**§21.7044 Persons with eligibility under 38 U.S.C. chapter 34.**

Certain individuals with 38 U.S.C. chapter 34 eligibility may establish
eligibility for educational assistance under 38 U.S.C. chapter 30. This
section requires an individual to complete certain academic requirements
before applying for educational assistance. If the individual applies
before completing those requirements, VA will disallow the application.
However, the individual's premature application will not prevent the
individual from establishing eligibility at a later time by applying for
educational assistance again after having completed those academic
requirements. In determining whether an individual has met the service
requirements of this section, VA will exclude any period during which
the individual is not entitled to credit for service for periods of time
specified in §3.15.

\(a\) *Eligibility based solely on active duty.* An individual may
establish eligibility for basic educational assistance based on service
on active duty under the following terms, conditions, and requirements:

\(1\) The individual must have met the requirements of 38 U.S.C. chapter
34, as in effect on December 31, 1989, establishing eligibility for
educational assistance allowance under that chapter;

\(2\) As of December 31, 1989, the individual must have entitlement
remaining for educational assistance allowance under 38 U.S.C. chapter
34;

\(3\) The individual, before applying for educational assistance, must:

\(i\) Complete the requirements for a secondary school diploma or an
equivalency certificate; or

\(ii\) Successfully complete (or otherwise receive academic credit for)
12 semester hours (or the equivalent) in a program of education leading
to a standard college degree;

\(4\) After June 30, 1985:

\(i\) The individual must serve at least three years continuous active
duty in the Armed Forces, or

\(ii\) The individual must be discharged or released from active duty:

\(A\) For a service-connected disability, or

\(B\) For a medical condition which preexisted the individual's service
on active duty and which VA determines is not service connected, or

\(C\) Under 10 U.S.C. 1173 (Hardship discharge), or

\(D\) For the convenience of the Government provided the individual
completes at least 30 months of active duty, or

\(E\) Involuntarily for convenience of the government as a result of a
reduction in force, as determined by the Secretary of the military
department concerned in accordance with regulations prescribed by the
Secretary of Defense or by the Secretary of Transportation with respect
to the Coast Guard when it is not operating as a service in the Navy, or

\(F\) For a physical or mental condition that was not characterized as a
disability and did not result from the individual's own willful
misconduct but did interfere with the individual's performance of duty,
as determined by the Secretary of each military department in accordance
with regulations prescribed by the Secretary of Defense or by the
Secretary of Transportation with respect to the Coast Guard when it is
not operating as a service in the Navy;

\(5\) Upon completion of the requisite active duty service the
individual must either:

\(i\) Continue on active duty, or

\(ii\) Be discharged from active duty with an honorable discharge, or

\(iii\) Be released after service on active duty characterized by the
Secretary concerned as honorable service and:

> \(A\) Be placed on the retired list, or
>
> \(B\) Be transferred to the Fleet Reserve or Fleet Marine Corps
> Reserve, or
>
> \(C\) Be placed on the temporary disability retired list, or

\(iv\) Be released from active duty for further service in a reserve
component of the Armed Forces after service on active duty characterized
by the Secretary concerned as honorable service; and

\(6\) The individual must have been on active duty at any time during
the period beginning on October 19, 1984, and ending on July 1, 1985,
and continued on active duty without a break in service; or (Authority:
38 U.S.C. 3011)

\(7\) Effective December 27, 2001, an individual must meet the following
requirements. He or she:

\(i\) Was not on active duty on October 19, 1984;

\(ii\) Reenlists or reenters on a period of active duty after October
19, 1984; and

\(iii\) Serves at least three years of continuous active duty in the
Armed Forces after June 30, 1985. The individual is not required to
serve three years if he or she is honorably discharged or released from
active duty for one of the reasons shown in paragraphs (a)(4)(ii)(A)
through (a)(4)(ii)(F) of this section. (Authority: 38 U.S.C. 3011(a)(1))

\(b\) *Eligibility based on combined active duty service and service in
the Selected Reserve.* An individual may establish eligibility for basic
educational assistance based on a combination of service on active duty
and service in the Selected Reserve under the following terms,
conditions and requirements.

\(1\) The individual must have met the requirements of 38 U.S.C. chapter
34, as in effect on December 31, 1989, establishing eligibility for
educational assistance allowance under that chapter;

\(2\) As of December 31, 1989, the individual must have entitlement
remaining for educational assistance allowance under 38 U.S.C. chapter
34;

\(3\) The individual, before applying for educational assistance, must:

\(i\) Complete the requirements for a secondary school diploma or an
equivalency certificate; or

\(ii\) Successfully complete (or otherwise receive academic credit for)
12 semester hours (or the equivalent) in a program of education leading
to a standard college degree.

\(4\) The individual either:

\(i\) Must have been on active duty on October 19, 1984, must have
served without a break in service from October 19, 1984, through June
30, 1985, and after June 30, 1985:

\(A\) Except as provided in paragraph (b)(5) of this section, must serve
at least two years of continuous active duty in the Armed Forces
characterized by the Secretary concerned as honorable service, and

\(B\) Except as provided in paragraph (b)(6) of this section, after
completion of this active duty service, must serve at least four
continuous years service in the Selected Reserve, during which the
individual must participate satisfactorily in training as prescribed by
the Secretary concerned; or

\(ii\) Effective December 27, 2001, must not have been on active duty on
October 19, 1984, must reenlist or reenter on a period of active duty
after October 19, 1984, and after June 30, 1985:

\(A\) Except as provided in paragraph (b)(5) of this section, must serve
at least two years of continuous active duty in the Armed Forces
characterized by the Secretary concerned as honorable service, and

\(B\) Except as provided in paragraph (b)(6) of this section, after
completion of this active duty service, must serve at least four
continuous years service in the Selected Reserve, during which the
individual must participate satisfactorily in training as prescribed by
the Secretary concerned. (Authority: 38 U.S.C. 3012(a)(1))

\(5\) The individual also must:

\(i\) Be discharged from service with an honorable discharge, or

\(ii\) Be placed on the retired list, or

\(iii\) Be transferred to the Standby Reserve or an element of the Ready
Reserve other than the Selected Reserve after service in the Selected
Reserve characterized by the Secretary concerned as honorable service,
or

\(iv\) Continue on active duty, or

\(v\) Continue in the Selected Reserve.

\(6\) An individual is exempt from serving two years on active duty as
provided in paragraph (b)(3) of this section when he or she is
discharged or released during those two years:

\(i\) For a service-connected disability, or

\(ii\) For a medical condition which preexisted such service on active
duty and which VA determines is not service-connected, or

\(iii\) Under 10 U.S.C. 1173 (hardship discharge), or

\(iv\) For convenience of the government provided the individual
completes at least 20 months of active duty, or

\(v\) Involuntarily, for the convenience of the government as a result
of a reduction in force as determined by the Secretary of the military
department concerned in accordance with regulations prescribed by the
Secretary of Defense or by the Secretary of Transportation with respect
to the Coast Guard when it is not operating as a service in the Navy, or

\(vi\) For a physical or mental condition that was not characterized as
a disability and did not result from the individual's own willful
misconduct but did interfere with the individual's performance of duty,
as determined by the Secretary of each military department in accordance
with regulations prescribed by the Secretary of Defense or by the
Secretary of Transportation with respect to the Coast Guard when it is
not operating as a service in the Navy. (Authority: 38 U.S.C. 3012; Pub.
L. 98-525, Pub. L. 99-576, Pub. L. 100-689, Pub. L. 101-510) (Oct. 19,
1984)

\(7\) An individual is exempt from serving four years in the Selected
Reserve as provided in paragraph (b)(4) of this section when:

\(i\) After completion of the active duty required by this paragraph he
or she serves a continuous period of service in the Selected Reserve,
and

\(A\) Is discharged for a service-connected disability, or

\(B\) Is discharged for a medical condition which preexisted the
individual's becoming a member of the Selected Reserve and which VA
determines is not service connected, or

\(C\) Is discharged for hardship, or

\(D\) Is discharged or released after a minimum of 30 months service in
the Selected Reserve for convenience of the Government, or

\(E\) Is discharged involuntarily for the convenience of the government
as a result of a reduction in force, as determined by the Secretary of
the military department concerned in accordance with regulations
prescribed by the Secretary of Defense or by the Secretary of
Transportation with respect to the Coast Guard when it is not operating
as a service in the Navy, or

\(F\) Is discharged for a physical or mental condition that was not
characterized as a disability and did not result from the individual's
own willful misconduct but did interfere with the individual's
performance of duty, as determined by the Secretary of each military
department in accordance with regulations prescribed by the Secretary of
Defense or by the Secretary of Transportation with respect to the Coast
Guard when it is not operating as a service in the Navy; or (Authority:
38 U.S.C. 3012; Pub. L. 98-525, Pub. L. 99-576, Pub. L. 100-689, Pub. L.
101-510) (Oct. 19, 1984)

\(ii\) The individual is obligated at the beginning of the two years
active duty described in paragraph (b)(3) of this section to serve the
four years in the Selected Reserve as described in paragraph (b)(4) of
this section, and during the two years of active duty service he or she
is discharged or released from active duty in the Armed Forces:

\(A\) For a service-connected disability, or

\(B\) For a medical condition which preexisted that period of active
duty and which VA determines is not service connected, or

\(iii\) Before completing four years service in the Selected Reserve the
individual ceases to be a member of the Selected Reserve during the
period beginning on October 1, 1991, and ending on September 30, 1999,
by reason of the inactivation of the individual's unit of assignment or
by reason of involuntarily ceasing to be designated as a member of the
Selected Reserve pursuant to 10 U.S.C. 268(b). However, this exemption
from the four years service requirement does not apply to a reservist
who ceases to be a member of the Selected Reserve under adverse
conditions as characterized by the Secretary of the military department
concerned, or to a reservist who after having involuntarily ceased to be
a member of the Selected Reserve is involuntarily separated from the
Armed Forces under adverse conditions as characterized by the Secretary
of the military department concerned. (Authority: 10 U.S.C. 16133(b)(1);
§4421(b) and (c), Pub. L. 102-484, 106 Stat. 2718)

\(8\) A veteran who has completed the active duty service required by
this paragraph and has made a commitment (as determined by the Secretary
concerned) to serve four continuous years in the Selected Reserve may
pursue a program of education with basic educational assistance while
performing the required Selected Reserve service.

\(9\) For the purpose of determining continuity of Selected Reserve
service, the Secretary concerned may prescribe by regulation a maximum
period of time during which the individual is considered to have
continuous service in the Selected

Reserve even through he or she:

\(i\) Is unable to locate a unit of the Selected Reserve of the
individual's Armed Force that the individual is eligible to join or that
has a vacancy, or

\(ii\) Is not attached to a unit of the Selected Reserve for any reason
prescribed by the Secretary concerned by regulation other than those
stated in subdivision (i) of this subparagraph.

\(10\) Any decision as to the continuity of an individual's service in
the Selected Reserve made by the Department of Defense or the Department
of Transportation under regulations described in paragraph (b)(8) or (9)
of this section shall be binding upon VA. (Authority: 38 U.S.C. 3011,
3012, 3016; Pub. L. 98-525, Pub. L. 100-689) (July 1, 1985)

\(11\) The individual must have been on active duty at any time during
the period beginning on October 19, 1984, and ending on July 1, 1985,
and continued on active duty without a break in service. (Authority: 38
U.S.C. 3012(a)(1)(B))

\(c\) *Restrictions on establishing eligibility*. Except as provided in
paragraph (d) of this section, an individual, who would otherwise be
eligible for educational assistance under paragraphs (a) or (b) of this
section, is not eligible for educational assistance under 38 U.S.C. ch.
30, if after December 31, 1976, he or she receives a commission as an
officer in the Armed Forces:

\(1\) Upon graduation from:

\(i\) The United States Military Academy, or

\(ii\) The United States Naval Academy, or

\(iii\) The United States Air Force Academy, or

\(iv\) The Coast Guard Academy; or

\(2\) Upon completion of a program of educational assistance under 10
U.S.C. 2107 (the Reserve Officers Training Corps Scholarship Program).
(Authority: 38 U.S.C. 3011, 3012; Pub. L. 98-525)

\(d\) *Exception to restrictions on establishing eligibility*. Paragraph
(c) of this section does not apply to a veteran who has met the
requirements for educational assistance under paragraph (a) or (b) of
this section before receiving a commission as an officer in the Armed
Forces upon graduation from the United States Military Academy, the
United States Naval Academy, the United States Air Force Academy, or the
Coast Guard Academy; or upon completion of a program of educational
assistance under 10 U.S.C. 2107 (the Reserve Officers Training Corps
Scholarship Program). (Authority: 38 U.S.C. 3011, 3012, 3018)

\[53 FR 1757, Jan. 22, 1988, as amended at 55 FR 28384, July 11, 1990;
56 FR 20132, May 2, 1991; 57 FR 29026, June 30, 1992; 59 FR 24050, May
10, 1994; 59 FR 24051, May 10, 1994; 61 FR 6786, Feb. 22, 1996; 61 FR
26116, May 24, 1996; 62 FR 55761, Oct. 28, 1997; 65 FR 20745, Apr. 18,
2000; 65 FR 67266, Nov. 9, 2000; 65 FR 80329, Dec. 21, 2000; 68 FR
34329, June 9, 2003; 73 FR 2427, Jan. 15, 2008\]

**Supplement *Highlights* references**: 12(2), 12(3), 23(1), 27(1),
49(1), 52(1), 62(2), 77(2).

Reserved