Rule2024-29907
Post-9/11 Improvements, Fry Scholarship, and Interval Payments Amendments
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 16, 2025
Effective
March 17, 2025
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is amending its regulations that govern VA's administration of educational assistance programs to implement the provisions of the Post-9/11 Veterans Educational Assistance Improvements Act of 2010, which modified the manner in which payments of educational assistance are determined and expanded the types of programs students may pursue under the Post-9/11 GI Bill; section 1002 of the Supplemental Appropriations Act, 2009, which authorized the "Marine Gunnery Sergeant John David Fry Scholarship;" and a select number of provisions of the Harry W. Colmery Veterans Educational Assistance Act of 2017.
Full Text
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<title>Federal Register, Volume 90 Issue 10 (Thursday, January 16, 2025)</title>
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[Federal Register Volume 90, Number 10 (Thursday, January 16, 2025)]
[Rules and Regulations]
[Pages 5324-5358]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29907]
[[Page 5323]]
Vol. 90
Thursday,
No. 10
January 16, 2025
Part IX
Department of Veterans Affairs
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38 CFR Part 21
Post-9/11 Improvements, Fry Scholarship, and Interval Payments
Amendments; Final Rule
Federal Register / Vol. 90 , No. 10 / Thursday, January 16, 2025 /
Rules and Regulations
[[Page 5324]]
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AQ88
Post-9/11 Improvements, Fry Scholarship, and Interval Payments
Amendments
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
regulations that govern VA's administration of educational assistance
programs to implement the provisions of the Post-9/11 Veterans
Educational Assistance Improvements Act of 2010, which modified the
manner in which payments of educational assistance are determined and
expanded the types of programs students may pursue under the Post-9/11
GI Bill; section 1002 of the Supplemental Appropriations Act, 2009,
which authorized the ``Marine Gunnery Sergeant John David Fry
Scholarship;'' and a select number of provisions of the Harry W.
Colmery Veterans Educational Assistance Act of 2017.
DATES: This rule is effective March 17, 2025.
FOR FURTHER INFORMATION CONTACT: Thomas Alphonso, Assistant Director,
Policy and Procedures, Education Service, Department of Veterans
Affairs, Veterans Benefits Administration (22), 810 Vermont Avenue NW,
Washington, DC 20420. Telephone: (202) 461-9800. (This is not a toll-
free telephone number.)
SUPPLEMENTARY INFORMATION: Under chapter 5 of title 38, United States
Code (U.S.C.), the Secretary has the authority to prescribe rules and
regulations which are appropriate and necessary to carry out the laws
administered by VA. Accordingly, on May 24, 2023, VA published a
proposed rule at 88 FR 33672 to amend its regulations to implement
section 1002 of the Supplemental Appropriations Act, 2009 (Pub. L. 111-
32), which amended 38 U.S.C. chapter 33 to allow surviving children of
active duty Servicemembers who died on or after September 11, 2001, to
receive educational assistance under the Post-9/11 GI Bill (chapter
33); the Post-9/11 Veterans Educational Assistance Improvements Act of
2010 (Pub. L. 111-377), which amended the Post-9/11 GI Bill; six
sections of the Harry W. Colmery Veterans Educational Assistance Act of
2017, or Forever GI Bill (Pub. L. 115-48); and a policy change to
address how VA manages overpayments and discontinuance dates. VA
provided a 60-day comment period, which ended on July 24, 2023, and
received six comments on the proposed amendments. The comments are
addressed below.
Eligibility for Post-9/11 GI Bill Benefits and Time Limit for Transfer
of Entitlement
One commenter expressed the belief that all veterans--no matter the
length of their service--should be entitled to Post-9/11 GI Bill
benefits if they were not discharged early for disciplinary reasons.
The commenter stated that individuals who served honorably but with
less time in service than others are not afforded the same entitlement.
The commenter also indicated that the rulemaking should expand the
period individuals can transfer entitlement to their children.
Requirements for payment of benefits are explicitly set by statute
in 38 U.S.C. 3311 and 3313. Payment of educational assistance is based
on the length of an individual's service as prescribed in sections
3311(b) and 3313(c). Generally, the greater the length of service, the
greater the payment. Additionally, the time period for transferring
benefits is explicitly set by statute in 38 U.S.C. 3319. Under section
3319(f) an individual may transfer entitlement only while serving in
the Armed Forces. VA does not have authority to change statutory
requirements through regulatory action.
Accordingly, VA makes no changes to the rule based on these
comments.
Expansion of Eligibility for Post-9/11 GI Bill Benefits for Individuals
Two commenters recommended that the final rulemaking include
revisions to allow more individuals the opportunity to obtain Post-9/11
GI Bill educational assistance benefits. One commenter suggested that
VA should make the process to obtain these benefits easier and another
suggested that individuals should be eligible for Post-9/11 GI Bill
benefits regardless of when they attend school. This rulemaking
implements the Post-9/11 Veterans Educational Assistance Improvements
Act of 2010, which among other things, greatly expanded the types of
programs students may pursue under the Post-9/11 GI Bill and
eligibility for these programs. The provisions also refine and enhance
VA's administration of Post-9/11 GI Bill educational assistance,
improving the efficiency to deliver these benefits to claimants.
Implementation of these provisions, as reflected in this rulemaking,
will make provision of benefits easier and more efficient.
Furthermore, under current law, individuals who were discharged on
or after January 1, 2013, may use Post 9/11 GI Bill benefits to attend
school any time after discharge. Individuals who were discharged prior
to that date have 15 years from the date of discharge to use their
benefits. 38 U.S.C. 3321(a). We have been implementing this law and
will incorporate it into our regulations in a future rulemaking.
As such, VA makes no changes to this rule based on these comments.
Enhancement of the Definition of ``In-Residence Course'' and of an
Attendance and Participation Requirement
One commenter suggested strengthening the definition of what
constitutes an ``on-site course,'' stating that educational
institutions offering ``hybrid'' programs with only one residential
class are actually distance-learning courses and that individuals
enrolled in these hybrid programs should not be eligible for the
payment of a full housing allowance when the majority of classes would
be online and not ``on-site.'' (The commenter used the term ``on-site
course'' to refer to what VA's regulations define as an ``in-residence
course.'')
According to 38 U.S.C. 3313(c)(1)(B)(i)(I), an individual who
``pursues a [degree] program of education on more than a half-time
basis'' is entitled to a monthly housing allowance based on ``the
campus of the institution of where the individual physically
participates in a majority of classes.'' However, 38 U.S.C.
3313(c)(1)(B)(iii) expressly authorizes payment of a monthly housing
allowance at half the national average of the monthly amount of the
basic allowance for housing payable under 37 U.S.C. 403 for a member
with dependents in pay grade E-5 (which we will refer to as ``the
national average'') for ``an individual pursuing a [degree] program of
education solely through distance learning on more than a half-time
basis.'' (Emphasis added.) Similarly, for an individual pursuing a non-
degree program of education on a more than half-time basis, 38 U.S.C.
3313(g)(3)(A)(ii)(I)(aa) provides a monthly housing allowance based on
``the campus of the institution of where the individual physically
participates in a majority of classes.'' But 38 U.S.C.
3313(g)(3)(A)(ii)(I)(bb) authorizes payment of a monthly housing
allowance at half that amount for ``an individual pursuing a [non-
degree] program of education through distance
[[Page 5325]]
learning'' on more than a half-time basis without specifically
requiring that pursuit be ``solely through distance learning.''
(Emphasis added.)
VA faces several challenges in interpreting these statutory
provisions. First, aspects of the statutory language at 38 U.S.C.
3313(g)(3)(A)(ii)(I)(bb) are unworkable as literally drafted. That
provision calculates the monthly housing allowance for individuals
pursuing non-degree distance-learning programs by reference to 38
U.S.C. 3313(g)(3)(A)(ii)(I)(aa), which is based on a locality (``campus
of the institution of where the individual physically participates in a
majority of classes''). However, it would be impossible to apply 38
U.S.C. 3313(g)(3)(A)(ii)(I)(bb) according to its literal terms because,
for students in distance learning programs, there is no campus where
the individual ``physically participates in a majority of classes.''
Second, although 38 U.S.C. 3313(c)(1)(B)(iii) refers to ``an
individual pursuing a program of education solely through distance
learning'' (emphasis added) and 38 U.S.C. 3313(g)(3)(A)(ii)(I)(bb)
refers to ``an individual pursuing a program of education through
distance learning'' (omitting the word ``solely''), VA does not believe
that Congress intended to attribute any significance to this omission
because a strictly literal reading would have absurd and inequitable
results. With respect to the specific scenario raised by the commenter,
VA is concerned that it would be absurd and inequitable to pay the full
housing allowance for an individual who is taking one on-site course as
part of a degree program (and thus not ``solely'' through distance
learning) but to pay only half the housing allowance for an individual
who is taking one on-site course as part of a non-degree program (and
thus also not ``solely'' through distance learning). To avoid this
absurd and inequitable result, we have interpreted the language in
section 3313(g)(3)(A)(ii)(I)(bb) as referring to an individual pursuing
a non-degree program solely through distance learning, which is still
consistent with the plain language of the statute, which refers to ``an
individual pursuing a [non-degree] program of education through
distance learning.''
Taking into account both of these interpretive challenges, the VA
has concluded that the best reading of the statute is reflected in
Sec. 21.9641(c)(4), which provides that ``[a]fter September 30, 2011,
an individual . . . , who is pursuing a program of education solely via
distance learning at a rate of pursuit of greater than 50 percent, can
receive a monthly housing allowance . . . equal to 50 percent of the
[national average].'' The interpretation reflected in this regulatory
language best avoids absurd and illogically inequitable results. See
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)
(``interpretations of a statute which would produce absurd results are
to be avoided if alterative interpretations consistent with the
legislative purpose are available''). Consequently, all classes an
individual takes must be online or otherwise characterized as distance
learning for the individual to receive a monthly housing allowance at
the rate of half the national average; otherwise, the individual would
receive the full monthly housing allowance. In other words, if an
individual takes only one ``on-site'' class, that individual could
still be eligible for the full monthly housing allowance. Because this
regulation reflects the best reading of the statute, it would be beyond
our authority to pay less than the full monthly housing allowance for
programs that include as little as one online course as it would
require statutory rather than regulatory action.
We recognize that Sec. 21.9641(c)(4) provides for a monthly
housing allowance based on the national average, regardless of whether
an individual is pursuing a degree or non-degree program. As noted
above, Congress provided elsewhere in section 3313 for payment of the
monthly housing allowance for distance learning based upon the national
average. Thus, we are calculating the rate for all distance-learning
programs in a manner that is administratively feasible and consistent
with the statutory scheme. Also, we plan to define ``resident
learning'' in a separate rulemaking. As such, VA makes no change based
on this comment.
As for the commenter's suggestion that the school attendance and
participation requirements be enhanced, this rule makes changes that
would ensure that an educational institution is not unjustly enriched
by receiving payments when a student fails to attend or participate in
class for which he or she is certified. Under current Sec.
21.9695(b)(3), an educational institution is liable for overpayments
when an overpayment is the result of willful or negligent false
certification by the educational institution, or willful or negligent
failure to certify excessive absences from a course, discontinuance of
a course, or interruption of a course by the eligible individual.
Revised Sec. 21.9695(b)(3) will add that an educational institution is
also liable for an overpayment of educational assistance paid on behalf
of an individual when a student never attends classes for which he or
she was certified (regardless of the reason for non-attendance), or
completely withdraws from all courses on or before the first day of the
certified period of enrollment. These added provisions will help ensure
VA is not paying for education that is not provided. Thus, an
``enhanced attendance and participation requirement'' is not necessary.
Consequently, VA makes no changes based on this comment.
Personal Claim
One commenter referenced a personal claim and proceedings unrelated
to this rulemaking. This comment is outside of the scope of this
rulemaking, and VA makes no changes based on this comment.
Terminology Correction
A commenter noted that, in proposed Sec. 21.9676(d), the usage of
the term ``veteran-nonveteran'' is not accurate for purposes of the 85
percent requirement in 38 CFR 21.4201(a) or 38 U.S.C. 3680A(d)(1),
otherwise known as the ``85/15 rule.'' The commenter pointed out that
the 85/15 rule measures the number of students using VA or
institutional funds versus those students who do not receive assistance
from VA or the institution; and, therefore, the correct terminology is
``supported students versus nonsupported students'' rather than
``veteran-nonveteran.'' VA concurs with this comment and replaces the
term ``veteran-nonveteran'' with ``supported students versus
nonsupported students'' in Sec. 21.9675(d)(5) and includes the term
``supported students versus nonsupported students'' in new Sec.
21.9676(d)(5).
Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the 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 effects, and other advantages;
distributive impacts; and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and
[[Page 5326]]
definitions governing contemporary regulatory review established in
Executive Order 12866 and Executive Order 13563. The Office of
Information and Regulatory Affairs has determined that this rulemaking
is a significant regulatory action under Executive Order 12866, section
3(f)(1), as amended by Executive Order 14094. The Regulatory Impact
Analysis associated with this rulemaking can be found as a supporting
document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
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, such as testing organizations or educational
institutions that qualify as ``small'' using the most recent official
revenue standards, the economic impact on them is minor. Educational
institutions of all sizes voluntarily apply for approval to receive GI
Bill benefits likely because tuition and fees revenue from student
Veterans consists of guaranteed government funding (from U.S. taxpayer
funds). However, if the cost for smaller educational institutions
applying for GI Bill approval and meeting the requirements for
continued approval were substantial, participating in the GI Bill
program would not be financially viable. Because the policies
memorialized in this final rule have been in effect for a long period
of time and small institutions continue to seek and maintain GI Bill
approval, likely profiting from this status, we conclude that the rules
and policies in this final regulatory action do not significantly
impact these entities. Furthermore, realizing that there are costs to
educational institutions associated with their participation in GI Bill
programs, Congress enacted Public Law 115-48, sec. 304, which increased
the reporting fee payable to testing organizations and educational
institutions for carrying out reporting requirements, as provided in 38
U.S.C. 3684(c)(2), consequently further minimizing the economic impact
on smaller educational and testing organizations. On this basis, the
Secretary 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. Therefore, under 5 U.S.C.
605(b), the initial and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do not apply.
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.
Paperwork Reduction Act of 1995
This final rule includes provisions constituting a revision to
current/valid collections of information under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3521). The revisions also require approval
by the Office of Management and Budget (OMB). Accordingly, under 44
U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to
OMB for review and approval. VA received no comments on the revised
collections of information.
OMB has received the revised collections of information. OMB's
receipt of the revised collections of information is not an approval to
conduct or sponsor an information collection under the Paperwork
Reduction Act of 1995. In accordance with 5 CFR part 1320, the revised
collections of information associated with this rulemaking are not
approved by OMB at this time. OMB's approval of the revised collections
of information will occur within 30 days after the Final rulemaking
publishes. If OMB does not approve the new collections of information
as requested, VA will immediately remove the provision containing the
related new collection of information or take such other action as is
directed by OMB.
The collections of information associated with this rulemaking are
described immediately following this paragraph, under its respective
title.
Title: Application for Approval of an Institution of Higher
Learning Facility; Institution of Higher Learning--Program Submission
List; Application for Approval of Org Other Than Inst of Higher
Learning.
OMB Control No: 2900-0932.
CFR Provision: 38 CFR 21.4259(b).
<bullet> Summary of collection of information: Public Law 117-333
section 11, enacted January 5, 2023, amended 38 U.S.C. 3672, ``Approval
of Courses''. This law required VA to create and design two new uniform
applications and any accompanying documentation for approval of courses
of educational programs, and for those forms to be available for use by
October 1, 2023. These forms are completed by educational institutions,
training establishments, and other organizations seeking approval of
one or more programs of study for the payment of VA education benefits
rendered to eligible beneficiaries. The institutions submit the forms
to the State Approving Agencies (SAAs) of jurisdiction for their
review. By law, each SAA has the authority to make such approvals in
their respective state. VA contracts with SAAs in each state for this
approval assessment work. There is some duplication of collection
information found in the discontinued OMB 2900-0051 ``State Approving
Agency Reports and Notices'' as required by 38 CFR 21.4154, 4250(b),
21.4258 and 21.4259. However, there wasn't an official uniform
application available for use by all stakeholders; educational
institutions, training establishments and SAAs to ensure the
information collected was the same based on the type of educational
institution seeking program and course approval.
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to ensure all
entities have access to the same collection of information, thus making
the approval assessment and enrollment certification process more
efficient.
<bullet> Description of likely respondents: SAAs, educational
institutions, and training establishments.
<bullet> Estimated total number of respondents: 8,800.
<bullet> Estimated total number of responses: 8,800.
<bullet> Estimated frequency of responses: Once.
<bullet> Estimated average burden per response: 8 total hours.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
70,400 burden hours. Using the annual number of responses 8,800, VA
estimates a total annual reporting and recordkeeping burden of 70,400
for respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $2,216,192 (70,400 respondents x
$31.48 *)
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Title: Dependents' Application for VA Education Benefits.
[[Page 5327]]
OMB Control No: 2900-0098.
CFR Provision: 38 CFR 21.9520(d), 21.9530(f), 21.9691(e),
21.9691(h).
<bullet> Summary of collection of information: The new collection
of information in proposed 38 CFR 21.9520(d), 21.9530(f), 21.9691(e),
and 21.9691(h) would require certain children to submit an application
to establish eligibility for the Fry Scholarship, and certain
individuals who must elect the Fry Scholarship or either Dependency and
Indemnity Compensation (DIC) or Survivors' and Dependents' Educational
Assistance (DEA) to submit an application to establish eligibility for
the elected benefit.
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used by VA to determine an
individual's eligibility for the Fry scholarship, DIC, or DEA.
<bullet> Description of likely respondents: Individuals.
<bullet> Estimated total number of respondents: 83,972.
<bullet> Estimated frequency of responses: Once.
<bullet> Estimated average burden per response: 45 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
48,983 burden hours. Using the annual number of responses 83,972, VA
estimates a total annual reporting and recordkeeping burden of 48,983
hours for respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $1,982,578.92 (83,972 respondents per
year x 45 minutes per application)/60 x $31.48 *).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Title: Application for Reimbursement of a National Exam Fee.
OMB Control No: 2900-0706.
CFR Provision: 38 CFR 21.9626(a)(3), 21.9668, 21.9681(b)(5).
<bullet> Summary of collection of information: The new collection
of information in proposed 38 CFR 21.9626(a)(3), 21.9668, 21.9681(b)(5)
would require individuals to submit a claim and supporting
documentation to be reimbursed for the cost of a national test for
admission or a national test for credit.
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used by VA to determine if
an individual is eligible to receive reimbursement for a claimed
national test, and to determine the amount of the reimbursement.
<bullet> Description of likely respondents: Individuals.
<bullet> Estimated total number of respondents: 310.
<bullet> Estimated frequency of responses: Once.
<bullet> Estimated average burden per response: 15 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
78 burden hours. Using the annual number of responses 310, VA estimates
a total annual reporting and recordkeeping burden of 78 hours for
respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $2,440 (310 respondents per year x 15
minutes per application x $31.48 *).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Title: Application for Reimbursement of Licensing and Certification
Fees.
OMB Control No: 2900-0695.
CFR Provision: 38 CFR 21.9667.
<bullet> Summary of collection of information: The new collection
of information in proposed 38 CFR 21.9667 would require individuals to
submit a claim to be reimbursed for the cost of licensing and
certification tests.
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used by VA to determine if
an individual is eligible to receive reimbursement for a licensing and
certification test, and to determine the amount of the reimbursement.
<bullet> Description of likely respondents: Individuals.
<bullet> Estimated total number of respondents: 4,210.
<bullet> Estimated total number of responses: 12,630.
<bullet> Estimated frequency of responses: On occasion. (3
responses per year).
<bullet> Estimated average burden per response: 15 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
3,158 burden hours. Using the annual number of responses 12,630, VA
estimates a total annual reporting and recordkeeping burden of 3,158
hours for respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $99,398 (12,630 responses per year x
15 minutes per application x $31.48 *).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Title: Monthly Certification for Flight Training.
OMB Control No: 2900-0162.
CFR Provision: 38 CFR 21.9641(b)(5).
<bullet> Summary of collection of information: The new collection
of information in proposed 38 CFR 21.9641(b)(5) would require students
pursuing flight training programs at non-IHLs to submit monthly
certifications to receive payment for such pursuit.
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used to determine whether
the individual's educational assistance should be continued without
change, amended, or terminated, and to determine the effective date of
such continuance, amendment, or termination.
<bullet> Description of likely respondents: Individuals.
<bullet> Estimated total number of respondents: 3,900.
<bullet> Estimated total number of responses: 23,400.
<bullet> Estimated frequency of responses: On occasion. (6
responses annually).
<bullet> Estimated average burden per response: 30 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
11,700 burden hours. Using the annual number of responses 23,400, VA
estimates a total annual reporting and recordkeeping burden of 11,700
hours for respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $368,316 (23,400 responses per year x
30 minutes per application x $31.48 *).
* To estimate the total information collection burden cost, VA used
the
[[Page 5328]]
Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Title: Certification of Lessons Completed.
OMB Control No: 2900-0353.
CFR Provision: 38 CFR 21.9641(b)(6).
<bullet> Summary of collection of information: The new collection
of information in proposed 38 CFR 21.9641(b)(6) would require students
pursuing correspondence training programs at non-IHLs to submit
certification of lessons completed to receive payment for such pursuit.
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits, which in the case of correspondence training, are based on
the number of lessons completed. The information collected will be used
by VA to determine the amount of educational assistance to be paid.
<bullet> Description of likely respondents: Individuals.
<bullet> Estimated total number of respondents: 154.
<bullet> Estimated total number of responses: 616.
<bullet> Estimated frequency of responses: Quarterly.
<bullet> Estimated average burden per response: 10 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
103 burden hours. Using the annual number of responses 616, VA
estimates a total annual reporting and recordkeeping burden of 103
hours for respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $3,232 (616 responses per year x 10
minutes per application x $31.48 *).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Title: Certification of Affirmation of Enrollment Agreement
Correspondence Course.
OMB Control No: 2900-0576.
CFR Provision: 38 CFR 21.9641(b)(6).
<bullet> Summary of collection of information: The new collection
of information in proposed 38 CFR 21.9641(b)(6) would require students
pursuing correspondence training programs at non-IHLs to submit an
affirmation of enrollment in a correspondence course to receive payment
for such pursuit.
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used by VA to ensure an
individual is enrolled in a correspondence course following the signing
of a contract.
<bullet> Description of likely respondents: Individuals.
<bullet> Estimated total number of respondents: 75.
<bullet> Estimated frequency of responses: Annually.
<bullet> Estimated average burden per response: 3 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
4 burden hours. Using the annual number of responses 75 VA estimates a
total annual reporting and recordkeeping burden of 4 hours for
respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $118 (75 responses per year x 3
minutes per application x $31.48 *).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Title: VA Enrollment Certification.
OMB Control No: 2900-0073.
CFR Provision: 38 CFR 21.9681(b)(1) and 21.9721.
<bullet> Summary of collection of information: The new collection
of information in proposed 38 CFR 21.9681(b)(1) and 21.9721 would
require an educational institution to certify a student's enrollment in
an approved program of education (other than a student seeking
reimbursement for taking an approved licensure or certification test or
a national test).
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to ensure a
student is properly enrolled in an approved program of education before
making any payments of educational assistance benefits. VA will use the
information collected on VA Form 22-1999 to determine the amount of
educational benefits payable to an individual during a period of
enrollment or training.
<bullet> Description of likely respondents: Individuals.
<bullet> Estimated total number of respondents: 1,266,616.
<bullet> Estimated total number of responses: 3,799,847.
<bullet> Estimated frequency of responses: On occasion. (3
responses per year).
<bullet> Estimated average burden per response: 10 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
633,307 burden hours. Using the annual number of responses 3,799,847,
VA estimates a total annual reporting and recordkeeping burden of
633,307 hours for respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $19,936,530 (3,799,847 responses per
year x 10 minutes per application x $31.48 *).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Title: Yellow Ribbon Program Agreement.
OMB Control No: 2900-0718.
CFR Provision: 38 CFR 21.9700(b).
<bullet> Summary of collection of information: The new collection
of information in proposed 38 CFR 21.9700(b) would include individuals
who establish eligibility for the Fry Scholarship to receive benefits
under the Yellow Ribbon Program.
<bullet> Description of need for information and proposed use of
information: The collection of information is necessary to provide IHLs
with the opportunity to indicate their participation in the Yellow
Ribbon Program and to allow IHLs to indicate the maximum number of
students that will receive benefits under the program. VA will use the
information collected to determine which IHLs will be participating in
the Yellow Ribbon Program, the maximum number of individuals for whom
the IHL will make contributions in any given academic year, and the
maximum dollar amount of outstanding established charges that will be
waived for each student based on student status (i.e., undergraduate,
graduate, doctoral) or sub-element (i.e., college or professional
school).
<bullet> Description of likely respondents: Institutions of higher
learning.
<bullet> Estimated total number of respondents: 5,600.
<bullet> Estimated frequency of responses: Once.
<bullet> Estimated average burden per response: 14 hours.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA
[[Page 5329]]
estimates the total annual reporting and recordkeeping burden to be
78,400 burden hours. Using the annual number of responses 5,600, VA
estimates a total annual reporting and recordkeeping burden of 78,400
hours for respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $2,468,032 (5,600 responses per year x
14 hours per application x $31.48 *).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $31.48 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
Severability
The purpose of this section is to clarify the agencies' intent with
respect to the severability of provisions of this final rule. Each
provision that the agency is promulgating is capable of operating
independently. If any provision of this rule is determined by judicial
review or operation of law to be invalid, that partial invalidation
will not render the remainder of this rule invalid. Likewise, if the
application of any portion of this rule to a particular circumstance is
determined to be invalid, the agencies intend that the rule remain
applicable to all other circumstances.
Congressional Review Act
Under the Congressional Review Act, this regulatory action may
result in ``an annual effect on the economy of $100,000,000 or more,''
5 U.S.C. 804(2), and so is subject to the 60-day delay in effective
date under 5 U.S.C. 801(a)(3). In accordance with 5 U.S.C. 801(a)(1),
VA will submit to the Comptroller General and to Congress a copy of
this Regulation and the Regulatory Impact Analysis (RIA) associated
with the Regulation.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights,
Claims, Colleges and universities, Conflict of interests, Defense
Department, 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, Veteran readiness.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, signed and approved
this document on December 12, 2024, and authorized the undersigned to
sign and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Luvenia Potts,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 21 as follows:
PART 21--VETERAN READINESS AND EMPLOYMENT AND EDUCATION
Subpart C--Survivors' and Dependents' Educational Assistance Under
38 U.S.C. Chapter 35
0
1. The authority citation for subpart C continues to read as follows:
Authority: 38 U.S.C. 501(a), 512, 3500-3566, and as noted in
specific sections.
0
2. Amend Sec. 21.3022 by:
0
a. In paragraph (i), removing ``and'';
0
b. In paragraph (j), removing the period and adding ``; and'' in its
place; and
0
c. Adding paragraph (k).
The addition reads as follows:
Sec. 21.3022 Nonduplication--programs administered by VA.
* * * * *
(k) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
* * * * *
Subpart D--Administration of Educational Assistance Programs
0
3. The authority citation for subpart D continues 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.
Sec. 21.4002 [Amended]
0
4. Amend Sec. 21.4002, in paragraph (a), by removing ``(See Sec. Sec.
19.192 and 19.183 of this chapter.)''.
0
5. Amend Sec. 21.4022 by:
0
a. In paragraph (d), adding a semicolon at the end of the paragraph;
0
b. In paragraph (k), removing the period and adding ``; and'' in its
place; and
0
c. Adding paragraph (l).
The addition reads as follows:
Sec. 21.4022 Nonduplication--programs administered by VA.
* * * * *
(l) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
* * * * *
0
6. Amend Sec. 21.4138 by:
0
a. Removing the parenthetical authority citation at the end of
paragraphs (a), (b), and (e);
0
b. Revising the heading for paragraph (f) introductory text;
0
c. Removing the parenthetical authority citation at the end of
paragraphs (f)(4)(ii), (f)(5)(ii), and (f)(6)(ii)(B); and
0
d. Adding paragraphs (g) and (h).
The revision and additions read as follows:
Sec. 21.4138 Certifications and release of payments.
* * * * *
(f) Payment for intervals and temporary school closings before
August 1, 2011. * * *
* * * * *
(g) Payment for temporary school closings after July 31, 2011. (1)
Subject to paragraph (g)(2) of this section, VA may authorize payment
for a temporary school closing that occurs during a certified period of
enrollment if the closing is due to an emergency (including a strike)
or established policy based on an Executive order of the President.
(2) An individual may not receive more than 4 weeks of payment for
temporary school closings in any 12-month period.
(3) The decision as to whether a school closing is permanent or
temporary will be made by--
(i) The director of the VA regional processing office of
jurisdiction; or
(ii) The Director, Education Service, if the emergency or
established policy based on an Executive Order of the President results
in the closing of schools in the jurisdiction of more than one VA
regional processing office.
(4) A school that disagrees with a decision made under paragraph
(g)(3) 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, or the Director,
Education Service, whoever made the decision under paragraph (g)(3) of
this section, 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
[[Page 5330]]
the initial decision based on an administrative review is final. The
review will be conducted by the--
(i) Director, Education Service, if the director of the VA regional
processing office of jurisdiction made the initial decision to continue
or discontinue payments.
(ii) Under Secretary for Benefits, if the Director, Education
Service, made the initial decision to continue or discontinue payments.
(h) Authority. (1) Paragraph (a) of this section issued under the
authority of 10 U.S.C. 16136(b); 38 U.S.C. 3034, 3680(d);
(2) Paragraph (b) of this section issued under the authority of 38
U.S.C. 3034(c), 3680(f);
(3) Paragraph (e) of this section issued under the authority of 38
U.S.C. 5113, 3680(b), 3680(c), 3680(g);
(4) Paragraph (f) of this section issued under the authority of 38
U.S.C. 3680;
(5) Paragraph (f)(5) of this section issued under the authority of
38 U.S.C. 3680(a);
(6) Paragraph (f)(6) of this section issued under the authority of
38 U.S.C. 512, 3680(a); and
(7) Paragraph (g) of this section issued under the authority of 38
U.S.C. 512, 3680(a).
* * * * *
0
7. Amend Sec. 21.4150 by:
0
a. Revising paragraph (c)(2) and removing the parenthetical authority
citation at the end of the paragraph;
0
b. Removing the parenthetical authority citation at the end of
paragraphs (d) and (e);
0
c. Revising paragraph (f) and removing the parenthetical authority
citation at the end of the paragraph;
0
d. Removing the parenthetical authority citation at the end of
paragraph (g); and
0
e. Adding paragraph (h).
The revisions and addition read as follows:
Sec. 21.4150 Designation.
* * * * *
(c) * * *
(2) When VA has approval, disapproval, or suspension authority.
* * * * *
(f)(1) The Secretary is responsible for approving programs of
education offered by any agency or instrumentality of the Federal
Government.
(2)(i) Effective August 1, 2011, subject to Sec. Sec. 21.4201,
21.4203, 21.4251, 21.4252, and 21.4253(d)(2) and (3), the following
programs of education are deemed approved--
(A) An accredited standard college degree program offered at a
public or not-for-profit proprietary institution of higher learning
that is accredited by a national or regional agency or organization
recognized for that purpose by the Department of Education.
(B) A flight training course approved by the Federal Aviation
Administration that is offered by a certified pilot school that
possesses a valid Federal Aviation Administration pilot school
certificate or provisional pilot school certificate under 14 CFR part
141.
(C) An apprenticeship program registered with the Office of
Apprenticeship of the Employment Training Administration of the
Department of Labor or a State apprenticeship agency recognized by the
Office of Apprenticeship under 29 U.S.C. 50, et seq.
(D) A program of education leading to a secondary school diploma
offered by a secondary school approved in the State in which it is
operating.
(E) A licensure test offered by a Federal, State, or local
government.
(ii) [Reserved]
(h)(1) Paragraph (c)(2) of this section issued under the authority
of 38 U.S.C. 3671(b)(1);
(2) Paragraph (d) of this section issued under the authority of 38
U.S.C. 512(a), 3561(b);
(3) Paragraph (e) of this section issued under the authority of 38
U.S.C. 3672(c);
(4) Paragraph (f) of this section issued under the authority of 38
U.S.C. 3672(b); and
(5) Paragraph (g) of this section issued under the authority of 38
U.S.C. 3689.
* * * * *
0
8. Amend Sec. 21.4151 by:
0
a. Removing the parenthetical authority citation at the end of
paragraphs (a) and (b);
0
b. In paragraph (b)(5), removing ``and'' at the end of the paragraph;
0
c. Redesignating paragraph (b)(6) as paragraph (b)(7);
0
d. Adding new paragraph (b)(6);
0
e. Removing the parenthetical authority citation at the end of
paragraph (c); and
0
f. Adding paragraph (d).
The additions read as follows:
Sec. 21.4151 Cooperation.
* * * * *
(b) * * *
(6) Effective August 1, 2011, performing compliance and risk-based
surveys and oversight (in accordance with the provisions in the State
approving agency contract) without regard to whether the Secretary or
the State approving agency approved the courses offered at the
educational institution or the courses were deemed approved; and
* * * * *
(d)(1) Paragraph (a) of this section issued under the authority of
38 U.S.C. 3673(a);
(2) Paragraph (b) of this section issued under the authority of 38
U.S.C. 3672, 3673, 3674, 3689; and
(3) Paragraph (c) of this section issued under the authority of 38
U.S.C. 3673(b).
0
9. Amend Sec. 21.4200 by adding paragraphs (mm) through (oo) following
the parenthetical authority citation at the end of the section to read
as follows:
Sec. 21.4200 Definitions.
* * * * *
(mm) National test for admission. (1) A national test for admission
is a test used for admission to an institution of higher learning or
graduate school (such as the Scholastic Aptitude Test (SAT), Law School
Admission Test (LSAT), Graduate Record Exam (GRE), and Graduate
Management Admission Test (GMAT)). A list of national tests approved by
VA can be found at: <a href="https://inquiry.vba.va.gov/weamspub/buildSearchNE.do">https://inquiry.vba.va.gov/weamspub/buildSearchNE.do</a>.
(2) This paragraph (mm) issued under the authority of 38 U.S.C.
3452(b), 3315A, 3501(a)(5).
(nn) National test for credit. (1) A national test for credit is a
test that provides an opportunity for course credit at an institution
of higher learning (such as the Advanced Placement (AP) exam and
College-Level Examination Program (CLEP)). A list of national tests
approved by VA can be found at: <a href="https://inquiry.vba.va.gov/weamspub/buildSearchNE.do">https://inquiry.vba.va.gov/weamspub/buildSearchNE.do</a>.
(2) This paragraph (nn) issued under the authority of 38 U.S.C.
3452(b), 3315A, 3501(a)(5).
(oo) We, us, our. When we use the terms we, us, or our, we mean the
United States Department of Veterans Affairs.
0
10. Amend Sec. 21.4206 by:
0
a. Revising the introductory text;
0
b. Removing the parenthetical authority citation at the end of
paragraph (a);
0
c. Revising paragraph (b) and removing the parenthetical authority
citation at the end of the paragraph;
0
d. Removing the parenthetical authority citation at the end of
paragraphs (c) and (d);
0
e. Revising paragraph (e) and removing the parenthetical authority
citation at the end of the paragraph; and
0
f. Adding paragraph (f).
The revisions and addition read as follows:
[[Page 5331]]
Sec. 21.4206 Reporting fee.
VA will pay annually to each educational institution furnishing
education or to each joint apprenticeship training committee acting as
a training facility under 10 U.S.C. 510, chapter 1606, or chapter 1607
or 38 U.S.C. 30, 32, 33, 35, or 36 a reporting fee for required reports
or certifications. The reporting fee will be paid as soon as feasible
after the end of the calendar year.
* * * * *
(b) In computing the reporting fee, VA will not count an eligible
individual whose only receipt of educational assistance during a
calendar year was tuition assistance Top-Up under 38 U.S.C. chapter 30,
a rural relocation payment, or reimbursement for a national test for
admission, national test for credit, or a licensing or certification
test.
* * * * *
(e) Before VA will pay a reporting fee, an educational institution
must certify that--
(1) It has exercised reasonable diligence in determining whether it
or any courses approved for VA education benefits offered by it meet
all the applicable requirements of 10 U.S.C. 510, chapter 1606, or
chapter 1607 or 38 U.S.C. 30, 32, 33, 35, or 36;
(2) It will, without delay, report any failure to meet any
requirement to VA; and
(3) The reporting fees received after January 4, 2011, will be used
solely for the purpose of making certifications for VA educational
assistance under 10 U.S.C. 510, chapter 1606, or chapter 1607 or 38
U.S.C. 30, 32, 33, 35, or 36 or for supporting programs for veterans.
(f)(1) Paragraph (a) of this section issued under the authority of
10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c);
(2) Paragraph (b) of this section issued under the authority of 10
U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c);
(3) Paragraph (c) of this section issued under the authority of 10
U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c);
(4) Paragraph (d) of this section issued under the authority of 10
U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c); and
(5) Paragraph (e) of this section issued under the authority of 10
U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c).
* * * * *
0
11. Revise Sec. 21.4235 to read as follows:
Sec. 21.4235 Programs of education that include flight training.
VA will use the provisions of this section to determine whether an
individual may be paid educational assistance for pursuit of flight
training. See Sec. 21.4263 for approval of flight courses for VA
training.
(a) Eligibility. An individual who is otherwise eligible to receive
educational assistance under 38 U.S.C. chapters 30, 32, or 33, or a
reservist eligible for educational assistance under 10 U.S.C. chapters
1606 or 1607, may receive educational assistance for flight training in
an approved program of education provided that the individual meets the
requirements of this paragraph (a). Except when enrolled in a ground
instructor certification course or when pursuing flight training under
paragraph (e) of this section, the individual must--
(1) Possess a valid private pilot certificate or higher pilot
certificate such as a commercial pilot certificate;
(2) If enrolled in a course other than an Airline Transport Pilot
(ATP) course, hold a second-class medical certificate on the first day
of training and, if that course began before October 1, 1998, hold that
certificate continuously during training; and
(3) If enrolled in an ATP certification course, hold a first-class
medical certificate on the first day of training and, if that course
began before October 1, 1998, hold that certificate continuously during
training.
(b) Pursuit of flight courses. (1) VA will pay educational
assistance to an eligible individual for an enrollment in a commercial
pilot certification course leading to Federal Aviation Administration
certification for a particular category even if the individual has a
commercial pilot certificate issued by the Federal Aviation
Administration for a different category, since each category represents
a different vocational objective.
(2) VA will pay educational assistance to an eligible individual
for an enrollment in an instrument rating course only if the individual
simultaneously enrolls in a course required for a commercial pilot
certificate for the category for which the instrument rating course is
pursued or if, at the time of enrollment in the instrument rating
course, the individual has a commercial pilot certificate issued by the
Federal Aviation Administration for such category. The enrollment in an
instrument rating course alone does not establish that the individual
is pursuing a vocational objective, as required for VA purposes, since
that rating equally may be applied to an individual's private pilot
certificate, only evidencing an intent to pursue a non-vocational
objective.
(3) VA will pay educational assistance to an eligible individual
for an enrollment in a flight course other than an instrument rating
course or a ground instructor course, including courses leading to an
aircraft type rating, only if the individual has a commercial pilot
certificate issued by the Federal Aviation Administration for the
category to which the particular course applies.
(4) VA will pay educational assistance to an eligible individual
for an enrollment in a ground instructor certificate course, even
though the individual does not have any other flight certificate issued
by the Federal Aviation Administration, since the Federal Aviation
Administration does not require a flight certificate as a prerequisite
to ground instructor certification and ground instructor is a
recognized vocational objective.
(5) VA will not pay an eligible individual for simultaneous
enrollment in more than one flight course, except as provided in
paragraph (b)(2) of this section.
(c) Some individuals are already qualified for a flight course
objective. (1) The provisions of Sec. Sec. 21.5230(a)(4),
21.7110(b)(4), and 21.7610(b)(4), prohibiting payment of educational
assistance for enrollment in a course for whose objective the
individual is already qualified, apply to enrollments in flight
courses.
(2) A former military pilot with the equivalent of a commercial
pilot certificate and an instrument rating may obtain a commercial
pilot certificate and instrument rating from the Federal Aviation
Administration without a flight exam within 12 months of release from
active duty. Therefore, VA will consider such a veteran to be already
qualified for the objectives of a commercial pilot certification course
and an instrument rating course if begun within 12 months of the
individual's release from active duty.
(d) Some flight courses are refresher training. The provisions of
Sec. Sec. 21.5230(c), 21.7020(b)(26), 21.7122(b), 21.7520(b)(20), and
21.7610(b)(4) that provide limitations on payment for refresher
training that is needed to update an individual's knowledge and skill
in order to cope with technological advances while he or she was on
active duty service apply to flight training.
(1) An individual who held a Federal Aviation Administration
certificate before or during active duty service may have surrendered
that certificate or the Federal Aviation Administration may
[[Page 5332]]
have canceled it. The individual may receive the equivalent of the
number of months of educational assistance necessary to complete the
course that will qualify him or her for the same grade certificate.
(2) A reservist is not eligible for refresher training unless he or
she has had prior active duty.
(e) Flight training at an institution of higher learning. (1) An
individual who is eligible for educational assistance under 10 U.S.C.
chapter 1606 or 1607 or 38 U.S.C. chapter 30, 32, 33, or 35 is exempt
from the provisions of paragraphs (a)(2) through (c) of this section
when his or her courses include flight training that is part of a
program of education that leads to a standard college degree.
(2) An individual described in paragraph (e)(1) of this section may
pursue courses that may result in the individual eventually receiving
recreational pilot certification or private pilot certification,
provided that the courses also lead to a standard college degree.
(f) Authority. (1) Paragraph (a) of this section issued under the
authority of 10 U.S.C. 16136(c); 38 U.S.C. 3034(d), 3241(b);
(2) Paragraph (b) of this section issued under the authority of 10
U.S.C. 16136(b); 38 U.S.C. 3002(3)(A), 3034(a), 3202(2)(A), 3241(a),
3241(b), 3452(b), 3680A(a)(3);
(3) Paragraph (c) of this section issued under the authority of 10
U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3241(b), 3471(4);
(4) Paragraph (d) of this section issued under the authority of 10
U.S.C. 16136(b); 38 U.S.C. 3002(3)(A), 3034(a)(3), 3202(2)(A), 3241(a),
3241(b)); and
(5) Paragraph (e) of this section issued under the authority of 10
U.S.C. 16136(b); 38 U.S.C. 3002(3)(A), 3034(a)(3), 3202(2)(A), 3241(a),
3241(b).
0
12. Amend Sec. 21.4253 by:
0
a. Removing the parenthetical authority citation at the end of
paragraph (a); b. Revising paragraph (a) introductory text;
0
c. Removing the parenthetical authority citation at the end of
paragraphs (d)(1)(iv), (d)(3), (5), and (8), (d)(10)(ii), and (e)(1);
and
0
c. Adding paragraph (g).
The revision and addition read as follows:
Sec. 21.4253 Accredited courses.
(a) General. All standard college degree courses offered at
proprietary for-profit institutions and non-college degree courses
offered at proprietary for-profit institutions and public or
proprietary not-for-profit institutions may be approved as accredited
courses if they meet one of the following criteria:
* * * * *
(g) Authority. (1) Paragraph (a) of this section issued under the
authority of 38 U.S.C. 3675(a);
(2) Paragraphs (b) through (d)(1) of this section issued under the
authority of 38 U.S.C. 3675(a), 3676(b);
(3) Paragraphs (d)(2) and (3) of this section issued under the
authority of 38 U.S.C. 3675(b);
(4) Paragraphs (d)(4) and (5) of this section issued under the
authority of 38 U.S.C. 3474, 3675);
(5) Paragraphs (d)(6) through (8) of this section issued under the
authority of 38 U.S.C. 3675(b), 3676(c)(1), (2), (3);
(6) Paragraph (d)(9) of this section issued under the authority of
38 U.S.C. 3675(b)(3), 3676(c), (f); and
(7) Paragraph (e) of this section issued under the authority of 38
U.S.C. 3675.
* * * * *
0
13. Amend Sec. 21.4259 by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing the parenthetical authority citation at the end of
paragraph (e);
0
c. Adding paragraph (f); and
0
d. Removing the parenthetical authority citation under parenthetical
``(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
0051)''.
The revision and addition read as follows:
Sec. 21.4259 Suspension or disapproval.
(a) The appropriate State approving agency or the Secretary
(whichever entity approved the program), after approving a program of
education or licensing or certification test--
(1) May suspend the approval of a program of education for new
enrollments or for a licensing or certification test for a period not
to exceed 60 days to allow the institution to correct any deficiencies
if the evidence of record establishes that the program of education or
licensing or certification test fails to meet any of the requirements
for approval.
(2) Will immediately disapprove the program of education or
licensing or certification test if any of the requirements for approval
are not being met and the deficiency cannot be corrected within a
period of 60 days.
(b)(1) Upon suspension or disapproval, the State approving agency
or the Secretary, whichever suspended or disapproved the program of
education, will notify the educational institution by certified or
registered letter with a return receipt secured. It is incumbent upon
the State approving agency or the Secretary to determine the conduct of
the program of education and to take immediate appropriate action in
each case in which it is found that the conduct of the program of
education in any manner fails to comply with the requirements for
approval.
(2)(i) Each State approving agency will immediately notify VA of
each program of education or licensing and certification test that it
has suspended or disapproved.
(ii) The Secretary will immediately notify the appropriate State
approving agency of each program of education or licensing and
certification test that it has suspended or disapproved.
* * * * *
(f) Paragraphs (a) through (e) of this section issued under the
authority of 38 U.S.C. 3679(d).
0
14. Amend Sec. 21.4263 by revising paragraph (a) and removing the
parenthetical authority citation at the end of the paragraph to read as
follows:
Sec. 21.4263 Approval of flight training courses.
(a)(1) A flight program may be approved if--
(i)(A) For 38 U.S.C. chapters 32 and 35 and 10 U.S.C. chapters 1606
and 1607, the flight courses that constitute the program of education
meet Federal Aviation Administration standards for such courses and the
Federal Aviation Administration and the State approving agency approve
them; or
(B) For 38 U.S.C. chapters 30 and 33, effective August 1, 2011, the
flight program is deemed approved (A flight program will be deemed
approved if it is approved by the Federal Aviation Administration and
is offered by a certified pilot school that possesses a valid Federal
Aviation Administration pilot school certificate or provisional pilot
school certificate under 14 CFR part 141. Flight programs offered at
flight schools listed in paragraphs (b)(2) and (3) of this section will
not be approved for VA training under 38 U.S.C. chapters 30 and 33);
and
(ii)(A) The flight training offered by a flight school is generally
accepted as necessary for the attainment of a recognized vocational
objective in the field of aviation; or
(B) The flight training is offered by an institution of higher
learning for credit towards a standard college degree program.
(2) A State approving agency may approve a flight course only if a
flight school or an institution of higher learning offers the course. A
State
[[Page 5333]]
approving agency may not approve a flight course if an individual
instructor offers it.
(3) This paragraph (a) issued under the authority of 10 U.S.C.
16136(c), 16166(c), 38 U.S.C. 3032(e), 3241(b), 3672, 3676, 3680A.
* * * * *
0
15. Amend Sec. 21.4268 by:
0
a. Revising paragraph (a) and removing the parenthetical authority
citation at the end of the paragraph;
0
b. Removing the parenthetical authority citation at the end of
paragraphs (b) through (e);
0
c. Adding paragraph (g); and
0
d. Removing the parenthetical authority citation below the
parenthetical ``(The Office of Management and Budget has approved the
information collection provisions in this section under control number
2900-0051)''; and
The revision and addition read as follows:
Sec. 21.4268 Approval of licensing and certification tests.
(a) Authority to approve licensing and certification tests--(1)
Tests deemed approved. Effective August 1, 2011, a licensure test
offered by a Federal, State, or local government is deemed approved in
accordance with Sec. 21.4150(f).
(2) VA approval. The Secretary of Veterans Affairs delegates to the
Under Secretary for Benefits, and to personnel the Under Secretary for
Benefits may designate within the Education Service of the Veterans
Benefits Administration, the authority to approve licensing and
certification tests and the organizations and entities offering the
tests as provided in Sec. 21.4250(c)(2)(vi).
(3) State approving agency approval. Except for the licensing and
certification tests and organizations or entities offering these tests
that are approved under paragraphs (a)(1) and (2) of this section, the
Secretary of Veterans Affairs delegates to each State approving agency
the authority to approve licensing and certification tests and the
organizations and entities offering these tests located within the
State approving agency's jurisdiction as provided in Sec. 21.4250(a).
* * * * *
(g) Authority. (1) Paragraph (a) of this section issued under the
authority of 38 U.S.C. 512(a), 3689(a)(2);
(2) Paragraph (b) of this section issued under the authority of 38
U.S.C. 3689;
(3) Paragraph (c) of this section issued under the authority of 38
U.S.C. 3689(c);
(4) Paragraph (d) of this section issued under the authority of 38
U.S.C. 3689(c);
(5) Paragraph (e) of this section issued under the authority of 38
U.S.C. 3689(d);
(6) Paragraph (f) of this section issued under the authority of 38
U.S.C. 3689.
Subpart G--Post-Vietnam Era Veterans' Educational Assistance Under
38 U.S.C. Chapter 32
0
16. The authority citation for subpart G continues to read as follows:
Authority: 38 U.S.C. 501(a), chs. 32, 36, and as noted in
specific sections.
0
17. Amend Sec. 21.5022 by:
0
a. Removing the parenthetical authority citation at the end of
paragraph (a)(1);
0
b. In paragraph (a)(1)(ix), removing ``or'';
0
c. In paragraph (a)(1)(x), removing the period and adding ``; or'' in
its place;
0
d. Adding paragraph (a)(1)(xi);
0
e. Removing the parenthetical authority citation at the end of
paragraphs (a)(2) and (b); and
0
f. Adding paragraph (c).
The additions read as follows:
Sec. 21.5022 Eligibility under more than one program.
(a) * * *
(1) * * *
(xi) Effective August 1, 2011, 10 U.S.C 510 (National Call to
Service).
* * * * *
(c) Authority. (1) Paragraph (a)(1) of this section issued under
the authority of 38 U.S.C. 3322(a), 3681(b), 3695;
(2) Paragraph (a)(2) of this section issued under the authority of
38 U.S.C. 3033(a), 3322(a); and
(3) Paragraph (b) of this section issued under the authority of 38
U.S.C. 3034(a), 3231, 3323(a).
Subpart K--All Volunteer Force Educational Assistance Program
(Montgomery GI Bill--Active Duty)
0
18. The authority citation for subpart K continues to read as follows:
Authority: 38 U.S.C. 501(a), chs. 30, 36, and as noted in
specific sections.
0
19. Amend Sec. 21.7143 by:
0
a. In paragraph (a)(1)(ix), removing ``or'';
0
b. In paragraph (a)(1)(x), removing the period and adding ``; and'' in
its place;
0
c. Adding paragraph (a)(1)(xi);
0
d. Adding reserved paragraph (a)(2);
0
e. Removing the parenthetical authority citation at the end of
paragraphs (b) and (c); and
0
f. Adding paragraph (d).
The additions read as follows:
Sec. 21.7143 Nonduplication of educational assistance.
(a) * * *
(1) * * *
(xi) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
(2) [Reserved]
* * * * *
(d) Authority. (1) Paragraphs (a) and (b) of this section issued
under the authority of 10 U.S.C. 16136(b); 38 U.S.C. 3033(a), 3681(b);
and
(2) Paragraph (c) of this section issued under the authority of 38
U.S.C. 3034, 3681.
Subpart L--Educational Assistance for Members of the Selected
Reserve
0
20. The authority citation for subpart L continues 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
21. Amend Sec. 21.7642 by:
0
a. Removing the parenthetical authority citation at the end of
paragraph (a);
0
b. In paragraph (a)(9), removing ``or'';
0
c. In paragraph (a)(10), removing the period and adding ``; and'' in
its place;
0
d. Adding paragraph (a)(11);
0
e. Removing the parenthetical authority citation at the end of
paragraphs (c) through (e); and
0
e. Adding paragraph (f).
The additions read as follows:
Sec. 21.7642 Nonduplication of educational assistance.
(a) * * *
(11) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
* * * * *
(f) Authority. (1) Paragraph (a) of this section issued under the
authority of 10 U.S.C. 16136(b); 38 U.S.C. 3033(a), 3241(a), 3322(a),
3681);
(2) Paragraphs (b) and (c) of this section issued under the
authority of 10 U.S.C. 16134; Pub. L. 98-525);
(3) Paragraph (d) of this section issued under the authority of 10
U.S.C. 16136(b), 38 U.S.C. 3681; Public Law 98-525; and
(4) Paragraph (e) of this section issued under the authority of
Sec. 4492(a), Public Law 102-484, 106 Stat. 2765-2766.
Subpart P--Post-9/11 GI Bill
0
22. The authority citation for subpart P continues to read as follows:
Authority: 38 U.S.C. 501(a), 512, chs. 33, 36 and as noted in
specific sections.
0
23. Amend Sec. 21.9505 by:
0
a. Revising the section heading;
0
b. In the introductory text, removing ``apply.'' and adding in its
place ``apply to provisions effective before August 1, 2011, unless
otherwise noted.'';
[[Page 5334]]
0
c. Revising the definition for ``Active duty'' and removing the
parenthetical authority citation at the end of the definition;
0
d. Adding in alphabetical order the definition for ``Educational
institution'';
0
e. Revising the definition for ``Entry level and skill training'' and
removing the parenthetical authority citation at the end of the
definition;
0
f. Adding in alphabetical order the definition for ``Fugitive felon'';
0
g. Adding a parenthetical with the OMB control number for the approval
of the information collection immediately following the parenthetical
authority citation at the end of the section.
The revisions and additions read as follows:
Sec. 21.9505 Definitions--for provisions effective before August 1,
2011.
* * * * *
Active duty means--
(1) Full-time duty:
(i) In the regular components of the Armed Forces; or
(ii) Under a call or order to active duty under 10 U.S.C. 688,
12301(a), 12301(d), 12301(g), 12302, or 12304.
(2) In the case of a member of the Army National Guard of the
United States or the Air National Guard of the United States, in
addition to service described in paragraph (1)(ii) of this definition,
full-time service--
(i) In the National Guard of a State for the purpose of organizing,
administering, recruiting, instructing, or training the National Guard;
or
(ii) In the National Guard under 32 U.S.C. 502(f) when authorized
by the President or the Secretary of Defense for the purpose of
responding to a national emergency declared by the President and
supported by Federal funds.
(3) Active duty does not include--
(i) Any period during which the individual--
(A) 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; or
(B) Served as a cadet or midshipman at one of the service
academies; or
(C) 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.
(ii) A period of service--
(A) Required by an officer pursuant to an agreement under 10 U.S.C.
2107(b); or
(B)(1) Required by an officer pursuant to an agreement under 10
U.S.C. 4348, 6959, or 9348; or
(2) Effective for individuals entering into agreements after
January 3, 2011, required by an officer pursuant to an agreement under
14 U.S.C. 1925.
(C) That was terminated because the individual is considered a
minor by the Armed Forces, was erroneously enlisted, or received a
defective enlistment agreement; or
(D) Counted for purposes of repayment of an education loan under 10
U.S.C. chapter 109.
(iii) A period of service after July 31, 2011, used to establish
eligibility under 38 U.S.C. chapter 30 or 32, or 10 U.S.C. chapter 1606
or 1607.
(3) This definition issued under the authority of 38 U.S.C.
101(21)(A), 3301(1), 3311(d), 3322(b), (c); Public Law 111-377, 124
Stat. 4107-4108.
* * * * *
Educational institution has the same meaning as the term
institution of higher learning as defined in Sec. 21.4200(h) for
training pursued prior to August 1, 2011.
(1) This definition issued under the authority of 38. U.S.C.
3323(a).
(2) [Reserved]
* * * * *
Entry level and skill training means--
(1) Basic Combat Training, Advanced Individual Training, and,
effective January 4, 2011, One Station Unit 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 and, for individuals entering service on or
after January 4, 2011, Skill Training (or so-called ``A'' School) for
members of the Coast Guard.
(6) This definition issued under the authority of 38 U.S.C.
3301(2).
* * * * *
Fugitive felon means an individual identified as such by Federal,
State, or local law enforcement officials and who is a fugitive by
reason of--
(1) Fleeing to avoid prosecution for an offense, or an attempt to
commit an offense, which is a felony under the laws of the place from
which the person flees;
(2) Fleeing to avoid custody or confinement after conviction for an
offense, or an attempt to commit an offense, which is a felony under
the laws of the place from which the person flees; or
(3) Violating a condition of probation or parole imposed for
commission of a felony under Federal or State law.
(4) This definition issued under the authority of 38 U.S.C.
3323(c), 5313B.
* * * * *
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
0154.)
0
24. Add Sec. 21.9506 to read as follows:
Sec. 21.9506 Definitions--for provisions effective after July 31,
2011.
(a) For the purposes of this subpart (governing the administration
and payment of educational assistance under 38 U.S.C. chapter 33),
effective after July 31, 2011, unless otherwise noted, the following
definitions apply. (See also additional definitions in Sec. Sec.
21.1029 and 21.4200.)
Academic year means the period of time beginning August 1st of each
calendar year and ending July 31st of the subsequent calendar year.
Active duty means--
(i) Full-time duty:
(B) In the regular components of the Armed Forces; orc
(C) Under a call or order to active duty under 10 U.S.C. 688,
12301(a), 12301(d), 12301(g), 12302, or 12304.
(ii) In the case of a member of the Army National Guard of the
United States or the Air National Guard of the United States, in
addition to service described in paragraph (i)(B) of this definition,
full time service--
(A) In the National Guard of a State for the purpose of organizing,
administering, recruiting, instructing, or training the National Guard;
or
(B) In the National Guard under 32 U.S.C. 502(f) when authorized by
the President or the Secretary of Defense for the purpose of responding
to a national emergency declared by the President and supported by
Federal funds.
(iii) Active duty does not include--
(A) Any period during which the individual--
(1) 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; or
(2) Served as a cadet or midshipman at one of the service
academies; or
(3) 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.
(B) A period of service--
(1) Required by an officer pursuant to an agreement under 10 U.S.C.
2107(b); or
(2)(i) Required by an officer pursuant to an agreement under 10
U.S.C. 4348, 6959, or 9348; or
[[Page 5335]]
(ii) Effective for individuals entering into agreements after
January 3, 2011, required by an officer pursuant to an agreement under
14 U.S.C. 1925.
(3) That was terminated because the individual is considered a
minor by the Armed Forces, was erroneously enlisted, or received a
defective enlistment agreement; or
(4) Counted for purposes of repayment of an education loan under 10
U.S.C. chapter 109.
Advance payment means an amount of educational assistance payable
under Sec. 21.9641(c) 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.
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.
Distance learning means the pursuit of a program of education via
distance education as defined in 20 U.S.C. 1003(7).
Educational assistance means all monetary benefits (including but
not limited to tuition, fees, and monthly housing allowances) 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
Educational institution has the same meaning as the term
institution of higher learning as defined in Sec. 21.4200(h).
Enrollment period means a term, quarter, or semester during which
the educational institution offers instruction.
Entry level and skill training means--
(i) For members of the Army--
(A) Basic Combat Training,
(B) Advanced Individual Training, and
(C) Effective January 4, 2011, One Station Unit Training.
(ii) For members of the Navy, Recruit Training (Boot Camp) and
Skill Training (``A'' School).
(iii) For members of the Air Force, Basic Military Training and
Technical Training.
(iv) For members of the Marine Corps, Recruit Training and Marine
Corps Training (School of Infantry Training).
(v) For members of the Coast Guard--
(A) Basic Training; and
(B) For individuals entering service on or after January 4, 2011,
Skill Training (or so-called ``A'' School).
Fees mean any mandatory charges (other than tuition, room, and
board) that are applied by the educational institution 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.
Fugitive felon means an individual identified as such by Federal,
State, or local law enforcement officials and who is a fugitive by
reason of--
(i) Fleeing to avoid prosecution for an offense, or an attempt to
commit an offense, which is a felony under the laws of the place from
which the person flees;
(ii) Fleeing to avoid custody or confinement after conviction for
an offense, or an attempt to commit an offense, which is a felony under
the laws of the place from which the person flees; or
(iii) Violating a condition of probation or parole imposed for
commission of a felony under Federal or State law.
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 includes 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.
Lump sum payment means an amount of educational assistance paid for
the entire term, quarter, or semester.
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.
(i) An illness or mental illness of the individual;
(ii) An illness or death in the individual's family;
(iii) An unavoidable change in the individual's conditions of
employment;
(iv) An unavoidable geographical transfer resulting from the
individual's employment;
(v) 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;
(vi) Discontinuance of the course by the educational institution;
(vii) Unanticipated active duty for training; or
(viii) Unanticipated difficulties in caring for the individual's
child or children.
Net cost means the amount of in-State tuition and fees the
individual enrolled in a program of education is responsible for paying
after the application of any--
(i) Waiver of, or reduction in, tuition and fees; and
(ii) Scholarship, or other Federal, State, institutional, or
employer-based aid or assistance (other than loans and any funds
provided under section 401(b) of the Higher Education Act of 1965) that
is provided directly to the institution specificially designated for
the sole purpose of reducing the individual's tuition and fee charges.
Non-public institution means a proprietary institution as defined
in Sec. 21.4200(z).
Program of education means a curriculum or combination of courses
pursued at an educational institution that is accepted as necessary to
meet the requirements for a predetermined and identified educational,
professional, or vocational objective. Such term also means any
curriculum or combination of courses pursued at an educational
institution that is 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
educational institution's catalog and included in the approval notice
provided by the State approving agency to VA in accordance with Sec.
21.4258(b)(iv).
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 of the U.S.
[[Page 5336]]
Code, and must be necessary to reach the program's objective.
Rate of pursuit means the measurement obtained by dividing the
number of course hours (or the equivalent hours as determined in Sec.
21.9750) that an individual is pursuing, including hours applied to
refresher, remedial, and deficiency courses, by the number of hours
considered to be full-time training at the educational institution. 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. 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.
(b)(1)The Academic year definition in this section issued under the
authority of 38 U.S.C. 3034(a), 3323(a), 3680(a);
(2) The Active Duty definition in this section issued under the
authority of 38 U.S.C. 101(21)(A), 3301(1), 3311(d), 3322(b), (c);
Public Law 111-377, 124 Stat. 4107-4108;
(3) The Advance payment definition in this section issued under the
authority of 38 U.S.C. 3034(a), 3323(a), 3680(d);
(4) The Course definition in this section issued under the
authority of 38 U.S.C. 3323(c);
(5) The Distance learning definition in this section issued under
the authority of 20 U.S.C. 1003(7); 38 U.S.C. 3323(c);
(6) The Educational assistance definition in this section issued
under the authority of 38 U.S.C. 3313;
(7) The Educational institution definition in this section issued
under the authority of 38. U.S.C. 3323(a);
(8) The Enrollment period definition in this section issued under
the authority of 38 U.S.C. 3034(a), 3323(a), 3680(g);
(9) The Entry level and skill training definition in this section
issued under the authority of 38 U.S.C. 3301(2);
(10) The Fees definition in this section issued under the authority
of 38 U.S.C. 501(a), 3323(c);
(11) The Fugitive felon definition in this section issued under the
authority of 38 U.S.C. 3323(c), 5313B;
(12) The Institution of higher learning (IHL) definition in this
section issued under the authority of 38 U.S.C. 3034(a), 3313(b),
3323(a), 3452(f);
(13) The Lump sum payment definition in this section issued under
the authority of 38 U.S.C. 3323(c);
(14) The Mitigating circumstances definition in this section issued
under the authority of 38 U.S.C. 3034(a), 3323(a), 3680(a)(1);
(15) The Net cost definition in this section issued under the
authority of 38 U.S.C. 3313, 3323(c);
(16) The Non-public institution definition in this section issued
under the authority of 38 U.S.C. 3323(c);
(17) The Program of education definition in this section issued
under the authority of 38 U.S.C. 3034(a), 3301, 3323(a), 3452(b);
(18) The Pursuit definition in this section issued under the
authority of 38 U.S.C. 3034(a), 3323(a), 3680(g);
(19) The Rate of pursuit definition in this section issued under
the authority of 38 U.S.C. 3323, 3680;
(20) The Transferor definition in this section issued under the
authority of 38 U.S.C. 3319.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
0154.)
0
25. Revise Sec. 21.9520 to reads as follows:
Sec. 21.9520 Basic eligibility.
An individual may establish eligibility for educational assistance
under 38 U.S.C. chapter 33, if he or she--
(a) Serves on active duty after September 10, 2001, for 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) or Sec.
21.9641(a), whichever is applicable) 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)(i) Before January 4, 2011, is discharged or released from
service for:
(A) A medical condition that preexisted such service and is not
determined to be service-connected;
(B) Hardship, as determined by the Secretary of the military
department concerned; or
(C) 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;
(ii) On or after January 4, 2011, is discharged or released from
service with an honorable discharge for:
(A) A medical condition that preexisted such service and is not
determined to be service-connected;
(B) Hardship, as determined by the Secretary of the military
department concerned; or
(C) 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 on active duty after September 10, 2001, for a minimum
of 30 continuous days and, after completion of such service, is
discharged from active duty 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, if
eligible for such benefits;
(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 educational assistance under 38 U.S.C. chapter 30 in accordance
with 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 38 U.S.C.
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
[[Page 5337]]
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.'');
or
(d) Is the child of a person who, after September 10, 2001, died in
the line of duty while serving on active duty as a member of the Armed
Forces. For purposes of this paragraph (d), the term ``child'' means an
individual who meets the requirements of Sec. 3.57 of this chapter,
except as to age and marital status. With regard to age and marital
status, the term includes individuals who are--
(1) Married; or
(2) Over the age of 23.
(e) Paragraphs (a) through (d) of this section issued under the
authority of 38 U.S.C. 3311; Public Law 110-252, 111-32, Stat. 1859,
2375-2376.
(The Office of Management and Budget has approved the information
collection provision in this section under control numbers 2900-0154
and 2900-0098.)
Sec. 21.9525 [Amended]
0
26. Amend Sec. 21.9525 by removing ``under Sec. 21.9640(b)(1)(ii) or
(b)(2)(ii)'' wherever it appears and adding in its place ``under Sec.
21.9640(b)(1)(ii) or (b)(2)(ii) or Sec. 21.9641(c)''.
0
27. Amend Sec. 21.9530 by:
0
a. In paragraph (a), removing ``through (e)'' and adding in its place
``through (f)''; b. Removing the parenthetical authority citation at
the end of paragraphs (c) through (e);
0
c. Adding paragraphs (f) and (g); and
0
d. Adding at the end of the section a parenthetical with the OMB
control number for the approval of the information collection.
The additions read as follows:
Sec. 21.9530 Eligibility time limit.
* * * * *
(f) Time limit for child eligible under Sec. 21.9520(d) (Marine
Gunnery Sergeant John David Fry Scholarship). (1) In the case of a
child who first becomes entitled to educational assistance under Sec.
21.9520(d) before January 1, 2013, the period during which the child
may use his or her entitlement expires the day the child turns 33; or
(2) In the case of a child who first becomes entitled to
educational assistance under Sec. 21.9520(d) on or after January 1,
2013, the period during which the child may use his or her entitlement
never expires.
(g) Authority. (1) Paragraphs (a) through (c) of this section
issued under the authority of 38 U.S.C. 3311(c), 3321;
(2) Paragraph (d) of this section issued under the authority of 38
U.S.C. 3319;
(3) Paragraph (e) of this section issued under the authority of 38
U.S.C. 3319; and
(4) Paragraph (f) of this section issued under the authority of 38
U.S.C. 3321(b).
(The Office of Management and Budget has approved the information
collection provision in this section under control number 2900-
0098.)
0
28. Revise Sec. 21.9550 to read as follows:
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 has not used any entitlement under 38 U.S.C.
chapter 30 or has not revoked any months of chapter 30 entitlement by
transferring to a dependent and who 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 entitled to 36 months of educational assistance
under chapter 33.
(c) Except as provided in Sec. Sec. 21.9560(d), 21.9561(g),
21.9570(m), 21.9571(m), 21.9635(o), and 21.9636(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)
0
29. Amend Sec. 21.9560 by revising the section heading and adding
introductory text to read as follows:
Sec. 21.9560 Entitlement charges--for provisions effective before
August 1, 2011.
For training that occurs before August 1, 2011--
* * * * *
0
30. Add Sec. 21.9561 to read as follows:
Sec. 21.9561 Entitlement charges--for provisions effective after July
31, 2011.
For training that begins after July 31, 2011--
(a) Training pursued at an IHL. The entitlement charge for an
individual pursuing training at an IHL will be one of the following:
(1) During any period for which VA pays net costs or a Yellow
Ribbon Program payment to the institution of higher learning on the
individual's behalf, the individual will be charged a percentage of a
day equal to the individual's rate of pursuit for each day of the
certified enrollment period;
(2) During any period for which VA does not pay net costs or a
Yellow Ribbon Program payment to the institution of higher learning on
the individual's behalf but pays a monthly housing allowance or an
increase (``kicker'') to the individual, the individual will be charged
a percentage of a day equal to the individual's rate of pursuit for
each day of the certified enrollment period for each day the individual
received a monthly housing allowance or an increase (``kicker''); and
(3) During any period for which VA does not pay net costs or Yellow
Ribbon Program payment to the institution of higher learning on the
individual's behalf or a monthly housing allowance or an increase
(``kicker'') 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.
(b) Training pursued at a non-college degree institution. The
entitlement charge for an individual pursuing a certificate or other
non-college degree at a non-college degree institution will be one of
the following:
(1) During any period for which VA pays tuition and fees to the
non-college degree institution on the individual's behalf, the
individual will be charged entitlement equal to the number of months,
and fraction thereof measured in days, determined by dividing the total
amount paid by the amount equal to 1/12th of the amount applicable in
[[Page 5338]]
the academic year in which payment is made under Sec.
21.9641(b)(3)(ii) or (iii).
(2) During any period for which VA does not pay net costs to the
non-college degree institution on the individual's behalf but pays a
monthly housing allowance or an increase (``kicker'') to the
individual, the individual will be charged a percentage of a day equal
to the individual's rate of pursuit for each day of the certified
enrollment period for each day the individual received a monthly
housing allowance or an increase (``kicker'').
(3) During any period for which VA does not pay net costs to the
non-college degree institution on the individual's behalf or a monthly
housing allowance or an increase (``kicker'') 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.
(c) Apprenticeship or other on-the-job training. For each month an
individual is paid educational assistance while pursuing an approved
apprenticeship or other on-the-job training program, VA will make a
charge against entitlement of--
(1) During the first 6-month period of the program, 1 month for
each month of training pursued.
(2) During the second 6-month period of the program, .80 of a month
for each month of training pursued.
(3) During the third 6-month period of the program, .60 of a month
for each month of training pursued.
(4) During the fourth 6-month period of the program, .40 of a month
for each month of training pursued.
(5) After the first 24 months of the program, .20 of a month for
each month of training pursued.
(d) Flight training. An individual pursuing a non-college degree
program consisting of flight training will be charged entitlement equal
to the number of months, and fraction thereof measured in days,
determined by dividing the total amount paid by 1/12th of the amount
applicable in the academic year in which payment is made under Sec.
21.9641(b)(5)(ii) or (iii).
(e) Correspondence training. An individual pursuing a program of
education by correspondence will be charged entitlement equal to the
number of months, and fraction thereof measured in days, determined by
dividing the total amount paid by 1/12th of the amount applicable in
the academic year in which payment is made under Sec.
21.9641(b)(6)(ii) or (iii).
(f) Licensing or certification tests and national tests. When an
individual receives educational assistance for taking an approved
licensing or certification test, national test for admission, or
national test for credit, VA will make a charge against entitlement for
each payment made to him or her. The charge will be determined by--
(1) Dividing the total amount of the payment by--
(i) For the academic year beginning August 1, 2011, $1460; or
(ii) For the academic year beginning on any subsequent August 1,
the amount for the previous academic year, as increased under 38 U.S.C.
3015(h) (but for a licensing or certification test the amount will not
be greater than $2,000); and
(2)(i) For tests taken prior to August 1, 2018, rounding the result
of paragraph (f)(1) of this section to the nearest whole month. The
charge must be at least one month.
(ii) For test taken on or after August 1, 2018, multiplying the
result of paragraph (f)(1) of this section by 30, rounding to the
nearest whole day. The charge must be at least one day.
(g) No entitlement charge. VA will not make a charge against an
individual's entitlement--
(1) For tutorial assistance as provided under Sec. 21.9685; or
(2) For the rural relocation benefit as provided under Sec.
21.9660; or
(3) For receipt of a work-study allowance as provided under Sec.
21.4145.
(4) For pursuit of a course or courses when the individual--
(i) Had to discontinue the course or courses as a result of being--
(A) Ordered to active duty service under 10 U.S.C. 688, 12301(a),
12301(d), 12301(g), 12302, or 12304; or
(B) While on active duty service, ordered to 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.
(h) Interruption to conserve entitlement. An individual may not
interrupt a certified period of enrollment for the purpose of
conserving entitlement. An educational institution 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 for the entire
certified period of enrollment; or
(3) The individual requests interruption or cancellation for any
break when the 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 received a payment for
educational assistance provided under this chapter for any part of the
certified enrollment period.
(i) 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 balance as
determined in paragraph (i)(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 (i)(3)(ii) of this
section from the amount of the original overpayment (exclusive of
interest, administrative
[[Page 5339]]
costs of collection, court costs and marshal fees); and
(iv) Multiplying the percentage obtained in paragraph (i)(3)(iii)
of this section by the amount of entitlement otherwise chargeable for
the period of the original overpayment.
(j) Authority. (1) Paragraphs (a) through (f) of this section
issued under the authority of 38 U.S.C. 3315, 3315A;
(2) Paragraph (g)(1) of this section issued under the authority of
38 U.S.C. 3314;
(3) Paragraph (g)(2) of this section issued under the authority of
38 U.S.C. 3318;
(4) Paragraph (g)(3) of this section issued under the authority of
38 U.S.C. 3485;
(5) Paragraph (g)(4) of this section issued under the authority of
38 U.S.C. 3312(c);
(6) Paragraph (h) of this section issued under the authority of 38
U.S.C. 3323(c); and
(7) Paragraph (i) of this section issued under the authority of 38
U.S.C. 3034(a), 38 U.S.C. 3323(a), 3685.
0
31. Amend Sec. 21.9570 by:
0
a. Revising the section heading;
0
b. In the introductory text, removing ``An individual'' and adding in
its place ``For training that occurs before August 1, 2011, an
individual'';
0
c. Adding a parenthetical with the OMB control number for the approval
of the information collection at the end of the section.
The revision and addition read as follows:
Sec. 21.9570 Transfer of entitlement--for provisions effective before
August 1, 2011.
* * * * *
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
0154.)
0
32. Add Sec. 21.9571 to read as follows:
Sec. 21.9571 Transfer of Entitlement--for provisions effective after
July 31, 2011.
For training that occurs after July 31, 2011, an individual
entitled to educational assistance under 38 U.S.C. chapter 33 based on
his or her own service as a member of the Uniformed Services, 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 using transferred
entitlement in the same manner as they apply to the individual from
whom entitlement was transferred.
(1) Definitions. Section 21.9506--Definitions--for provisions
effective after July 31, 2011.
(2) Claims and applications. Section 21.9510--Claims, VA's duty to
assist, and time limits.
(3) Eligibility. (i) Section 21.9530--Eligibility time limit,
paragraphs (d) and (e) of this section 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.
(4) Entitlement. (i) Section 21.9550--Entitlement;
(ii) Section 21.9561--Entitlement charges--for provisions effective
after July 31, 2011.
(5) Counseling. (i) Section 21.9580--Counseling;
(ii) Section 21.9585--Travel expenses.
(6) Approved programs of education and courses. (i) Section
21.9591--Approved programs of education and courses--for provisions
effective after July 31, 2011;
(ii) Section 21.9601--Overcharges--for provisions effective after
July 31, 2011.
(7) Payments--Educational assistance. (i) Section 21.9620--
Educational assistance;
(ii) Section 21.9626--Beginning dates--for provisions effective
after July 31, 2011, except for paragraphs (e), (g), (h), (k), or (l)
of this section;
(iii) Section 21.9630--Suspension or discontinuance of payments;
(iv) Section 21.9636--Discontinuance dates--for provisions
effective after July 31, 2011, except for paragraphs (o) and (v) of
this section;
(v) Section 21.9660--Rural relocation benefit;
(vi) Section 21.9667--Reimbursement for licensing or certification
tests--for provisions effective after July 31, 2011;
(vii) Section 21.9668--Reimbursement for national tests;
(viii) Section 21.9670--Work-study allowance;
(ix) Section 21.9676--Conditions that result in reduced rates or no
payment--for provisions effective after July 31, 2011;
(x) Section 21.9681--Certifications and release of payments--for
provisions effective after July 31, 2011;
(xi) Section 21.9685--Tutorial assistance;
(xii) Section 21.9691--Nonduplication of educational assistance--
for provisions effective after July 31, 2011;
(xiii) 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
(xiv) Section 21.9700--Yellow Ribbon Program.
(8) Pursuit of courses. (i) Section 21.9710--Pursuit;
(ii) Section 21.9715--Advance payment certification;
(iii) Section 21.9721--Certification of enrollment--for provisions
effective after July 31, 2011;
(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.
(9) Course assessment. Section 21.9750--Course measurement.
(10) Administrative. Section 21.9770--Administrative.
(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 paragraph(d)(1) of this section 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.
(c) Timeframe during which an individual may transfer entitlement.
An individual approved by his or her department to transfer entitlement
may do so at any time while serving as a member of the uniformed
services, subject to the transferor's 15-year period of eligibility as
provided in Sec. 21.9530.
(d) Designating dependents; designating the amount to transfer; and
period of transfer. (1) An individual transferring entitlement under
this section must:
[[Page 5340]]
(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. The designated
beginning date may not be earlier than the date the individual requests
approval from his or her service department.
(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 (iii) of this section.
(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
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.
(f) Revocation of transferred entitlement. (1) A transferor may
revoke any unused portion of transferred entitlement (transferred
entitlement is ``used'' in the amount of the entire enrollment period
on the first day of the enrollment period; therefore, a transferor
cannot revoke the entitlement used for an enrollment period after the
enrollment period has begun) at any time by submitting a written notice
to both the Secretary of Veterans Affairs and the Secretary of the
department concerned that initially approved the transfer of
entitlement. VA will accept a copy of the written notice addressed to
the Secretary of the department concerned 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 department concerned receives the notice of
revocation.
(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, except that a modification of a beginning date
under paragraph (d)(1)(iii) of this section must be effective on or
after the date the modification is submitted. Any modification made
will apply only with respect to unused transferred entitlement
(transferred entitlement is ``used'' in the amount of the entire
enrollment period on the first day of the enrollment period; therefore,
a transferor cannot revoke the entitlement used for an enrollment
period after the enrollment period has begun). The transferor must
submit a written notice to both the Secretary of Veterans Affairs and
the Secretary of the department concerned that initially approved the
transfer of entitlement. VA will accept a copy of the written notice
addressed to the department as sufficient written notification to VA.
(2) The modification will be effective the later of--
(i) The date VA receives the notice of modification; or
(ii) The date the department concerned receives the notice of
modification.
(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.
(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.
(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).
(k) Rate of payment of educational assistance. VA will apply the
rules in Sec. 21.9641 (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. 21.9641 if the
dependent's months of entitlement will exhaust during the certified
enrollment period, by--
(i) Determining the amount of payment for the net cost of tuition
and fees 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 payment for the net cost of tuition and fees 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. 21.9571; and
(ii) Discontinuing the dependent's monthly housing allowance
effective as of the date the dependent's months and days of entitlement
exhausts.
(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
uniformed services 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 department concerned determines is not
service-connected;
(C) A hardship, as determined by the Secretary of the department
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 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
[[Page 5341]]
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.
(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 are not subject to the 48-month 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. 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-month
limit on training will apply.
(n) Authority. (1) Paragraph (a)(1) through (a)(7)(xiii) of this
section issued under the authority of 38 U.S.C. 3319;
(2) Paragraph (a)(7)(xiv) of this section issued under the
authority of 38 U.S.C. 3317;
(3) Paragraph (a)(8) through (10) of this section issued under the
authority of 38 U.S.C. 3319;
(4) Paragraphs (b) through (k) of this section issued under the
authority of 38 U.S.C. 3319;
(5) Paragraph (l) of this section issued under the authority of 38
U.S.C. 3034(a), 3311(c)(4), 3319); and
(6) Paragraph (m) of this section issued under the authority of 38
U.S.C. 3034(a), 3319, 3322, 3323(a), 3695).
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
0154.)
0
33. Amend Sec. 21.9590 by revising the section heading and adding
introductory text to read as follows:
Sec. 21.9590 Approved programs of education and courses--for
provisions effective before August 1, 2011.
For training that occurs prior to August 1, 2011--
* * * * *
0
34. Add Sec. 21.9591 to read as follows:
Sec. 21.9591 Approved programs of education and courses--for
provisions effective after July 31, 2011.
For training that begins on or after August 1, 2011--
(a) Basis for education assistance payments. 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;
(4) Have taken an approved licensing or certification test,
national test for admission, or national test for credit 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 tuition and fees not covered by military
tuition assistance.
(b) Approval of the selected program of education. Subject to
paragraph (a) of this section, 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. 21.9506; (2) Except for a program consisting of a licensing or
certification test, a national test for admission, or a national test
for credit, the program has an educational, vocational, or professional
objective as described in Sec. 21.7020(b)(13) or (22);
(3) The courses, subjects, licensing or certification tests,
national tests for admission, or national tests for credit 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, or for a program consisting of a national test for
admission or a national test for credit, the individual is not already
qualified for the objective of the program.
(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) Authority. (1) Paragraph (a) of this section issued under the
authority of 38 U.S.C. 3313, 3315, 3315A, 3323(a), 3689; and
(2) Paragraph (b) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3471, 3689.
0
35. Amend Sec. 21.9600 by revising the section heading and adding
introductory text to read as follows:
Sec. 21.9600 Overcharges--for provisions effective before August 1,
2011.
The provisions of this section apply to enrollment periods that
begin before August 1, 2011.
* * * * *
0
36. Add Sec. 21.9601 to read as follows:
Sec. 21.9601 Overcharges--for provisions effective after July 31,
2011.
The provisions of this section apply to enrollment periods that
begin after July 31, 2011.
(a) Overcharges by educational institutions may result in the
disapproval of enrollments. VA may disapprove an educational
institution for further enrollments if the educational institution
charges an individual, or receives from an individual or from VA on
behalf of an individual, an amount for tuition and fees that exceeds
the tuition and fees that the educational institution requires from
similarly circumstanced individuals enrolled in the same course.
(b) Overcharges by organizations or entities offering licensing or
certification tests, national test for admission, or national tests for
credit may result in disapproval of tests. VA may disapprove an
organization or entity offering a licensing or certification test,
national test for admission, or national test for credit, when the
organization or entity offering the test charges an individual, or
receives from an individual, an amount for fees that exceeds the fees
that the organization or entity requires from similarly circumstanced
individuals taking the same test.
(c) Authority. (1) Paragraph (a) of this section issued under the
authority of 38 U.S.C. 3034(a), 3323(a), 3690(a); and
(2) Paragraph (b) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3689(d), 3690(a).
0
37. Revise Sec. 21.9620 to read as follows:
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. Sec. 21.9640
and 21.9641.
(Authority: 38 U.S.C. 3313, 3314, 3315, 3316, 3317)
0
38. Amend Sec. 21.9625 by:
0
a. Revising the section heading;
0
b. In the introductory text, removing ``VA will determine'' and adding
in its
[[Page 5342]]
place ``For a claim submitted during the period beginning August 1,
2009, and ending July 31, 2011, VA will determine''; and.
0
c. Adding paragraph (m).
The revision and addition read as follows:
Sec. 21.9625 Beginning dates--for provisions effective before August
1, 2011.
* * * * *
(m) Fugitive felons. An award of educational assistance to an
otherwise eligible veteran, person, or dependent of a veteran will
begin effective the date the individual ceases to be a fugitive felon,
as shown by evidence, which may include evidence that a warrant for an
offense involving flight is resolved by-
(1) Arrest;
(2) Surrendering to the issuing authority;
(3) Dismissal; or
(4) Court documents (dated after the warrant for the arrest of the
felon) showing the individual is no longer a fugitive.
(5) This paragraph (m) issued under the authorityof 38 U.S.C.
3323(c), 5313B.
0
39. Add Sec. 21.9626 to read as follows:
Sec. 21.9626 Beginning dates--for provisions effective after July 31,
2011.
For a claim submitted after July 31, 2011, VA will determine the
beginning date of an award or increased award of educational assistance
under this section. In no case will the beginning date be earlier than
August 1, 2009, or for training pursued at non-degree institutions
before October 1, 2011. When more than one paragraph in this section
applies, VA will award educational assistance using the latest of the
applicable beginning dates.
(a) Entrance or reentrance including change of program or
educational institution. When an eligible individual enters or reenters
into training (including a reentrance following a change of program or
educational institution), 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, a national
test for admission, or a national test for credit. (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 educational institution 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;
(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 educational institution 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.
(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) When the claim for reimbursement for the cost of the test is
submitted within 1 year of the date the test is taken.
(3) For a national test for admission or a national test for
credit. VA will award educational assistance for the cost of a national
test for admission or a national test for credit only when the eligible
individual takes such test after July 31, 2011--
(i) While the test is approved under 38 U.S.C. chapter 36;
(ii) While the individual is eligible for educational assistance
under this chapter; and
(iii) When claim for reimbursement for the cost of the test is
submitted within 1 year of the date the test is taken.
(b) Certification for program of education offered at an IHL. (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 educational institution.
(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) through (5) of this section.
(3) When the individual enrolls in a resident course whose first
scheduled class begins on or after the eighth calendar day 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.
(c) Certification for program of education offered by a non-college
degree educational institution. (1) Except as provided in paragraphs
(c)(2) and (3) of this section, when an eligible individual enrolls at
a non-college degree educational institution, the beginning date of the
award of educational assistance will be the later of--
(i) The date determined in paragraph (b) of this section; or
(ii) October 1, 2011.
(2) When an eligible individual enrolls at a non-degree educational
institution 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;
(ii) The date of affirmance (as defined in Sec. 21.7020(b)(36));
or
(iii) October 1, 2011.
(3) When an individual enrolls in a program of apprenticeship or
other on-the-job training, the beginning date of the award of
educational assistance will be the later of--
(i) The first date of employment in the training position; or
(ii) October 1, 2011.
(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
[[Page 5343]]
found, but not earlier than the effective date of the act or
administrative issue.
(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.
(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.
(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 (f) 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.
(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 (f) 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.
(i) Spouse eligible for transferred entitlement. If a spouse is
eligible for transferred entitlement under Sec. 21.9571, 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.
(j) Child eligible for transferred entitlement. If a child is
eligible for transferred entitlement under Sec. 21.9571, 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.
(k) Change in active duty status. If an individual is released or
discharged from active duty during a certified period of enrollment, VA
will begin paying the monthly housing allowance:
(1) If released or discharged before August 1, 2018, beginning the
1st day of the month following the date the individual was discharged;
or
(2) If released or discharged on or after August 1, 2018, beginning
the day following the date the individual was discharged.
(l) Election to receive benefits under 38 U.S.C. chapter 33. (1) 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 Sec. 21.9520(c), VA
will begin paying benefits under 38 U.S.C. chapter 33 effective the
later of the following--
(i) August 1, 2009;
(ii) The date the individual became eligible for educational
assistance under 38 U.S.C. chapter 33;
(iii) One year before the date the valid election request was
received; or
(iv) The effective date of the election as requested by the
claimant.
(2) If an individual is in receipt of benefits under 38 U.S.C.
chapter 31 during a term, quarter, or semester, and requests to begin
receiving benefits under 38 U.S.C. chapter 33 during that term,
quarter, or semester, VA will begin paying--
(i) The monthly housing allowance under 38 U.S.C. chapter 33
effective the 1st of the month following the date of the request.
(ii) Net cost of tuition and fees, and the books and supplies
stipend, the first day of the following term, quarter, or semester.
(m) Fugitive felons. An award of educational assistance to an
otherwise eligible veteran, person, or dependent of a veteran will
begin effective the date the individual ceases to be a fugitive felon,
as shown by evidence, which may include evidence that a warrant for an
offense involving flight is resolved by-
(1) Arrest;
(2) Surrendering to the issuing authority;
(3) Dismissal; or
(4) Court documents (dated after the warrant for the arrest of the
felon) showing the individual is no longer a fugitive.
(n) National Guard members' retroactive beginning dates for claims
submitted through September 30, 2012. For any claim received up until
September 30, 2012, for retroactive benefits based on service in the
National Guard, the beginning date of the award will be the later of
either:
(1) the date the National Guard member satisfied the eligibility
requirements in Sec. 21.9520 of this title; or
(2) August 1, 2009.
(o) Child eligible for the Marine Gunnery Sergeant John David Fry
Scholarship. If a child is eligible for entitlement under Sec.
21.9520(d), the beginning date of the award of educational assistance
will be no earlier than the earlier of the following dates--
(1) The date the child completes the requirements of a secondary
school diploma (or equivalency certificate); or
(2) The date the child attains age 18.
(p) Authority. (1) The introductory text of this section issued
under the authority of 38 U.S.C. 3313, 3316, 3323(a), 5110, 5111, 5113;
(2) Paragraphs (a) through (a)(1)(ii)(C) of this section issued
under the authority of 38 U.S.C. 3034(a), 3313, 3316, 3323(a), 3672,
5103;
(3) Paragraphs (a)(2) and (a)(3) of this section issued under the
authority of 38 U.S.C. 3034(a), 3315A, 3323(a), 3452(b);
(4) Paragraphs (b) and (c) of this section issued under the
authority of 38 U.S.C. 3313, 3316, 3323);
(5) Paragraph (d) of this section issued under the authority of 38
U.S.C. 3323(c), 5113);
(6) Paragraph (e) of this section issued under the authority of 38
U.S.C.3323(c);
[[Page 5344]]
(7) Paragraph (f) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3482(g);
(8) Paragraph (g) of this section issued under the authority of 10
U.S.C. 16131(i); 38 U.S.C. 3015(d), 3316(a);
(9) Paragraph (h) of this section issued under the authority of 38
U.S.C. 3311, 3313;
(10) Paragraphs (i) and (j) of this section issued under the
authority of 38 U.S.C. 3319;
(11) Paragraph (m) of this section issued under the authority of 38
U.S.C. 3323(c), 5313B; and
(12) Paragraph (o) of this section issued under the authority of
Pub. L. 111-32, 123 Stat. 1859.
(The Office of Management and Budget has approved the information
collection provision in paragraph (a) of this section under control
number 2900-0706 and the information collection provisions in
paragraphs (b) and (c) of this section under control numbers 2900-
0154, 2900-0178, 2900-0162, 2900-0353, and 2900-0576.)
0
40. Amend Sec. 21.9635 by:
0
a. Revising the section heading;
0
b. In the introductory text, removing ``The effective date'' and adding
in its place ``During the period beginning August 1, 2009, and ending
July 31, 2011, the effective date'';
0
c. Revising paragraph (c) and removing the parenthetical authority
citation at the end of the paragraph;
0
d. Revising paragraph (d) and removing the parenthetical authority
citation at the end of the paragraph;
0
e. Revising paragraph (w) and removing the parenthetical authority
citation at the end of the paragraph;
0
f. Removing the parenthetical authority citation at the end of
paragraph (bb);
0
g. Redesignating paragraph (bb) as paragraph (cc);
0
h. Adding new paragraph (bb); and
0
g. Revising newly-redesignated paragraph (cc).
The revisions and addition read as follows:
Sec. 21.9635 Discontinuance dates--for provisions effective before
August 1, 2011.
* * * * *
(c) Withdrawal or unsatisfactory completion of all courses. 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 after the first day of the term, VA will terminate
educational assistance as follows--
(1) If the eligible individual withdraws from all courses after the
school's drop/add period, and there are no mitigating circumstances, VA
will terminate educational assistance effective the first day of the
term from which the eligible individual withdrew.
(2) If the eligible individual withdraws from all courses with
mitigating circumstances; withdraws during the school's drop/add period
or within the first 30 days of the enrollment period, whichever is
earlier; 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
educational institution.
(3) When an eligible individual withdraws from an approved
correspondence course offered by an educational institution, VA will
terminate educational assistance effective the date the last lesson was
serviced.
(4) This paragraph (c) issued under the authority of 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
(d).
(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--
(i) The withdrawal from one or more courses occurs during the
school's drop/add period or within the first 30 days of the enrollment
period, whichever is earlier; or
(ii) A nonpunitive grade is assigned for the course from which the
eligible individual withdraws and the withdrawal occurs with mitigating
circumstances; or
(iii) 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) This paragraph (d) issued under the authority of 38 U.S.C.
3034(a), 3323(a), 3680(a).
* * * * *
(w) Receipt of educational assistance allowance under another
educational assistance program. (1) An individual in receipt of
educational assistance under chapter 33 who is also eligible for
educational assistance under 10 U.S.C. chapter 106a, 1606, or 1607; 38
U.S.C. chapter 30, 31, 32, or 35; the Hostage Relief Act of 1980; or,
effective August 1, 2011, 10 U.S.C. 510, may choose to receive
educational assistance under another program.
(2) This paragraph (w) issued under the authority of 38 U.S.C.
3322(a).
* * * * *
(bb) Fugitive felons. (1) VA will not award educational assistance
to an otherwise eligible Veteran or dependent of an otherwise eligible
Veteran for any period during which the Veteran is a fugitive felon.
The date of discontinuance of an award of educational assistance to a
Veteran who is a fugitive felon or dependent of a Veteran who is a
fugitive felon is the date of the warrant establishing that the
individual is a fugitive felon or the date otherwise shown by evidence
to be the date the individual became a fugitive felon.
(2) This paragraph (bb) issued under the authority of 38 U.S.C.
3323(c), 5313B.
(cc) Other reasons for discontinuance. (1) If an eligible
individual's educational assistance must be discontinued for any reason
other than those stated in paragraphs (a) through (bb) of this section,
VA will determine the ending date of educational assistance based on
the facts found.
(2) This paragraph (cc) issued under the authority of 38 U.S.C.
3323(c), 5112(a), 5113.
0
41. Add Sec. 21.9636 to read as follows:
Sec. 21.9636 Discontinuance dates--for provisions effective after
July 31, 2011.
The effective date of a reduction or discontinuance of educational
assistance that occurs after July 31, 2011, 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
[[Page 5345]]
sum payment for the books and supplies stipend under Sec. 21.9641(d)
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 educational institution receives a lump sum payment for
tuition and fees under Sec. 21.9641(b) 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 educational institution will be required to
return to VA any portion of the tuition and fees paid by VA that would
normally be refunded to a similarly circumstanced individual according
to the regularly established practices of the educational institution.
(3) If the eligible individual receives an advance payment of the
monthly housing allowance pursuant to Sec. 21.9681(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, e.g., monthly housing allowance under
Sec. 21.9641(c), if the eligible individual dies while pursuing a
program of education, the discontinuance date of educational assistance
will be the date of death.
(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 educational
institution's drop-add period in accordance with Sec. 21.4200(l). If
mitigating circumstances are considered to exist in accordance with
this paragraph (b), VA will terminate or reduce educational assistance
effective--
(1) For withdrawals occurring before March 17, 2025 the end of the
month during which the withdrawal occurred;
(2) For withdrawals occurring on or after March 17, 2025, the last
date of attendance.
(c) Withdrawal or unsatisfactory completion of all courses. 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 after the first day of the term, VA will terminate
educational assistance as follows--
(1) If the eligible individual withdraws from all courses after the
school's drop/add period, and there are no mitigating circumstances, VA
will terminate educational assistance effective the first day of the
term from which the eligible individual withdrew.
(2) If the eligible individual withdraws from all courses with
mitigating circumstances; withdraws during the school's drop/add period
or within the first 30 days of the enrollment period, whichever is
earlier; 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
educational institution.
(3) When an eligible individual withdraws from an approved
correspondence course offered by an educational institution, VA will
terminate educational assistance effective the date the last lesson was
serviced.
(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
(d).
(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 either the end of the month during
which the reduction occurred (in the case of reductions occurring
before March 17, 2025), or the last date of attendance (in the case of
for reductions occurring on or after March 17, 2025), when--
(i) The withdrawal from one or more courses occurs during the
school's drop/add period or within the first 30 days of the enrollment
period, whichever is earlier; or
(ii) A nonpunitive grade is assigned for the course from which the
eligible individual withdraws and the withdrawal occurs with mitigating
circumstances; or
(iii) 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.
(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 educational institution.
(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 educational institution to
complete the course;
(ii) The date the educational institution permanently assigns a
nonpunitive grade; or(iii) One year from
[[Page 5346]]
the date the incomplete grade was assigned.
(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.
(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) For a program of education at an IHL or a non-college degree
institution, the end of the course or period of enrollment, as
certified by the educational institution, in which the disapproval is
effective; or
(2) For an apprenticeship or other on-the-job training program, the
end of the program or the end of the academic year, whichever is
earlier, in which the disapproval is effective or in which 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.
(i) Disapproval by VA. If VA disapproves a program of education in
which an eligible individual is enrolled, the discontinuance date of
payment of educational assistance will be--
(1) For a program of education at an IHL or a non-college degree
institution, the end of the course or period of enrollment, as
certified by the educational institution, in which the disapproval is
effective; or
(2) For an apprenticeship or other on-the-job training program, the
end of the program or the end of the academic year in which the
disapproval occurred, whichever is earlier, provided that the Director
of the VA Regional Processing Office of jurisdiction did not suspend
payments before the disapproval.
(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 educational institution
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 educational
institution`s regularly established standards of progress, conduct, or
attendance.
(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. Sec. 21.4006 and 21.4007 in the same manner as they apply to
veterans under 38 U.S.C. chapter 30.
(l) Conflicting interests (not waived). If a conflict of interest
exists between an officer or employee of VA and an educational
institution, or an officer or employee of a State approving agency and
an educational institution, 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.
(m) Incarceration in prison or other penal institution due to
conviction of a felony. (1) The provisions of this paragraph (m)(1)
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. 21.9676(c) (based on
incarceration in a Federal, State, local, or other penal institution or
correctional facility due to a felony conviction).
(2) The discontinuance of any monthly payments will be the end of
the month during which the eligible individual is incarcerated in a
Federal, State, local, or other penal institution or correctional
facility or the end date of the enrollment period as certified by the
educational institution, whichever is earlier.
(n) Change in 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 of the U.S.
Code, 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--
(i) For tuition and fees, the last date of the certified enrollment
period;
(ii) For monthly housing allowance, see paragraph (n)(2) of this
section; and
(iii) For the ``book stipend,'' the last date of the period covered
by the book stipend payment.
(2) If an individual enters active duty during a certified period
of enrollment, regardless of whether there is a reduction or
termination of training, the discontinuance date for the monthly
housing allowance will be--
(A) For entry occurring before August 1, 2018, the end of the month
during which the individual entered active; and
(B) For entry occurring on or after August 1, 2018, the date of
entry onto active duty.
(o) Exhaustion of entitlement. (1) If an individual enrolled in an
educational institution that regularly operates on the quarter or
semester basis exhausts his or her entitlement under 38 U.S.C. chapter
33, the discontinuance date will be the last day of the quarter or
semester in which the entitlement is exhausted.
(2) The ending date for an individual enrolled in a course that is
not scheduled on a quarter or semester basis, who exhausts his or her
entitlement under 38 U.S.C. chapter 33 after he or she has completed
more than half of the course, 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 a course that is not scheduled on
a quarter or semester basis 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.
(p) End of period of eligibility. If an eligible individual is
enrolled in an educational institution 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.
(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 educational institution 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
[[Page 5347]]
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.
(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.
(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.
(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.
(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.
(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'').
(w) Receipt of educational assistance allowance under another
educational assistance program. An individual in receipt of educational
assistance under chapter 33 who is also eligible for educational
assistance under 10 U.S.C. chapter 106a, 1606, or 1607; 10 U.S.C. 510;
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.
(1) 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; 10 U.S.C. 510; 38 U.S.C. chapter
30, 32, or 35; or the Hostage Relief Act of 1980.
(2) For individuals in receipt of benefits under this chapter
during a term, quarter, or semester who are requesting to receive
benefits under 38 U.S.C. chapter 31, VA will terminate educational
assistance under this chapter effective the first day of the subsequent
enrollment period.
(3) An eligible individual may only request a change in receipt of
benefits from 38 U.S.C chapter 33 to 38 U.S.C. chapter 31 once per
term, quarter, or semester.
(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 end
of the course or period of enrollment, as certified by the educational
institution in which the withdrawal of accreditation occurred.
(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.
(z) Transferor revokes transfer of entitlement. If the transferor
revokes a 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. 21.9571.
(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. 21.9571(l).
(bb) Fugitive felons. VA will not award educational assistance to
an otherwise eligible Veteran or dependent of an otherwise eligible
Veteran for any period during which the Veteran is a fugitive felon.
The date of discontinuance of an award of educational assistance to a
Veteran who is a fugitive felon or dependent of a Veteran who is a
fugitive felon is the date of the warrant establishing that the
individual is a fugitive felon or the date otherwise shown by evidence
to be the date the individual became a fugitive felon.
(cc) 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 (bb) of this section, VA will
determine the ending date of educational assistance based on the facts
found.
(dd) Authority. (1) Paragraph (a) of this section issued under the
authority of 38 U.S.C. 3034(a), 3323(a), 3680(d), 3680(e);
(2) Paragraph (b) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3680(a)(1);
(3) Paragraph (c) of this section issued under the authority of 38
U.S.C. 3323, 3680(a);
(4) Paragraphs (d) and (e) of this section issued under the
authority of 38 U.S.C. 3034(a), 3323(a), 3680(a);
(5) Paragraph (f) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3680;
(6) Paragraph (g) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3690;
(7) Paragraph (h) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3672(a), 3690;
(8) Paragraph (i) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3671(b), 3672(b)(1), 3690;
(9) Paragraph (j) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3474;
(10) Paragraph (k) of this section issued under the authority of 38
U.S.C 3034(a), 3323(a), 3690;
(11) Paragraph (l) of this section issued under the authority of 38
U.S.C.3034(a), 3323(a), 3683;
[[Page 5348]]
(12) Paragraph (m) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3482(g);
(13) Paragraph (n) of this section issued under the authority of 38
U.S.C. 3313(j);
(14) Paragraph (o) of this section issued under the authority of 38
U.S.C. 3031(f), 3312, 3321;
(15) Paragraph (p) of this section issued under the authority of 38
U.S.C. 3321;
(16) Paragraph (q) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3680;
(17) Paragraph (r) of this section issued under the authority of 38
U.S.C. 3323(c), 5112(b), 5113;
(18) Paragraph (s) of this section issued under the authority of 38
U.S.C. 3323(c), 5112, 6103;
(19) Paragraph (t) of this section issued under the authority of 38
U.S.C. 3323(c), 6104, 6105;
(20) Paragraph (u) of this section issued under the authority of 38
U.S.C. 3323(c), 5112, 5113;
(21) Paragraph (v) of this section issued under the authority of 10
U.S.C. 16131; 38 U.S.C. 3316(a);
(22) Paragraph (w) of this section issued under the authority of 38
U.S.C. 3322(a);
(23) Paragraph (x) of this section issued under the authority of 38
U.S.C. 3034(a), 3323(a), 3676, 3680A(a);
(24) Paragraphs (y) through (aa) of this section issued under the
authority of 38 U.S.C. 3319;
(25) Paragraph (bb) of this section issued under the authority of
38 U.S.C. 3323(c), 5313B; and
(26) Paragraph (cc) of this section issued under the authority of
38 U.S.C. 3323(c), 5112(a), 5113.
(The Office of Management and Budget has approved the information
collection provision in Sec. 21.9636, paragraph (w) under control
number 2900-0154.)
0
42. Amend Sec. 21.9640 by:
0
a. Revising the section heading and introductory text;
0
b. Revising paragraph (a) and removing the parenthetical authority
citation at the end of the paragraph;
0
c. Revising paragraph (d) and removing the parenthetical authority
citation at the end of the paragraph.
0
d. Removing the parenthetical citation at the end of paragraph (e); and
0
e. Adding paragraph (f).
The revision and addtion read as follows:
Sec. 21.9640 Rates of payment of educational assistance--for
provisions effective before August 1, 2011.
For training that occurs before August 1, 2011, unless otherwise
noted, 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. (1) Except as provided
in paragraphs (a)(2) and (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
table 1 to paragraph (a).
Table 1 to paragraph (a)
------------------------------------------------------------------------
Percentage of
Aggregate length of creditable maximum
active duty service after 09/10/ Number of days amounts
01 payable
------------------------------------------------------------------------
At least 36 months \1\............ If aggregate service 100
(including entry
training) is 1095
days or more days.
At least 30 continuous days....... .................... 100
(Must be discharged due to service-
connected disability).
At least 30 months, but less than If aggregate service 90
36 months \1\. (including entry
training) is from
910 to 1094 days.
At least 24 months, but less than If aggregate service \3\ 80
30 months 1 3. (including entry
training) is from
730 to 909 days.
At least 18 months, but less than If aggregate service \3\ 70
24 months 2 3. (excluding entry
training) is from
545 to 729 days.
At least 12 months, but less than If aggregate service 60
18 months \2\. (excluding entry
training) is from
365 to 544 days.
At least 6 months, but less than If aggregate service 50
12 months \2\. (excluding entry
training) is from
180 to 364 days.
At least 90 days, but less than 6 If aggregate service 40
months \2\. (excluding entry
training) is from
90 to 179 days.
------------------------------------------------------------------------
\1\ Includes entry level and skill training.
\2\ Excludes entry level and skill training.
\3\ The 70/80% rule: If the aggregate service including training is at
least 24 months but less than 30 months (730-909 days) BUT the
aggregate service excluding training is at least 18 but less than 24
months (545 to 729 days), the individual will be deemed eligible at
the 70% benefit level. This limitation is explicitly mandated by 38
U.S.C. 3311(e).
(2) Amounts payable for individuals eligible for the Marine Gunnery
Sergeant John David Fry Scholarship. VA will apply 100 percent of the
maximum amounts payable for pursuit of an approved program of education
by an individual who is eligible for educational assistance under Sec.
21.9520(d).
* * * * *
(d) Amounts payable for individuals on active duty--(1) Amounts
payable for programs of education beginning on or after August 1, 2009,
and on or before March 4, 2011. Individuals on active duty who are
pursuing a program of education during a quarter, semester, or term
that starts during the period beginning August 1, 2009, and ending
March 4, 2011, may receive a lump sum amount for established charges
paid directly to the institution of higher learning for the entire
term, quarter, or semester, as applicable. The amount payable will be
the lowest of--
(i) The established charges that similarly circumstanced
nonveterans enrolled in the individual's program of education would be
required to pay;
(ii) 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;
(iii) The lesser amount of paragraph (d)(i) or (ii) of this
section, divided by the number of days in the individual's
[[Page 5349]]
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. Sec. 21.4020 and 21.9635(o);
(2) Amounts payable for a program of education, on more than half-
time basis, leading to a degree and beginning after March 4, 2011, but
before August 1, 2011. (i) VA may, on behalf of an individual on active
duty who is pursuing a program of education leading to a degree on more
than half-time basis at a public IHL, issue a lump sum payment for the
term, quarter, or semester directly to the IHL equal to the applicable
percentage (as listed in paragraph (a) of this section) of the net cost
for in-State tuition and fees.
(ii) VA may, on behalf of an individual on active duty who is
pursuing a program of education leading to a degree on more than half-
time basis at a non-public or foreign IHL, issue a lump sum payment for
the term, quarter, or semester directly to the IHL equal to the lesser
of the applicable percentage (as listed in paragraph (a) of this
section) of the net cost for tuition and fees assessed by the
institution or--
(A) For the academic year beginning August 1, 2011, $17,500; or
(B) For the academic year beginning on any subsequent August 1, the
amount for the previous academic year, as increased under 38 U.S.C.
3015(h).
(3) Amounts payable for a program of education, on a half-time
basis or less, leading to a degree and beginning after March 4, 2011,
but before August 1, 2011. Amounts payable for the individual will be
calculated in accordance with paragraph (d)(1) of this section.
(4) Amounts payable for a program of education not leading to a
degree and beginning after March 4, 2011, but before August 1, 2011.
Amounts payable for the individual will be calculated in accordance
with paragraph (d)(1) of this section.
(f) Authority. (1) Paragraph (a)(1) of this section issued under
the authority of 38 U.S.C. 3311, 3313;
(2) Paragraph (d)(2) of this section issued under the authority of
38 U.S.C. 501(a), 3313(e); and
(3) Paragraph (e) of this section issued under the authority of 38
U.S.C. 3313, 3323(c).
0
43. Add Sec. 21.9641 to read as follows:
Sec. 21.9641 Rates of payment of educational assistance--for
provisions effective after July 31, 2011.
For training that begins after July 31, 2011, unless otherwise
noted, 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. (1) Except as provided
in paragraph (a)(2) 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 table 1
to paragraph (a).
Table 1 to paragraph (a)
------------------------------------------------------------------------
Percentage of
Aggregate length of creditable maximum
active duty service after 09/10/ Number of days amounts
01 payable
------------------------------------------------------------------------
At least 36 months \1\............ If aggregate service 100
(including entry
training) is 1095
days or more days.
At least 30 continuous days....... .................... 100
(Must be discharged due to service-
connected disability).
At least 30 months, but less than If aggregate service 90
36 months \1\. (including entry
training) is from
910 to 1094 days.
At least 24 months, but less than If aggregate service \3\ 80
30 months 1 3. (including entry
training) is from
730 to 909 days.
At least 18 months, but less than If aggregate service \3\ 70
24 months 2 3. (excluding entry
training) is from
545 to 729 days.
At least 12 months, but less than If aggregate service 60
18 months \2\. (excluding entry
training) is from
365 to 544 days.
At least 6 months, but less than If aggregate service 50
12 months \2\. (excluding entry
training) is from
180 to 364 days.
At least 90 days, but less than 6 If aggregate service 40
months \2\. (excluding entry
training) is from
90 to 179 days.
------------------------------------------------------------------------
\1\ Includes entry level and skill training.
\2\ Excludes entry level and skill training.
\3\ The 70/80% rule: If the aggregate service including training is at
least 24 months but less than 30 months (730-909 days) BUT the
aggregate service excluding training is at least 18 but less than 24
months (545 to 729 days), the individual will be deemed eligible at
the 70% benefit level. This limitation is explicitly mandated by 38
U.S.C. 3311(e).
(2) Amounts payable for individuals eligible for the Marine Gunnery
Sergeant John David Fry Scholarship. VA will apply 100 percent of the
maximum amounts payable for pursuit of an approved program of education
by an individual who is eligible for educational assistance under Sec.
21.9520(d).
(b) Tuition and fees payable. (1) Program of education leading to a
degree at public IHLs. After July 31, 2011, VA may, on behalf of an
individual, who may be either on active duty or not on active duty and
pursuing a program of education leading to a degree at a public IHL,
issue a lump sum payment for the term, quarter, or semester directly to
the IHL equal to the applicable percentage (as listed in paragraph (a)
of this section) of the net cost for in-State tuition and fees.
(2) Program of education leading to a degree at non-public IHLs or
foreign IHLs. (i) After July 31, 2011, VA may, on behalf of an
individual, who may be either on active duty or not on active duty and
pursuing a program of education leading to a degree at a non-public or
foreign IHL, issue a lump sum payment for the term, quarter, or
semester directly to the IHL equal to the applicable percentage (as
listed in paragraph (a) of this section) of the lesser of--
(A) The actual net cost for tuition and fees assessed by the
institution; or
(B) For the academic year beginning August 1, 2011, $17,500; or
[[Page 5350]]
(C) For the academic year beginning on any subsequent August 1, the
amount for the previous academic year, as increased under 38 U.S.C.
3015(h).
(3) Program of education in pursuit of a certificate or other non-
college degree at institutions other than IHLs. On or after October 1,
2011, VA may, on behalf of an individual pursuing a program of
education in pursuit of a certificate or other non-college degree at an
institution other than an IHL, issue a lump sum payment for the term,
quarter, or semester, directly to the educational institution equal to
the applicable percentage (as listed in paragraph (a) of this section)
of the lesser of--
(i) The actual net cost for in-State tuition and fees assessed by
the institution; or
(ii) For the academic year beginning August 1, 2011, $17,500; or
(iii) For the academic year beginning on any subsequent August 1,
the amount for the previous academic year, as increased under 38 U.S.C.
3015(h).
(4) Full-time program of apprenticeship or other on-the-job
training at institutions other than IHLs. No tuition and fee amount is
payable for this type of training.
(5) Program of education for flight training (regardless of the
institution providing such program of education). After September 30,
2011, upon receipt of certification for training completed by the
individual and serviced by the educational institution, on behalf of an
individual pursuing a program of education consisting of flight
training, VA may issue a lump sum payment directly to the educational
institution equal to the applicable percentage (as listed in paragraph
(a) of this section) of the lesser of--
(i) The actual net cost for in-State tuition and fees; or
(ii) For the academic year beginning August 1, 2011, $10,000; or
(iii) For the academic year beginning on any subsequent August 1,
the amount for the previous academic year, as increased under 38 U.S.C.
3015(h).
(6) Program of education pursued exclusively by correspondence at
an IHL or institution other than an IHL. After September 30, 2011, on
behalf of an individual pursuing program of education by correspondence
at an IHL or institution other than an IHL, VA may issue a quarterly
payment on a pro rata basis for the lessons completed by the individual
and serviced by the educational institution during such quarter,
directly to the educational institution equal to the applicable
percentage (as listed in paragraph (a) of this section) of the lesser
of--
(i) The net cost for tuition and fees; or
(ii) For the academic year beginning August 1, 2011, $8,500; or
(iii) For the academic year beginning on any subsequent August 1,
the amount for the previous academic year, as increased under 38 U.S.C.
3015(h).
(7) No reduction in tuition and fee annual cap. VA will not make a
reduction in the tuition and fee maximum amount payable during the
academic year equal to the amount of tuition and fees charged for a
course or courses from which the individual withdrew 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.
(c) Monthly housing allowance payable. An individual who is
pursuing a program of education leading to a degree at a domestic or
foreign IHL, a program of education at a non-college degree
institution, or an on-the-job or apprenticeship training can receive a
monthly stipend (referred to as the ``monthly housing allowance''),
subject to the applicable percentage (as listed in paragraph (a) of
this section), as follows--
(1) Residence training at domestic IHLs on more than half-time
basis. An individual, other than one on active duty, who is pursuing a
program of education with at least one in-residence course and who has
a rate of pursuit of greater than 50 percent at an IHL located in a
State, may receive a monthly housing allowance for each month (or
prorated amount for a partial month) of training during each term,
quarter, or semester, equal to--
(i) During the period beginning August 1, 2011, and ending July 31,
2012, the monthly amount of the basic allowance for housing payable
under 37 U.S.C. 403 for a member with dependents in pay grade E-5 using
the ZIP code area in which all, or a majority, of the IHL in which the
individual is enrolled is located multiplied by the lesser of--
(A) 1.0; or
(B) The individual's rate of pursuit, rounded to the nearest tenth.
(ii) On or after August 1, 2012, the monthly amount of the basic
allowance for housing payable under 37 U.S.C. 403 for a member with
dependents in pay grade E-5 using the ZIP code or location code,
whichever is applicable, in which all, or a majority, of the
institution in which the individual is enrolled is located multiplied
by the lesser of--
(A) 1.0; or
(B) The individual's rate of pursuit, rounded to the nearest tenth.
(2) Residence training at foreign IHLs on more than half-time
basis. On or after August 1, 2011, an individual, other than one on
active duty, who is pursuing a program of education leading to a degree
at a foreign IHL with at least one in-residence course and who has a
rate of pursuit of greater than 50 percent, may receive a monthly
housing allowance for each month (or prorated amount for a partial
month) of training during each term, quarter, or semester, equal to the
national average of the monthly amount of the basic allowance for
housing payable under 37 U.S.C. 403 for a member with dependents in pay
grade E-5, multiplied by the lesser of--
(i) 1.0; or
(ii) The individual's rate of pursuit, rounded to the nearest
tenth.
(3) Residence training at non-college degree institutions on more
than half-time basis. After October 1, 2011, an individual, other than
one on active duty, who is pursuing a program of education at a non-
college degree institution (other than those listed in paragraph (c)(6)
of this section) with at least one in-residence course and who has a
rate of pursuit of greater than 50 percent, can receive a monthly
housing allowance for each month (or a prorated amount for a partial
month) of training pursued. The amount will be calculated in accordance
with paragraph (c)(1) of this section.
(4) Training pursued solely via distance learning on more than
half-time basis. After September 30, 2011, an individual, other than
one on active duty, who is pursuing a program of education solely via
distance learning at a rate of pursuit of greater than 50 percent, can
receive a monthly housing allowance for each month (or prorated amount
for a partial month) of training during each term, quarter, or
semester, equal to 50 percent of the amount payable under paragraph
(c)(2) of this section.
(5) On-the-job and apprenticeship training on full-time basis.
After September 30, 2011, an individual, other than one on active duty,
pursuing a full-time program of apprenticeship or other on-the-job
training may receive a monthly housing allowance--
[[Page 5351]]
(i) During the first 6-month period of the program, the monthly
amount of the basic allowance for housing payable under 37 U.S.C. 403
for a member with dependents in pay grade E-5 residing in the military
housing area that encompasses all or a majority portion of the ZIP code
area in which the employer is located.
(ii) During the second 6-month period of the program, 80 percent of
the amount payable in paragraph (c)(5)(i) of this section.
(iii) During the third 6-month period of the program, 60 percent of
the amount payable in paragraph (c)(5)(i) of this section.
(iv) During the fourth 6-month period of the program, 40 percent of
the amount payable in paragraph (c)(5)(i) of this section.
(v) During any month after the first 24 months of training, 20
percent of the amount payable in paragraph (c)(5)(i) of this section.
(vi) In any month in which an individual pursuing training fails to
complete 120 hours of training, the amount of the monthly housing
stipend payable will be the amount determined by multiplying the
applicable amount as determined by paragraphs (c)(5)(i) through (v) of
this section by the figure determined as follows--
(A) The number of hours worked during the month, rounded to the
nearest 8 hours; then
(B) Dividing the result by 120.
(C) Rounding the quotient to the nearest hundred.
(6) Program of education for vocational flight training at
institutions other than IHLs; Program of education pursued exclusively
by correspondence; Program of education pursued on a half-time basis or
less; Program of education pursued while on active duty. No monthly
housing allowance is payable for these types of training.
(7) Rate payable during the academic year. The monthly housing
allowance payable during each academic year beginning on August 1 of a
calendar year under paragraphs (c)(1) through (5) of this section will
be determined using the basic allowance for housing rates payable under
37 U.S.C. 403 in effect as of January 1 of each such calendar year.
(8) Rate protection. The monthly housing allowance payable under
paragraphs (c)(1) through (5) of this section will not decrease as long
as the individual--
(i) Has not had a break in training that exceeds 6 months. An
individual called to active duty (during an enrollment period or 6-
month grace period) will not see a decrease as long as the individual
resumes training at the educational institution within 6 months from
the release from active duty; and
(ii) Previously received the monthly housing allowance based on the
same type of training (residence, distance, foreign) at the same
educational institution. A change in facility (transferring to a
different school or a different branch of the same school) constitutes
a change in educational institution.
(9) Concurrent eligibility for more than one monthly housing
stipend rate. In the event that an individual is concurrently eligible
for more than one monthly housing stipend rate, the housing stipend
will be paid at the highest rate for which the individual qualifies.
(d) Books, supplies, and equipment stipend payable. An individual
who is pursuing a program of education at an IHL, non-college degree
institution, or an individual pursuing on-the-job or apprenticeship
training can receive an amount for books, supplies, equipment, and
other educational costs (referred to as the ``book stipend''), subject
to the applicable percentage (as listed in paragraph (a) of this
section), as follows--
(1) Book stipend for training pursued at an IHL. (i) The maximum
amount payable to an individual pursuing training at an IHL 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). The lump sum payment for each term,
quarter, or semester is equal to $41.67 ($1,000 divided by 24 cre
[…truncated; see source link]Indexed from Federal Register on January 16, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.