term ``retiree'' or
address retirees as a separate category in the regulation because an
individual's period of eligibility is based on factors unrelated to the
individual's status as a retiree. The period of eligibility for all
individuals entitled to Post-9/11 GI Bill benefits is provided in Sec.
21.9530. If the individual meets the eligibility requirements, the 15-
year period of eligibility begins on the last date of discharge,
without regard to the reason for separation, even if the individual was
discharged prior to August 1, 2009, the effective date of the program.
We received three comments on the eligibility of members of the
National Guard or Active Guard Reserve (AGR) serving on active duty
under title 32, U.S.C. One commenter requested that these members be
allowed to transfer Post-9/11 GI Bill benefits to their dependents. One
commenter also suggested that any service under orders lasting 30 days
or more that cite use of Operation Iraqi Freedom, Operation Enduring
Freedom, or Operation Noble Eagle funds should be considered active
duty for the purpose of the Post-9/11 GI Bill. Section 3301 of title
38, U.S.C., defines ``active duty'' as having the same meaning given
such term in 38 U.S.C. 101(21)(A) for members of the regular components
of the Armed Forces. This paragraph states that active duty means full-
time duty in the Armed Forces, other than active duty for training.
Active Duty is further defined in 38 U.S.C. 3301(1) to include a call
or order to active duty under specific title 10 sections of the U.S.
Code for members of the reserve components of the Armed Forces. Neither
of the statutory definitions for active duty under section 3301(1)
includes members of the National Guard or Active Guard Reserve serving
under title 32, U.S.C.; therefore, we are unable to authorize
eligibility for these individuals.
One commenter requested clarification on why commissioned officers
of the Public Health Service (PHS) are excluded from eligibility for
Post-9/11 GI Bill benefits. Another commenter requested a review of 42
U.S.C. 213(d) to determine if PHS officers qualify for the new benefit
and suggested National Oceanic and Atmospheric Administration (NOAA)
officers also be included as eligible. We agree that commissioned
officers of PHS and NOAA are eligible for benefits under the Post-9/11
GI Bill. In a digested opinion from 1985, our General Counsel read the
provisions of 42 U.S.C. 213 regarding PHS and 33 U.S.C. 857-1 and 857-3
(now in 33 U.S.C. 3002 and 3072, respectively) regarding NOAA as
expanding the definition of ``Armed Forces'' in 38 U.S.C. 101(10) to
also include PHS and NOAA for purposes of benefits administered by VA.
See VADIGOP, 6-26-85 (8-28 Reentry in Active Service). Therefore,
service as a commissioned officer of PHS or NOAA meets the ``active
duty in the Armed Forces'' service requirement in section 3311 of title
38, U.S.C.
Transfer of Entitlement
Two commenters requested that retirees be allowed to transfer
benefits to dependents. Two additional commenters wanted individuals to
be allowed to transfer benefits to dependents even if they were unable
to reenlist, or without their having to reenlist, if they met the
minimum service requirements. While VA is responsible for administering
payment of transferred benefits, the Department of Defense (DoD) is
responsible for determining eligibility for transfer of entitlement to
dependents. Specifically, the statute provides that the Secretary of
Defense may authorize the Secretary of the Army, Secretary of the Navy,
Secretary of the Air Force, and the Secretary of Homeland Security
(with respect to the Coast Guard when it is not operating as a service
in the Navy) to determine if individuals serving in the Armed Forces in
their respective departments are eligible to transfer entitlement to
dependents. As VA has no authority to determine eligibility for
transfer of entitlement of educational assistance under the Post-9/11
GI Bill, individuals inquiring about eligibility for transfer of
entitlement should contact DoD for information.
One commenter requested that VA clarify what happens to entitlement
that was transferred under the Montgomery GI Bill (MGIB) if the
transferor does not revoke the transferred entitlement before electing
to receive benefits under the Post-9/11 GI Bill. Entitlement that was
transferred under MGIB and not revoked prior to the transferor's
election of Post-9/11 GI Bill benefits will remain available to the
dependent to whom it was transferred. Dependents will remain eligible
for transferred benefits under the provisions of the chapter from which
benefits were transferred.
One commenter disagreed with the exclusion of transferred benefits
as marital property. We made no change to this rule in the final
regulation because 38 U.S.C. 3319(f)(3) prohibits the treatment of
transferred entitlement as marital property.
We received one comment suggesting we specify the time limit for
which dependents eligible for transferred entitlement may use their
benefit. We make no change based on this comment as the period of
eligibility for use of transferred benefits is listed in 38 CFR
21.9530, in paragraph (d) for spouses and in paragraph (e) for
children.
One commenter recommended removing the kicker exclusion from the
rate of payment for transferred benefits because there is no statutory
provision limiting its payment to the dependent.
[[Page 14655]]
We agree that there is no statutory reason why kickers should not be
paid to transferees. The Selected Reserve kicker is excluded under
MGIB. In trying to be consistent, we excluded kickers from the Post-9/
11 GI Bill also. While we intended to only exclude the Selected Reserve
kicker, we inadvertently excluded all kickers. However, after reviewing
the transfer-of-entitlement language used under MGIB and the Post-9/11
GI Bill, we find that, while the MGIB language is more restrictive and
specifically pinpoints the section under which payments should be
determined, the language in the Post-9/11 GI Bill is broader and simply
says that individuals should receive the amount that the transferor
would receive. Based on this language, we have changed the rate of
payment for transferred benefits under the Post-9/11 GI Bill to include
any kicker to which the transferor is entitled.
Another commenter suggested we clarify that ``veteran rate'' as
used in 38 CFR 21.9570(k) means the dependent is eligible for the
housing allowance. We do not agree that this term needs clarification.
The term dependent is used to refer to both an eligible child and an
eligible spouse or surviving spouse. A dependent child and surviving
spouse will always receive transferred benefits in the same manner as
an individual off active duty. This means that they will be eligible to
receive the housing allowance if all other criteria are met. However, a
dependent spouse will always receive benefits in the same manner as the
transferor, thus he or she will not be eligible for the monthly housing
allowance if the transferor is on active duty.
We received one comment suggesting we add reduction in force (RIF)
to the list in 38 CFR 21.9570(l) of exceptions to the requirement that
the transferor complete the service agreement that allowed the
transferor to participate in the transferability program. We contacted
DoD for clarification of what constitutes completion of a service
agreement. DoD considers any individual released due to a disability or
as a result of RIF to have completed his or her service agreement.
Therefore, we amended the final rule to clarify that release due to a
disability or as a result of RIF constitutes completion of the service
agreement, and therefore does not result in loss of transferred
entitlement for the transferor's dependents.
One commenter recommended allowing spouses to use their own Post-9/
11 GI Bill benefits in addition to transferred benefits under the Post-
9/11 GI Bill. We make no changes based on this comment since paragraph
(m) of Sec. 21.9570 states that all dependents may do this. The
definition of dependent includes a spouse. Thus, spouses and children
are both covered under this section. Spouses may use their own Post-9/
11 GI Bill benefits and/or their transferred benefits.
Another commenter requested that the extension of entitlement
provided in Sec. 21.9635(o) be applied to a transferee if the
transferor only transfers entitlement to one person. We do not agree to
make this change because 38 U.S.C. 3319(d) specifically indicates that
transferred entitlement may not exceed 36 months. Allowing an extension
of entitlement for transferees would be a direct violation of the
statute.
One commenter disagreed with the definition of ``child'' used in
the proposed regulation. The commenter indicated that by adopting the
definition of child as it is defined in Sec. 3.57 (under the age of 18
or, if they are enrolled in school, under the age of 23), VA is
defining the term narrower than required by legislation. The commenter
recommended VA define child without the age requirements and, in
addition, not make a distinction between a child and a foster child or
stepchild.
Based on the definitions of child and spouse in the proposed
regulation, DoD also expressed concern with regard to the loss of
transferred entitlement for dependents who were deemed eligible for the
program at the time of transfer, but who lost this eligibility based on
their status at a later date. They contend that Post-9/11 GI Bill
benefits belong to the veteran/servicemember and not the dependent.
They base this on the provisions in 38 U.S.C. 3319(f) that allow the
transferor to modify or revoke the transferred entitlement at any time
within the transferor's 15-year eligibility period. DoD suggested VA
apply the definitions of ``spouse'' and ``child'' effective the date of
the transfer and disregard the dependent's status at the point the
dependent utilizes the benefits.
We agree, in part, with these concerns and made clarifying changes
in the final rule. A transferor may elect to transfer his or her
entitlement to his or her child, but at the time of the designation the
child must still meet the 38 U.S.C. 101(4) definition of ``child,''
i.e., a legitimate child, a legally adopted child, a stepchild, or an
illegitimate child, as those terms are explained in 38 CFR 3.57, and
who is unmarried and under age 18, was permanently incapable of self-
support before reaching age 18, or after attaining the age of 18 years
and until completion of education or training (but not after attaining
the age of 23 years) is pursuing a course of instruction at an approved
educational institution. Thereafter, the child's subsequent marriage
will not affect his or her entitlement. Finally, a child may continue
to use entitlement so transferred until reaching age 26. If a
transferor elects to transfer his or her entitlement to a spouse, a
subsequent divorce will not affect the transferee's entitlement;
however, the transferor retains the right to revoke or modify the
transfer at any time.
Enrollment Certification
We received three comments requesting clarification on whether
schools will be required to report the cost of dropped courses in order
for VA to properly judge whether or not there has been an overpayment.
One of the commenters asked if there will be a time limit for any
refunds due to VA. We make no changes based on these comments. Schools
are required to report the established charges associated with an
individual's enrollment and, in the event an individual reduces the
number of courses he or she is enrolled in, the established charges for
the courses in which he or she remains enrolled. This process is the
same process that is used in other educational assistance programs to
certify enrollments and reductions of individuals training at less than
one-half time or who are on active duty.
Furthermore, similar to existing procedures for other educational
assistance programs, individuals will still be responsible for
negotiating repayment of debts with our Debt Management Center or have
money recouped from future payments. Schools that are required to
return funds to VA, regardless of the reason, will send the money back
electronically or send a payment to the Regional Processing Office's
agent cashier.
We received two related comments regarding which charges should be
reported to VA and whether VA will require certification of actual
tuition and fees or estimated tuition and fees. One commenter stated
that actual tuition and fees cannot be provided until an individual is
invoiced and would require that schools certify each term separately.
One commenter also requested clarification on whether fees should be
reported regardless of pending aid, scholarships, state grants, etc. We
make no changes based on these comments. The institution of higher
learning must certify the eligible individual's enrollment before he or
she may receive educational assistance and 38 U.S.C. 3313(h)(2)
requires that VA
[[Page 14656]]
pay based on the actual tuition and fees charged to the student.
Schools will be required to report actual tuition and fees in
accordance with the statute.
One commenter requested that VA clarify the regulation to state
that term-based institutions operating on a year-round basis should
report on the same basis as other term-based institutions. We revised
the language in paragraph (b) of Sec. 21.9720 to clarify that
institutions of higher learning organized on a year-round basis will
report on the same basis as term-based institutions unless they do not
offer courses on a term, quarter, or semester basis, in which case they
will report enrollment for the length of the course.
Payments
One commenter indicated there currently is an approved
apprenticeship program at an institution of higher learning and
requested clarification on whether this program is payable under the
Post-9/11 GI Bill. We cannot pay benefits for an apprenticeship or on-
the-job training program at an institution of higher learning acting in
the capacity of an employer. In order to be approved for Post-9/11 GI
Bill benefits, individuals must be pursuing an approved program of
education offered at an institution of higher learning. Section
21.4258(b)(iv), 38 CFR requires that institutions of higher learning
list all approved programs of education in their catalog. If the
program of education is offered by the institution of higher learning
and is approved for the purposes of 38 U.S.C. chapter 30, VA will make
the appropriate payment. Apprenticeship and on-the-job training
programs are offered by employers and are generally not available to
the entire student population. We have clarified the definition of
``program of education'' to state that ``the curriculum or combination
of courses pursued must be listed in the institution of higher
learning's catalog and included in the approval notice provided by the
State approving agency to VA in accordance with Sec. 21.4258(b)(iv).''
Three commenters recommended expanding the advance payment option
to include all educational assistance offered under the Post-9/11 GI
Bill rather than limiting it to just the monthly housing allowance.
Section 3680(d) of title 38, U.S.C., limits the amount of an advance
payment to an amount equal to the first month, or fraction thereof, in
which the individual is pursuing training plus the amount for the
subsequent month of training. Under the Post-9/11 GI Bill, VA is
required to pay the tuition and fees, books and supplies stipend, and
other payments (e.g., rural relocation, licensing or certification test
reimbursement) in a lump sum. As a result, we are unable to apply the
advance payment provisions to such lump-sum payments.
Overpayments
We received three comments asking whether individuals who withdraw
as a result of being called to active duty will be required to repay
benefits. One of the commenters also asked whether the school will be
required to return the funds if an individual is called to active duty.
We make no changes based on these comments. Individuals who withdraw as
a result of being called to active duty will not have to repay tuition
and fees, Yellow Ribbon Program contributions, or the book stipend. If
they are in receipt of the housing allowance, it will be discontinued
at the end of the month in which the withdrawal occurred. If the school
processes a refund for tuition and/or fees, it should be issued to the
student following the regularly prescribed standards and practices of
the institution.
One commenter proposed that the institution of higher learning be
responsible for making a refund to VA when the student does not
register for a class certified in advance of the registration period,
and for which the institution received tuition and fees on behalf of
the student. We agree with this comment and have clarified in Sec.
21.9695(b) that an overpayment of educational assistance paid to the
institution of higher learning on behalf of an eligible individual
constitutes a liability of the individual unless the individual never
attended the term, quarter, or semester certified by the institution of
higher learning. When an individual never attends a term, quarter, or
semester certified by the institution of higher learning, the
institution must return to VA all educational assistance received under
the provisions of 38 U.S.C. chapter 33 on behalf of the individual.
Two commenters wanted to know why individuals will be held
accountable for repayment of tuition and fees if the money is sent
directly to the school, especially since individuals in VA's Vocational
Rehabilitation and Employment Program are not required to make
repayment of tuition and fees. We make no changes in the final rule
based on this comment, but we are providing the following clarification
concerning this issue. Section 3313(a) of title 38, U.S.C., states that
the Secretary shall pay to each individual entitled to educational
assistance the amounts specified in subsection (c) to meet the expenses
of such individual's subsistence, tuition, fees, and other costs for
pursuit of such program of education. Paragraph (g) of that section
subsequently directs that payment of the tuition and fees be made
directly to the institution of higher learning; however, it is clear
that the benefit and the associated responsibilities belong to the
individual.
Additionally, the authority to establish an overpayment against a
school is limited by statute, per 38 U.S.C. 3685(b), to instances where
the Secretary finds that an overpayment has been made to a veteran or
eligible person as the result of willful or negligent failure to report
or false certification. Therefore, unless an overpayment results from
the actions or inactions described in section 3685(b), VA cannot
collect from the school amounts of tuition and fees that were properly
paid on behalf of the individual.
Conversely, if VA makes an erroneous or improper payment not
resulting from the negligent or willful actions or inactions on the
part of a school, the erroneous or improper payment may be recovered
from the receiver. This situation may arise if a school certifies an
individual for multiple terms but the individual does not attend all of
the terms certified. Section 21.4203 of title 38, CFR provides that
schools shall report without delay a change in enrollment. If VA issues
a tuition and fees payment to the school on behalf of an individual for
a term that the individual never attends VA will collect the full
amount of the payment from the school.
One commenter suggested Sec. 21.9695(b)(3) be revised to clarify
that if an individual does not complete one or more courses, but does
complete at least one course, that the individual will not have an
overpayment equaling the total amount of all educational assistance
paid, but rather only for the course or courses the individual did not
complete. Based on this comment, we clarified this section to indicate
that if a student withdraws from a course or courses, the overpayment
will only be established for the course or courses from which the
student withdraws, not the amount of all educational assistance for
that enrollment period.
One commenter requested clarification of how an ``incomplete''
grade designation, for which the individual is given additional time to
finish a course, will be treated and whether it will be considered an
overpayment. We agree this issue should be addressed in the final rule,
and have added a paragraph to
[[Page 14657]]
Sec. 21.9635(f) clarifying that if the institution of higher learning
records an incomplete grade for an individual's course (or courses) and
allows the individual additional time to complete the coursework, VA
will not create an overpayment for those course(s) unless one of the
following occurs: The individual fails to complete the course within
the regularly prescribed standards of the institution or one year from
the date the incomplete was assigned, whichever is earlier, or the
individual is permanently assigned a nonpunitive grade.
One commenter requested that schools be required to refund money to
VA that would otherwise normally be refunded to the student based on
the school's refund policy. We make no changes based on this comment.
Institutions of higher learning have refund policies individualized to
their institutions and students would not know when or if a refund was
sent to VA. Additionally, VA will determine the amount of the student's
overpayment, if any, after processing the change in enrollment. The
amount the school refunds to the student and the amount the student
owes to VA will generally not be equal as VA will pay to the end of the
month for any reduction during the drop add period or for which the
student provides evidence of mitigating circumstances. To reduce
confusion on how much is owed and to whom, schools should continue to
refund money to students based on their regularly established policies.
Tuition and Fees
Two commenters requested clarification on why, in Sec. 21.9640(a),
the 70 percent level would apply instead of the 80 percent level if the
individual met the service requirements at both levels. One of the
commenters suggested removing the requirement to use the 70 percent
level instead of the 80 percent level because it is not justified
legislatively. We do not agree to make this change because 38 U.S.C.
3311(e) specifically provides that individuals entitled to educational
assistance under paragraphs (4) and (5) of 38 U.S.C. 3311(b) will be
entitled to educational assistance using the provisions of paragraph
(5). Paragraph (4) establishes eligibility for individuals with at
least 24 months but less than 30 months of service, including entry
level and skill training. Paragraph (5) establishes eligibility for
individuals with at least 18 months but less than 24 months of service,
excluding entry level and skill training. If both levels of service
requirements are met, the lower percentage level must be used;
therefore, applying the higher percentage level would be contrary to
the clear requirement of the statute.
We received several comments regarding the effectual relationship
between tuition and fees payments under the Post-9/11 GI Bill and other
forms of aid, such as State veterans' tuition programs. One of the
commenters suggested that 1st payer/2nd payer rules be clarified so
that all parties clearly understand who pays what and when. VA will pay
based on the amount the student is charged, not the amount the student
has remaining after State programs have contributed funds. Schools
should certify the total amount of tuition and the total amount of fees
that a student is charged. The amount reported to VA should not be
reduced for pending or subsequent payments to be credited to the
student's account from State programs, scholarships, grants, or any
title IV funds (including Pell Grants). If an institution is not able
to charge a veteran for tuition due to a State waiver or other State
funded program, the school should not report tuition to VA. However, if
the State reimburses the institution and/or veteran for tuition and
fees after the individual has been billed, then the institution should
report the original amount charged to the student. The amount of
tuition and fees submitted to VA in these instances should not be
reduced based on any additional funds received that will reduce the
student's out-of-pocket expenses. One commenter also asked that we
clarify whether a student can opt out of State assistance to receive
educational assistance under the Post-9/11 GI Bill. There is no
requirement in 38 U.S.C. chapter 33 that requires an individual to opt
in or out of existing State programs in order to receive benefits under
the Post-9/11 GI Bill. The statute simply states that VA may pay all or
a portion of the cost of the actual tuition and fees charged the
individual. Each State will need to review the laws that govern their
State programs to determine if individuals may opt in or out of
receiving assistance under the State funded programs.
One commenter suggested VA provide a non-exhaustive list of
approved fees to clarify which fees would be payable under the Post-9/
11 GI Bill and further suggested that health insurance premiums be
included on the list. Another recommended that VA redefine fees to
include those charged to all students (unless waived) enrolled in the
same program of education as the VA benefit recipient. This commenter
also recommended removing the requirement that the amount of fees that
can be paid is limited to those charged to undergraduates. Finally, one
commenter indicated support for the definition as stated in the
proposed regulation. Based on these comments, we are amending the
definition of fees in the final rule. Accordingly, ``fees'' will
include any mandatory charges (other than tuition, room, and board)
that are applied by the institution of higher learning for pursuit of
an approved program of education including, but not limited to, health
insurance premiums, freshman fees, graduation fees, and lab fees. The
term does not include study abroad fees unless the fees are assessed
for courses that are required for completion of the program of
education. The statute requires VA to calculate the highest in-State
amount payable for tuition and fees using undergraduate tuition and
fees. However, individuals may receive payment for tuition and fees for
graduate programs or other approved programs up to the amount of the
highest in-State amount payable for undergraduate fees.
One commenter suggested that VA clarify that the amounts payable
for established charges and the book stipend are adjusted by the
individual's eligibility percentage. We make no changes based on this
comment. Section 21.9640(a) indicates that the amounts payable for
pursuit of an approved program of education under that section are
subject to the individual's eligibility percentage as determined by his
or her aggregate length of creditable active duty service after
September 10, 2001.
One commenter expressed concern that the tuition and fees payments
made on behalf of students attending part-time are not lowered based on
the student's rate of pursuit. The commenter indicated that not
reducing the maximum amount payable based on rate of pursuit will
reward students for pursuing education part-time instead of full-time.
We do not agree that this is an area of concern. Many schools charge
students proportionately less for part-time enrollment because they
base charges on a per-credit-hour rate. Furthermore, the statute does
not require VA to reduce the maximum amounts payable proportionally
based on rate of pursuit. It only dictates that the maximum payable be
reduced based on the eligibility percentage. Nonetheless, based on
several other comments regarding tuition and fees payments, we are
amending the final rule to clarify that individuals will receive a
tuition payment not to exceed the amount determined by multiplying the
number of certified credit hours for the term, quarter, or semester by
the
[[Page 14658]]
highest in-State amount charged per credit hour. Individuals will
receive the amount for fees certified for the term, quarter, or
semester, not to exceed the highest amount of fees that could be
charged in any term.
One commenter suggested allowing schools to certify the actual
amount of tuition and fees charged minus any applicable military
tuition assistance (TA) without requiring additional paperwork from the
individual student. We make no changes based on this comment.
Currently, VA requires that the student submit the TA form to VA prior
to the issuance of a (top-up) payment. This form is necessary to
determine the appropriate amount of tuition and fees VA will pay.
Schools may submit the top-up form for the individual; however, VA
should have the form on file and use it to make the determination of
how much payment is due. Requiring certifying officials to make
determinations on the amount of top-up payment an individual is due
would add an additional step in the process that already exists and
create an unnecessary burden on the schools. The TA form already
provides VA with all of the information needed to determine the
appropriate payment.
We received one comment requesting that the maximum rate for
tuition and fees fluctuate during the academic year whenever the State
makes changes in the tuition and/or fees rates after the academic year
begins. We make no changes based on this comment other than clarifying
that the maximum amounts payable for tuition and fees, as published,
will be effective for each term, quarter, or semester that begins
during the academic year. The State approving agency of jurisdiction
will determine each State's highest in-State amounts payable for
tuition per credit hour and for fees each term during an academic year.
VA will publish the maximum amounts payable for tuition and fees on the
GI Bill Web site at http://www.gibill.va.gov and in the Federal
Register by August 1st of each year to allow institutions of higher
learning and students to take this information into consideration when
making relevant decisions. If VA were to change these figures each time
an institution of higher learning or a State changed the amount of
tuition or fees it charged, it could adversely affect the students if
the amount was decreased and could adversely affect institutions of
higher learning participating in the Yellow Ribbon Program if the
amount increased.
Book Stipend
One commenter recommended VA issue promissory notes for the book
stipends. We make no changes based on this comment. Book stipends are
paid directly to the individual. VA sees no benefit in issuing a
promissory note for books instead of issuing the book stipend payment
directly to the individual.
Several commenters expressed concern about the method of payment
for the book stipend. Four of these commenters asked how the summer
term or mini-terms would impact the payment, especially since many
students do not attend the summer sessions. Two commenters suggested
that VA redefine academic year so that individuals could receive the
full book stipend and two commenters requested the method of
calculating the book stipend be clarified. Based on these comments, we
clarified the method VA will use to determine how the book stipend
payment is calculated. A book stipend of up to $1,000 is available to
veterans (and transferees). Section 3313(c)(1)(B)(ii) of title 38,
U.S.C., provides a formula for determining the amount of the book
stipend payable each academic year. The formula instructs VA to pay a
portion of the book stipend equal to the amount determined by
multiplying $1,000 by the fraction of the academic year that the term,
quarter, or semester represents. We choose to divide the academic year
by 24 credit hours (the minimum number of credit hours generally
considered to be full-time for an undergraduate in an academic year).
Using this calculation, an individual eligible for 100 percent of the
amounts payable under the Post-9/11 GI Bill who is pursuing training at
more than one-half-time will receive $41.67 for each credit hour
certified up to 24 credit hours in an academic year.
Monthly Housing Allowance
Several comments were received agreeing with VA's interpretation of
the statute with regard to how distance learning courses affect
eligibility for the monthly housing allowance (MHA); however, many
other commenters expressed concern that the MHA is not available for
additional categories of individuals. While one commenter supported
prohibiting individuals from receiving the MHA if they are pursuing
programs of education entirely by distance learning because of the
potential for abuse, six commenters requested that the MHA be available
to individuals pursuing a program of education entirely by distance
learning. One of the commenters in favor of the MHA for distance
learners also recommended that it be paid to these students based on
the ZIP code of the student's address instead of the school's ZIP code
as is done for students taking in-residence courses. Other commenters
requested clarification on how partial pursuit of distance learning
impacts the receipt of the MHA. Section 3313(c) of title 38, U.S.C.,
prohibits an individual from receiving the MHA if the individual is
pursuing a program of education offered by distance learning. While we
have interpreted this as broadly as possible to include individuals
taking even one course in-residence as eligible to receive the MHA (if
all other requirements are met), VA would be in violation of the
statute if we allowed individuals pursuing a program of education
entirely by distance learning to receive the MHA. Additionally, another
commenter requested that VA define a qualifier for ``a single resident
course.'' The commenter indicated that distance learning institutions
may begin creating one-credit courses or one-half credit courses just
to meet the residency requirement. It was suggested that VA set a
minimum unit or percentage of courses that must be pursued in residence
in order for individuals to qualify for the MHA. While VA notes the
concern of the commenter, we disagree that institutions will create
frivolous courses solely for the purpose of qualifying their students
for the MHA. Further, many of the individuals enrolled in distance
learning courses are unable to attend school in the traditional
classroom setting due to other life circumstances. However, VA may only
pay educational assistance under the Post-9/11 GI Bill for an approved
program of education. Any courses pursued must be necessary for the
attainment of the individual's identified objective. If the course has
not been approved for pursuit of an approved program of education by
the State approving agency or the course is not required for an
individual's objective, VA will not be able to provide educational
assistance for such course or include any credit for such course when
determining eligibility for the MHA.
One commenter recommended allowing veterans to receive the MHA when
training at more than one-half time but less than three-quarter time.
We are retaining the wording contained in the proposed regulation that
will permit individuals who are training at greater than one-half time
to receive the MHA if all other criteria are met. Any
[[Page 14659]]
individual who is not on active duty, who is enrolled in at least one
in-residence course, and who is pursuing a program of education with a
rate of pursuit greater than 50 percent, will receive the housing
allowance.
Two commenters recommended providing a monthly housing allowance to
individuals attending foreign schools using the DoD's overseas housing
allowance (OHA) rates for the locale where the individual is residing,
rather than the average of the monthly housing allowances payable in
the United States. One commenter also requested that we clarify how the
``average'' will be determined. We considered these comments, but make
no substantive changes in the final rule other than to clarify that we
will use the unweighted arithmetic mean to determine the average
monthly housing allowance payable. DoD adjusts the basic allowance for
housing (BAH) rates effective the first of January each year. The OHA
rates are reviewed, and are subject to change, every 6 months. To
maintain consistency in applying the MHA rate changes, VA will continue
to use the national average to determine the maximum MHA payable for
students attending foreign institutions.
We received one comment suggesting VA use the rate of pursuit to
adjust the amount of MHA an individual will receive. The statute does
not require that we limit the housing allowance based on rate of
pursuit. We are only directed to limit it based on the individual's
eligibility percentage level. We have decided not to unnecessarily
limit the housing allowance and will pay individuals according to the
direction provided in 38 U.S.C. 3313(c).
One commenter recommended the determination of eligibility for the
MHA be established annually based on the individual's program rather
than basing it on courses taken in a single term. We make no changes
based on this comment. It would be extremely difficult for VA to
determine the amount of MHA to pay on an annual basis. To do so would
require that every school certify every student for all terms during
the academic year. All institutions do not require students to register
for every term (Fall, Winter, Spring, Summer) at the start of the
school year. Having such a requirement would require students to
register and schools to report actual tuition and fees for an entire
year. Many schools cannot report actual tuition and fees until
registration has ended. Determining receipt of MHA annually would
burden the schools to make major changes in their registration and
certification processes.
Kickers
We received four comments regarding payment of Post-9/11 GI Bill
kickers. One commenter felt strongly that the Post-9/11 GI Bill kicker
payments should not be denied to active-duty members, students whose
rate of pursuit is one-half time or less, and students pursuing a
program of education entirely by distance learning. One commenter
requested an explanation as to how the MHA and the kicker are related.
Two commenters requested that the final rule permit the kicker to be
paid even if the individual is not entitled to receive the MHA. One of
these commenters suggested increasing a ``zero'' dollar MHA payment by
the amount of the Post-9/11 GI Bill kicker and the other commenter
suggested paying the Post-9/11 GI Bill kicker in a lump sum payment in
the same manner as the MGIB and Selected Reserve kickers are paid. We
make no changes based on these comments. Section 3316(a)(1) of title
38, U.S.C., provides that DoD kickers will increase the monthly amount
otherwise payable under 38 U.S.C. 3313(c)(1)(B). Section 3313(c)(1)(B)
of title 38, U.S.C., is the section that authorizes the monthly housing
allowance. Section 3313(a) of that title specifically indicates that
the amounts specified in subsection (c) will be paid to individuals
entitled to educational assistance under the Post-9/11 GI Bill who are
pursuing an approved program of education, other than a program
discussed in subsections (e) and (f). Subsection (e) details assistance
payable for individuals on active duty, and subsection (f) details
assistance payable for individuals pursuing training at one-half time
or less. Neither subsection (e) nor (f) references nor authorizes a
monthly housing allowance. VA is unable to increase the amount of an
assistance payment that the individual is not eligible to receive.
Additionally, section 3313(c)(1)(B)(i) specifically excludes the
housing allowance for individuals pursuing a program of education
offered entirely by distance learning. As a result of these statutory
provisions, VA is unable to make Post-9/11 GI Bill kicker payments for
a term, quarter, or semester in which an individual is on active duty,
for an individual whose rate of pursuit is one-half time or less, or
for an individual who is pursuing a program of education entirely by
distance learning.
Another commenter inquired whether students will be required to
fill out additional paperwork to receive MGIB kicker payments while
receiving benefits under the Post-9/11 GI Bill. We make no change based
on this comment because no additional paperwork is required. DoD will
continue to notify VA of MGIB kicker eligibility. If an individual is
eligible, VA will process the MGIB kicker payment without any
additional paperwork from the individual.
Chapter 30 Refunds
One commenter requested clarification on how refunds of MGIB
contributions will be handled, and asked if the refund will be
automatic or if the individual will have to complete a form to request
the refund. Another commenter asked when an individual will actually
receive the refund. A third commenter recommended that a refund of the
MGIB contributions be made even if the individual is not in receipt of
the monthly housing allowance. We make no changes based on these
comments. If the individual is in receipt of the housing allowance, VA
will automatically refund the appropriate amount of the MGIB
contributions when the individual exhausts his or her entitlement under
the Post-9/11 GI Bill. Section 5003(c)(6) of Public Law 110-252 (122
Stat. 2377-2378) states that an individual may receive a refund of the
basic contributions paid toward MGIB as an increase to the last monthly
stipend payable to the individual under 38 U.S.C. 3313(c)(1)(B), i.e.,
the monthly housing allowance. VA has no authority to ignore the
statute and pay the refund when an individual is not eligible to
receive the monthly housing allowance.
Two commenters addressed the additional $600 contribution (buy-up)
that can be made towards increased educational assistance under MGIB.
One commenter wanted to know if these contributions will also be
refunded. The other commenter requested the final rule clearly state
that the $600 is not refundable, if that is the case. Since the statute
does not authorize a refund of the $600 contribution, we changed the
wording in the final rule to clearly reflect that these contributions
cannot be refunded.
Tutorial Assistance
One commenter requested clarification regarding whether an
individual who received tutorial assistance under MGIB could also
receive up to $1,200 for tutorial assistance under the Post-9/11 GI
Bill. We make no changes based on this comment. Individuals who
received tutorial assistance under MGIB may receive up to $1,200 for
tutorial assistance under the Post-9/11 GI Bill. The $1,200 payable for
tutorial assistance is the maximum amount that
[[Page 14660]]
can be paid for such assistance under each program.
Another commenter recommended removing the requirement that the
individual be pursuing a program of education on a one-half time or
more basis in order to be eligible for receipt of tutorial assistance.
We make no changes based on this comment because the requirement is
statutory. Section 3314(b)(1) of title 38, U.S.C., incorporates the
provisions of 38 U.S.C. 3492, which requires that individuals be
pursuing training at one-half time or more to receive tutorial
assistance.
We received one comment indicating that there should not be a
requirement that a student be failing a course before tutorial
assistance can be authorized. We make no changes based on this comment.
Section 3314(b)(2) of title 38, U.S.C., requires that the professor or
teacher certify that tutorial assistance is essential to correct a
deficiency of the student in a course that is required for satisfactory
pursuit of the student's program of education. While this requirement
is statutory, it should not be construed to mean tutorial assistance is
only available if the individual is already failing the course. If the
professor or teacher identifies that the individual has a justifiable
need for tutorial assistance or the individual will not be able to
continue pursuing his or her approved program of education, either in
that course or as a prerequisite for other required courses, then VA
would consider tutorial assistance to be warranted.
Yellow Ribbon Program
The proposed regulation provided that institutions of higher
learning agree to the following to participate in the Yellow Ribbon
Program--
Provide contributions to eligible individuals who apply
for such program at that institution (in a manner prescribed by the
institution) on a first-come-first-served basis, regardless of the rate
at which the individual is pursuing training (i.e., full-time versus
less than full-time), in any given academic year;
Make contributions toward the program on behalf of the
individual in the form of a waiver;
State the maximum number of individuals for whom
contributions will be made in any given academic year;
Waive the same percentage of unmet established charges for
all eligible individuals in any given academic year; and
Commit to provide contributions for eligible individuals
for the entire academic year specified in the agreement.
Several commenters requested the ability to set different
contribution levels for one or more subelements (e.g., School of
Business, School of Liberal Arts) of the institution of higher
learning. Another commenter requested the ability to set the
contribution level by student status (e.g., undergraduate, graduate,
doctoral). The commenters noted that the subelements within the
institution of higher learning have their own course schedule, tuition
and fee structure, funding, and administrative requirements.
Additionally, it was noted that tuition and fees for graduate students
are generally higher than that of undergraduate students.
Five commenters requested that institutions of higher learning have
the ability to set the maximum amount contributed in dollar amounts.
The commenters noted that it would be easier for institutions of higher
learning to budget for the program if the institutions had the ability
to set a maximum dollar amount per student. They stated that using a
percentage would require institutions to be more conservative in
contributions.
We received several comments regarding the requirement that schools
provide contributions in the form of a waiver. Some commenters
requested that the term ``waiver'' be defined while other commenters
requested that the ``waiver'' requirement be removed altogether. The
commenters noted that some schools do not ``waive'' tuition and fees as
a matter of policy. Other commenters asked if fee remission or a
tuition discount qualified as a waiver.
We also received comments regarding continuous eligibility under
the Yellow Ribbon Program. VA's Web site stated that institutions of
higher learning must agree to continue Yellow Ribbon Program
contributions for participating students as long as the institution
continues to participate in the program and the student remains in good
academic standing in accordance with the regularly prescribed standards
of the institution. One commenter noted that it would be difficult for
institutions to commit to provide contributions in subsequent years due
to the novelty of the program, while two commenters suggested that VA
state that contributions will continue throughout all subsequent years
of continuous enrollment.
We agree, in general, with the above comments and, based on those
comments, have substantially changed the requirements for participation
in the Yellow Ribbon Program. VA has amended the Yellow Ribbon Program
provisions to allow institutions of higher learning to set contribution
levels by student status or subelement, state the maximum dollar amount
that may be provided to each participant during the academic year, and
provide contributions by direct grant, scholarship, or otherwise. We
also clarified that institutions of higher learning must agree to
provide Yellow Ribbon Program contributions to participating students
as long as the institution participates in the program and the student
remains in good academic standing in accordance with the regularly
prescribed standards of the institution, and to provide the maximum
amount of contributions payable for a participating individual each
term he or she is enrolled as long as the amount paid will not exceed
the maximum dollar amount payable for the academic year as specified in
the agreement.
We received three comments requesting the ability to amend
agreements during the academic year to increase the maximum number of
students eligible to participate in the program, and we received one
comment requesting a formal procedure to amend the agreement and the
ability to negotiate the terms of the agreement prior to the beginning
of the academic year. VA will continue to require that the initial
agreement be binding for the entire academic year. While it is
commendable that institutions of higher learning want to provide Yellow
Ribbon Program contributions for additional individuals if money is
available, the institutions are only required to report a maximum. The
maximum number of participants listed in the agreement could be set
high enough to cover all individuals that may apply. Additionally, VA
will draft an agreement in accordance with statute that will be used in
the administration of the Yellow Ribbon Program. For equality and
consistency, VA chooses to reject the idea of allowing schools to
individually negotiate the terms of the agreement. Having a standard
agreement for all participating institutions will allow potential
Yellow Ribbon Program participants to easily compare the program at
different institutions.
We also received three comments expressing opposition to the first-
come-first-served rule. Specifically, two commenters noted that
requiring schools to provide contributions based on a first-come-first-
served basis does not allow the institution to determine who is
selected to participate and one commenter noted that several
institutions offer financial aid on a need-basis only. VA included the
first-come-first-served rule to ensure that there was a fair method of
determining
[[Page 14661]]
who received Yellow Ribbon Program contributions at each participating
institution. While VA notes that many schools provide financial aid on
a need-basis only, the Yellow Ribbon Program is not a need-based
program and should be available to any individual (and/or dependent of
the individual) who has met the requirements to qualify for the
program.
Elections
The proposed regulations stated that individuals eligible for
educational assistance under 38 U.S.C. chapter 30 or 10 U.S.C. chapter
106a, 1606, or 1607 and who have met the service requirements to
qualify for the Post-9/11 GI Bill must make an irrevocable election to
receive educational assistance under the Post-9/11 GI Bill in lieu of
one of the above-mentioned programs. One commenter noted that it is not
fair for students to make an irrevocable election for a new benefit
without access to complete and accurate information because it will
permanently affect the course of their education. Another commenter
suggested that VA allow individuals at least one opportunity to change
their mind after making the irrevocable election or provide benefits
counseling. Section 5003(c)(8) of Public Law 110-252 (122 Stat. 2375-
2378) states that elections to receive educational assistance under the
Post-9/11 GI Bill in lieu of other specific educational assistance
programs are irrevocable. Accordingly, VA is unable to regulate
exceptions to the provision. However, individuals may call VA's
customer service number for assistance in making an informed decision
before making an election. Additionally, VA offers vocational and
educational counseling to eligible individuals upon request.
We also received comments requesting clarification on how the
irrevocable eligibility elections would be made. VA is amending
proposed Sec. 21.9520(c) to specify that elections may be made by
properly completing VA Form 22-1990, submitting a Post-9/11 GI Bill
transfer-of-entitlement designation to DoD, or by submitting a written
statement that includes identification information, the benefit being
relinquished (if applicable), the effective date of the election, and a
statement acknowledging that the individual understands that the
election is irrevocable.
Three commenters requested that VA amend proposed Sec. 21.9635(w)
to clarify that an election to receive benefits under an existing
educational assistance program on or after August 1, 2009, does not
negate the opportunity to elect or use the Post-9/11 GI Bill at a later
date. As proposed this provision stated that if an individual was
eligible under more than one program and the individual elected to
receive benefits under a previously existing program that VA would
terminate assistance under the Post-9/11 GI Bill effective the date of
the election. The elections referred to in Sec. 21.9635(w) are not
irrevocable eligibility elections. Individuals who are eligible for the
Post-9/11 GI Bill and another educational assistance program at the
same time may specify under which program they wish to receive payment.
VA is amending the language of the section to clarify that individuals
who are in receipt of benefits under the Post-9/11 GI Bill who choose
to receive benefits under another program will receive benefits under
such program effective the first day of the enrollment period during
which the individual requested to receive benefits under the other
program.
Academic Year
Five commenters suggested that VA amend the dates of the academic
year to coincide with the Department of Education's award year that
runs from July 1st of each calendar year through June 30th of the
subsequent calendar year. VA set the beginning date of each academic
year of August 1st to coincide with the effective date of the Post-9/11
GI Bill benefit for clarity and ease of administration. In determining
the maximum amounts payable during each academic year, VA will obtain
the highest tuition per credit hour and the highest fees that can be
charged an undergraduate student at a public institution in each State
from the State approving agency (SAA) of jurisdiction. Based on
feedback from several SAAs, many institutions of higher learning do not
set the rates for tuition and fees until June or July of each year.
Moving the beginning date of the academic year to July would not
provide VA adequate time to update systems, post the new maximums on
the Web site, or timely process claims with the newly established
maximums in July.
Rate of Pursuit
The proposed regulation states that the rate of pursuit will be the
percentage determined by dividing the number of course hours an
individual is enrolled in by the number of course hours considered to
be full-time at the institution of higher learning. Additionally, in
proposed Sec. 21.9750, VA defined full-time pursuit to equal 14 credit
hours unless the institution of higher learning certifies that all
undergraduate students enrolled for 13 credit hours, or for 12 credit
hours, are charged full-time tuition and are considered full-time for
other administrative purposes. We received comments requesting that VA
define full-time enrollment as a minimum of 12 credit hours. VA is
unable to consider a minimum of 12 credit hours as full-time training
for all institutions. Section 3688(a)(4) of title 38, U.S.C., defines
``full-time'' as a minimum of 14 hours unless the institution certifies
that all undergraduate students enrolled for at least 12, but less than
14, hours are considered full-time for other administrative purposes.
One commenter suggested that VA always consider traumatic brain
injury (TBI) veterans to be training at full-time (a rate of pursuit of
100%) even when the training time (or rate of pursuit) does not equal
full-time. The commenter noted that TBI veterans are sometimes unable
to pursue a full course load and should not be penalized due to their
disability. Unfortunately, there are no provisions in the statute that
will allow VA to pay a different rate to a specific class of veterans.
Another commenter requested that VA pay educational assistance for
courses that are not part of an individual's program of education.
Section 3452 of title 38, U.S.C, defines program of education to
include any curriculum or combination of unit courses or subjects
pursued at an educational institution that is generally accepted as
necessary to fulfill requirements for the attainment of a predetermined
and identified educational, professional, or vocational objective. VA
will pay for refresher, remedial, and deficiency courses that are
required for the attainment of an objective even though those courses
will not be credited towards the objective. However, VA is unable to
pay for courses that are not required for pursuit of the individual's
identified objective.
Mitigating Circumstances
We received comments requesting clarification of when mitigating
circumstances will be considered to exist and which mitigating
circumstances will be accepted by VA. One commenter asked VA to include
mental illness in the listing of acceptable mitigating circumstances.
In this final rule, VA added a definition for mitigating circumstances
that provides examples of situations that VA will consider acceptable.
Additionally, we modified Sec. 21.9635 to clarify that mitigating
circumstances will always be considered to exist for the first
reduction or withdrawal of less than seven hours. We also received a
[[Page 14662]]
comment requesting that we expand the consideration of existing
mitigating circumstances to more than the first instance of reduction
or withdrawal and increase the number of hours in the first instance of
withdrawal from six credit hours to eight credit hours for which
mitigating circumstances will automatically be considered to exist.
Section 3680(a)(1) of title 38, U.S.C., limits the automatic
consideration of existing mitigating circumstances to the first
reduction or withdrawal of less than seven hours. The statute does not
provide VA the authority to increase the number of times mitigating
circumstances will be considered to exist or the number of hours for
which mitigating circumstances will automatically be considered to
exist. Nevertheless, there is no statutory limit on the number of times
that VA may consider evidence of mitigating circumstances submitted by
the eligible individual. Any time an individual reduces or withdraws
from training after the drop-add period, or receives a non-punitive
grade (regardless of the number of credit hours reduced or withdrawn),
he or she may submit evidence of mitigating circumstances to VA for
review. If the mitigating circumstances are acceptable, VA will pay
educational assistance through the end of the month of the reduction or
through the last date of attendance for withdrawals.
Appeals
Two commenters requested that we clarify the appeals process for
eligible individuals in receipt of educational assistance under the
Post-9/11 GI Bill. Specifically, one commenter requested that VA
provide a formal process for appealing the denial of the rural
relocation benefit. Decisions regarding eligibility and entitlement to
educational assistance under the Post- 9/11 GI Bill are subject to the
provisions of 38 U.S.C. chapters 71 and 72. Specifically, individuals
may appeal a decision regarding eligibility or entitlement to
educational assistance under the Post-9/11 GI Bill to the Board of
Veterans' Appeals in accordance with the provisions of 38 CFR Part 20.
To clarify this, VA is adding new Sec. 21.1034 to notify claimants of
their appeal rights regarding decisions of eligibility and entitlement
to educational assistance administered by VA. Another commenter
requested that VA provide a formal process for appealing a decision of
eligibility to increased educational assistance (``kicker''). VA notes
in newly added Sec. 21.1034 that eligibility for educational
assistance under 10 U.S.C. 510 or 10 U.S.C. chapter 106a, 1606, or
1607, and supplemental or increased assistance under 10 U.S.C.
16131(i), 38 U.S.C. 3015(d), 3021, and 3316, may not be appealed to VA,
because the decision of eligibility for educational assistance and
supplemental or increased educational assistance (``kicker'') under
those sections rests solely with the DoD. Accordingly, VA will direct
claimants appealing eligibility to supplemental or increased
educational assistance (``kicker'') under the Post-9/11 GI Bill to the
DoD.
General Comments
One commenter requested that VA explain why a certifying official
who is eligible for the Post-9/11 GI Bill will be barred from receiving
benefits at the school for which he or she is authorized to submit
enrollments. VA included this language in the proposed regulation to
help reduce the possibility of receiving fraudulent enrollment
certifications. However, after further review, VA has determined that
certifying officials eligible for receipt of benefits under the Post-9/
11 GI Bill will be eligible to receive benefits for training pursued at
the institution of higher learning for which he or she is authorized to
sign enrollment certifications. However, certifying officials will be
prohibited from submitting their own enrollment certification to VA.
Another commenter asked VA to consider exempting programs
specifically provided for veterans from the 85-15 rule. Section 3680A
of title 38, U.S.C., instructs VA to disapprove enrollment in certain
courses, including those courses where more than 85 percent of the
students are receiving educational assistance under programs
administered by VA. However, that section provides an exception for
courses offered at institutions of higher learning where less than 35
percent of the students on campus are receiving educational assistance
under a program administered by VA.
We received a comment regarding the method in which students will
certify their enrollment as stated in proposed Sec. 21.9730. Due to
system limitations, individuals will not be able to certify attendance
to VA on a monthly basis, similar to individuals in receipt of benefits
under 38 U.S.C. chapter 30. As a result, we removed proposed Sec.
21.9730 and all references to that section from the final rule.
However, the inability to certify attendance monthly does not relieve
the individual of the responsibility of notifying VA of a change in
enrollment in accordance with Sec. 21.9735.
We received a comment requesting that beneficiaries under the Post-
9/11 GI Bill also be provided with five months of free entitlement for
remedial classes, noting that beneficiaries under 38 U.S.C. chapter 35
are not charged entitlement for the first 5 months of pursuit of
remedial training. Chapter 33 of title 38, U.S.C., does not include a
provision that would allow VA to provide five months of remedial
training with no entitlement charge as is available for chapter 35
beneficiaries under 38 U.S.C. 3533 who meet the requirements of 38
U.S.C. 3491(a). However, the statute does provide that individuals may
receive reimbursement for one licensing or certification test, tutorial
assistance, and the rural relocation benefit with no charge to
entitlement.
One commenter requested that VA allow individuals to pursue
multiple objectives. The term ``program of education'' is defined in 38
U.S.C. 3452(b) for the purposes of chapter 36. Section 3323(a) of title
38, U.S.C., directs VA to the administrative provisions listed in 38
U.S.C. 3034(a) that further direct us to specific provisions of 38
U.S.C. chapter 36. Based on the statutory definition of ``program of
education'' VA may approve the pursuit of multiple objectives as long
as they lead to a single career field. Institutions of higher learning
may request approval of dual degrees with the State approving agency of
jurisdiction if they can show that the objectives are complementary and
will lead to a single career field.
Two commenters requested that VA publish the State maximums prior
to August 1st of each calendar year. Due to the novelty of the program,
we are unable to predict how far ahead of the academic year we will
have access to the State maximums. Based on recently received
information from several State approving agencies, many public
institutions do not set their tuition and fees until June or July of
each year. We published the State maximums for the 2008-2009 academic
year on our Web site in February. We will publish the State maximums
for upcoming academic years as early as possible, but not later than
August 1st of each calendar year.
In proposed Sec. 21.9625(h), VA indicated that individuals who
qualify for an increase in the percentage of the maximum amount payable
based on length of active duty service during a certified enrollment
period would receive payment based on such increase the first day of
the term, quarter, or semester during which he or she was enrolled
following the date the individual became entitled to such increase. A
commenter requested that VA consider allowing individuals who are not
enrolled in quarter or semester
[[Page 14663]]
schools to receive an increased payment within 4 months of the date the
individual became entitled to the increase. VA will continue to
increase percentages effective the date of the award or the first day
of the certified enrollment period during which the individual is
enrolled following the date the individual became entitled to such
increase. Payments for tuition, fees, and, if applicable, the Yellow
Ribbon Program are issued as lump sums at the beginning of the
certified enrollment period. Those payments are issued for the entire
enrollment period certified to VA. Increasing payments mid-term could
adversely affect schools participating in the Yellow Ribbon Program. If
VA readjusts the individual's claim to pay additional assistance, the
amount of Yellow Ribbon Program contributions that the school could
legally provide may be reduced. In these situations, the school would
be required to refund money back to VA. For consistency among all
schools, VA chooses to continue authorizing payment of educational
assistance at an increased percentage effective the first date of the
award or the first day of the certified enrollment period following the
effective date of the increased percentage.
One commenter asked VA to clarify how entitlement would be charged
for an individual who was called to active duty for a short period of
time. Section 21.9560(d)(4) of title 38, CFR, states that entitlement
will not be charged to individuals who are called or ordered to active
duty or a new assignment and who do not receive credit or lose training
time for any portion of the enrollment period. If the institution of
higher learning grants the individual a leave of absence and the
student returns and completes the courses following the leave of
absence with no loss of credit or training time, VA would not reduce or
alter the training time.
Another commenter requested that VA reconsider applying the
administrative provisions (of chapter 36) for existing educational
assistance programs to the Post-9/11 GI Bill. Section 3323(a) of title
38, U.S.C., directs VA to apply the provisions listed in 38 U.S.C.
3034(a) in the administration of the Post-9/11 GI Bill. Section 3034(a)
requires that VA use existing provisions of 38 U.S.C. chapters 34 and
36. The use of the existing structure is mandated by statute and can
not be changed by regulation.
We received a comment requesting that we create a regulatory pilot
program for educational assistance that will provide less oversight for
institutions with graduation-rate track records in the top half of the
institutions in the country. The commenter noted that the current
provisions in place are necessary to protect veterans, but added that
the provisions are cumbersome and unnecessary for successful
institutions. The commenter specifically suggested that VA create a
second set of less obtrusive rules for specific institutions. Chapter
36 of title 38, U.S.C., directs VA to work cooperatively with State
approving agencies to approve programs of education for educational
assistance. As a result, VA can not remove statutory oversight
requirements by regulation.
A commenter suggested that VA clarify whether the conversion rate
for foreign currency will be based on a rate determined at an exchange
where currencies are traded or at a commercial bank. VA amended the
final rule to clarify that the foreign exchange rates effective July
1st of each calendar year as published by the Federal Reserve will be
used to convert foreign currency for enrollments certified for the
following academic year (August 1st through July 31st).
Additional Changes
We received several comments requesting technical changes to
increase the clarity and readability of the regulatory text. VA
appreciates the comments and incorporated several of the suggested
changes in the final rule. In addition to the numerous non-substantive
technical changes that were made, VA is also amending the final rule to
clarify that individuals making an irrevocable eligibility election to
receive benefits under the Post-9/11 GI Bill may receive a retroactive
payment of educational assistance under the program for training
pursued not earlier than one year prior to the date the election
request was received. However, the retroactive payment can never begin
prior to August 1, 2009, or the date the individual qualified for
educational assistance under the program. We are also revising the
formula for determining the maximum amount of tuition and fees that can
be paid for individuals pursuing training at a foreign institution each
year based on the current in-State maximums rather than the in-State
maximums for the previous academic year. Additionally, we are revising
Sec. 21.9750 to include the formulas that will be used to assess
courses at institutions of higher learning that do not use credit
hours.
Other Comments
VA received several comments suggesting support for, or proposal
of, legislative changes to certain provisions of the Post-9/11 GI Bill.
Our primary focus is on ensuring that all requirements are met and all
systems are in place for issuing payments on August 1, 2009; therefore,
at this time, VA cannot support any legislative changes that would
interfere with our ability to achieve this objective. We will take each
of these suggestions submitted during the comment period into
consideration when developing future legislative proposals. We also
received numerous comments regarding the implementation of the program
itself. Some commenters asked when institutions would be able to
certify enrollments, when institutions would receive funds, how
payments would be delivered, when and how students will be notified of
application procedures, and if schools will have access to an
individual's certificate of eligibility. We also received comments
expressing concern regarding how often enrollment information will be
reported and what additional information will be required. VA is in the
process of developing the procedures necessary to implement the Post-9/
11 GI Bill in accordance with statutory and regulatory provisions. We
will continue to update our Web site at http://www.gibill.va.gov as
information becomes available regarding the procedures that will be
used to administer the program. VA appreciates the eagerness of the
institutions to assist VA in providing our nation's veterans with this
well-deserved benefit. We also appreciate the support and patience of
each of our stakeholders during this process.
Benefits Costs
The benefit costs for implementing this final rule are slightly
higher than the cost of implementing the proposed rule based on the
opinion of our General Counsel that members of the PHS and NOAA are
eligible for educational assistance under the Post-9/11 GI Bill. We
estimate that the addition of PHS and NOAA members will result in an
additional 332 trainees per year at the cost of $2.1 million for FY
2009 and nearly $56.5 million over 10 years.
Paperwork Reduction Act
This final rule contains provisions that constitute collections of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521) (``Act''). In the preamble of the proposed rule, we identified 5
existing information collections that would be used in the
administration of the Post-9/11 GI Bill. VA subsequently determined
that the ``Student Verification of Enrollment'' (OMB control number
2900-0465) will not be necessary for the administration of the
[[Page 14664]]
program. VA also identified additional existing information collections
that are necessary for the administration of the program. VA will use
these existing information collections with the following Office of
Management and Budget (OMB) control numbers in the administration of
the Post-9/11 GI Bill:
2900-0154--Application for VA Education Benefits
2900-0171--Tutorial Assistance
2900-0576--Correspondence Affirmation
2900-0657--Conflicting Interests Certification for
Proprietary Schools
2900-0073--VA Enrollment Certification
2900-0074--Request for Change of Program or Place of
Training
2900-0156--Notice of Change in Student Status
2900-0209--Work-Study
2900-0353--Certificate of Lessons Completed
2900-0695--Application for Reimbursement of Licensing or
Certification Test Fees
Additionally, VA determined that this rule will require a new
information collection to implement the provisions of 38 U.S.C. 3319
regarding the Yellow Ribbon Program. Section 3319 of title 38, U.S.C.,
and 38 CFR 21.9700 require VA to enter into an agreement with an
institution of higher learning that wishes to participate in the Yellow
Ribbon Program. The institution of higher learning must report the
means by which contributions are made, the maximum amount of
contributions that will be provided to any individual during the
academic year, and the maximum number of individuals for which the
institution of higher learning will provide contributions during the
academic year. On November 3, 2008, VA notified the public that an
emergency request for approval was submitted to OMB for collection of
information under the Yellow Ribbon Program. VA did not receive any
comments regarding the information collection during the comment
period. OMB approved the use of the Yellow Ribbon Program Agreement on
January 8, 2009, under control number 2900-0718.
In the preamble of the proposed rule, we also stated that the
provisions in 38 CFR 21.9680(c) requiring individuals to submit a
request for the rural relocation benefit in writing does not constitute
a collection of information under the Act because VA anticipates that
information will be collected from fewer than 10 persons annually.
OMB assigns a control number for each collection of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This final rule will have no such effect
on State, local, and tribal governments, or on the private sector.
Executive Order 12866 and Congressional Review Act
This is an economically significant regulatory action under
Executive Order 12866 and constitutes a major rule under the
Congressional Review Act.
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). Executive
Order 12866 classifies a ``significant regulatory action'' requiring
review by OMB as any regulatory action that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more, or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or interfere with an
action taken or planned by another agency; (3) materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of entitlement recipients; or (4) raise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this final rule and has concluded that it is a
significant regulatory action under Executive Order 12866 because it is
likely to result in a rule that may have an annual effect on the
economy of $100 million or more and may raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. This final rule is
also a major rule under the Congressional Review Act because it is
likely to result in an annual effect on the economy of $100 million or
more.
VA has attempted to follow OMB circular A-4 to the extent feasible
in this analysis. The circular first calls for a discussion of the need
for the regulation. The Post-9/11 GI Bill was established to provide
educational assistance to members of the Armed Forces who serve on
active duty after September 10, 2001. The preamble above discusses the
need for the regulation in more detail.
The impact of this regulation is primarily to the federal budget.
Eligible individuals may receive an educational assistance allowance
for established charges not to exceed the highest amount charged full-
time in-State undergraduate students by the most expensive public
institution in the State where the student is enrolled (or the national
average of the most expensive in-State public institutions for
individuals training at a foreign institution not associated with an
institution located inside the United States), a monthly housing
allowance up to the monthly amount payable under section 403 of title
37, U.S.C., for a member with dependents in pay grade E-5 residing in
the military housing area that encompasses all or the majority portion
of the ZIP code area in which the institution is located, and a book
stipend of up to $1,000 each academic year. Individuals may also
qualify for a work-study allowance, tutorial assistance, reimbursement
of a licensing or certification test, and a rural relocation benefit.
Individuals eligible for 100 percent of the benefit may also receive
additional funds under the Yellow Ribbon Program to cover established
charges not otherwise covered under chapter 33.
The effective date of the chapter 33 program is August 1, 2009;
therefore, full year benefit costs begin in FY 2010. VA estimates the
benefit cost of the program will be $1.2 billion in FY 2009,
approximately $28.1 billion through FY 2013, and $78.1 billion through
FY 2018.
Due to the short length of time provided to implement this new
benefit program and the lack of an existing payment system that will
support the types of payments authorized under the new program, VA will
utilize manual processing of claims in a preexisting system with
limited functionality until an in-house Information Technology Systems
(IT) solution can be developed. As a result, VA estimates discretionary
costs of $78.8 million in FY 2009 and $452.6 million over 10 years for
IT and minor construction needs, supplies,
[[Page 14665]]
equipment (including computers); increased rent; and salaries to
support additional personnel. FY 2009 costs are offset by additional
funding in the amount of $100 million dollars made available to VA in
chapter 3 of title I of the Supplemental Appropriations Act, 2008.
Regulatory Flexibility Act
The Secretary of Veterans Affairs hereby certifies that this final
rule will not have a significant economic impact on a substantial
number of small entities as they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601-612. Although this final rule will affect
some small entities that are testing organizations or educational
institutions, any economic impact on them will be minor because these
functions are currently being carried out for other educational
assistance programs. Therefore, pursuant to 5 U.S.C. 605(b), this final
rule is exempt from the initial and final regulatory flexibility
analyses requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this final rule are 64.117, Survivors and
Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans'
Educational Assistance; 64.124, All-Volunteer Force Educational
Assistance; 64.125, Vocational and Educational Counseling for
Servicemembers and Veterans; 64.130, Post-9/11 Veterans Educational
Assistance. The final rule also affects the Montgomery GI Bill--
Selected Reserve (MGIB-SR) program and the Reserve Educational
Assistance Program (REAP), for which there are no Catalog of Federal
Domestic Assistance numbers.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights,
Claims, Colleges and universities, Conflict of interests, Education,
Employment, Grant programs--education, Grant programs--veterans, Health
care, Loan programs--education, Loan programs--veterans, Manpower
training programs, Reporting and recordkeeping requirements, Schools,
Travel and transportation expenses, Veterans, Vocational education,
Vocational rehabilitation.
Approved: February 25, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
0
For the reasons set out in the preamble, VA amends 38 CFR part 21 as
follows:
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart B--Claims and Applications for Educational Assistance
0
1. The authority citation for part 21, subpart B continues to read as
follows:
Authority: 38 U.S.C. 501(a), ch. 51, and as noted in specific
sections.
0
2. Amend Sec. 21.1029 by:
0
a. In the introductory text, removing ``and L,'' and adding, in its
place, ``L, and P,'';
0
b. Revising the authority citation at the end of paragraph (e).
The revision reads as follows:
Sec. 21.1029 Definitions.
* * * * *
(e) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C 501(a), 3034(a), 3241(a),
3323(a), 3471, 3513, 5101(a))
* * * * *
0
3. Amend Sec. 21.1030 by revising the authority citation at the end of
paragraphs (a), (b) and (c) to read as follows:
Sec. 21.1030 Claims.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 501(a), 3034(a), 3241(a),
3323(a), 3471, 3513, 5101(a))
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 501(a), 3034(a), 3241(a),
3323(a), 3471, 3513, 5101(a))
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 501(a), 3034(a), 3241(a),
3323(a), 3471, 3513, 5101(a))
* * * * *
Sec. 21.1031 [Amended]
0
4. Amend Sec. 21.1031(b)(1) introductory text by removing ``or L'' and
adding, in its place, ``L, or P''.
Sec. 21.1032 [Amended]
0
5. Amend Sec. 21.1032(a)(1) introductory text by removing ``or L'' and
adding, in its place, ``L, or P''.
0
6. Revise Sec. 21.1033(c) to read as follows:
Sec. 21.1033 Time limits.
* * * * *
(c) Time limit for filing a claim for an extended period of
eligibility under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32,
33, or 35. VA must receive a claim for an extended period of
eligibility provided by Sec. 21.3047, Sec. 21.5042, Sec. 21.7051,
Sec. 21.7551, or Sec. 21.9535 by the later of the following dates:
(1) One year from the date on which the spouse's, surviving
spouse's, veteran's, reservist's, or other eligible individual's
original period of eligibility ended; or
(2) One year from the date on which the spouse's, surviving
spouse's, veteran's, reservist's, or other eligible individual's
physical or mental disability no longer prevented him or her from
beginning or resuming a chosen program of education.
(Authority: 10 U.S.C. 16133(b); 38 U.S.C. 3031(d), 3232(a), 3321,
3512)
* * * * *
0
7. Add Sec. 21.1034 to subpart B to read as follows:
Sec. 21.1034 Appeals.
A claimant may appeal a decision of eligibility or entitlement to
educational assistance under title 38, U.S.C., to the Board of Veterans
Appeals in accordance with the provisions of 38 CFR Part 20. A claimant
may appeal a decision of entitlement to educational assistance under 10
U.S.C. 510 and 10 U.S.C. chapters 106a, 1606, and 1607 to the Board of
Veterans Appeals in accordance with the provisions of 38 CFR Part 20. A
claimant may not appeal a decision of eligibility under 10 U.S.C. 510
or 10 U.S.C. chapters 106a, 1606, or 1607 or for supplemental or
increased educational assistance under 10 U.S.C. 16131(i) or 38 U.S.C.
3015(d), 3021, or 3316 to VA as the Department of Defense solely
determines eligibility to supplemental and increased educational
assistance under those sections.
(Authority: 38 U.S.C. 501(a), 7105, 7105A)
Subpart C--Survivors' and Dependents' Educational Assistance Under
38 U.S.C. Chapter 35
0
8. The authority citation for part 21, subpart C continues to read as
follows:
Authority: 38 U.S.C. 501(a), 512, 3500-3566, and as noted in
specific sections.
0
9. Amend Sec. 21.3022 to read as follows:
Sec. 21.3022 Nonduplication--programs administered by VA.
A person who is eligible for educational assistance under 38 U.S.C.
chapter 35 and is also eligible for assistance under any of the
provisions of law listed in this paragraph cannot receive such
assistance concurrently. The eligible person must choose which
[[Page 14666]]
benefit he or she will receive for the particular period(s) of training
during which education or training is to be pursued. The individual may
choose to receive benefits under another program (other than 38 U.S.C.
chapter 33) at any time, but not more than once in a calendar month.
The individual may choose to receive benefits under 38 U.S.C. chapter
33 at any time, but not more than once during a certified term,
quarter, or semester.
(a) 38 U.S.C. chapter 30 (Montgomery GI Bill--Active Duty);
(b) 38 U.S.C. chapter 31 (Vocational Rehabilitation and
Employment);
(c) 38 U.S.C. chapter 32 (Post-Vietnam Era Veterans' Educational
Assistance);
(d) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);
(e) 10 U.S.C. chapter 1606 (Montgomery GI Bill--Selected Reserve);
(f) 10 U.S.C. chapter 1607 (Reserve Educational Assistance
Program);
(g) 10 U.S.C. chapter 106a (Educational Assistance Test Program);
(h) Section 903 of the Department of Defense Authorization Act,
1981 (Pub. L. 96-342, 10 U.S.C. 2141 note.);
(i) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561
note.); and
(j) The Omnibus Diplomatic Security and Antiterrorism Act of 1986
(Pub. L. 99-399).
(Authority: 10 U.S.C. 16136(b), 16166(b); 38 U.S.C. 3322, 3681)
Subpart D--Administration of Educational Assistance Programs
0
10. The authority citation for part 21, subpart D is revised to read as
follows:
Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs.
30, 32, 33, 34, 35, 36, and as noted in specific sections.
0
11. Amend Sec. 21.4005 by:
0
a. Removing ``chapter 30, 32, 34, 35, or 36'' each place it appears and
adding, in each place, ``chapter 30, 32, 33, 35, or 36''; removing
``chapters 30, 32, 34, 35, or 36'' each place it appears and adding, in
each place, ``chapters 30, 32, 33, 35, or 36''; removing ``chapter 30,
32, or 35'' and adding, in each place, ``chapter 30, 32, 33, or 35''.
0
b. Revising paragraph (a)(1)(ii) and (a)(2)(ii).
0
c. Revising the authority citation at the end of paragraphs (a) and
(b).
0
d. Revising paragraph (e) heading.
The revisions read as follows:
Sec. 21.4005 Conflicting interests.
* * * * *
(a) * * *
(1) * * *
(ii) Offering a licensing or certification test that is approved
for payment of educational assistance under 10 U.S.C. chapter 1606, or
38 U.S.C. chapter 30, 32, 33, or 35 to veterans, reservists, or
eligible individuals who take that test.
(2) * * *
(ii) Offering a licensing or certification test that is approved
for payment of educational assistance under 10 U.S.C. chapter 1606, or
38 U.S.C. chapter 30, 32, 33, or 35 to veterans, reservists, or
eligible individuals who take that test.
* * * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3683, 3689)
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3683, 3689)
* * * * *
(e) Notice to veterans, reservists, and eligible individuals.
* * * * *
0
12. Amend Sec. 21.4006 by revising the authority citation at the end
of paragraphs (a) introductory text, (a)(2), and (b) to read as
follows:
Sec. 21.4006 False or misleading statements.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3690)
* * * * *
(2) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3690)
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3690)
* * * * *
0
13. Amend Sec. 21.4008 by revising the authority citation at the end
of paragraphs (a) and (b) to read as follows:
Sec. 21.4008 Prevention of overpayments.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3690(b))
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3690(b))
0
14. Amend Sec. 21.4009 by revising the authority citation at the end
of paragraphs (b) through (j) to read as follows:
Sec. 21.4009 Waiver or recovery of overpayments.
* * * * *
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685)
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685, 3689(d))
(d) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685, 3689(d))
(e) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685, 3689(d))
(f) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685, 3689(d))
(g) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685, 3689(d))
(h) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685, 3689(d))
(i) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685, 3689(d))
(j) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a),
3323(a), 3685, 3689(d))
* * * * *
0
15. Amend Sec. 21.4020 by:
0
a. Revising paragraph (a)(4) and (5); and
0
b. Revising the authority citation at the end of paragraphs (a) and
(b).
The revisions read as follows:
Sec. 21.4020 Two or more programs.
(a) * * *
(4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36;
(5) 10 U.S.C. chapters 106a, 1606, and 1607;
* * * * *
(Authority: 10 U.S.C. 16136(b), 16166(b); 38 U.S.C. 3034(a),
3241(a), 3323(a), 3695(a))
(b) * * *
(Authority: 10 U.S.C. 16136(b), 16166(b); 38 U.S.C. 3034(a),
3241(a), 3323(a), 3695(b))
* * * * *
0
16. Revise Sec. 21.4022 to read as follows:
Sec. 21.4022 Nonduplication--programs administered by VA.
A veteran, reservist, or eligible individual, who is eligible for
educational assistance allowance or subsistence allowance under more
than one of the provisions of law listed in this section, whether based
on his or her own service or the service of another
[[Page 14667]]
person, cannot receive such benefits concurrently. The individual must
choose under which program he or she will receive benefits for the
particular period(s) during which education or training is to be
pursued. The individual may choose to receive benefits under another
program (other than 38 U.S.C. chapter 33) at any time, but not more
than once in a calendar month. The individual may choose to receive
benefits under 38 U.S.C. chapter 33 at any time, but not more than once
during a certified term, quarter, or semester.
(a) 38 U.S.C. 30 (Montgomery GI Bill--Active Duty);
(b) 38 U.S.C. 31 (Vocational Rehabilitation and Employment
Program);
(c) 38 U.S.C. 32 (Post-Vietnam Era Veterans' Educational
Assistance);
(d) 38 U.S.C. 33 (Post-9/11 GI Bill)
(e) 38 U.S.C. 35 (Survivors' and Dependents' Educational
Assistance);
(f) 10 U.S.C. 1606 (Montgomery GI Bill--Selected Reserve);
(g) 10 U.S.C. 1607 (Reserve Educational Assistance Program);
(h) 10 U.S.C. 106a (Educational Assistance Test Program);
(i) Section 903 of the Department of Defense Authorization Act,
1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);
(j) The Hostage Relief Act of 1980 (Pub. L. 96-449), 5 U.S.C. 5661
note);
(k) The Omnibus Diplomatic Security and Antiterrorism Act of 1986
(Pub. L. 99-399).
(Authority: 10 U.S.C. 16136(b), 16166(b); 38 U.S.C. 3322, 3681)
0
17. Amend Sec. 21.4145 by:
0
a. In paragraph (a)(1), removing ``chapter 30 or 32'' and adding, in
its place, ``chapter 30, 32 or 33''.
0
b. Revising the authority citation at the end of paragraphs (a), (c),
(d), (e), (f), and (h).
0
c. Adding an authority citation at the end of paragraph (b).
0
d. Adding an authority citation at the end of paragraph (g).
The revisions and additions read as follows:
Sec. 21.4145 Work study allowance.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4),
3241(a), 3323(a), 3485, 3537)
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4),
3241(a), 3323(a), 3485, 3537, 5101(a))
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4),
3241(a), 3323(a), 3485, 3537)
(d) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4),
3241(a), 3323(a), 3485, 3537)
(e) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4),
3241(a), 3323(a), 3485, 3537)
(f) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4),
3241(a), 3323(a), 3485, 3537)
(g) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4),
3241(a), 3323(a), 3485, 3537)
(h) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4),
3241(a), 3323(a), 3485, 3537)
* * * * *
Sec. 21.4146 [Amended]
0
18. Amend Sec. 21.4146, paragraph (a), by removing ``chapters 30, 32,
35, or 36'' and adding, in its place, ``chapters 30, 32, 33, 35, or
36''.
0
19. Amend Sec. 21.4153 by revising paragraph (c)(4)(i) and the
authority citation following paragraph (c)(4)(i) to read as follows:
Sec. 21.4153 Reimbursement of expenses.
* * * * *
(c) * * *
(4) * * *
(i) The work has a direct relationship to the requirements of 10
U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, 35, or 36; and
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3674)
* * * * *
Sec. 21.4200 [Amended]
0
20. Amend Sec. 21.4200 introductory text, by removing ``subparts C, F,
G, H, K, and L'' and adding, in its place, ``subparts C, G, H, K, L,
and P''.
0
21. Amend Sec. 21.4201 by:
0
a. In paragraph (a), removing ``the Department of Veterans Affairs
pursuant to Title 38 U.S.C.'' and adding, in its place, ``VA under
title 38, U.S.C., or under title10, U.S.C.''.
0
b. In paragraph (c)(4), removing ``chapters 30, 31, 32, 34, 35 and 36,
title 38, United States Code, and chapter 1606, title 10, United States
Code'' and adding, in its place, ``38 U.S.C. chapters 30, 31, 32, 33,
35 and 36, and 10 U.S.C. chapter 1606''.
0
c. In paragraph (e)(2) introductory text, removing ``United States Code
or under chapter 1606, title 10, United States Code'' and adding, in
its place, ``U.S.C., or under title 10, U.S.C.''.
0
d. In paragraph (f)(1)(ii), removing ``chapters 30, 31, 32, 34, 35, or
36, title 38, U.S.C., or chapter 1606, title 10 U.S.C.'' and by adding,
in its place, ``38 U.S.C. chapters 30, 31, 32, 33, 35 and 36, and 10
U.S.C. chapter 1606''.
0
e. In paragraph (g)(2) introductory text, removing ``either under
Chapter 1606, Title 10, U.S.C., or under Chapters 30, 32, 34, or 36,
Title 38 U.S.C.'' and adding, in its place, ``under 10 U.S.C. chapter
1606 or under 38 U.S.C. chapter 30, 32, 33, or 36''.
0
f. Revising the authority citation at the end of paragraphs (a), (c)(4)
introductory text, (c)(4)(ii), (d), (e)(2)(i), (e)(2)(iv), (e)(3),
(f)(1) introductory text, (f)(1)(ii), (f)(2), (g)(2) introductory text,
(g)(2)(ii), (g)(5), and (h).
The revisions read as follows:
Sec. 21.4201 Restrictions on enrollment; percentage of students
receiving financial support.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
* * * * *
(c) * * *
(4) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
* * * * *
(ii) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
(d) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
(e) * * *
(2) * * *
(i) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
* * * * *
(iv) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
(3) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
(f) * * *
(1) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
* * * * *
(ii) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
(2) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
[[Page 14668]]
(g) * * *
(2) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
* * * * *
(ii) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
* * * * *
(5) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
* * * * *
(h) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3680A(d))
0
22. Amend Sec. 21.4206 by:
0
a. In the introductory text and in paragraph (a), removing ``chapter
30, 32, 34, 35 or 36'' and adding, in its place, ``chapter 30, 32, 33,
35 or 36''.
0
b. In paragraph (e)(1), removing ``chapters 30, 32, 34, 35 and 36 of
title 38 U.S.C.'' and adding, in its place, ``chapters 30, 32, 33, 35
and 36 of title 38, U.S.C.''.
0
c. Revising the authority citation at the end of paragraphs (a) through
(d).
0
d. Removing the authority citation at the end of paragraph (e)(1) and
by revising the authority citation at the end of the paragraph (e).
0
e. Adding an information collection approval parenthetical at the end
of the section.
The revisions and addition read as follows:
Sec. 21.4206 Reporting fee.
* * * * *
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3684(c))
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3684(c))
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3684(c))
(d) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3684(c))
(e) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3684(c))
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0073)
0
23. Amend Sec. 21.4209 by:
0
a. In paragraph (a)(1), removing ``chapter 30, 32, 34, 35, or 36'' and
adding, in its place, ``chapter 30, 32, 33, 35, or 36''.
0
b. In paragraph (c), removing ``veterans under 38 U.S.C. chapter 30 or
32,'' and adding, in its place, ``veterans under 38 U.S.C. chapter 30,
32, or 33,''.
0
c. Revising the authority citation at the end of paragraphs (a) through
(c), and (f).
The revisions read as follows:
Sec. 21.4209 Examination of records.
(a) * * *
(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3323(a), 3689,
3690)
(b) * * *
(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3323(a), 3689,
3690)
(c) * * *
(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3323(a), 3690)
* * * * *
(f) * * *
(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3323(a), 3689,
3690)
* * * * *
0
24. Amend Sec. 21.4210 by:
0
a. Revising the section heading and paragraph (a)(1).
0
b. In paragraph (b)(1)(i), removing ``chapter 30, 32, 34, 35, or, 36''
and adding, in its place, ``chapter 30, 32, 33, 35, or 36''.
0
c. In paragraph (d)(2)(ii), removing ``chapters 30, 32, 34, 35, and
36'' and adding, in its place, ``chapters 30, 32, 33, 35, and 36''.
0
d. Revising paragraph (d)(4)(ii).
0
e. Revising the authority citation at the end of paragraphs (a),
(b)(1)(ii), (c), (d), (e)(2), and (f) through (i).
The revisions read as follows:
Sec. 21.4210 Suspension and discontinuance of educational assistance
payments, and of enrollments or reenrollments for pursuit of approved
courses.
(a) Overview; explanation of terms used in Sec. Sec. 21.4210
through 21.4216. (1) VA may pay educational assistance to a reservist
under 10 U.S.C. chapter 1606 for the reservist's pursuit of a course
approved in accordance with the provisions of 38 U.S.C. chapter 36. VA
may pay educational assistance under 38 U.S.C. chapter 32 or 35 to a
veteran or eligible person for the individual's pursuit of a course
approved in accordance with the provisions of 38 U.S.C. chapter 36; or
if the individual has taken a licensing or certification test approved
in accordance with the provisions of 38 U.S.C. chapter 36. VA may pay
educational assistance under 38 U.S.C. chapter 30 to a veteran or
servicemember for the individual's pursuit of a course approved in
accordance with the provisions of 38 U.S.C. chapter 36; if the
individual has taken a licensing or certification test approved in
accordance with the provisions of 38 U.S.C. chapter 36 or if the
individual is entitled to be paid benefits (tuition assistance top-up)
to meet all or a portion of an educational institution's charges for
education or training that the military department concerned has not
covered under tuition assistance. VA may pay educational assistance
under 38 U.S.C. chapter 33 to an eligible individual or, as
appropriate, to the individual's institution of higher learning on his
or her behalf, for the individual's pursuit of a course or program of
education if the course or program of education is offered by an
institution of higher learning and approved under 38 U.S.C. chapter 30
in accordance with the provisions of 38 U.S.C. chapter 36; if the
individual has taken a licensing or certification test approved in
accordance with the provisions of 38 U.S.C. chapter 36, or if an
individual is entitled to be paid educational assistance to meet all or
a portion of the institution of higher learning's established charges
that the military department concerned has not covered by tuition
assistance under 10 U.S.C. 2007(a) or (c). Except for tuition
assistance top-up, where courses do not need to be approved, a State
approving agency designated by VA, or in some instances VA, approves
the course or test for payment purposes. Notwithstanding such approval,
VA, as provided in paragraphs (b), (c), and (d) of this section, may
suspend, discontinue, or deny payment of benefits to any or all
otherwise eligible individuals for pursuit of a course or training
approved under 38 U.S.C. chapter 36, and for taking a licensing or
certification test approved under 38 U.S.C. chapter 36.
* * * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3452, 3471, 3690)
(b) * * *
(1) * * *
(ii) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689, 3690)
* * * * *
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3690)
(d) * * *
(4) * * *
(ii) Has instituted a policy or practice with respect to the
payment of tuition, fees, or other established charges that
substantially denies to veterans, servicemembers, reservists, or other
eligible persons the benefits of advance payment of educational
assistance
[[Page 14669]]
authorized to such individuals under Sec. Sec. 21.4138(a), 21.7140(a),
21.7640(d), or 21.9680; or
* * * * *
(Authority: 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a),
3680A(d), 3684, 3685, 3689, 3690, 3696, 5301)
(e) * * *
(2) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3690)
* * * * *
(f) * * *
(Authority: 10 U.S.C. 16136(b); 31 U.S.C. 3801-3812; 38 U.S.C.
3034(a), 3241(a), 3323(a), 3689, 3690)
(g) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689, 3690)
(h) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3690)
(i) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S. C. 3034(a), 3241, 3323(a),
3683(b))
0
25. Amend Sec. 21.4211 by:
0
a. Removing ``chapter 30, 32, 34, 35, or 36'' each place it appears and
adding, in each place, ``chapter 30, 32, 33, 35, or 36''.
0
b. Revising the authority citation at the end of paragraphs (a) through
(e).
The revisions read as follows:
Sec. 21.4211 Composition, jurisdiction, and duties of the Committee
on Educational Allowances.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3323(a),
3241(a), 3689(d), 3690)
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3323(a), 3241(a),
3689(d), 3690)
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3323(a), 3241(a),
3689(d), 3690)
(d) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3323(a), 3241(a),
3689(d), 3690)
(e) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3323(a), 3241(a),
3689(d), 3690)
0
26. Amend Sec. 21.4212 by revising the authority citation at the end
of the section to read as follows:
Sec. 21.4212 Referral to Committee on Educational Allowances.
* * * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
0
27. Amend Sec. 21.4213 by revising the authority citation at the end
of the section to read as follows:
Sec. 21.4213 Notices of hearing by Committee on Educational
Allowances.
* * * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
0
28. Amend Sec. 21.4214 by revising the authority citation for
paragraphs (a) through (p) to read as follows:
Sec. 21.4214 Hearing rules and procedures for Committee on
Educational Allowances.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(d) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(e) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(f) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(g) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(h) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(i) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(j) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(k) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(l) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(m) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(n) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(o) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(p) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
0
29. Amend Sec. 21.4215 by revising the authority citation for
paragraphs (a) through (e) to read as follows:
Sec. 21.4215 Decision of Director of VA Regional Processing Office
of jurisdiction.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(d) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
(e) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), 3690)
0
30. Amend Sec. 21.4216 by revising the authority citation for
paragraphs (a) and (c) to read as follows:
Sec. 21.4216 Review of decision of Director of VA Regional
Processing Office of jurisdiction.
(a) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a),
3689(d), (e), 3690; Pub. L. 122 Stat. 2375)
* * * * *
(c) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C 3034(a), 3241(a), 3323(a),
3689(d), 3690)
0
31. Amend Sec. 21.4233 by revising the authority citation at the end
of paragraph (e) to read as follows:
Sec. 21.4233 Combination.
* * * * *
(e) * * *
(Authority: 10 U.S.C. 16136(c); 38 U.S.C. 3002(8), 3034(d), 3241(b),
3323(a), 3452(c), 3501(a)(6), 3675, 3676)
0
32. Amend Sec. 21.4234 by:
0
a. Removing ``veteran or eligible person'' each time it appears, and
adding, in its place, ``veteran, reservist, or eligible person''.
0
b. Revising paragraph (c).
0
c. In paragraph (d)(1)(i), removing ``veteran or eligible spouse or
surviving spouse'' and adding, in its place, ``veteran or eligible
person other than a child receiving educational assistance under 38
U.S.C. chapter 35''.
0
d. In paragraph (d)(1)(iii) and (d)(2)(iii), removing ``child'', and
adding, in each place, ``child receiving
[[Page 14670]]
educational assistance under 38 U.S.C. chapter 35''.
0
e. Revising the authority citation at the end of paragraphs (a)(2)(iv),
(a)(2)(v), (b), (c), (d)(3), (d)(4), and (e).
The revisions read as follows:
Sec. 21.4234 Change of program.
(a) * * *
(2) * * *
(iv) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3691)
(v) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3691)
(b) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3691)
(c) Optional change of program. A spouse or surviving spouse
eligible to receive educational assistance under 38 U.S.C. chapter 35
may make one optional change of program if his or her previous course
was not interrupted due to his or her own misconduct, neglect, or lack
of application.
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3691)
(d) * * *
(3) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3691)
(4) * * *
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a),
3691)
(e) * * *
(Authority: 10 U.S.C. 510(h), 16136(b), 16166(b); 38 U.S.C. 3034(a),
3241, 3323(a), 3691)
* * * * *
0
33. Amend Sec. 21.4236 by revising the authority citation at the end
of paragraphs (b), (c), and (d) to read as follows:
Sec. 21.4236 Tutorial assistance.
* * * * *
(b) * * *
(Authority: 10 U.S.C. 16131(h); 38 U.S.C. 3019, 3234, 3314, 3492,
3533(b))
(c) * * *
(Authority: 10 U.S.C. 16131(h); 38 U.S.C. 3019, 3314, 3492, 3533(b))
(d) * * *
(Authority: 10 U.S.C. 16131(h); 38 U.S.C. 3019, 3314, 3492, 3533(b))
0
34. Amend Sec. 21.4250 by:
0
a. In paragraph (c)(2)(ii), removing ``Chapter 1606 or 38 U.S.C.
Chapters 30, 32, 35, or 36'' and adding, in its place, ``chapter 1606
or 38 U.S.C. chapter 30, 32, 33, 35, or 36''.
0
b. In paragraph (c)(2)(iii), removing ``chapter 30, 32, or 35'' and
adding, in its place, ``chapter 30, 32, 33, or 35''.
0
c. Revising the authority citation at the end of paragraphs (a) and
(c).
The revisions read as follows:
Sec. 21.4250 Course and licensing and certification test approval;
jurisdiction and notices.
(a) * * *
(Authority: 38 U.S.C. 3014(b), 3313(e), 3315, 3670, 3672(a))
* * * * *
(c) * * *
(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3314, 3323(a),
3476, 3523, 3672, 3673, 3689)
* * * * *
0
35. Amend Sec. 21.4252 by revising the authority citation at the end
of paragraph (c) to read as follows:
Sec. 21.4252 Courses precluded; erroneous, deceptive, or misleading
practices.
* * * * *
(c) * * *
(Authority: 10 U.S.C. 16131(f); 38 U.S.C. 3034, 3241(b), 3323(a),
3523(b), 3680A(b))
* * * * *
Subpart G--Post-Vietnam Era Veterans' Educational Assistance Under
38 U.S.C. Chapter 32
0
36. The authority citation for part 21, subpart G continues to read as
follows:
Authority: 38 U.S.C. 501(a), chs. 32, 36, and as noted in
specific sections.
0
37. Amend Sec. 21.5022 by revising paragraphs (a) and (b)(1)(i)
through (b)(1)(vii), adding paragraphs (b)(1)(viii) and (b)(1)(ix), and
revising the authority citation at the end of the section to read as
follows:
Sec. 21.5022 Eligibility under more than one program.
(a) Concurrent benefits under more than one program. (1) An
individual cannot receive educational assistance under 38 U.S.C.
chapter 32 concurrently with benefits under--
(i) 38 U.S.C. chapter 30 (Montgomery GI Bill--Active Duty);
(ii) 38 U.S.C. chapter 31 (Vocational Rehabilitation and
Employment);
(iii) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);
(iv) 38 U.S.C. chapter 35 (Survivors' and Dependents' Educational
Assistance);
(v) 10 U.S.C. chapter 1606 (Montgomery GI Bill--Selected Reserve);
(vi) 10 U.S.C. chapter 1607 (Reserve Educational Assistance
Program);
(vii) 10 U.S.C. chapter 106a (Educational Assistance Test Program);
(viii) Section 903 of the Department of Defense Authorization Act,
1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);
(ix) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561
note); or
(x) The Omnibus Diplomatic Security and Antiterrorism Act of 1986
(Pub. L. 99-399).
(Authority: 38 U.S.C. 3322(a), 3681(b), 3695)
(2) If an individual is eligible for benefits under 38 U.S.C.
chapter 32 and one or more of the programs listed in (a)(1)(i) through
(a)(1)(x) of this section, he or she must specify under which program
he or she is claiming benefits. The individual may choose to receive
benefits under another program (other than 38 U.S.C. chapter 33) at any
time, but not more than once in a calendar month. The individual may
choose to receive benefits under 38 U.S.C. chapter 33 at any time, but
not more than once during a certified term, quarter, or semester.
(Authority: 38 U.S.C. 3033(a), 3322(a))
(b) * * *
(1) * * *
(i) 38 U.S.C. chapter 30 (Montgomery GI Bill--Active Duty);
(ii) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);
(iii) 38 U.S.C. chapter 35 (Survivors' and Dependents' Educational
Assistance);
(iv) 10 U.S.C. chapter 1606 (Montgomery GI Bill-Selected Reserve);
(v) 10 U.S.C. chapter 1607 (Reserve Educational Assistance
Program);
(vi) 10 U.S.C. chapter 106a (Educational Assistance Test Program);
(vii) Section 903 of the Department of Defense Authorization Act,
1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);
(viii) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C.
5561 note); or
(ix) The Omnibus Diplomatic Security and Antiterrorism Act of 1986
(Pub. L. 99-399).
* * * * *
(Authority: 38 U.S.C. 3034(a), 3231, 3323(a))
Subpart K--All Volunteer Force Educational Assistance Program
(Montgomery GI Bill--Active Duty)
0
38. The authority citation for part 21, subpart K continues to read as
follows:
Authority: 38 U.S.C. 501(a), chs. 30, 36, and as noted in
specific sections.
0
39. Amend Sec. 21.7143 by revising paragraphs (a) and (b) to read as
follows:
Sec. 21.7143 Nonduplication of educational assistance.
(a) Payments of educational assistance shall not be duplicated. (1)
Except for receipt of a Montgomery GI
[[Page 14671]]
Bill--Selected Reserve kicker provided under 10 U.S.C. 16131(i), a
veteran is barred from concurrently receiving educational assistance
under 38 U.S.C. chapter 30 and--
(i) 38 U.S.C. chapter 31 (Vocational Rehabilitation and
Employment);
(ii) 38 U.S.C. chapter 32 (Post-Vietnam Era Veterans' Educational
Assistance);
(iii) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);
(iv) 38 U.S.C. chapter 35 (Survivors' and Dependents' Educational
Assistance);
(v) 10 U.S.C. chapter 1606 (Montgomery GI Bill--Selected Reserve);
(vi) 10 U.S.C. chapter 1607 (Reserve Educational Assistance
Program);
(vii) 10 U.S.C. chapter 106a (Educational Assistance Test Program);
(viii) Section 903 of the Department of Defense Authorization Act,
1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);
(ix) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561
note); or
(x) The Omnibus Diplomatic Security and Antiterrorism Act of 1986
(Pub. L. 99-399).
(b) If an individual is eligible for benefits under 38 U.S.C.
chapter 30 and one or more of the programs listed in paragraphs
(a)(1)(i) through (a)(1)(x) of this section, he or she must specify
under which program he or she is claiming benefits. The individual may
choose to receive benefits under another program (other than 38 U.S.C.
chapter 33) at any time, but not more than once in a calendar month.
The individual may choose to receive benefits under 38 U.S.C. chapter
33 at any time, but not more than once during a certified term,
quarter, or semester.
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3033(a), 3681(b))
* * * * *
Subpart L--Educational Assistance for Members of the Selected
Reserve
0
40. The authority citation for part 21, subpart L is amended to read as
follows:
Authority: 10 U.S.C. ch. 1606; 38 U.S.C. 501(a), 512, ch. 36,
and as noted in specific sections.
0
41. Amend Sec. 21.7642 by revising paragraphs (a) and (b) to read as
follows:
Sec. 21.7642 Nonduplication of educational assistance.
(a) Payments of educational assistance shall not be duplicated. A
reservist is barred from receiving educational assistance concurrently
under 10 U.S.C. chapter 1606 and any of the following provisions of
law--
(1) 38 U.S.C. 30 (Montgomery GI Bill--Active Duty);
(2) 38 U.S.C. 31 (Vocational Rehabilitation and Employment);
(3) 38 U.S.C. 32 (Post-Vietnam Era Veterans' Educational
Assistance);
(4) 38 U.S.C. 33 (Post-9/11 GI Bill);
(5) 38 U.S.C. 35 (Survivors' and Dependents' Educational
Assistance);
(6) 10 U.S.C. 1607 (Reserve Educational Assistance Program);
(7) 10 U.S.C. 106a (Educational Assistance Test Program);
(8) Section 903 of the Department of Defense Authorization Act,
1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);
(9) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561
note); or
(10) The Omnibus Diplomatic Security Act of 1986 (Pub. L. 99-399).
(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3033(a), 3241(a), 3322(a),
3681)
(b) When paragraph (a) of this section applies, the reservist must
choose which benefit he or she wishes to receive. The reservist may
choose to receive benefits under another program (other than 38 U.S.C.
chapter 33) at any time, but not more than once in a calendar month.
The reservist may choose to receive benefits under 38 U.S.C. chapter 33
at any time, but not more than once during a certified term, quarter,
or semester.
* * * * *
0
42. Add and reserve subparts N and O.
0
43. Add new subpart P to read as follows:
Subpart P--Post-9/11 GI Bill
Sec.
21.9500 Introduction.
Definitions
21.9505 Definitions.
Claims and Applications
21.9510 Claims, VA's duty to assist, and time limits.
Eligibility
21.9520 Basic eligibility.
21.9525 Eligibility for increased and supplemental educational
assistance.
21.9530 Eligibility time limit.
21.9535 Extended period of eligibility.
Entitlement
21.9550 Entitlement.
21.9555 Entitlement to supplemental educational assistance.
21.9560 Entitlement charges.
Transfer of Entitlement to Basic Educational Assistance to Dependents
21.9570 Transfer of entitlement.
Counseling
21.9580 Counseling
21.9585 Travel Expenses.
Approved Programs of Education and Courses
21.9590 Approved programs of education and courses.
21.9600 Overcharges.
Payments--Educational Assistance
21.9620 Educational assistance.
21.9625 Beginning dates.
21.9630 Suspension or discontinuance of payments.
21.9635 Discontinuance dates.
21.9640 Rates of payment of educational assistance.
21.9645 Refund of basic contribution to chapter 30.
21.9650 Increase in educational assistance.
21.9655 Rates of supplemental educational assistance.
21.9660 Rural relocation benefit.
21.9665 Reimbursement for licensing or certification tests.
21.9670 Work-study allowance.
21.9675 Conditions that result in reduced rates or no payment.
21.9680 Certifications and release of payments.
21.9685 Tutorial Assistance.
21.9690 Nonduplication of educational assistance.
21.9695 Overpayments.
21.9700 Yellow Ribbon Program.
Pursuit of Courses
21.9710 Pursuit.
21.9715 Advance payment certification.
21.9720 Certification of enrollment.
21.9725 Progress and conduct.
21.9735 Other required reports.
21.9740 False, late, or missing reports.
21.9745 Reporting fee.
Course Assessment
21.9750 Course measurement.
Approval of Programs of Education
21.9765 Program of education approval.
Administrative
21.9770 Administrative.
Authority: 38 U.S.C. 501(a), 512, chs. 33, 36 and as noted in
specific sections.
Subpart P--Post-9/11 GI Bill
Sec. 21.9500 Introduction.
An educational assistance program is established for individuals
who served on active duty after September 10, 2001. This educational
assistance program is effective August 1, 2009.
(Authority: Pub. L. 110-252, 122 Stat. 2357, 2378)
Definitions
Sec. 21.9505 Definitions.
For the purposes of this subpart (governing the administration and
payment of educational assistance under 38 U.S.C. chapter 33) the
following definitions apply. (See also additional definitions in
Sec. Sec. 21.1029 and 21.4200).
[[Page 14672]]
Academic year means the period of time beginning August 1st of each
calendar year and ending July 31st of the subsequent calendar year.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a))
Active duty means full-time duty in the regular components of the
Armed Forces or under a call or order to active duty under 10 U.S.C.
688, 12301(a), 12301(d), 12301(g), 12302, or 12304. Active duty does
not include--
(1) Full-time National Guard Duty performed under 32 U.S.C. orders;
(2) Any period during which the individual--
(i) Was assigned full-time by the Armed Forces to a civilian
institution to pursue a program of education that was substantially the
same as programs of education offered to civilians;
(ii) Served as a cadet or midshipmen at one of the service
academies; or
(iii) Served under the provisions of 10 U.S.C. 12103(d) pursuant to
an enlistment in the Army National Guard, Air National Guard, Army
Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or
Coast Guard Reserve;
(3) A period of service--
(i) Required by an officer pursuant to an agreement under 10 U.S.C.
2107(b);
(ii) Required by an officer pursuant to an agreement under 10
U.S.C. 4348, 6959, or 9348;
(iii) That was terminated because the individual is considered a
minor by the Armed Forces, was erroneously enlisted, or received a
defective enlistment agreement; or
(iv) Counted for purposes of repayment of an education loan under
10 U.S.C. chapter 109; or
(4) A period of Selected Reserve service used to establish
eligibility under 38 U.S.C. chapter 30 or 10 U.S.C. chapter 1606 or
1607.
(Authority: 38 U.S.C. 101(21)(A), 3301(1), 3311(d), 3322(b) and (c))
Advance payment means an amount of educational assistance payable
under Sec. 21.9640(b)(1)(ii) or (b)(2)(ii) for the month or fraction
of the month in which the individual's quarter, semester, or term will
begin plus the amount for the following month.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(d))
Course means a unit of instruction required for an approved program
of education that provides an individual with the knowledge and skills
necessary to meet the requirements of the selected educational,
professional, or vocational objective.
(Authority: 38 U.S.C. 3323(c))
Distance learning means the pursuit of a program of education via
distance education as defined in 20 U.S.C. 1003(7).
(Authority: 20 U.S.C. 1003(7); 38 U.S.C. 3323(c))
Educational assistance means the monetary benefit payable under 38
U.S.C. chapter 33 to, or on behalf of, individuals who meet the
eligibility requirements for pursuit of an approved program of
education under 38 U.S.C. chapter 33.
(Authority: 38 U.S.C. 3313)
Enrollment period means a term, quarter, or semester during which
the institution of higher learning offers instruction.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(g))
Entry level and skill training means--
(1) Basic Combat Training and Advanced Individual Training for
members of the Army;
(2) Recruit Training (Boot Camp) and Skill Training (``A'' School)
for members of the Navy;
(3) Basic Military Training and Technical Training for members of
the Air Force;
(4) Recruit Training and Marine Corps Training (School of Infantry
Training) for members of the Marine Corps; and
(5) Basic Training for members of the Coast Guard.
(Authority: 38 U.S.C. 3301(2))
Established charges means the actual charge for tuition and fees
that similarly circumstanced nonveterans enrolled in the program of
education are required to pay.
(Authority: 38 U.S.C. 3313(h))
Fees means any mandatory charges (other than tuition, room, and
board) that are applied by the institution of higher learning for
pursuit of an approved program of education. Fees include, but are not
limited to, health premiums, freshman fees, graduation fees, and lab
fees. Fees do not include those charged for a study abroad course(s)
unless the course(s) is a mandatory requirement for completion of the
approved program of education.
(Authority: 38 U.S.C. 501(a), 3323(c))
Institution of higher learning (IHL) means a college, university,
or similar institution, including a technical or business school,
offering postsecondary level academic instruction that leads to an
associate or higher degree if the school is empowered by the
appropriate State education authority under State law to grant an
associate or higher degree. When there is no State law to authorize the
granting of such a degree, the school may be recognized as an
institution of higher learning if it is accredited for degree programs
by a recognized accrediting agency. Such term shall also include a
hospital offering educational programs at the postsecondary level
without regard to whether the hospital grants a postsecondary degree.
Such term shall also include an educational institution that offers
courses leading to a standard college degree or its equivalent, and is
not located in a State but is recognized as an educational institution
by the secretary of education (or comparable official) of the country
or other jurisdiction in which the institution is located.
(Authority: 38 U.S.C. 3034(a), 3313(b), 3323(a), 3452(f))
Interval means a period of time between regularly scheduled
individual terms, semesters, or quarters.
(Authority: 38 U.S.C. 3034(a)(1), 3323(a), 3680)
Lump sum payment means an amount of educational assistance paid for
the entire term, quarter, or semester.
(Authority: 38 U.S.C. 3323(c))
Mitigating circumstances means circumstances beyond the
individual's control that prevent him or her from continuously pursuing
a program of education. The following circumstances are representative
of those that VA considers to be mitigating. This list is not all-
inclusive.
(1) An illness or mental illness of the individual;
(2) An illness or death in the individual's family;
(3) An unavoidable change in the individual's conditions of
employment;
(4) An unavoidable geographical transfer resulting from the
individual's employment;
(5) Immediate family or financial obligations beyond the control of
the individual that require him or her to suspend pursuit of the
program of education to obtain employment;
(6) Discontinuance of the course by the educational institution;
(7) Unanticipated active duty for training; or
(8) Unanticipated difficulties in caring for the individual's child
or children.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a)(1))
Program of education means a curriculum or combination of courses
pursued at an institution of higher learning that are accepted as
necessary to meet the requirements for a predetermined and identified
[[Page 14673]]
educational, professional, or vocational objective. Such term also
means any curriculum or combination of courses pursued at an
institution of higher learning that are accepted as necessary to meet
the requirements for more than one predetermined and identified
educational, professional, or vocational objective if all the
objectives pursued are generally recognized as being reasonably related
to a single career field. The curriculum or combination of courses
pursued must be listed in the institution of higher learning's catalog
and included in the approval notice provided by the State approving
agency to VA in accordance with Sec. 21.4258(b)(iv).
(Authority: 38 U.S.C. 3034(a), 3301, 3323(a), 3452(b))
Pursuit means to work, during a certified enrollment period,
towards the objective of a program of education. This work must be in
accordance with approved institutional policy and applicable criteria
of Title 38, U.S.C., and must be necessary to reach the program's
objective.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(g))
Rate of pursuit means the measurement obtained by dividing the
number of credit hours (or the equivalent credit hours as determined in
Sec. 21.9750) an individual is enrolled in, including credit hours (or
the equivalent) applied to refresher, remedial, and deficiency courses,
by the number of credit hours (or the equivalent credit hours)
considered to be full-time training at the institution of higher
learning. The resulting percentage (rounded to the nearest hundredth)
will be the individual's rate of pursuit not to exceed 100 percent. For
the purpose of this subpart, VA will consider any rate of pursuit
higher than 50 percent to be more than one-half time training.
(Authority: 38 U.S.C. 3323, 3680)
Transferor means an individual who is entitled to educational
assistance under the Post-9/11 GI Bill based on his or her own active
duty service and who is approved by the military department to transfer
all or a portion of his or her entitlement to one or more dependents.
(Authority: 38 U.S.C. 3319)
Claims and Applications
Sec. 21.9510 Claims, VA's duty to assist, and time limits.
The provisions of subpart B of this part apply to claims filed for
educational assistance under 38 U.S.C. chapter 33 with respect to VA's
responsibilities upon receipt of claim, VA's duty to assist claimants
in obtaining evidence, and time limits.
(Authority: 38 U.S.C. 3323(c), 5101, 5102, 5103, 5103A)
Eligibility
Sec. 21.9520 Basic eligibility.
An individual may establish eligibility for educational assistance
under 38 U.S.C. chapter 33 based on active duty service after September
10, 2001, if he or she--
(a) Serves a minimum of 90 aggregate days excluding entry level and
skill training (to determine when entry level and skill training may be
included in the total creditable length of service, see Sec.
21.9640(a)) and, after completion of such service,--
(1) Continues on active duty;
(2) Is discharged from service with an honorable discharge;
(3) Is released from service characterized as honorable and placed
on the retired list, temporary disability retired list, or transferred
to the Fleet Reserve or the Fleet Marine Corps Reserve;
(4) Is released from service characterized as honorable for further
service in a reserve component; or
(5) Is discharged or released from service for--
(i) A medical condition that preexisted such service and is not
determined to be service-connected;
(ii) Hardship, as determined by the Secretary of the military
department concerned; or
(iii) A physical or mental condition that interfered with the
individual's performance of duty but was not characterized as a
disability and did not result from the individual's own misconduct;
(b) Serves 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; or
(c)(1) After meeting the minimum service requirements in paragraph
(a) or (b) of this section--
(i) An individual makes an irrevocable election to receive benefits
under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38
U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607;
(ii) A member of the Armed Forces who is eligible for educational
assistance under 38 U.S.C. chapter 30 and who is making contributions
towards such educational assistance under 38 U.S.C. 3011(b) or 3012(c)
makes an irrevocable election to receive benefits under 38 U.S.C.
chapter 33; or
(iii) A member of the Armed Forces who made an election not to
receive educational assistance under 38 U.S.C. chapter 30 in accordance
with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election
to receive benefits under 38 U.S.C. chapter 33.
(2) An individual may make an irrevocable election to receive
benefits under this chapter by properly completing VA Form 22-1990,
submitting a transfer-of-entitlement designation under this chapter to
the Department of Defense, or submitting a written statement that
includes the following--
(i) Identification information (including name, social security
number, and address);
(ii) If applicable, an election to receive benefits under chapter
33 in lieu of benefits under one of the applicable chapters listed in
paragraph (c)(1)(i) of this section (e.g., ``I elect to receive
benefits under the Post-9/11-GI Bill in lieu of benefits under the
Montgomery GI Bill--Active Duty (chapter 30) program.'');
(iii) The date the individual wants the election to be effective
(e.g., ``I want this election to take effect on August 1, 2009.''). An
election request for an effective date prior to August 1, 2009, will
automatically be effective August 1, 2009; and
(iv) An acknowledgement that the election is irrevocable (e.g., ``I
understand that my election is irrevocable and may not be changed.'').
(Authority: 38 U.S.C. 3311; Pub. L. 110-252, Stat. 2375-2376)
(The Office of Management and Budget has approved the information
collection requirements in this section under control number 2900-
0154.)
Sec. 21.9525 Eligibility for increased and supplemental educational
assistance.
(a) Increased assistance for members with critical skills or
specialty. The Secretary of the military department concerned, pursuant
to regulations prescribed by the Secretary of Defense, may increase the
amount of educational assistance payable under Sec. 21.9640(b)(1)(ii)
or (b)(2)(ii) to an individual who has a skill or specialty in which
there is a critical shortage of personnel, for which there is
difficulty recruiting, or, in the case of critical units, for which
there is difficulty in retaining personnel.
(b) Supplemental assistance for members serving additional service.
The Secretary of the military department concerned, pursuant to
regulations prescribed by the Secretary of Defense, may supplement the
amount of
[[Page 14674]]
educational assistance payable under Sec. 21.9640(b)(1)(ii) or
(b)(2)(ii) to an individual who meets the following service
requirements.
(1) Individuals with active duty service only. Supplemental
educational assistance may be offered to an individual who serves 5 or
more consecutive years on active duty in the Armed Forces in addition
to the years counted to qualify for educational assistance, without a
break in such service, and--
(i) Continues on active duty without a break;
(ii) Is discharged from service with an honorable discharge;
(iii) Is placed on the retired list;
(iv) Is transferred to the Fleet Reserve or the Fleet Marine Corps
Reserve;
(v) Is placed on the temporary disability retired list; or
(vi) Is released from active duty for further service in a reserve
component of the Armed Forces after service on active duty
characterized by the Secretary concerned as honorable service.
(2) Individuals with Selected Reserve service. (i) Supplemental
educational assistance may be offered to an individual who--
(A) Serves 2 or more consecutive years on active duty in the Armed
Forces in addition to the years on active duty counted to qualify for
educational assistance;
(B) Serves 4 or more consecutive years of duty in the Selected
Reserve in addition to the years of duty in the Selected Reserve
counted to qualify the individual for educational assistance; and
(C) After completion of such service--
(1) Is discharged from service with an honorable discharge;
(2) Is placed on the retired list;
(3) Is transferred to the Fleet Reserve or Fleet Marine Corps
Reserve;
(4) Is placed on the temporary disability retired list;
(5) Continues on active duty; or
(6) Continues in the Selected Reserve.
(ii) The Secretary concerned may, pursuant to regulations
prescribed by the Secretary of Defense, determine the maximum period of
time during which the individual is considered to have continuous
service in the Selected Reserve even though the individual--
(A) Is unable to locate a unit of the Selected Reserve for which he
or she is eligible;
(B) Is unable to locate a unit of the Selected Reserve that has a
vacancy; or
(C) For any other reason other than those stated in paragraph
(b)(2)(ii)(A) and (B) of this section.
(iii) Any decision as to the continuity of an individual's service
in the Selected Reserve made by the Secretary of Defense will be
binding upon VA.
(Authority: 38 U.S.C. 3021, 3022, 3023, 3316)
Sec. 21.9530 Eligibility time limit.
(a) Except as provided in paragraphs (b) through (e) of this
section, an individual's period of eligibility for educational
assistance will terminate effective 15 years from the date of the last
discharge or release from active duty of at least--
(1) 90 continuous days; or
(2) 30 continuous days if the individual is released for a service-
connected disability.
(b) In the case of an individual who establishes eligibility and
does not meet one of the service requirements specified in paragraph
(a) of this section, the individual's period of eligibility for
educational assistance will terminate effective 15 years from the date
of discharge for the last period of service used to meet the minimum
service requirements for eligibility as stated in Sec. 21.9520.
(c) Amendment of military records. If an individual's eligibility
for educational assistance is established as a result of a correction
of military records under 10 U.S.C. 1552, a change, correction, or
modification of a discharge or dismissal under 10 U.S.C. 1553, or other
corrective action by a competent military authority, the individual's
period of eligibility will terminate effective 15 years from the date
of the change, correction, modification, or other corrective action.
(Authority: 38 U.S.C. 3311(c), 3321)
(d) Time limit for spouse using transferred entitlement. (1) Unless
the transferor dies while on active duty, the ending date of the
spouse's period of eligibility for entitlement transferred under Sec.
21.9570 is the earliest of the following--
(i) The transferor's ending date as determined under this section;
(ii) The ending date specified by the transferor, if the transferor
specified the period for which the transfer was effective; or
(iii) The effective date of the transferor's revocation of
transferred entitlement as determined under Sec. 21.9570(f).
(2) If the transferor dies while on active duty, the ending date of
the spouse's period of eligibility is the earliest of the following--
(i) The date 15 years from the transferor's date of death;
(ii) The ending date specified by the transferor, if the transferor
specified the period for which the transfer was effective; or
(iii) The effective date of the transferor's revocation of
transferred entitlement as determined under Sec. 21.9570(f).
(Authority: 38 U.S.C. 3319)
(e) Time limit for child using transferred entitlement. (1) The
ending date of the child's period of eligibility for entitlement
transferred under Sec. 21.9570 is the earliest of the following--
(i) The ending date specified by the transferor, if the transferor
specified the period for which the transfer was effective;
(ii) The effective date of the transferor's revocation of
transferred entitlement as determined under Sec. 21.9570(f); or
(iii) The day the child turns 26.
(2) [Reserved]
(Authority: 38 U.S.C. 3319)
Sec. 21.9535 Extended period of eligibility.
VA will extend an individual's period of eligibility in accordance
with the following provisions.
(a) Disability extension. (1) VA will grant an extension of the
period of eligibility, as determined in Sec. 21.9530 (except for
paragraphs (d) and (e)) provided--
(i) The individual applies for the extension within the time
specified in Sec. 21.1033(c); and
(ii) The medical evidence clearly establishes that the individual
was prevented from initiating or completing the chosen program of
education within the original period of eligibility because of a
physical or mental disability that did not result from the individual's
willful misconduct. VA will not consider the disabling effects of
chronic alcoholism to be the result of willful misconduct. VA will not
consider an individual's disability for a period of 30 days or less as
having prevented the individual from initiating or completing a chosen
program, unless the evidence establishes that the individual was
prevented from enrolling or reenrolling in the chosen program or was
forced to discontinue attendance due to the short-term disability.
(2) Length of extension. An individual's extended period of
eligibility shall be for the length of time that the individual was
prevented from initiating or completing his or her chosen program of
education. This will be determined as follows--
(i) If the individual is pursuing a program of education organized
on a term, quarter, or semester basis, his or her extended period of
eligibility shall contain the same number of days as the number of days
from the date the
[[Page 14675]]
individual was prevented from initiating or completing training during
his or her original period of eligibility to the earliest of--
(A) The beginning date of the ordinary term, quarter, or semester
following the day the individual's training became medically feasible;
(B) The last date of the individual's original period of
eligibility as determined in Sec. 21.9530; or
(C) The date the individual resumed training.
(ii) If the individual is pursuing a program of education that is
not organized on a term, quarter, or semester basis, his or her
extended period of eligibility will contain the same number of days as
the number of days from the date the individual was prevented from
initiating or completing training during his or her original period of
eligibility to the earliest of--
(A) The date the individual's training became medically feasible;
or
(B) The last date of the individual's original period of
eligibility as determined in Sec. 21.9530.
(b) Forcibly detained extension. (1) VA will grant an extension of
the period of eligibility, as determined in Sec. 21.9530, equal to the
period of time the individual--
(i) Was captured and forcibly detained by a foreign government or
power, and
(ii) Was hospitalized at a military, civilian, or medical facility
immediately following release from the foreign government or power.
(2) [Reserved]
(Authority: 38 U.S.C. 3321)
Entitlement
Sec. 21.9550 Entitlement.
(a) Subject to the provisions of Sec. 21.4020 and this section, an
eligible individual is entitled to a maximum of 36 months of
educational assistance (or its equivalent in part-time educational
assistance) under 38 U.S.C. chapter 33.
(b)(1) An individual who, as of August 1, 2009, has used
entitlement under 38 U.S.C. chapter 30, but retains unused entitlement
under that chapter, makes an irrevocable election to receive
educational assistance under the provisions of 38 U.S.C. chapter 33
instead of educational assistance under the provisions of chapter 30,
will be limited to one month (or partial month) of entitlement under
chapter 33 for each month (or partial month) of unused entitlement
under chapter 30 (including any months of chapter 30 entitlement
previously transferred to a dependent that the individual has revoked).
(2) An individual, who as of August 1, 2009, was eligible under 38
U.S.C. chapter 30, had not used any entitlement under that program, was
making contributions towards chapter 30, or was a servicemember who
would have been eligible for chapter 30 if he or she had not declined
participation, will receive 36 months of entitlement under chapter 33.
(c) Except as provided in Sec. Sec. 21.9560(d), 21.9570(m), and
21.9635(o), no individual is entitled to more than 36 months of full-
time educational assistance under 38 U.S.C. chapter 33.
(Authority: 38 U.S.C. 3034(a), 3312(a), 3323(a), 3695; Pub. L. 110-
252, 122 Stat. 2377)
Sec. 21.9555 Entitlement to supplemental educational assistance.
In determining the entitlement of an individual who is eligible for
supplemental educational assistance, VA will--
(a) Calculate the individual's entitlement to 38 U.S.C. chapter 33
educational assistance on the day he or she establishes eligibility for
supplemental educational assistance; and
(b) Credit the individual with the same number of months and days
of entitlement to supplemental educational assistance as the number
calculated in paragraph (a) of this section.
(Authority: 38 U.S.C. 3023, 3316)
Sec. 21.9560 Entitlement charges.
(a) Overview. Except as provided in paragraphs (c) through (f) of
this section, VA will base entitlement charges on the principle that an
eligible individual who is paid educational assistance for one day of
full-time pursuit should be charged one day of entitlement.
(b) Determining entitlement charge. (1) VA will make a charge
against entitlement as follows:
(i) Full-time pursuit. If the individual is pursuing a program of
education on a full-time basis, the entitlement charge will be one of
the following--
(A) During any period for which VA pays established charges to the
institution of higher learning on the individual's behalf, the
entitlement charge will be one day for each day of the certified
enrollment period;
(B) During any period for which VA does not pay established charges
to the institution of higher learning on the individual's behalf but
pays a monthly housing allowance to the individual, the entitlement
charge will be one day for each day of the certified enrollment period
and/or interval period for which the individual receives the monthly
housing allowance; or
(C) During any period for which VA does not pay established charges
to the institution of higher learning on the individual's behalf or a
monthly housing allowance to the individual but makes a lump sum
payment to the individual for books, supplies, equipment, and other
educational costs, VA will make an entitlement charge of 1 day for
every $41.67 paid, with any remaining amount rounded to the nearest
amount evenly divisible by $41.67.
(ii) Less than full-time pursuit. If the individual is pursuing a
program of education on a less than a full-time basis, the entitlement
charge will be one of the following--
(A) During any period for which VA pays established charges to the
institution of higher learning on the individual's behalf, the
individual will be charged a percentage of a day for each day of the
certified enrollment period determined by dividing the number of course
hours the individual is pursuing by the number of course hours required
for full-time pursuit (rounded to the nearest hundredth);
(B) During any period for which VA does not pay established charges
to the institution of higher learning on the individual's behalf but
pays a monthly housing allowance to the individual, the individual will
be charged a percentage of a day for each day of the certified
enrollment period and/or interval period for which the individual
receives the monthly housing allowance determined by dividing the
number of course hours the individual is pursuing by the number of
course hours required for full-time pursuit (rounded to the nearest
hundredth); or
(C) During any period for which VA does not pay established charges
to the institution of higher learning on the individual's behalf or a
monthly housing allowance to the individual but makes a lump sum
payment to the individual for books, supplies, equipment, and other
educational costs, VA will make an entitlement charge of 1 day for
every $41.67 paid, with any remaining amount rounded to the nearest
amount evenly divisible by $41.67.
(Authority: 38 U.S.C. 3313)
(2) If the individual changes his or her rate of pursuit after the
beginning date of the award, VA will--
(i) Divide the certified enrollment period into separate periods of
time so that the individual's rate of pursuit is constant within each
period; and
(ii) Compute the rate of pursuit separately for each time period.
[[Page 14676]]
(c) Individuals eligible for, or in receipt of, educational
assistance other than that authorized under chapter 33. If an
individual elected 38 U.S.C. chapter 33 by relinquishing educational
assistance under another program but receives educational assistance
for a program of education that is approved under the relinquished
chapter but not approved under 38 U.S.C. chapter 33, VA will make a
charge against entitlement equivalent to the entitlement charge--
(1) That would be made under the provisions of Sec. 21.7076, if
the individual relinquished eligibility under 38 U.S.C. chapter 30;
(2) That would be made under the provisions of Sec. 21.7576 if the
individual relinquished eligibility under 10 U.S.C. chapter 1606; or
(3) That would be made under 10 U.S.C. chapter 1607 if the
individual relinquished eligibility under 10 U.S.C. chapter 1607.
(d) No entitlement charge. VA will not make a charge against an
individual's entitlement--
(1) For an approved licensing or certification test as provided
under Sec. 21.9665; or
(Authority: 38 U.S.C. 3315)
(2) For tutorial assistance as provided under Sec. 21.9685; or
(Authority: 38 U.S.C. 3314)
(3) For the rural relocation benefit as provided under Sec.
21.9660; or
(Authority: 38 U.S.C. 3318)
(4) For pursuit of a course or courses when the individual--
(i) Had to discontinue the course or courses as a result of being
ordered to--
(A) Active duty service under 10 U.S.C. 688, 12301(a), 12301(d),
12301(g), 12302, or 12304; or
(B) A new duty location or assignment or to perform an increased
amount of work; and
(ii) Did not receive credit or lost training time for any portion
of the period of enrollment in the course or courses for which the
eligible individual was pursuing to complete his or her approved
educational, professional, or vocational objective as a result of
having to discontinue pursuit.
(Authority: 38 U.S.C. 3312(c))
(e) Interruption to conserve entitlement. An individual may not
interrupt a certified period of enrollment for the purpose of
conserving entitlement. An institution of higher learning may not
certify a period of enrollment for a fractional part of the normal
term, quarter, or semester if the individual is enrolled for the entire
term, quarter, or semester. VA will make a charge against entitlement
for the entire period of certified enrollment, if the individual is
otherwise eligible for educational assistance, except when educational
assistance is interrupted for any of the following conditions:
(1) Enrollment is terminated;
(2) The individual cancels his or her enrollment and does not
negotiate a check or receive a direct deposit for educational
assistance provided under this chapter for any part of the certified
period of enrollment;
(3) The individual interrupts his or her enrollment at the end of
any term, quarter, or semester within a certified period of enrollment
and does not negotiate a check or receive a direct deposit for
educational assistance provided under this chapter for the succeeding
term, quarter, or semester; or
(4) The individual requests interruption or cancellation for any
break when a school was closed during a certified period of enrollment,
and VA continued payments under an established policy based upon an
Executive Order of the President or an emergency situation regardless
of whether or not the individual negotiated a check or received a
direct deposit for educational assistance provided under this chapter
for any part of the certified enrollment period.
(Authority: 38 U.S.C. 3323(c))
(f) Overpayment cases. VA will make a charge against entitlement
for an overpayment only if the overpayment is discharged in bankruptcy,
is waived and not recovered, or is compromised.
(1) If the overpayment is discharged in bankruptcy or is waived and
not recovered, the charge against entitlement will be the appropriate
rate for the elapsed period covered by the overpayment (exclusive of
interest, administrative costs of collection, court costs and marshal
fees).
(2) If the overpayment is compromised and the compromise offer is
less than the amount of interest, administrative costs of collection,
court costs and marshal fees, the charge against entitlement will be at
the appropriate rate for the elapsed period covered by the overpayment
(exclusive of interest, administrative costs of collection, court costs
and marshal fees).
(3) If the overpayment is compromised and the compromise offer is
equal to or greater than the amount of interest, administrative costs
of collection, court costs and marshal fees, the charge against
entitlement will be determined by--
(i) Subtracting from the sum paid in the compromise offer the
amount attributable to interest, administrative costs of collection,
court costs and marshal fees;
(ii) Subtracting the remaining amount of the overpayment balances
as determined in paragraph (f)(3)(i) of this section from the amount of
the original overpayment (exclusive of interest, administrative costs
of collection, course costs and marshal fees);
(iii) Dividing the result obtained in paragraph (f)(3)(ii) of this
section from the amount of the original overpayment (exclusive of
interest, administrative costs of collection, court costs and marshal
fees); and
(iv) Multiplying the percentage obtained in paragraph (f)(3)(iii)
of this section by the amount of entitlement otherwise chargeable for
the period of the original overpayment.
(Authority: 38 U.S.C. 3034(a), 38 U.S.C. 3323(a), 3685)
Transfer of Entitlement to Basic Educational Assistance to Dependents
Sec. 21.9570 Transfer of entitlement.
An individual entitled to educational assistance under 38 U.S.C.
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). 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.
(a) Application of sections in subpart P to individuals in receipt
of transferred entitlement. In addition to the rules in this section,
the following sections apply to a dependent in the same manner as they
apply to the individual from whom entitlement was transferred.
(1) Definitions. Section 21.9505--Definitions.
(Authority: 38 U.S.C. 3319)
(2) Claims and applications. Section 21.9510--Claims, VA's duty to
assist, and time limits.
(Authority: 38 U.S.C. 3319)
(3) Eligibility.
(i) Section 21.9530--Eligibility time limit, paragraphs (d) and (e)
only; and
(ii) Section 21.9535--Extended period of eligibility, except that
extensions to dependents are subject to the transferor's right to
revoke or modify transfer at any time and that VA may only extend a
child's ending date to the date the child attains age 26.
(Authority: 38 U.S.C. 3319)
[[Page 14677]]
(4) Entitlement.
(i) Section 21.9550--Entitlement;
(ii) Section 21.9555--Entitlement to supplemental educational
assistance;
(iii) Section 21.9560--Entitlement charges.
(Authority: 38 U.S.C. 3319)
(5) Counseling.
(i) Section 21.9580--Counseling;
(ii) Section 21.9585--Travel expenses.
(Authority: 38 U.S.C. 3319)
(6) Approved programs of education and courses.
(i) Section 21.9590--Approved programs of education and courses;
(ii) Section 21.9600--Overcharges.
(Authority: 38 U.S.C. 3319)
(7) Payments--Educational assistance.
(i) Section 21.9620--Educational assistance;
(ii) Section 21.9625--Beginning dates, except for paragraphs (e)
and (h);
(iii) Section 21.9630--Suspension or discontinuance of payments;
(iv) Section 21.9635--Discontinuance dates, except for paragraphs
(n) and (o);
(v) Section 21.9640--Rates of payment of educational assistance;
(vi) Section 21.9650--Increase in educational assistance;
(vii) Section 21.9655--Rates of supplemental educational
assistance;
(viii) Section 21.9660--Rural relocation benefit;
(ix) Section 21.9665--Reimbursement for licensing or certification
tests;
(x) Section 21.9670--Work-study allowance;
(xi) Section 21.9675--Conditions that result in reduced rates or no
payment;
(xii) Section 21.9680--Certifications and release of payments;
(xiii) Section 21.9685--Tutorial assistance;
(xiv) Section 21.9690--Nonduplication of educational assistance;
(xv) Section 21.9695--Overpayments, except that the dependent and
transferor are jointly and severally liable for any amount of
overpayment of educational assistance to the dependent; and
(Authority: 38 U.S.C. 3319)
(xvi) Section 21.9700--Yellow Ribbon Program.
(Authority: 38 U.S.C. 3317)
(8) Pursuit of courses.
(i) Section 21.9710--Pursuit;
(ii) Section 21.9715--Advance payment certification;
(iii) Section 21.9720--Certification of enrollment;
(iv) Section 21.9725--Progress and conduct;
(v) Section 21.9735--Other required reports;
(vi) Section 21.9740--False, late, or missing reports; and
(vii) Section 21.9745--Reporting fee.
(Authority: 38 U.S.C. 3319)
(9) Course assessment. Section 21.9750--Course measurement.
(Authority: 38 U.S.C. 3319)
(10) Administrative. Section 21.9770--Administrative.
(Authority: 38 U.S.C. 3319)
(b) Eligible dependents.
(1) An individual transferring entitlement under this section may
transfer entitlement to:
(i) The individual's spouse;
(ii) One or more of the individual's children; or
(iii) A combination of the individuals referred to in paragraphs
(b)(1)(i) and (ii) of this section.
(2) A spouse must meet the definition of spouse in Sec. 3.50(a) of
this chapter at the time of transfer.
(3) A child must meet the definition of child in Sec. 3.57 of this
chapter at the time of transfer. The transferor must make the required
designation shown in Sec. 21.9570(d)(1) before the child attains the
age of 23.
(4) A stepchild, who meets VA's definition of child in Sec. 3.57
of this chapter at the time of transfer and who is temporarily not
living with the transferor, remains a member of the transferor's
household if the actions and intentions of the stepchild and transferor
establish that normal family ties have been maintained during the
temporary absence.
(Authority: 38 U.S.C. 3319)
(c) Timeframe during which an individual may transfer entitlement.
An individual approved by his or her military department to transfer
entitlement may do so at any time while serving as a member of the
Armed Forces, subject to the transferor's 15-year period of eligibility
as provided in Sec. 21.9530.
(Authority: 38 U.S.C. 3319)
(d) Designating dependents; designating the amount to transfer; and
period of transfer.
(1) An individual transferring entitlement under this section must:
(i) Designate the dependent or dependents to whom such entitlement
is being transferred;
(ii) Designate the number of months of entitlement to be
transferred to each dependent; and
(iii) Specify the beginning date and ending date of the period for
which the transfer is effective for each dependent.
(2) VA will accept the transferor's designations as shown on any
document signed by the transferor that shows the information required
in paragraphs (d)(1)(i) through (d)(1)(iii) of this section.
(Authority: 38 U.S.C. 3319)
(e) Maximum months of entitlement transferable.
(1) The maximum amount of entitlement a transferor may transfer is
the lesser of:
(i) Thirty-six months of his or her entitlement; or
(ii) The maximum amount authorized by the Secretary of the military
department concerned; or
(iii) The amount of entitlement he or she has available at the time
of transfer.
(2) The transferor may transfer up to the maximum amount of
transferable entitlement:
(i) To one dependent; or
(ii) Divided among his or her designated dependents in any manner
he or she chooses.
(Authority: 38 U.S.C. 3319)
(f) Revocation of transferred entitlement.
(1) A transferor may revoke any unused portion of transferred
entitlement at any time by submitting a written notice to both the
Secretary of Veterans Affairs and the Secretary of the military
department concerned that initially approved the transfer of
entitlement. VA will accept a copy of the written notice addressed to
the military department as sufficient written notification to VA.
(2) The revocation will be effective the later of--
(i) The date VA receives the notice of revocation; or
(ii) The date the military department concerned receives the notice
of revocation.
(Authority: 38 U.S.C. 3319)
(g) Modifying a transfer of entitlement.
(1) A transferor may modify the designations he or she made under
paragraph (d) of this section at any time. Any modification made will
apply only with respect to unused transferred entitlement. The
transferor must submit a written notice to both the Secretary of
Veterans Affairs and the Secretary of the military department concerned
that initially approved the transfer of entitlement. VA will accept a
copy of the written notice addressed to the military department as
sufficient written notification to VA.
(2) The modification will be effective the later of--
[[Page 14678]]
(i) The date VA receives the notice of modification; or
(ii) The date the military department concerned receives the notice
of modification.
(Authority: 38 U.S.C. 3319)
(h) Prohibition on treatment of transferred entitlement as marital
property. Entitlement transferred under this section may not be treated
as marital property, or the asset of a marital estate, subject to
division in a divorce or other civil proceeding.
(Authority: 38 U.S.C. 3319)
(i) Entitlement charge to transferor. VA will reduce the
transferor's entitlement at the rate of 1 month of entitlement for each
month of transferred entitlement used by a dependent or dependents.
(Authority: 38 U.S.C. 3319)
(j) Secondary school diploma (or equivalency certificate). Children
who have reached age 18 and spouses may use transferred entitlement to
pursue and complete the requirements of a secondary school diploma (or
equivalency certificate).
(Authority: 38 U.S.C. 3319)
(k) Rate of payment of educational assistance. VA will apply the
rules in Sec. 21.9640 (and Sec. Sec. 21.9650 and 21.9655 when
applicable) to determine the educational assistance rate that would
apply to the transferor. VA will pay the dependent and/or the
dependent's institution of higher learning (or school, educational
institution, or institution as defined in Sec. 21.4200(a) 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 38 U.S.C. chapter
33 in the same manner and at the same rate as if the transferor were
enrolled in the dependent's program of education, except that VA will--
(1) Disregard the fact that either the transferor or the dependent
child is (or both are) on active duty, and pay the veteran rate to a
dependent child;
(2) Pay the veteran rate to a surviving spouse; and
(3) Proportionally adjust the payment amounts, other than the book
stipend, a dependent would otherwise receive under Sec. 21.9640 if the
dependent's months of entitlement will exhaust during the certified
enrollment period, by--
(i) Determining the amount of established charges the dependent
would otherwise be eligible to receive for the entire enrollment
period, then dividing this amount by the number of days in the
dependent's quarter, semester, or term, as applicable, to determine the
dependent's daily rate, then determining the actual amount of
established charges to be paid by multiplying the dependent's daily
rate by his or her remaining months and days of entitlement to
educational assistance as provided under Sec. 21.9570; and
(ii) Discontinuing the dependent's monthly housing allowance
effective as of the date the dependent's months and days of entitlement
exhausts.
(Authority: 38 U.S.C. 3319)
(l) Transferor fails to complete required service contract that
afforded participation in the transferability program.
(1) 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.
(2) VA will treat all payments of educational assistance to
dependents as overpayments if the transferor does not complete the
required service unless the transferor does not complete the required
service due to one of the reasons stated in paragraph (l)(1)(i) of this
section or the transferor was not discharged for one of the reasons
stated in paragraph (l)(1)(ii) of this section.
(Authority: 38 U.S.C. 3034(a), 3311(c)(4), 3319)
(m) Dependent is eligible for educational assistance under this
section and is eligible for educational assistance under 38 U.S.C.
chapter 33 based on his or her own service. Dependents who are eligible
for payment of educational assistance through transferred entitlement
and are eligible for payment under 38 U.S.C. chapter 33 based on their
own active service:
(1) May receive educational assistance payable under this section
and educational assistance payable based on their own active duty
service for the same course; and
(2) Are not subject to the 48 months limit on training provided for
in Sec. 21.4020 when combining transferred entitlement with their own
entitlement earned under 38 U.S.C. chapter 33 as long as the only
educational assistance paid is under 38 U.S.C. chapter 33. If the
dependent is awarded educational assistance under another program
listed in Sec. 21.4020 (other than 38 U.S.C. chapter 33), the 48
months limit on training will apply.
(Authority: 38 U.S.C. 3034(a), 3319, 3322, 3323(a), 3695)
Counseling
Sec. 21.9580 Counseling.
An individual may receive counseling from VA before beginning
training and during training. VA will apply the provisions of Sec.
21.7100 to beneficiaries under 38 U.S.C. chapter 33 in the same manner
as they are applied to individuals under 38 U.S.C. chapter 30.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3697A)
Sec. 21.9585 Travel expenses.
VA will not pay for any costs of travel to and from the place of
counseling regardless of whether the individual requests educational
and vocational counseling or whether the counseling is required.
(Authority: 38 U.S.C. 111, 3323(c))
Approved Programs of Education and Courses
Sec. 21.9590 Approved programs of education and courses.
(a) Payments of educational assistance are based on pursuit of a
program of education. In order to receive educational assistance under
38 U.S.C. chapter 33, an eligible individual must--
(1) Be pursuing an approved program of education;
(2) Be pursuing refresher, remedial, or deficiency courses as these
courses are defined in Sec. 21.7020(b);
(3) Be pursuing other preparatory or special education or training
courses necessary to enable the individual to pursue an approved
program of education;
[[Page 14679]]
(4) Have taken an approved licensing or certification test, for
which he or she is requesting reimbursement; or
(5) Be an individual who has taken a course for which the
individual received tuition assistance provided under a program
administered by the Secretary of a military department under 10 U.S.C.
2007(a) or (c), for which the individual is requesting educational
assistance for the amount of established charges not covered by
military tuition assistance.
(Authority: 38 U.S.C. 3313, 3323(a), 3689)
(b) Approval of the selected program of education. Subject to
paragraph (a), VA will approve a program of education under 38 U.S.C.
chapter 33 selected by the individual if:
(1) The program meets the definition of a program of education in
Sec. 21.9505;
(2) Except for a program consisting of a licensing or certification
test, the program has an educational, vocational, or professional
objective as described in Sec. 21.7020(b)(13) or (22);
(3) The courses, subjects, or licensing or certification tests in
the program are approved for VA training; and
(4) Except for a program consisting of a licensing or certification
test designed to help the individual maintain employment in a vocation
or profession, the individual is not already qualified for the
objective of the program.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3471, 3689)
(c) Change of program. In determining whether an individual may
change his or her selected program of education, VA will apply the
provisions of Sec. 21.4234.
(d) Programs not authorized under 38 U.S.C. chapter 33. If an
individual elected to receive benefits under 38 U.S.C. chapter 33 by
relinquishing eligibility under 38 U.S.C. chapter 30, or 10 U.S.C.
chapter 1606 or 1607, and the eligible individual requests educational
assistance for a program of education that is not authorized to be
available to the individual under the provisions of 38 U.S.C. chapter
33, but is available under the chapter the individual relinquished, VA
will provide educational assistance at the rate payable under the
provisions of the relinquished chapter to the eligible individual for
pursuit of any program of education that meets the approval criteria
under--
(1) 38 U.S.C. chapter 30, if the individual was eligible under that
chapter;
(2) 10 U.S.C. chapter 1606, if the individual was eligible under
that chapter; or
(3) 10 U.S.C. chapter 1607, if the individual was eligible under
that chapter.
(Authority: Pub. L. 110-252, 122 Stat. 2377)
Sec. 21.9600 Overcharges.
(a) Overcharges by educational institutions may result in the
disapproval of enrollments. VA may disapprove an institution of higher
learning for further enrollments if the institution of higher learning
charges an individual, or receives from an individual, an amount for
tuition and fees that exceeds the established charges that the
institution of higher learning requires from similarly circumstanced
individuals enrolled in the same course.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3690(a))
(b) Overcharges by organizations or entities offering licensing or
certification tests may result in disapproval of tests. VA may
disapprove an organization or entity offering a licensing or
certification test when the organization or entity offering the test
charges an individual, or receives from an individual, an amount for
fees that exceeds the established fees that the organization or entity
requires from similarly circumstanced individuals taking the same test.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3689(d), 3690(a))
Payments--Educational Assistance
Sec. 21.9620 Educational assistance.
VA will pay educational assistance for an eligible individual's
pursuit of an approved program of education. The eligible individual
and/or the individual's educational institution will receive payment
amounts in accordance with the formulas listed in Sec. 21.9640. The
maximum amounts of tuition and fees payable for the upcoming academic
year under 38 U.S.C. chapter 33 will be published in the ``Notices''
section of the Federal Register by the first of August of each calendar
year. The maximum amounts payable may also be obtained by visiting the
GI Bill Web site at http://www.gibill.va.gov or by calling VA's
customer service department toll-free at 1-888-442-4551. The maximum
amounts payable, as published, will be effective for each term,
quarter, or semester that begins during the academic year.
(Authority: 38 U.S.C. 3313, 3314, 3315, 3316, 3317)
Sec. 21.9625 Beginning dates.
VA will determine the beginning date of an award or increased award
of educational assistance under this section, but in no case will the
beginning date be earlier than August 1, 2009. When more than one
paragraph in this section applies, VA will award educational assistance
using the latest of the applicable beginning dates.
(Authority: 38 U.S.C. 3313, 3316, 3323(a), 5110, 5111, 5113)
(a) Entrance or reentrance including change of program or
institution of higher learning. When an eligible individual enters or
reenters into training (including a reentrance following a change of
program or institution of higher learning), the beginning date of his
or her award of educational assistance will be determined as follows:
(1) For other than a licensing or certification test. (i) If the
award is an award for the first period of enrollment for which the
eligible individual began pursuing his or her program of education, the
beginning date will be the latest of--
(A) The date the institution of higher learning certifies under
paragraph (b) or (c) of this section;
(B) One year before the date of claim as determined by Sec.
21.1029(b);
(C) The effective date of the approval of the program of education;
or
(D) One year before the date VA receives approval notice for the
program of education.
(ii) If the award is an award for a second or subsequent period of
enrollment for which the eligible individual is pursuing a program of
education, the effective date of the award will be the latest of--
(A) The date the institution of higher learning certifies under
paragraph (b) or (c) of this section;
(B) The effective date of the approval of the program of education;
or
(C) One year before the date VA receives the approval notice for
the program of education.
(Authority: 38 U.S.C. 3034(a), 3313, 3316, 3323(a), 3672, 5103)
(2) For a licensing or certification test. VA will award
educational assistance for the cost of a licensing or certification
test only when the eligible individual takes such test on or after
August 1, 2009--
(i) While the test is approved under 38 U.S.C. chapter 36;
(ii) While the individual is eligible for educational assistance
under this subpart; and
(iii) No more than one year before the date VA receives a claim for
reimbursement of the cost of the test.
(Authority: 38 U.S.C. 3034(a), 3315, 3323(a), 3452(b), 3689)
[[Page 14680]]
(b) Certification for program of education that leads to a standard
college degree. (1) When the individual enrolls in a course offered by
independent study or distance learning, the beginning date of the award
or increased award of educational assistance will be the date the
eligible individual begins pursuit of the course according to the
regularly established practices of the institution of higher learning.
(2) When the individual enrolls in a resident course, the beginning
date of the award or increased award of educational assistance will be
the first scheduled date of classes for the term, quarter, or semester
in which the eligible individual is enrolled, except as provided in
paragraphs (b)(3), (b)(4), and (b)(5) of this section.
(3) When the individual enrolls in a resident course whose first
scheduled class begins after the calendar week when, according to the
school's academic calendar, classes are scheduled to begin for the
term, quarter, or semester, the beginning date of the award or
increased award of educational assistance allowance will be the actual
date of the first class scheduled for that particular course.
(4) When the individual enrolls in a resident course, the beginning
date of the award will be the date of reporting provided that--
(i) The published standards of the school require the eligible
individual to register before reporting; and
(ii) The published standards of the school require the eligible
individual to report no more than 14 days before the first scheduled
date of classes for the term, quarter, or semester for which the
eligible individual has registered.
(5) When the eligible individual enrolls in a resident course and
the first day of classes is more than 14 days after the date of
registration, the beginning date of the award or increased award of
educational assistance will be the first day of classes.
(Authority: 38 U.S.C. 3313, 3316, 3323)
(c) Certification for program of education that does not lead to a
standard college degree. (1) When an eligible individual enrolls at an
institution of higher learning for a program of education that is
offered in residence but that does not lead to a standard college
degree, the beginning date of the award of educational assistance will
be as stated in paragraph (b) of this section.
(Authority: 38 U.S.C. 3313(b), 3323)
(2) When an eligible individual enrolls at an institution of higher
learning for a program of education that is offered by correspondence,
the beginning date of the award of educational assistance will be the
later of--
(i) The date the first lesson was sent, or
(ii) The date of affirmance (as defined in Sec. 21.7020(b)(36)).
(Authority: 38 U.S.C. 3313, 3316, 3323)
(d) Liberalizing laws and VA issues. When a liberalizing law or VA
issue affects the beginning date of an eligible individual's award of
educational assistance, the beginning date will be adjusted in
accordance with the facts found, but not earlier than the effective
date of the act or administrative issue.
(Authority: 38 U.S.C. 3323(c), 5113)
(e) Correction of military records. As determined in Sec. 21.9530,
the eligibility of a veteran may arise because the nature of the
veteran's discharge or release is changed by appropriate military
authority. In these cases, the beginning date of the veteran's
educational assistance will be in accordance with facts found, but not
earlier than the date the nature of the discharge or release was
changed.
(Authority: 38 U.S.C.3323(c))
(f) Individuals in a penal institution. If an eligible individual
is not receiving, or is receiving a reduced rate, of educational
assistance under Sec. 21.9675 (based on incarceration in a Federal,
State, local, or other penal institution or correctional facility due
to a felony conviction), the rate will be increased or assistance will
begin effective the earlier of the following:
(1) The date the tuition and fees are no longer being paid under a
Federal (other than one administered by VA), State, or local program;
or
(2) The date the individual is released from the penal institution
or correctional facility.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3482(g))
(g) Increase (``kicker'') based on critical skills or specialty. If
an eligible individual is entitled to an increase (``kicker'') in the
monthly rate of educational assistance under 38 U.S.C. 3316, the
effective date of that increase ('kicker'') will be the later of--
(1) The beginning date of an eligible individual's award as
determined by paragraphs (a) through (e) of this section; or
(2) The first date on which the eligible individual is entitled to
the increase (``kicker'') as determined by the Secretary of the
military department concerned.
(Authority: 10 U.S.C. 16131(i); 38 U.S.C. 3015(d), 3316(a))
(h) Increase in percentage of maximum amount payable based on
length of active duty service requirements. If an eligible individual
is entitled to an increase in the percentage of the maximum amount of
educational assistance payable as a result of meeting additional length
of active duty service requirements, the effective date of that
increase will be the later of--
(1) The beginning date of the eligible individual's award as
determined by paragraphs (a) through (e) of this section; or
(2) The first day of the term, quarter, or semester following the
term, quarter, or semester in which the eligible individual becomes
entitled to an increase in the percentage of the maximum amount
payable.
(Authority: 38 U.S.C. 3311, 3313)
(i) Spouse eligible for transferred entitlement. If a spouse is
eligible for transferred entitlement under Sec. 21.9570, the beginning
date of the award of educational assistance will be no earlier than the
latest of the following dates--
(1) The date the Secretary of the military department concerned
approves the transferor to transfer entitlement;
(2) The date the transferor completes 6 years of service in the
Armed Forces;
(3) The date the transferor specified in his or her designation of
transfer; or
(4) The date the spouse first meets the definition of spouse in
Sec. 3.50(a) of this chapter.
(Authority: 38 U.S.C. 3319)
(j) Child eligible for transferred entitlement. If a child is
eligible for transferred entitlement under Sec. 21.9570, the beginning
date of the award of educational assistance will be no earlier than the
latest of the following dates--
(1) The date the Secretary of the service department concerned
approves the transferor to transfer entitlement;
(2) The date the transferor completes 10 years of service in the
Armed Forces;
(3) The date the transferor specified in his or her designation of
transfer;
(4) The date the child first meets the definition of child in Sec.
3.57 of this chapter; or
(5) Either--
(i) The date the child completes the requirements of a secondary
school diploma (or equivalency certificate); or
(ii) The date the child attains age 18.
(Authority: 38 U.S.C. 3319)
(k) Change in active duty status. If an individual is released or
discharged from active duty during a certified
[[Page 14681]]
period of enrollment, VA will begin paying--
(1) Tuition and fees using the provisions of Sec. 21.9640(b) or
(c), whichever is applicable, effective the first day of the enrollment
period following the enrollment period during which the individual was
discharged;
(2) The monthly housing allowance beginning the 1st day of the
month following the date the individual was discharged; and
(3) The book stipend beginning the first day of the enrollment
period following the enrollment period during which the individual was
discharged.
(l) Election to receive benefits under 38 U.S.C. chapter 33. If an
individual makes an election to receive benefits under 38 U.S.C.
chapter 33 in lieu of benefits under 10 U.S.C. chapter 106a, 1606, or
1607, or 38 U.S.C. chapter 30 in accordance with 38 CFR 21.9520(c), VA
will begin paying benefits under 38 U.S.C. chapter 33 effective the
later of the following--
(1) August 1, 2009;
(2) The date the individual became eligible for educational
assistance under 38 U.S.C. chapter 33;
(3) One year before the date the valid election request was
received; or
(4) The effective date of the election as requested by the
claimant.
Sec. 21.9630 Suspension or discontinuance of payments.
VA may suspend or discontinue payment of educational assistance in
accordance with Sec. Sec. 21.4210 through 21.4216.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3690)
Sec. 21.9635 Discontinuance dates.
The effective date of a reduction or discontinuance of educational
assistance will be as stated in this section. If more than one type of
reduction or discontinuance is involved, VA will reduce or discontinue
educational assistance using the earliest of the applicable dates.
(a) Death of eligible individual. (1) If the eligible individual
receives a lump sum payment under Sec. 21.9640(b)(1)(iii),
(b)(2)(iii), (c)(1)(ii), or (c)(2)(ii) and dies before the end of the
period covered by the lump sum payment, the discontinuance date of
educational assistance for the purpose of that lump sum payment will be
the last date of the period covered by the lump sum payment.
(2) If the institution of higher learning receives a lump sum
payment for established charges on behalf of an eligible individual and
the individual dies before the end of the period covered by the lump
sum payment, the discontinuance date for the purpose of that lump sum
payment will be the last date of the period covered by the lump sum
payment. The institution of higher learning will be required to return
to VA any portion of the established charges paid by VA that would
normally be refunded to a similarly circumstanced individual according
to the regularly established practices of the institution of higher
learning.
(3) If the eligible individual receives an advance payment of the
monthly housing allowance pursuant to Sec. 21.9680(b)(2) and dies
before the period covered by the advance payment ends, the
discontinuance date of educational assistance shall be the last date of
the period covered by the advance payment.
(4) For all other payments, if the eligible individual dies while
pursuing a program of education, the discontinuance date of educational
assistance will be the end of the month during which the individual
last attended.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(d), 3680(e))
(b) First instance of withdrawal of course. In the first instance
of a withdrawal from a course or courses for which the eligible
individual received educational assistance, VA will consider mitigating
circumstances to exist with respect to the withdrawal of a course or
courses totaling no more than six semester hours or the equivalent. In
determining whether a withdrawal is the first instance of withdrawal,
VA will not consider a course or courses dropped during an institution
of higher learning's drop-add period in accordance with Sec.
21.4200(l). If mitigating circumstances are considered to exist in
accordance with this paragraph, VA will terminate or reduce educational
assistance effective the end of the month during which the withdrawal
occurred.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a)(1))
(c) Withdrawal or unsatisfactory completion of all courses. (1) If
the eligible individual, for reasons other than being called or ordered
to active duty service, withdraws from all courses or receives all
nonpunitive grades and, in either case, there are no mitigating
circumstances, VA will terminate educational assistance effective the
first date of the term in which the withdrawal occurs or the first date
of the term for which nonpunitive grades are assigned.
(2) If the eligible individual withdraws from all courses with
mitigating circumstances or withdraws from all courses for which a
punitive grade is or will be assigned, VA will terminate educational
assistance for--
(i) Residence training effective the last date of attendance; and
(ii) Independent study or distance learning effective on the
official date of change in status under the practices of the
institution of higher learning.
(3) When an eligible individual withdraws from an approved
correspondence course offered by an institution of higher learning, VA
will terminate educational assistance effective the date the last
lesson was serviced.
(Authority: 38 U.S.C. 3323, 3680(a))
(d) Reduction in the rate of pursuit of a program of education. If
the eligible individual reduces the rate of pursuit by withdrawing from
one or more courses in a program of education but continues training in
one or more courses, VA will apply the provisions of this paragraph.
(1) If the reduction in the rate of pursuit occurs other than on
the first date of the term, VA will reduce the eligible individual's
educational assistance effective the end of the month during which the
reduction occurred when the circumstances in either paragraphs
(d)(1)(i) or (d)(1)(ii) apply--
(i) A nonpunitive grade is assigned for the course from which the
eligible individual withdraws and the withdrawal occurs with mitigating
circumstances.
(ii) A punitive grade is assigned for the course from which the
eligible individual withdraws.
(2) VA will reduce educational assistance effective the first date
of the enrollment in which the reduction occurs when--
(i) The reduction occurs on the first date of the term; or
(ii) A nonpunitive grade is assigned for the course from which the
eligible individual withdraws, and--
(A) The eligible individual does not withdraw because he or she is
called to active duty service, or in the case of an individual serving
on active duty, he or she is not ordered to a new duty location or
assignment, or is not ordered to perform an increased amount of work,
and
(B) The withdrawal occurs without mitigating circumstances.
(3) An eligible individual enrolled in several courses within a
program of education, who reduces his or her rate of pursuit by
completing one or more of the courses while continuing training in
others, may receive an interval payment based on the total number of
enrolled courses he or she completed if the
[[Page 14682]]
requirements of Sec. 21.9680(b)(5) are met. If those requirements are
not met, VA will reduce the eligible individual's educational
assistance effective the end of the month during which the individual
completed each course (or courses).
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a))
(e) End of course or period of enrollment. If an eligible
individual's course or period of enrollment ends, the effective date of
reduction or discontinuance of the individual's award of educational
assistance will be the ending date of the course or period of
enrollment as certified by the institution of higher learning.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a))
(f) Nonpunitive grade. (1) If an eligible individual does not
officially withdraw from a particular course and the individual
receives a nonpunitive grade for that course, VA will reduce the
individual's educational assistance effective the first date of
enrollment for the term in which the grade applies unless mitigating
circumstances are found.
(2) If an eligible individual does not officially withdraw from a
particular course and the individual receives a nonpunitive grade for
that course, VA will reduce the individual's educational assistance
effective the end of the month during which the student last attended
when mitigating circumstances are found.
(3) If an eligible individual receives an incomplete grade for a
course or courses, VA will delay creating an overpayment for such
course or courses to allow the individual an opportunity to complete
the course or courses. However, if the incomplete grade is not replaced
with a punitive grade, VA will reduce the individual's educational
assistance in accordance with paragraph (f)(1) or (2) of this section
effective the earliest of--
(i) The last date permitted by the IHL to complete the course;
(ii) The date the IHL permanently assigns a nonpunitive grade;
(iii) One year from the date the incomplete grade was assigned.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680)
(g) Discontinued by VA. If VA discontinues payment to an eligible
individual following procedures stated in Sec. 21.4210(d) and (g), the
discontinuance date of payment of educational assistance will be--
(1) The date the Director of the VA Regional Processing Office of
jurisdiction first suspended payments provided in Sec. 21.4210, if the
discontinuance was preceded by suspension; or
(2) The end of the month during which VA made the decision to
discontinue payments under Sec. 21.9630 or Sec. 21.4210(d) and (g),
if the Director of the VA Regional Processing Office of jurisdiction
did not suspend payments before the discontinuance.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3690)
(h) Disapproved by State approving agency. If a State approving
agency disapproves a program of education in which an eligible
individual is enrolled, the discontinuance date of payment of
educational assistance will be--
(1) The date the Director of the VA Regional Processing Office of
jurisdiction first suspended payments provided in Sec. 21.4210 if
disapproval was preceded by such a suspension; or
(2) The end of the month in which the disapproval is effective or
VA receives notice of the disapproval, whichever is later, provided the
Director of the VA Regional Processing Office of jurisdiction did not
suspend payments before the disapproval.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3672(a), 3690)
(i) Disapproval by VA. If VA disapproves a program of education in
which an eligible individual is enrolled, the discontinuance date of
educational assistance will be--
(1) The date the Director of the VA Regional Processing Office of
jurisdiction first suspended payments, as provided in Sec. 21.4210, if
such suspension preceded the disapproval; or
(2) The end of the month in which the disapproval occurred,
provided that the Director of the VA Regional Processing Office of
jurisdiction did not suspend payments before the disapproval.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3671(b), 3672(a), 3690)
(j) Unsatisfactory progress. If an eligible individual's progress
is unsatisfactory, his or her educational assistance will be
discontinued effective the earlier of the following:
(1) The end of the month during which the institution of higher
learning discontinues the eligible individual's enrollment; or
(2) The end of the month during which the eligible individual's
progress becomes unsatisfactory according to the institution of higher
learning's regularly established standards of progress, conduct, or
attendance.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3474)
(k) False or misleading statements. Payments may not be based on
false or misleading statements, claims, or reports. If educational
assistance is paid as the result of an individual submitting false or
misleading statements, claims, or reports, VA will apply the provisions
of Sec. 21.4006 and 21.4007 in the same manner as they apply to
veterans under 38 U.S.C. chapter 30.
(Authority: 38 U.S.C 3034(a), 3323(a), 3690)
(l) Conflicting interests (not waived). If a conflict of interest
exists between an officer or employee of VA and an institution of
higher learning, or an officer or employee of a State approving agency
and an institution of higher learning, as provided in Sec. 21.4005,
and VA does not grant a waiver, the discontinuance date of educational
assistance will be 30 days after the date of the letter notifying the
eligible individual of the conflicting interests.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3683)
(m) Incarceration in prison or other penal institution due to
conviction of a felony.
(1) The provisions of this paragraph apply to an eligible
individual whose educational assistance must be discontinued or who
becomes restricted to payment of educational assistance at a reduced
rate under Sec. 21.9675(c) (based on incarceration in a Federal,
State, local, or other penal institution or correctional facility due
to a felony conviction).
(2) The reduced rate or discontinuance will be effective the latest
of the following--
(i) The first day of the enrollment period for which all or part of
the eligible individual's tuition and fees were paid by a Federal
(other than one administered by VA), State, or local program;
(ii) The first day of the enrollment period in which the eligible
individual is incarcerated in a Federal, State, local, or other penal
institution or correctional facility; or
(iii) The beginning date of the award as determined by Sec.
21.9625.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3482(g))
(n) Reduction or termination due to active duty status. (1) The
discontinuance date for an eligible individual who reduces or
terminates training as a result of being called or ordered to serve on
active duty under section 688, 12301(a), 12301(d), 12301(g), 12302, or
12304 of title 10, U.S.C., or in the case of an individual serving on
active duty, being ordered to a new duty location or assignment or to
perform an increased amount of work is--
[[Page 14683]]
(i) For established charges, the last date of the certified
enrollment period,
(ii) For the monthly housing allowance, the end of the month during
which the reduction or withdrawal occurred, and
(iii) For the ``book stipend'', the last date of the period covered
by the book stipend payment.
(2) This reduction does not apply to brief periods of active duty
for training if the institution of higher learning permits absence for
active duty for training without considering the individual's pursuit
of a program of education to be interrupted.
(Authority: 38 U.S.C. 3313(e))
(o) Exhaustion of entitlement. (1) If an individual enrolled in an
institution of higher learning that regularly operates on the quarter
or semester system exhausts his or her entitlement under 38 U.S.C.
chapter 33, the effective discontinuance date will be the last day of
the quarter or semester in which the entitlement is exhausted.
(2) If an individual enrolled in an institution of higher learning
that does not regularly operate on the quarter or semester system
exhausts his or her entitlement under 38 U.S.C. chapter 33 after the
individual has completed more than half of the course, the ending date
will be the earlier of the following--
(i) The last day of the course, or
(ii) 12 weeks from the day the entitlement is exhausted.
(3) If an individual enrolled in an institution of higher learning
that does not regularly operate on the quarter or semester system
exhausts his or her entitlement under 38 U.S.C. chapter 33 before the
individual has completed more than half of the course, the effective
ending date will be the date the entitlement was exhausted.
(Authority: 38 U.S.C. 3031(f), 3312, 3321)
(p) End of period of eligibility. If an eligible individual is
enrolled in an institution of higher learning on the date of expiration
of his or her period of eligibility as determined under Sec. 21.9530,
the effective ending date will be the day preceding the end of the
period of eligibility.
(Authority: 38 U.S.C. 3321)
(q) Required verifications not received after certification of
enrollment. (1) If VA does not receive the required verification of
attendance in a timely manner for an eligible individual enrolled in a
course or courses at an institution of higher learning in a program of
education not leading to a standard college degree, VA will terminate
payments effective the last date of the last period for which
verification of the eligible individual's attendance was received. If
VA later receives the verification, VA will make any adjustment on the
basis of the facts found.
(2) If VA does not receive verification of enrollment within 60
days of the first day of the term, quarter, semester, or course for
which the advance payment was made, VA will determine the actual facts
and make an adjustment, if required. If the eligible individual failed
to enroll, VA will terminate the award of educational assistance
effective the beginning date of the enrollment period.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680)
(r) Administrative or payee error. (1) When an administrative error
or error in judgment by VA, the Department of Defense, or the
Department of Homeland Security with respect to the Coast Guard when it
is not operating as a service in the Navy, is the sole cause of an
erroneous award, the award will be reduced or terminated effective the
date of last payment.
(2) When a payee receives an erroneous award of educational
assistance as the result of providing false information or withholding
information necessary to determine eligibility to the award, the
effective date of the reduction or discontinuance will be the effective
date of the award, or the day before the act, whichever is later. The
date of the reduction or discontinuance will not be before the last
date on which the individual was entitled to payment of educational
assistance.
(Authority: 38 U.S.C. 3323(c), 5112(b), 5113)
(s) Forfeiture for fraud. If an eligible individual must forfeit
his or her educational assistance due to fraud, the ending date of
payment of educational assistance will be the later of--
(1) The effective date of the award; or
(2) The day before the date of the fraudulent act.
(Authority: 38 U.S.C. 3323(c), 5112, 6103)
(t) Forfeiture for treasonable acts or subversive activities. If an
eligible individual must forfeit his or her educational assistance due
to treasonable acts or subversive activities, the ending date of
payment of educational assistance will be the later of--
(1) The effective date of the award; or
(2) The day before the date the individual committed the
treasonable act or subversive activities for which the individual was
convicted.
(Authority: 38 U.S.C. 3323(c), 6104, 6105)
(u) Change in law or VA issue or interpretation. If there is a
change in the applicable law or VA issue, or in VA's application of the
law or issue, VA will use the provisions of Sec. 3.114(b) of this
chapter to determine the ending date of the eligible individual's
educational assistance.
(Authority: 38 U.S.C. 3323(c), 5112, 5113)
(v) Reduction following the loss of increase (``kicker'') for
Selected Reserve service. If an eligible individual is entitled to an
increase (``kicker'') in the monthly rate of educational assistance due
to service in the Selected Reserve and loses that entitlement, the
effective date for the reduction in the monthly rate payable is the
date that the Secretary of the military department concerned determines
that the eligible individual is no longer eligible to the increase
(``kicker'').
(Authority: 10 U.S.C. 16131; 38 U.S.C. 3316(a))
(w) Receipt of educational assistance allowance under another
educational assistance program. An individual in receipt of educational
assistance under this chapter who is also eligible for educational
assistance under 10 U.S.C. chapter 106a, 1606, or 1607, or under 38
U.S.C. chapter 30, 31, 32, or 35, or the Hostage Relief Act of 1980,
may choose to receive educational assistance under another program. VA
will terminate educational assistance under 38 U.S.C. chapter 33
effective the first day of the enrollment period during which the
individual requested to receive educational assistance under 10 U.S.C.
chapter 106a, 1606, or 1607, or under 38 U.S.C. chapter 30, 31, 32, or
35, or the Hostage Relief Act of 1980.
(Authority: 38 U.S.C. 3322(a))
(x) Independent study course loses accreditation. If the eligible
individual is enrolled in a course offered in whole or in part by
independent study, and the course loses its accreditation (or the
institution of higher learning offering the course loses its
accreditation), the date of reduction or discontinuance will be the
effective date of the withdrawal of accreditation by the accrediting
agency.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3676, 3680A(a))
(y) Dependent exhausts transferred entitlement. The ending date of
an award of educational assistance to a dependent who exhausts the
entitlement transferred to him or her is the date he or she exhausts
the entitlement.
(Authority: 38 U.S.C. 3319)
(z) Transferor revokes transfer of entitlement. If the transferor
revokes a
[[Page 14684]]
transfer of unused entitlement, the date of discontinuance for the
dependent's entitlement is the effective date of the revocation of
transfer as determined under Sec. 21.9570.
(Authority: 38 U.S.C. 3319)
(aa) Transferor fails to complete additional active duty service
requirement. VA will discontinue each award of educational assistance
given to a dependent, effective the first date of each such award
when--
(1) The transferor fails to complete the additional active duty
service requirement that afforded him or her the opportunity to
transfer entitlement of educational assistance; and
(2) The military department discharges the transferor for a reason
other than one of the reasons stated in Sec. 21.9570.
(Authority: 38 U.S.C. 3319)
(bb) Other reasons for discontinuance. If an eligible individual's
educational assistance must be discontinued for any reason other than
those stated in paragraphs (a) through (aa) of this section, VA will
determine the ending date of educational assistance based on the facts
found.
(Authority: 38 U.S.C. 3323(c), 5112(a), 5113)
Sec. 21.9640 Rates of payment of educational assistance.
VA will determine the amount of educational assistance payable
under 38 U.S.C. chapter 33 as provided in this section.
(a) Percentage of maximum amounts payable. Except as provided in
paragraph (d) of this section, VA will apply the applicable percentage
of the maximum amounts payable under this section for pursuit of an
approved program of education, in accordance with the following table--
------------------------------------------------------------------------
Percentage
Aggregate length of creditable active duty service after 09/ of maximum
10/01 amounts
payable
------------------------------------------------------------------------
At least 36 months \1\..................................... 100
At least 30 continuous days (Must be discharged due to 100
service-connected disability).............................
At least 30 months, but less than 36 months \1\............ 90
At least 24 months, but less than 30 months \1\............ 80 \3\
At least 18 months, but less than 24 months \2\............ 70 \3\
At least 12 months, but less than 18 months \2\............ 60
At least 6 months, but less than 12 months \2\............. 50
At least 90 days, but less than 6 months \2\............... 40
------------------------------------------------------------------------
\1\ Includes entry level and skill training.
\2\ Excludes entry level and skill training.
\3\ If the service requirements are met at both the 80 and 70 percentage
level, the maximum percentage of 70 must be applied to amounts
payable.
(Authority: 38 U.S.C. 3311, 3313)
(b) Maximum amounts payable for training at more than one-half
time. An individual, other than one on active duty, who is pursuing a
program of education at more than one-half time (at a rate of pursuit
greater than 50 percent) and who--
(1) Is enrolled at an institution of higher learning located in the
United States, or at a branch of such institution that is located
outside the United States, may receive--
(i) A lump sum amount for established charges paid directly to the
institution of higher learning for the entire quarter, semester, or
term, as applicable. The amount payable will be the sum of the lower
amount of tuition as determined in paragraph (b)(1)(i)(A) and the lower
amount of fees as determined in paragraph (b)(1)(i)(B) of this section.
(A) The amount of tuition payable is the lesser of--
(1) The actual amount of tuition charged by the institution of
higher learning; or
(2) The maximum amount of tuition regularly charged per credit hour
to full-time undergraduate in-State students by the public institution
of higher learning having the highest rate of regularly-charged tuition
per credit hour in the State in which the individual is enrolled or, if
the individual is enrolled at a branch located outside the United
States, in the State where the main campus of the institution of higher
learning is located, multiplied by the number of credit hours in which
the individual is enrolled.
(B) The amount of fees payable is the lesser of--
(1) The actual amount of fees charged by the institution of higher
learning; or
(2) The maximum amount of fees regularly charged full-time
undergraduate in-State students in a term, quarter, or semester by the
public institution of higher learning having the highest rate of
regularly-charged fees in a term, quarter, or semester in the State in
which the individual is enrolled or, if the individual is enrolled at a
branch located outside the United States, in the State where the main
campus of the institution of higher learning is located.
(C) The lesser amount of paragraph (b)(1)(i )(A) or (B) of this
section, divided by the number of days in the individual's quarter,
semester, or term, as applicable, to determine the individual's daily
rate which will then be multiplied by the individual's remaining months
and days of entitlement to educational assistance in accordance with
Sec. 21.4020 and Sec. 21.9635(o);
(ii) Except for individuals pursuing a program of education offered
entirely through distance learning, a monthly housing allowance. The
monthly housing allowance will be equal to the monthly amount of the
basic allowance for housing payable under 37 U.S.C. 403 for a member of
the military with dependents in pay grade E-5 using the ZIP code area
in which all, or a majority, of the primary institution of higher
learning in which the individual is enrolled is located or, if the
individual is only pursuing distance learning courses at the primary
institution of higher learning, the ZIP code area in which all, or a
majority of the institution of higher learning in which the individual
is enrolled in one or more resident courses is located; and
(iii) An amount for books, supplies, equipment, and other
educational costs (referred to as the ``book stipend'') payable as a
lump sum for each quarter, semester, or term. The maximum amount
payable to an eligible individual with remaining entitlement is based
on pursuit of twenty-four credit hours (the minimum number of credit
hours generally considered to be full-time training at the
undergraduate level for an academic year). An individual may receive an
amount for each credit hour pursued up to twenty-four credit hours
[[Page 14685]]
(or the equivalent number of credit hours if enrollment is reported in
clock hours) in a single academic year. The lump sum payment for each
quarter, semester, or term is equal to--
(A) $41.67 ($1,000 divided by 24 credit hours); multiplied by--
(B) The number of credit hours (or the equivalent number of credit
hours if enrollment is reported in clock hours) taken by the individual
in the quarter, semester, or term, up to a cumulative total of twenty-
four credit hours for the academic year.
(2) Is enrolled at an institution of higher learning not located in
the United States, may receive--
(i) A lump sum amount for established charges paid directly to the
institution of higher learning for the entire quarter, semester, or
term, as applicable. The amount payable will be the sum of the lower
amount of tuition as determined in paragraph (b)(2)(i)(A) and the lower
amount of fees as determined in paragraph (b)(2)(i)(B) of this section.
Prior to comparing the amounts in paragraph ((b)(2)(i)(A) and in
paragraph (b)(2)(i)(B) of this section, foreign currency must be
converted into United States dollars using the foreign exchange
conversion rate as published by the Federal Reserve effective on the
first day of the month of July that precedes the beginning date of the
individual's enrollment period.
(A) The amount of tuition payable is the lesser of--
(1) The actual amount of tuition charged by the institution of
higher learning (converted into United States dollars); or
(2) The average (i.e., unweighted arithmetic mean) amount of
tuition per credit hour regularly charged full-time undergraduate in-
State students by public institutions of higher learning throughout the
United States as published by VA for the relevant academic year.
(B) The amount of fees payable is the lesser of--
(1) The actual amount of fees charged by the institution of higher
learning (converted into United States dollars); or
(2) The average (i.e., unweighted arithmetic mean) amount of fees
regularly charged full-time undergraduate in-State students per term,
quarter, or semester by the public institutions of higher learning
throughout the United States as published by VA for the relevant
academic year.
(C) The lesser amount of paragraph (b)(2)(i)(A) or (B) of this
section, divided by the number of days in the individual's quarter,
semester, or term, as applicable, to determine the individual's daily
rate which will then be multiplied by the individual's remaining months
and days of entitlement to educational assistance in accordance with
Sec. 21.4020 and Sec. 21.9635(o);
(ii) Except for individuals pursuing a program of education offered
entirely through distance learning, a monthly housing allowance. The
monthly housing allowance will be equal to the average (i.e.,
unweighted arithmetic mean) monthly amount of the basic allowance for
housing payable under 37 U.S.C. 403 for a member of the military with
dependents in pay grade E-5 residing in the United States; and
(iii) An amount for books, supplies, equipment, and other
educational costs (referred to as the ``book stipend'') payable as a
lump sum for each quarter, semester, or term. The maximum amount
payable to an eligible individual with remaining entitlement is based
on pursuit of twenty-four credit hours (the minimum number of credit
hours generally considered to be full-time training at the
undergraduate level for an academic year). An individual may receive an
amount for each credit hour pursued up to twenty-four credit hours (or
the equivalent number of credit hours if enrollment is reported in
clock hours) in a single academic year. The lump sum payment for each
quarter, semester, or term is equal to--
(A) $41.67 ($1,000 divided by 24 credit hours); multiplied by--
(B) The number of credit hours (or the equivalent number of credit
hours if enrollment is reported in clock hours) taken by the individual
in the quarter, semester, or term, up to a cumulative total of twenty-
four credit hours for the academic year.
(c) Maximum amounts payable for training at one-half time or less.
An individual, other than one on active duty, who is pursuing a program
of education at one-half time or less (at a rate of pursuit of 50
percent or less) and who--
(1) Is enrolled at an institution of higher learning located in the
United States, or at a branch of such institution that is located
outside the United States, may receive--
(i) A lump sum amount for established charges paid directly to the
institution of higher learning for the entire quarter, semester, or
term, as applicable. The amount payable will be the sum of the lower
amount of tuition as determined in paragraph (c)(1)(i)(A) and the lower
amount of fees as determined in paragraph (c)(1)(i)(B) of this section.
(A) The amount of tuition payable is the lesser of--
(1) The actual amount of tuition charged by the institution of
higher learning that similarly circumstanced nonveterans enrolled in
the individual's program of education would be required to pay; or
(2) The maximum amount of tuition regularly charged per credit hour
to full-time undergraduate in-State students by the public institution
of higher learning having the highest rate of regularly-charged tuition
per credit hour in the State in which the individual is enrolled or, if
the individual is enrolled at a branch located outside the United
States, in the State where the main campus of the institution of higher
learning is located, multiplied by the number of credit hours in which
the individual is enrolled.
(B) The amount of fees payable is the lesser of--
(1) The actual amount of fees charged by the institution of higher
learning that similarly circumstanced nonveterans enrolled in the
individual's program of education would be required to pay; or
(2) The maximum amount of fees regularly charged full-time
undergraduate in-State students per term, quarter, or semester by the
public institution of higher learning having the highest rate of
regularly-charged fees per term, quarter or semester, in the State in
which the individual is enrolled or, if the individual is enrolled at a
branch located outside the United States, in the State where the main
campus of the institution of higher learning is located.
(C) The lesser amount of paragraph (c)(1)(i)(A) or (B) of this
section, divided by the number of days in the individual's quarter,
semester, or term, as applicable, to determine the individual's daily
rate which will then be multiplied by the individual's remaining months
and days of entitlement to educational assistance in accordance with
Sec. 21.4020 and Sec. 21.9635(o);
(ii) An amount for books, supplies, equipment, and other
educational costs (referred to as the ``book stipend'') payable as a
lump sum for the certified enrollment period. The maximum amount
payable to an eligible individual with remaining entitlement is based
on pursuit of twenty-four credit hours (the minimum number of credit
hours generally considered to be full-time training at the
undergraduate level for an academic year). An individual may receive an
amount for each credit hour pursued up to twenty-four credit hours (or
the equivalent number of credit hours if enrollment is reported in
clock hours) in a single academic year. The
[[Page 14686]]
lump sum payment for each quarter, semester, or term is equal to--
(A) $41.67 ($1,000 divided by 24 credit hours); multiplied by--
(B) The number of credit hours (or the equivalent number of credit
hours if enrollment is reported in clock hours) taken by the individual
in the quarter, semester, or term; multiplied by--
(C) The percentage equal to the individual's rate of pursuit as
determined by dividing the number of credit hours the individual is
pursuing by the number of credit hours required for full-time pursuit.
(2) Is enrolled in an institution of higher learning not located in
the United States, may receive--
(i) A lump sum amount for established charges paid directly to the
institution of higher learning for the entire quarter, semester, or
term, as applicable. The amount payable will be the sum of the lower
amount of tuition as determined in paragraph (c)(2)(i)(A) and the lower
amount of fees as determined in paragraph (c)(2)(i)(B) of this section.
Prior to comparing the amounts in paragraph (c)(2)(i)(A) and in
paragraph (c)(2)(i)(B) of this section, foreign currency must be
converted into United States dollars using the foreign exchange
conversion rate as published by the Federal Reserve effective on the
first day of the month of July that precedes the beginning date of the
individual's enrollment period.
(A) The amount of tuition payable is the lesser of--
(1) The actual amount of tuition charged by the institution of
higher learning (converted into United States dollars); or
(2) The average (i.e., arithmetic mean) amount of tuition per
credit hour regularly charged full-time undergraduate in-State students
by public institutions of higher learning throughout the United States
as published by VA for the relevant academic year.
(B) The amount of fees payable is the lesser of--
(1) The actual amount of fees charged by the institution of higher
learning (converted into United States dollars); or
(2) The average (i.e., arithmetic mean) amount of fees regularly
charged full-time undergraduate in-State students per term, quarter, or
semester by the public institutions of higher learning throughout the
United States as published by VA for the relevant academic year.
(C) The lesser amount of paragraph (c)(2)(i)(A) or (B) of this
section, divided by the number of days in the individual's quarter,
semester, or term, as applicable, to determine the individual's daily
rate which will then be multiplied by the individual's remaining months
and days of entitlement to educational assistance in accordance with
Sec. 21.4020 and Sec. 21.9635(o);
(ii) An amount for books, supplies, equipment, and other
educational costs (referred to as the ``book stipend'') payable as a
lump sum for the certified enrollment period. The maximum amount
payable to an eligible individual with remaining entitlement is based
on pursuit of twenty-four credit hours (the minimum number of credit
hours generally considered to be full-time training at the
undergraduate level for an academic year). An individual may receive an
amount for each credit hour pursued up to twenty-four credit hours (or
the equivalent number of credit hours if the individual's enrollment is
reported in clock hours) in a single academic year. The lump sum
payment for each quarter, semester, or term is equal to--
(A) $41.67 ($1,000 divided by 24); multiplied by
(B) The number of credit hours (or the equivalent number of credit
hours if the individual's enrollment is reported in clock hours) taken
by the individual in the quarter, semester, or term, up to a cumulative
total of twenty-four credit hours for the academic year; multiplied
by--
(C) The percentage equal to the individual's rate of pursuit as
determined by dividing the number of credit hours the individual is
pursuing by the number of credit hours required for full-time pursuit.
(d) Amounts payable for individuals on active duty. Individuals on
active duty who are pursuing a program of education may receive a lump
sum amount for established charges paid directly to the institution of
higher learning for the entire quarter, semester, or term, as
applicable. The amount payable will be the lowest of--
(1) The established charges that similarly circumstanced
nonveterans enrolled in the individual's program of education would be
required to pay;
(2) That portion of the established charges not covered by military
tuition assistance under 10 U.S.C. 2007(a) or (b) for which the
individual has stated to VA that he or she wishes to receive payment.
(3) The lesser amount of paragraph (d)(1) or (2) of this section,
divided by the number of days in the individual's quarter, semester, or
term, as applicable, to determine the individual's daily rate which
will then be multiplied by the individual's remaining months and days
of entitlement to educational assistance in accordance with Sec.
21.4020 and Sec. 21.9635(o);
(e) Publication of educational assistance rates. VA will publish
the maximum amounts of tuition and fees payable for the upcoming
academic year in the ``Notices'' section of the Federal Register and on
the GI Bill Web site at http:/www.gibill.va.gov by the first of August
of each calendar year. The maximum amounts payable, as published, will
be effective for each term, quarter, or semester that begins during the
academic year.
(Authority: 38 U.S.C. 3313, 3323(c))
Sec. 21.9645 Refund of basic contribution to chapter 30.
(a)(1) An individual who makes an irrevocable election to receive
educational assistance under this chapter by relinquishing eligibility
under chapter 30 will be entitled to receive a refund of the amount
contributions paid under 38 U.S.C. 3011(b) or 3012(c), up to $1,200, if
the individual, as of the date of the individual's election, meets the
requirements for entitlement to educational assistance under this
chapter and meets one of the following requirements as of August 1,
2009--
(i) He or she is eligible for basic educational assistance under 38
U.S.C. chapter 30 and has remaining entitlement under that chapter;
(ii) He or she is eligible for basic educational assistance under
38 U.S.C. chapter 30 but has not used any entitlement under that
chapter; or
(iii) He or she is a member of the Armed Forces who is eligible to
receive educational assistance under 38 U.S.C. chapter 30 because he or
she has met the requirements of Sec. 21.7042(a) or (b) and is making
contributions as provided in Sec. 21.7042(g).
(2) Individuals are not entitled to a refund of any portion of
additional contributions, of up to $600, paid towards educational
assistance under 38 U.S.C. chapter 30 in accordance with the provisions
of Sec. 21.7136(h).
(b) Amount of refund. The amount of any payment made under this
section to the individual who made the contributions will be equal to
the total amount of contributions toward basic educational assistance
made by the individual as provided in Sec. 21.7042(g) multiplied by
the fraction with--
(1) A numerator equal to--
(i) The number of months of entitlement under 38 U.S.C. chapter 30
remaining to the individual at the time of the election and the number
of months, if any, of transferred
[[Page 14687]]
entitlement under 38 U.S.C. chapter 30 that the individual revoked; or
(ii) 36 for individuals making contributions in accordance with
Sec. 21.9645(a)(iii); and
(2) A denominator equal to 36.
(c) Timing of Payment. The amount payable under this section will
only be paid to the individual who made the contributions as an
increase to the monthly housing allowance payable under Sec.
21.9640(b)(1)(ii) or (b)(2)(ii) at the time his or her entitlement
exhausts.
(Authority: Pub. L. 110-252, Stat. 2377-2378)
Sec. 21.9650 Increase in educational assistance.
The Secretary of the military department concerned may increase the
amount of basic educational assistance payable to an individual who has
a skill or specialty in which there is a critical shortage of
personnel, for which there is difficulty recruiting, or, in the case of
critical units, for which there is difficulty retaining personnel, as
determined by the Secretary of the military department concerned.
(a) Chapter 33 increase (``kicker'') amount. (1) The amount of the
increase is set by the Secretary of the military department concerned,
but the amount of any such increase may not exceed--
(i) $50.00 per month for full-time training; or
(ii) A percentage of the full-time training amount under paragraph
(a)(i) of this section based on the individual's rate of pursuit of
training.
(2) The increase (``kicker'') amount payable under paragraph (a) of
this section will only be paid to the individual as part of the monthly
housing allowance if the individual is entitled to receive a monthly
housing allowance under Sec. 21.9640(b)(1)(ii) or (b)(2)(ii) for that
term, quarter, or semester.
(Authority: 38 U.S.C. 3015(d)(1), 3313(c), 3316(a))
(b) Chapter 30 increase (``kicker'') amount. (1) If an individual
is eligible for educational assistance under 38 U.S.C. chapter 33 by
reason of an irrevocable election to relinquish eligibility under 38
U.S.C. chapter 30 in accordance with the provisions of Sec. 21.9520(c)
and, on the date of such election, the individual is also entitled to
an increase (``kicker'') of the amount of educational assistance under
38 U.S.C. 3015(d), the individual remains entitled to that increase
under 38 U.S.C. chapter 33.
(2) The increase (``kicker'') amount is set by the Secretary of the
military department concerned, but the amount of any such increase may
not exceed--
(i) $50.00 per month for full-time training; or
(ii) A percentage of the full-time training amount under paragraph
(b)(2)(i) of this section based on the individual's rate of pursuit of
training.
(3) The increase (``kicker'') amount payable under paragraph (b) of
this section will be paid to the individual as a lump sum in an amount
for the entire quarter, semester, or term, as applicable, based on the
monthly amount to which the individual was entitled at the time of the
election of chapter 33.
(Authority: 38 U.S.C. 3015(d); Pub. L. 110-252, Stat. 2378)
(c) Chapter 1606 increase (``kicker'') amount. (1) If an individual
is eligible for educational assistance under 38 U.S.C. chapter 33 by
reason of an irrevocable election to relinquish eligibility under 10
U.S.C. chapter 1606 in accordance with the provisions of Sec.
21.9520(c) and, on the date of such election, the individual is also
entitled to an increase (``kicker'') of the amount of educational
assistance under 10 U.S.C. 16131(i), the individual remains entitled to
that increase (``kicker'') under 38 U.S.C. chapter 33.
(2) The increase (``kicker'') amount is set by the Secretary of the
military department concerned, but the amount of any such increase may
not exceed--
(i) $350.00 per month for full-time training; or
(ii) A percentage of the full-time training amount under paragraph
(c)(2)(i) of this section based on the individual's rate of pursuit of
training.
(3) The increase (``kicker'') amount payable under paragraph (c) of
this section will be paid to the individual as a lump sum in an amount
for the entire quarter, semester, or term, as applicable, based on the
monthly amount to which the individual was entitled at the time of the
election of chapter 33.
(Authority: 10 U.S.C. 16131(i); Pub. L. 110-252, Stat 2378)
Sec. 21.9655 Rates of supplemental educational assistance.
In addition to basic educational assistance, an individual who is
eligible for supplemental educational assistance and entitled to it
will be paid supplemental educational assistance at the rate described
in this section unless a lesser rate is required by Sec. 21.9675.
(a) Individuals eligible for supplemental educational assistance
under chapter 33. (1) The monthly amount of supplemental educational
assistance payable to an individual whose initial eligibility for
educational assistance is acquired under 38 U.S.C. chapter 33 is set by
the Secretary of the military department concerned, but may not exceed
$300 per month for full-time training. Individuals pursuing training at
less than full-time will receive a percentage of the amount set by the
Secretary of the military department concerned based on the
individual's rate of pursuit of training.
(2) The increase payable under paragraph (a) of this section will
only be paid to the individual as part of the monthly housing allowance
if the individual is entitled to receive a monthly housing allowance
under Sec. 21.9640(b)(1)(ii) or (b)(2)(ii) for that term, quarter, or
semester.
(Authority: 38 U.S.C. 3316)
(b) Individuals who were eligible for supplemental educational
assistance under 38 U.S.C. chapter 30. (1) An individual who is
eligible for educational assistance under 38 U.S.C. chapter 33 by
reason of an irrevocable election under Sec. 21.9520(c) and was
entitled to supplemental educational assistance under subchapter III of
38 U.S.C. chapter 30 remains entitled to such additional amount under
chapter 33.
(2) The amount of the increase is set by the Secretary of the
military department concerned, but may not exceed $300 per month for
full-time training. Individuals pursuing training at less than full-
time will receive a percentage of the amount set by the Secretary of
the military department concerned based on the individual's rate of
pursuit of training.
(3) The supplemental increase amount payable under paragraph (b) of
this section will be paid to the individual as a lump sum in an amount
for the entire quarter, semester, or term, as applicable, based on the
monthly amount to which the individual was entitled at the time of the
election of chapter 33.
(Authority: 38 U.S.C. 3021; Pub. L. 110-252, 122 Stat. 2378)
Sec. 21.9660 Rural relocation benefit.
An individual eligible for educational assistance under this
chapter is entitled to receive a one-time payment of $500 if the
individual--
(a) Resides in a county (or similar entity utilized by the Bureau
of the Census) with less than 7 persons per square mile (as determined
by the most recent decennial Census); and
(b) Either--
(1) Physically relocates at least 500 miles in order to pursue a
program of education for which the individual receives educational
assistance under this chapter; or
(2) Travels by air to physically attend an institution of higher
learning for
[[Page 14688]]
pursuit of an approved program of education under this chapter if no
other land-based method of transportation is available due to an
absence of roads or other infrastructure; and
(3) Has provided documentation required in Sec. 21.9680(c).
(Authority: 38 U.S.C. 3318)
Sec. 21.9665 Reimbursement for licensing or certification tests.
An eligible individual is entitled to receive reimbursement for
taking one licensing or certification test. The amount of educational
assistance VA will pay as reimbursement for an approved licensing or
certification test taken on or after August 1, 2009, is the lesser of
the following:
(a) The fee that the licensing or certification organization
offering the test charges for taking the test; or
(b) $2,000.
(Authority: 38 U.S.C. 3315)
Sec. 21.9670 Work-study allowance.
An eligible individual pursuing a program of education under 38
U.S.C. chapter 33 at a rate of pursuit of at least 75 percent may
receive a work-study allowance in accordance with the provisions of
Sec. 21.4145.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3485)
Sec. 21.9675 Conditions that result in reduced rates or no payment.
The payment rates as established in Sec. Sec. 21.9640 and 21.9655
will be reduced in accordance with this section whenever the
circumstances described in this section arise.
(a) Withdrawals and nonpunitive grades. Except as provided in this
paragraph, VA will not pay educational assistance for an eligible
individual's pursuit of a course from which the eligible individual
withdraws or receives a nonpunitive grade that is not used in computing
the requirements for graduation. VA may pay educational assistance for
a course from which the eligible individual withdraws or receives a
nonpunitive grade if--
(1) The individual withdraws because he or she is ordered to
active-duty service or, in the case of an individual serving on active
duty, he or she is ordered to a new duty location or assignment, or
ordered to perform an increased amount of work; or
(2) There are mitigating circumstances, and
(i) The eligible individual submits a description of the mitigating
circumstances in writing to VA within one year from the date VA
notifies the eligible individual that a description is needed, or at a
later date if the eligible individual is able to show good cause why
the one-year time limit should be extended to the date on which he or
she submitted the description of the mitigating circumstances; and
(ii) The eligible individual submits evidence supporting the
existence of mitigating circumstances within one year of the date VA
requested the evidence, or at a later date if the eligible individual
is able to show good cause why the one-year time limit should be
extended to the date on which he or she submitted the evidence
supporting the existence of mitigating circumstances.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a))
(b) No educational assistance for some incarcerated individuals. VA
will not pay educational assistance to an eligible individual who is
incarcerated in a Federal, State, local, or other penal institution or
correctional facility due to a felony conviction and has incurred no
expenses for books, supplies, or equipment if--
(1) The individual is enrolled in a course for which there is no
tuition and fees;
(2) The individual is enrolled in a course and the tuition and fees
for the course are being paid in full by a Federal (other than one
administered by VA), State, or local program.
(c) Reduced educational assistance for some incarcerated
individuals. (1) VA will reduce the amount of educational assistance
paid to an eligible individual who is incarcerated in a Federal, State,
local, or other penal institution or correctional facility due to a
felony conviction if--
(i) The individual is enrolled in a course for which the tuition
and fees are paid entirely by a Federal (other than one administered by
VA), State, or local program, but the individual is required to
purchase books, supplies, or equipment for the course; or
(ii) The individual is enrolled in a course for which the tuition
and fees are paid partially by a Federal (other than one administered
by VA), State, or local program, whether or not the individual is
required to purchase books, supplies, or equipment for the course.
(2) The amount of educational assistance payable for pursuit of an
approved program of education by an eligible individual, as described
in this paragraph, will be the lesser of the following--
(i) The amount equal to any portion of tuition and fees charged for
the course that are not paid by a Federal (other than one administered
by VA), State, or local program plus an amount equal to any charges to
the eligible individual for the cost of necessary books, supplies, and
equipment; or
(ii) The amount of tuition and fees otherwise payable to the
individual based on the individual's length of creditable service as
determined in Sec. 21.9640(a) and the individual's rate of pursuit,
plus an amount equal to any charges to the eligible individual for the
cost of necessary books, supplies, and equipment.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3482(g))
(d) No educational assistance for certain enrollments. VA will not
pay educational assistance for--
(1) An enrollment in an audited course (See Sec. 21.4252(i));
(2) A new enrollment in a course during a period when the approval
has been suspended by a State approving agency or VA;
(3) An enrollment in a course by a nonmatriculated student except
as provided in Sec. 21.4252(l);
(4) An enrollment in a course certified to VA by the individual
taking the course;
(5) A new enrollment in a course which does not meet the veteran-
nonveteran ratio requirement as computed under Sec. 21.4201; and
(6) An enrollment in a course offered under contract for which VA
approval is prohibited by Sec. 21.4252(m).
(Authority: 38 U.S.C. 501(a), 3034(a), 3323(a))
Sec. 21.9680 Certifications and release of payments.
(a) Payee. (1) VA will make payment of the appropriate amount of
established charges (including top-up payments), as determined under
Sec. 21.9640, directly to the institution of higher learning as a lump
sum payment for the entire quarter, semester, or term, as applicable.
(2) VA will make all other payments to the eligible individual or a
duly appointed fiduciary. VA will make direct payment to the eligible
individual even if he or she is a minor.
(3) The assignment of educational assistance is prohibited. In
administering this provision, VA will apply the provisions of Sec.
21.4146 to 38 U.S.C. chapter 33.
(Authority: 38 U.S.C. 3034(a), 3313(g), 3323(a), 3680, 5301)
(b) Payments.
(1) VA will pay educational assistance for an eligible individual's
enrollment in an approved program (other than one seeking tuition
assistance top-up, one seeking reimbursement for taking an approved
licensing or certification test, or one who qualifies for an advance
payment of the monthly housing
[[Page 14689]]
allowance) only after the educational institution has certified the
individual's enrollment as provided in Sec. 21.9720.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(g), 3689)
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0073)
(2) Advance payments. VA will apply the provisions of this section
in making advance payments of the monthly housing allowance to eligible
individuals.
(i) VA will make payments of the monthly housing allowance in
advance when:
(A) The eligible individual has specifically requested such a
payment;
(B) The individual is enrolled at a rate of pursuit greater than
half-time;
(C) The institution of higher learning at which the eligible
individual is accepted or enrolled has agreed to and can satisfactorily
carry out the provisions of 38 U.S.C. 3680(d)(4)(B), (d)(4)(C), and
(d)(5) pertaining to receipt, delivery, and return of checks, and
certifications of delivery and enrollment;
(D) The Director of the VA Regional Processing Office of
jurisdiction has not acted under paragraph (b)(2)(iv) of this section
to prevent advance payments being made to the eligible individual's
institution of higher learning;
(E) There is no evidence in the eligible individual's claim file
showing that he or she is not eligible for an advance payment;
(F) The period for which the eligible individual has requested a
payment either--
(1) Is preceded by an interval of nonpayment of 30 days or more; or
(2) Is the beginning of a school year that is preceded by a period
of nonpayment of 30 days or more; and
(G) The institution of higher learning or the eligible individual
has submitted the certification required by Sec. 21.9715.
(ii) The amount of the advance payment to an eligible individual is
the amount payable for the monthly housing allowance for the month or
fraction thereof in which the term or course will begin plus the amount
of the monthly housing allowance for the following month.
(iii) VA will mail advance payments to the institution of higher
learning for delivery to the eligible individual. The institution of
higher learning will not deliver the advance payment check more than 30
days in advance of the first date of the enrollment period for which VA
makes the advance payment.
(iv) The Director of the VA Regional Processing Office of
jurisdiction may direct that advance payments not be made to
individuals attending an institution of higher learning if:
(A) The institution of higher learning demonstrates an inability to
comply with the requirements of paragraph (b)(2)(iii) of this section;
(B) The institution of higher learning fails to provide adequately
for the safekeeping of the advance payment checks before delivery to
the eligible individual or return to VA; or
(C) The Director determines, based on compelling evidence, that the
institution of higher learning has demonstrated its inability to
discharge its responsibilities under the advance payment program.
(Authority: 38 U.S.C. 3034, 3323, 3680)
(3) Lump sum payments. VA will make a lump sum payment for the
entire quarter, semester, or term:
(i) To an institution of higher learning, on behalf of an eligible
individual, for the appropriate amount of established charges;
(ii) To an eligible individual for the appropriate amount for
books, supplies, equipment, and other educational costs; and
(iii) To an eligible individual entitled to the $500 rural
relocation benefit.
(Authority: 38 U.S.C. 3034(a), 3313, 3318, 3323(a), 3680(f))
(4) VA will pay educational assistance for tuition assistance top-
up only after the individual has submitted to VA a copy of the form(s)
that the military service with jurisdiction requires for tuition
assistance and that had been presented to the educational institution,
covering the course or courses for which the eligible individual wants
tuition assistance top-up. If the form(s) submitted do not contain the
amount of tuition assistance charged to the individual, VA may delay
payment until VA obtains that information from the educational
institution. Examples of these forms include:
(i) DA Form 2171, Request for Tuition Assistance--Army Continuing
Education System;
(ii) AF Form 1227, Authority for Tuition Assistance--Education
Services Program;
(iii) NAVMC 10883, Application for Tuition Assistance, and either
NAVEDTRA 1560/5, Tuition Assistance Authorization, or NAVMC (page 2),
Tuition Assistance Authorization;
(iv) Department of Homeland Security, USCG CG-4147, Application for
Off-Duty Assistance; and
(v) Request for Top-Up: eArmyU Program.
(Authority: 38 U.S.C. 5101(a))
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0698)
(5) VA will pay educational assistance to an eligible individual as
reimbursement for taking an approved licensing or certification test
only after the eligible individual has submitted to VA a copy of his or
her official test results and, if not included in the results, a copy
of another official form (such as a receipt or registration form) that
together must include:
(i) The name of the test;
(ii) The name and address of the organization or entity issuing the
license or certificate;
(iii) The date the eligible individual took the test; and
(iv) The cost of the test.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3689)
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0695)
(6) Payment for intervals and temporary school closings. VA may
authorize payment of the monthly housing allowance (as increased under
Sec. Sec. 21.9650(a) and 21.9655(a), if applicable) for an interval or
for a temporary school closing that occurs within a certified
enrollment period. If a school closing that is or may be temporary
occurs during an interval, VA will apply any applicable provisions in
paragraphs (b)(5)(i) through (b)(5)(v) of this section concerning
intervals and in paragraph (5)(vi) of this section concerning temporary
school closings. For the purposes of this paragraph, interval means a
period without instruction between consecutive school terms, quarters,
or semesters or a period without instruction between a summer term and
a term, quarter, or semester. (See definitions of divisions of the
school year in Sec. 21.4200(b).)
(i) Payment for intervals. In determining whether a student will be
paid for an interval, VA will first review the provisions of paragraph
(b)(5)(ii) of this section. If none of the provisions apply, VA will
review the provisions of paragraphs (b)(5)(iii), (iv), and (v) of this
section to determine if payments may be made for the interval. In
determining the length of a summer term, VA will disregard a fraction
of a week consisting of 3 days or less, and will consider 4 days or
more to be a full week.
(ii) Restrictions on payment for intervals. VA will make no payment
for an interval if--
[[Page 14690]]
(A) The individual's rate of pursuit is one-half time or less on
the last day of the certified enrollment period preceding the interval;
(B) The individual is on active duty;
(C) The individual requests, prior to authorization of an award or
prior to negotiating a check or receiving a direct deposit for
educational assistance, that no benefits be paid for the interval
period;
(D) The individual's entitlement applicable to such payment will be
exhausted by receipt of such payment, and it is to the advantage of the
individual not to receive payment;
(E) The interval occurs between school years at a school that is
not organized on a term, quarter, or semester basis; or
(F) The individual withdraws from all courses in the term, quarter,
semester, or summer session preceding the interval, or discontinues
training before the scheduled start of an interval in an institution of
higher learning not organized on a term, quarter, or semester basis.
(iii) Payment for intervals between periods of enrollment at
different schools. If the individual transfers from one approved school
for the purpose of enrolling in and pursuing a similar program of
education at the second school, VA may make payments for an interval
that does not exceed 30 days. If the student does not enroll in a
similar program of education at the second school, VA may not make
payments for the interval.
(iv) Payment for intervals that occur at the same school. (A) If
the individual remains enrolled at the same school, VA may make payment
for an interval which does not exceed 8 weeks and which occurs between:
(1) Semesters or quarters,
(2) A semester or quarter and a term that is at least as long as
the interval,
(3) A semester or quarter and a summer term that is at least as
long as the interval,
(4) Consecutive terms (other than semesters or quarters) provided
that both terms are at least as long as the interval, or
(5) A term and summer term provided that both the term and the
summer term are at least as long as the interval.
(B) If the individual remains enrolled at the same school, VA may
make payment for an interval that does not exceed 30 days and that
occurs between summer sessions within a summer term.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680)
(v) Payment for intervals that occur between overlapping
enrollments. (A) If a student is enrolled in overlapping enrollment
periods whether before or after an interval (either at the same or
different schools), VA will determine whether the student is entitled
to payment for the interval between the overlapping enrollment periods,
and which dates the interval and enrollment periods will be considered
to begin and end, as follows:
(1) By treating the ending date of each enrollment period as though
it were the individual's last date of training before the interval,
(2) By treating the beginning date of each enrollment period as
though it were the individual's first date of training after the
interval,
(3) By examining the interval payment that would be made to the
individual on the basis of the various combinations of beginning and
ending dates, and
(4) By choosing the ending date and beginning date that result in
the highest payment rate as the start and finish of the interval for VA
measurement purposes.
(B) VA will not reduce the interval rate of payment as a result of
training the individual may take during the interval, but VA will
increase the interval rate of payment if warranted by such training.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a))
(vi) Payment for temporary school closings. VA may authorize
payment for temporary school closings that are due to emergencies
(including strikes) or established policy based upon an Executive Order
of the President. If a school closing that is or may be temporary
occurs in whole or in part during an interval, VA will first review the
provisions of paragraph (b)(5)(ii) through (v) of this section to
determine if payment may be continued during the interval.
(A) If payment would not be inconsistent with the provisions of
paragraph (b)(5)(ii) through (v) of this section, a determination to
authorize payment for a period of a temporary school closing, or to not
authorize payment if it appears that either the school closing will not
be temporary or payment would not otherwise be in accord with this
section, or both, will be made by:
(1) The Director of the VA Regional Processing Office of
jurisdiction if:
(i) The reason for the school closing does not result in the
closing of a school or schools in the jurisdiction of the Director of
another VA Regional Processing Office, and
(ii) If the reason for the closing is a strike, and the strike
lasts, or is anticipated to last, 30 days or less.
(2) The Director of Education Service if:
(i) The reason for the school closing results in the closing of
schools in the jurisdiction of more than one Director of a VA Regional
Processing Office, or
(ii) The reason for the closing is a strike, and the strike lasts,
or is anticipated to last, more than 30 days.
(B) A school that disagrees with a decision made under paragraph
(b)(5)(vi) of this section may request an administrative review. The
review request must be submitted in writing and received by the
Director of the VA Regional Processing Office of jurisdiction within
one year of the date of VA's letter notifying the school of the
decision. A review of the decision will include the evidence of record
and any other pertinent evidence the school may wish to submit. The
affirmation or reversal of the initial decision based on an
administrative review is final. The review will be conducted by the--
(1) Director, Education Service, if the Director of the VA Regional
Processing Office of jurisdiction made the initial decision to continue
or discontinue payments; or
(2) Under Secretary for Benefits, if the Director, Education
Service, made the initial decision to continue or discontinue payments.
(Authority: 38 U.S.C. 512, 3034(a), 3323(a), 3680(a))
(c) Rural relocation benefit. VA will make the $500 rural
relocation benefit payment after--
(1) The educational institution has certified the individual's
enrollment as provided in Sec. 21.9680;
(2) The individual has provided--
(i) Request for benefit. An individual must submit a request for
the rural relocation benefit in writing;
(ii) Proof of residence. (A) An individual must provide proof of
his or her place of residence by submitting any of the following
documents bearing his or her name and current address:
(1) DD Form 214, Certification of Release or Discharge from Active
Duty; or
(2) The most recent Federal income tax return; or
(3) The most recent State income tax return; or
(4) Rental/lease agreement; or
(5) Mortgage document; or
(6) Current real property assessment; or
(7) Voter registration card.
(B) An individual using entitlement granted under Sec. 21.9570
who, because he or she resides with the transferor or, in the case of a
child, a parent, cannot provide any of the documents in
[[Page 14691]]
paragraph (c)(2)(ii) of this section, may submit any document in
paragraphs (c)(2)(ii)(A)(2) through (7) of this section bearing the
name and current address of the transferor or, in the case of a child,
a parent as proof of residence; and
(iii) Proof of relocation. An individual traveling by air must
provide an airline receipt for travel with a departure and destination
airport within reasonable distance from the home of residence and the
institution of higher learning, respectively; and
(3) VA has determined that the individual resided in a county (or
similar entity utilized by the Bureau of the Census) with less than
seven persons per square mile based on the most recent decennial census
prior to relocation, and either:
(i) If traveling by land, physically relocated at least 500 miles,
confirmed by means of a commonly available internet search engine for
mapping upon entering the individual's resident address provided in
paragraph (c)(2) as the beginning point and the address of the
institution of higher learning as the ending point; or
(ii) If traveling by air, was unable to travel to the institution
of higher learning by land due to the absence of road or other
infrastructure.
(Authority: 38 U.S.C. 3318)
(d) Apportionments prohibited. VA will not apportion educational
assistance.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680)
(e) Accrued benefits. Educational assistance remaining due and
unpaid on the date of the individual's death is payable under the
provisions of Sec. 3.1000 of this chapter.
(Authority: 38 U.S.C. 5121)
Sec. 21.9685 Tutorial Assistance.
(a) An individual who is eligible to receive benefits under 38
U.S.C. chapter 33 may receive additional monetary assistance for
tutorial services. VA will pay the individual this assistance if the
tutorial assistance is necessary for the eligible individual to
complete his or her program of education successfully, and the
individual--
(1) Is enrolled in and pursuing a postsecondary program of
education at a rate of pursuit of at least 50 percent at an institution
of higher learning; and
(2) The professor or other person teaching, leading, or giving the
course certifies that--
(i) Tutorial assistance is essential to correct a deficiency of the
individual in such course; and
(ii) The course is required as part of, or is prerequisite or
indispensable to the satisfactory pursuit of, an approved program of
education.
(b) Limits on tutorial assistance. (1) VA will authorize the cost
of tutorial assistance in an amount not to exceed $100 per month.
(2) The total amount of all tutorial assistance provided under this
section will not exceed $1,200.
(Authority: 38 U.S.C. 3034(a), 3314, 3323(a), 3492)
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0171)
Sec. 21.9690 Nonduplication of educational assistance.
(a) Except for receipt of a Montgomery GI Bill-Active Duty kicker
provided under 38 U.S.C. 3015(d) or a Montgomery GI Bill-Selected
Reserve kicker provided under 10 U.S.C. 16131(i), an eligible
individual is barred from receiving educational assistance under 38
U.S.C. chapter 33 concurrently with educational assistance provided
under--
(1) 10 U.S.C. 1606 (Montgomery GI Bill--Selected Reserve);
(2) 10 U.S.C. 1607 (Reserve Educational Assistance Program);
(3) 10 U.S.C. 106a (Section 901, Educational Assistance Test
Program);
(4) 38 U.S.C. 30 (Montgomery GI Bill--Active Duty);
(5) 38 U.S.C. 31 (Vocational Rehabilitation and Employment
Program);
(6) 38 U.S.C. 32 (Post-Vietnam Era Veterans' Educational
Assistance);
(7) 38 U.S.C. 35 (Survivors' and Dependents' Educational
Assistance); or
(8) Hostage Relief Act of 1980.
(Authority: 38 U.S.C. 3034(a), 3322, 3323(a), 3681; section 901,
Pub. L. 96-342)
(b) An individual who is eligible for educational assistance under
more than one program listed in paragraph (a) of this section must
specify in writing which benefit he or she wishes to receive. The
eligible individual may choose to receive payment under another
educational assistance program at any time, but may not change which
benefit he or she will receive more than once during a term, quarter,
or semester.
(Authority: 38 U.S.C. 3034(a), 3322, 3323(a), 3681)
(c) Nonduplication--Federal program. Payment of educational
assistance is prohibited to an otherwise eligible reservist--
(1) For a unit course or courses that are being paid for entirely
or partly by the Armed Forces during any period in which he or she is
on active duty service; or
(2) For a unit course or courses that are being paid for entirely
or partly by the United States under the Government Employees' Training
Act.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3681)
Sec. 21.9695 Overpayments.
(a) Prevention of overpayments. In administering educational
assistance payable under 38 U.S.C. chapter 33, VA will apply the
provisions of Sec. Sec. 21.4008 and 21.4009 to eligible individuals
and, when appropriate, to institutions of higher learning.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3690(b))
(b) Liability for overpayments. (1) An overpayment of educational
assistance paid to an eligible individual constitutes a liability of
that individual unless--
(i) The overpayment was waived as provided in Sec. Sec. 1.957 and
1.962 of this chapter, or
(ii) The overpayment results from an administrative error or an
error in judgment. See Sec. 21.9635(r).
(2) An overpayment of educational assistance paid to the
institution of higher learning on behalf of an eligible individual
constitutes a liability of the individual unless the individual never
attended the term, quarter, or semester certified by the institution of
higher learning. If the individual never attended the term, quarter, or
semester certified by the institution of higher learning, the
institution must return to VA all educational assistance received under
the provisions of 38 U.S.C. chapter 33 on behalf of the individual for
such term, quarter, or semester.
(3) The amount of the overpayment of educational assistance paid to
the eligible individual, or paid to the institution of higher learning
on behalf of the eligible individual, constitutes a liability of the
institution of higher learning if VA determines that the overpayment is
the result of willful or negligent--
(i) False certification by the institution of higher learning; or
(ii) Failure to certify excessive absences from a course,
discontinuance of a course, or interruption of a course by the eligible
individual.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3685)
(iii) In determining whether an overpayment resulting from the
actions listed in paragraphs (b)(3)(i) and (ii) of this section should
be recovered from an institution of higher learning, VA will apply the
provisions of Sec. 21.4009 (except paragraph (a)(1)) to overpayments
of educational assistance under 38 U.S.C. chapter 33.
(4) VA will determine the amount of an overpayment as follows--
[[Page 14692]]
(i) For an individual who does not complete one or more courses in
the certified period of enrollment for which he or she received
payment, and who does not substantiate mitigating circumstances for not
completing such course or courses, VA will establish an overpayment
equal to the amount of educational assistance paid for the course or
courses not completed during that certified period of enrollment.
(ii) For an individual who does not complete one or more courses in
the certified period of enrollment, but who substantiates mitigating
circumstances for not completing such course or courses, VA will
prorate the amount of educational assistance to which he or she is
entitled.
(A) VA will determine the prorated amount of the established
charges by dividing the amount the individual was paid for the course
or courses not completed by the number of days in the certified
enrollment period, and multiplying the result by the number of days
from the beginning date of the enrollment period through the last date
of attendance. The result of this calculation will equal the amount the
individual is due. The difference between the amount of educational
assistance paid and the amount of educational assistance the individual
is due for the course or courses not completed will be established as
an overpayment.
(B) VA will determine the prorated amount of the monthly housing
allowance by determining the amount the individual was entitled to
while enrolled and subtracting that amount from the total amount paid.
The difference between the amount of the monthly housing allowance paid
and the amount of the monthly housing allowance the individual is due
will be established as an overpayment.
(C) Individuals who have substantiated mitigating circumstances
will not be charged an overpayment for the lump sum payment for books,
supplies, equipment, and other educational costs (``book stipend'').
(Authority: 38 U.S.C. 3034(a), 3323, 3685, 5302)
Sec. 21.9700 Yellow Ribbon Program.
(a) Establishment. The ``Yellow Ribbon G.I. Education Enhancement
Program'', known as the ``Yellow Ribbon Program,'' permits an
institution of higher learning (IHL), at the IHL's option, to enter
into an agreement with VA to allow the two parties to provide matching
funds to cover a portion of the outstanding amount of established
charges not covered under 38 U.S.C. chapter 3313(c)(1)(A).
(b) Eligible individuals. This program is only available to
individuals entitled to the 100 percent educational assistance rate
(based on service requirements) as shown in the chart in Sec.
21.9640(a) or to their designated dependents using entitlement
transferred under Sec. 21.9570, who are pursuing training at an
eligible IHL.
(c) Eligible IHLs. This program is only available at IHLs located
in the United States or at a branch of such IHL that is located outside
the United States.
(d) Agreements. VA will enter into an agreement with an eligible
IHL located in the United States seeking to participate in the Yellow
Ribbon Program based on a general agreement format developed by VA in
which the IHL must agree to--
(1) Provide contributions to eligible individuals who apply for
such program at that institution (in a manner prescribed by the
institution) on a first-come-first-served basis, regardless of the rate
at which the individual is pursuing training (i.e., full-time versus
less than full-time), during the academic year;
(2) Provide contributions during the current academic year and all
subsequent academic years in which the IHL participates in the Yellow
Ribbon Program and the student maintains satisfactory progress,
conduct, and attendance according to the regularly prescribed standards
of the institution;
(3) Limit contributions made on behalf of a participant to funds
under the unrestricted control of the IHL (e.g., a scholarship sent
directly to an IHL on behalf of an individual or specific group of
individuals from a third party may not be included in Yellow Ribbon
Program contributions). Funds received directly or indirectly from
Federal sources may not be counted toward contributions;
(4) State the maximum number of individuals for whom contributions
will be made during the academic year;
(5) State the manner (whether by direct grant, scholarship, or
otherwise) contributions will be made under the Yellow Ribbon Program;
(6) State the maximum dollar amount of contributions that may be
provided on behalf of any particular individual during the academic
year regardless of the rate at which the individual is pursuing
training. IHLs may specify different contributions amounts--
(i) Based on student status (i.e. , undergraduate, graduate,
doctoral), or
(ii) For each subelement of the institution (i.e., college or
professional school). The maximum amount specified for each subelement
of the IHL will apply to all programs and disciplines offered under
such subelement.
(7) Provide the maximum amount of contributions payable toward the
unmet established charges to all participating individuals during each
term, quarter, or semester the individual is enrolled if the IHL's
total contribution toward the individual's unmet established charges
for the term, quarter, or semester, do not exceed the maximum dollar
amount payable during the academic year as specified in paragraph
(d)(6) of this section.
(e) Centralized Agreements. IHLs with multiple campuses may enter
into a single Yellow Ribbon Program Agreement if all participating
branches and extensions--
(1) Are listed in the agreement;
(2) Are subject to the authority of the authorizing official
signing the Yellow Ribbon Program Agreement; and
(3) Have a certifying official or other employee who meets the
requirements of Sec. 21.4266(f)(3)(ii) and who has access to the terms
of the Yellow Ribbon Program Agreement.
(f) Matching Contributions. VA will match each dollar provided by
the school on behalf of an individual; however, the combined amount of
contributions under the Yellow Ribbon Program may not exceed the
remaining amount of established charges not covered under 38 U.S.C.
chapter 3313(c)(1)(A).
(g) Outreach. The most current list of colleges and universities
participating in the Yellow Ribbon Program will be available at VA's GI
Bill Web site at http://www.gibill.va.gov. The list will include
specific information on each school's agreement with VA.
(Authority: 38 U.S.C. 3317)
Pursuit of Courses
Sec. 21.9710 Pursuit.
Except for an eligible individual seeking tuition assistance top-up
or reimbursement for taking an approved licensing or certification
test, an individual's educational assistance depends upon his or her
pursuit of a program of education. Verification of this pursuit is
accomplished by various certifications.
(Authority: 38 U.S.C. 3323(c))
Sec. 21.9715 Advance payment certification.
All certifications required by this section shall be in a form
specified by the Secretary and shall contain such information as
specified by the Secretary. An advance payment under this chapter is
only permissible to an individual whose rate of pursuit is greater than
half-time, and who is
[[Page 14693]]
entitled to the monthly housing allowance as provided in Sec.
21.9640(b)(1)(ii) or (b)(2)(ii).
(a) Certification needed before an advance payment can be made. In
order for an individual to receive an advance payment of the monthly
housing allowance, an application or other document must be signed by
the individual or the enrollment certification must be signed by an
authorized official of the institution of higher learning.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(d))
(b) Advance payments. All verifications required by this paragraph
shall be in a form specified by the Secretary and shall contain such
information as specified by the Secretary.
(1) For each eligible individual receiving an advance payment, an
institution of higher learning must--
(i) Verify enrollment for the individual; and
(ii) Verify the delivery of the advance payment check to the
individual.
(2) Once the institution of higher learning has initially verified
the enrollment of the individual, the individual, not the institution
of higher learning, must make subsequent verifications in order to
release further payment for that enrollment as provided in Sec.
21.9730.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(d))
Sec. 21.9720 Certification of enrollment.
Except as stated in Sec. 21.9680, an institution of higher
learning must certify an eligible individual's enrollment before he or
she may receive educational assistance.
(a) Institutions of higher learning must certify most enrollments.
VA does not, as a condition of payment of tuition assistance top-up or
advance payment, require institutions of higher learning to certify the
enrollments of eligible individuals who either are seeking tuition
assistance top-up or, in the cases described in Sec. 21.9715, are
seeking an advance payment. VA does not require organizations or
entities offering a licensing or certification test to certify that the
eligible individual took the test. In all other cases, the institution
of higher learning must certify the eligible individual's enrollment
before he or she may receive educational assistance. This certification
must be in a form specified by the Secretary and contain such
information as specified by the Secretary.
(Authority: 38 U.S.C. 3014(b), 3031, 3034(a), 3323(a), 3482(g),
3680, 3687, 3689, 5101(a))
(b) Length of the enrollment period covered by the enrollment
certification. (1) Institutions of higher learning that offer courses
on a term, quarter, or semester basis will report enrollment for the
term, quarter, semester, ordinary school year, or ordinary school year
plus summer term. If the certification covers two or more terms, the
institution of higher learning will report each term, quarter, or
semester separately.
(2) Institutions of higher learning organized on a year-round basis
that do not offer courses on a term, quarter, or semester basis will
report enrollment for the length of the course. The certification will
include a report of the dates during which the institution of higher
learning closes for any intervals designated in its approval data as
breaks between school years.
(3) When an eligible individual enrolls in a distance learning
program leading to a standard college degree, the institution of higher
learning's certification will include--
(i) The enrollment date; and
(ii) The ending date for the period being certified. If the
institution of higher learning has no prescribed maximum time for
completion, the certification must include an ending date based on the
educational institution's estimate for completion.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3684)
(Approved by the Office of Management and Budget under control number
2900-0073)
Sec. 21.9725 Progress and conduct.
(a) Satisfactory pursuit of program. In order to receive payments
of educational assistance under 38 U.S.C. chapter 33 for pursuit of a
program of education, an individual must maintain satisfactory
progress. VA will discontinue payments of educational assistance if the
individual does not maintain satisfactory progress. Progress is
unsatisfactory if the individual does not satisfactorily progress
according to the regularly prescribed standards of the institution of
higher learning he or she is attending.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3474)
(b) Satisfactory conduct. In order to receive educational
assistance for pursuit of a program of education, an individual must
maintain satisfactory conduct according to the regularly prescribed
standards and practices of the institution of higher learning in which
he or she is enrolled. If the individual will no longer be retained as
a student or will not be readmitted as a student by the institution of
higher learning in which he or she is enrolled, VA will discontinue
educational assistance, unless further development establishes that the
institution of higher learning's action is wrongfully retaliatory in
nature.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3474)
(c) Satisfactory attendance. In order to receive educational
assistance for pursuit of a program of education, an individual must
maintain satisfactory attendance. VA will discontinue educational
assistance if the individual does not maintain satisfactory attendance.
Attendance is unsatisfactory if the individual does not attend
according to the regularly prescribed standards of the institution of
higher learning in which he or she is enrolled.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3474)
(d) Reentrance after discontinuance. (1) An eligible individual may
be reentered following discontinuance because of unsatisfactory
attendance, conduct, or progress when either:
(i) The individual resumes enrollment at the same institution of
higher learning in the same program of education and the institution of
higher learning has both approved the individual's reenrollment and
certified it to VA; or
(ii) VA determines that--
(A) The cause of the unsatisfactory attendance, conduct or progress
has been removed, and
(B) The program that the individual now proposes to pursue is
suitable to his or her aptitudes, interests, and abilities.
(2) Reentrance may be for the same program, a revised program, or
an entirely different program depending on the cause of the
discontinuance and the removal of that cause.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3474)
Sec. 21.9735 Other required reports.
VA will apply the provisions of Sec. 21.7156 to individuals and
institutions of higher learning under 38 U.S.C. chapter 33 as those
provisions are applied to veterans and educational institutions under
38 U.S.C. chapter 30.
(Authority: 38 U.S.C. 3034(a), 3323(a))
Sec. 21.9740 False, late, or missing reports.
(a) Eligible individual. Payments may not be based on false or
misleading statements, claims or reports. VA will apply the provisions
of Sec. Sec. 21.4006 and 21.4007 to any individual who submits false
or misleading claims, statements, or reports in connection with
benefits payable under 38 U.S.C. chapter 33 in the same manner as they
are applied to people who make similar false or
[[Page 14694]]
misleading claims for benefits payable under 38 U.S.C. chapter 36.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680, 3690, 6103)
(b) Institution of higher learning. (1) VA may hold an institution
of higher learning liable for overpayments that result from the
institution of higher learning's willful or negligent failure to report
excessive absences from a course, discontinuance of a course, or
interruption of a course by an individual or from willful or negligent
false certification by the institution of higher learning. See Sec.
21.9695(b).
(2) If an institution of higher learning willfully and knowingly
submits a false report or certification, VA may disapprove that
institution of higher learning's programs of education for further
enrollments and may discontinue educational assistance to eligible
individuals already enrolled. In doing so, VA will apply Sec. Sec.
21.4210 through 21.4216.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3690)
Sec. 21.9745 Reporting fee.
In determining the amount of the reporting fee payable to
institutions of higher learning for furnishing required reports, VA
will apply the provisions of Sec. 21.4206 in the same manner as they
are applied in the administration of 38 U.S.C. chapter 36.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3684)
Course Assessment
Sec. 21.9750 Course measurement.
VA will calculate an individual's rate of pursuit of an approved
program of education during the individual's period of enrollment in
accordance with this section. For the purpose of this chapter, VA will
consider any rate of pursuit higher than 50 percent to be more than
one-half time training.
(a) Measurement of courses reported in credit hours. If the courses
are measured in credit hours, then the number of credit hours the
individual is taking in a term, quarter, or semester will be divided by
the minimum number of credit hours considered to be full-time pursuit
in a term, quarter, or semester at the institution of higher learning
as provided in paragraph (c) of this section. The resulting percentage
will be the individual's rate of pursuit.
(b) Measurement of courses reported in clock hours. If the courses
are measured in clock hours, VA will--
(1) Convert the clock hours to equivalent credit hours by--
(i) Adding the total number of clock hours pursued during the term,
quarter or semester;
(ii) Dividing the sum of paragraph (b)(1)(i) of this section by the
total number of weeks in the term; and
(iii) Multiplying the result of paragraph (b)(1)(ii) of this
section rounded to the nearest hundredth by--
(A) If the institution of higher learning measures courses using
both credit and clock hours, the decimal determined by dividing the
number of credit hours considered full-time at the institution by the
number of clock hours considered full-time at the institution.
(B) If the institution of higher learning only measures courses
using clock hours, the decimal determined by dividing 14 credit hours
by the number of clock hours considered full-time at the institution.
(2) Divide the result of paragraph (b)(1) rounded to the nearest
hundredth by the minimum number of credit hours considered to be full-
time pursuit in a term, quarter, or semester as provided in paragraph
(c) of this section. The resulting percentage will be the individual's
rate of pursuit.
(c) Fourteen credit hours are full-time unless the institution of
higher learning certifies that all undergraduate students enrolled for
13 credit hours, or for 12 credit hours, are charged full-time tuition
or are considered full-time for other administrative purposes.
(d) High school courses. If an individual using transferred
entitlement is eligible for pursuit of a secondary school diploma or
equivalency certificate, VA will determine the rate of pursuit in
accordance with this paragraph. For individuals pursuing high school
courses measured in--
(1) Credit hours, VA will use the formula in paragraph (a) of this
section.
(2) Clock hours, VA will use the formula in paragraph (b) of this
section.
(3) Units, VA will convert the units to credit hours as follows--
(i) Divide the total number of units required for the program of
education by 4 (the number of ordinary school years generally required
for completion);
(ii) Round the result of paragraph (d)(3)(i) of this section to the
nearest whole number.
(iii) Multiply the result of paragraph (d)(3)(ii) of this section
by:
(A) 1.0 to determine the number of units required for a rate of
pursuit equal to 100 percent. This number is equivalent to 14 credit
hours;
(B) .75 to determine the number of units required for a rate of
pursuit equal to 75 percent. An individual will be considered to be
enrolled in 10.5 credit hours for any number of units equal to or
greater than the number determined in this paragraph but less than the
number determined in paragraph (d)(3)(iii)(A) of this section;
(C) .50 to determine the number of units required for a rate of
pursuit equal to 50 percent. An individual will be considered to be
enrolled in 7 credit hours for any number of units equal to or greater
than the number determined in this paragraph but less than the number
determined in paragraph (d)(3)(iii)(B) of this section;
(D) .25 to determine the number of units required for a rate of
pursuit equal to 25 percent. An individual will be considered to be
enrolled in 3.5 credit hours for any number of units up to the number
determined in paragraph (d)(3)(iii)(C) of this section.
(Authority: 38 U.S.C. 3319(h))
Approval of Programs of Education
Sec. 21.9765 Program of education approval.
VA may provide educational assistance for pursuit of a program of
education offered by an institution of higher learning if that program
of education is approved under 38 U.S.C. chapter 30 in accordance with
Sec. Sec. 21.7220 and 21.7222.
(Authority: 38 U.S.C. 3034(a), 3313(b), 3323(a))
Administrative
Sec. 21.9770 Administrative.
In administering chapter 33, VA will apply the sections noted in
paragraphs (a) through (f) of this section. For the purpose of
application, the term ``veteran'' as used in these sections is deemed
to mean ``an eligible individual under 38 U.S.C. chapter 33,'' and the
term ``38 U.S.C chapter 30'' as used in these sections is deemed to
mean ``38 U.S.C. chapter 33''.
(a) Section 21.7301--Delegations of authority;
(b) Section 21.7302--Finality of decisions;
(c) Section 21.7303--Revision of decisions;
(d) Section 21.7305--Conflicting interests;
(e) Section 21.7307--Examination of records; and
(f) Section 21.7310--Civil rights.
(Authority: 38 U.S.C. 511, 512(a), 3034(a), 3323(a), 3690, 3696)
195 [FR Doc. E9-7052 Filed 3-30-09; 8:45 am]
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