**§21.7045 Eligibility based on involuntary separation, voluntary
separation, or**

> **participation in the Post-Vietnam Era Veterans' Educational
> Assistance**
>
> **Program.**

An individual who fails to meet the eligibility requirements found in
§21.7042 or §21.7044 nevertheless will be eligible for educational
assistance as provided in this subpart if he or she meets the
requirements of paragraphs (a) and (b) of this section; paragraphs (a)
and (c) of this section; or paragraph (d) or (e) of this section.

\(a\) *Service requirements*. The individual must meet one of the
following sets of service requirements.

\(1\) The individual:

\(i\) If not a member of the Coast Guard, must be on active duty or
full-time National Guard duty either on September 30, 1990, or after
November 29, 1993, or if a member of the Coast Guard, must be on active
duty after September 30, 1994, and

\(ii\) After February 2, 1991, must be involuntarily separated, as that
term is defined in 10 U.S.C. 1141, with an honorable discharge; or

\(2\) The individual must:

\(i\) Be separated from active military, naval, or air service with an
honorable discharge, and

\(ii\) Receive voluntary separation incentives under 10 U.S.C. 1174a or
1175. (Authority: 10 U.S.C. 1141; 38 U.S.C. 3018A)

\(b\) *Additional requirements for those individuals voluntarily
separated after October 23, 1992, or involuntarily separated*. An
individual who meets the requirements of paragraph (a)(1) of this
section; or an individual who meets the requirements of paragraph (a)(2)
of this section and who either was not a member of the Coast Guard and
was separated after October 22, 1992, or who was a member of the Coast
Guard and was separated after September 30, 1994, must meet the
following additional requirements in order to establish eligibility for
educational assistance:

\(1\) *Required election*.

\(i\) If, under §21.7042(f), the individual elected not to receive
educational assistance under 38 U.S.C. ch. 30, he or she must
irrevocably withdraw that election and make an election to receive
educational assistance under 38 U.S.C. ch. 30. The withdrawal and the
election must be made:

\(A\) Before the involuntary or voluntary separation as the case may be,
and

\(B\) Pursuant to procedures which the Secretary of the military
department concerned provides in accordance with regulations prescribed
by the Secretary of Defense or which the Secretary of Transportation
provides with respect to the Coast Guard when it is not operating as a
service in the Navy; and

\(ii\) If the individual is a participant (as defined in §21.5021(e)) in
the educational program provided in 38 U.S.C. ch. 32, the individual
must make an irrevocable election to receive educational assistance
under 38 U.S.C. ch. 30 rather than under 38 U.S.C. ch. 32. Such an
election must be made:

\(A\) Before the individual is involuntarily or voluntarily separated as
the case may be, and

\(B\) Pursuant to procedures which the Secretary of the military
department concerned provides in accordance with regulations prescribed
by the Secretary of Defense or which the Secretary of Transportation
provides with respect to the Coast Guard when it is not operating as a
service in the Navy; or

\(iii\) If the individual is not described in either paragraph (b)(1)(i)
or (b)(1)(ii) of this section, he or she must make an irrevocable
election to receive educational assistance under 38 U.S.C. ch. 30. This
election must be made:

\(A\) Before the individual is involuntarily or voluntarily separated as
the case may be, and

\(B\) Pursuant to procedures which the Secretary of the military
department concerned provides in accordance with regulations prescribed
by the Secretary of Defense or which the Secretary of Transportation
provides with respect to the Coast Guard when it is not operating as a
service in the Navy.

\(2\) *Reduction in basic pay*. The basic pay of anyone who makes one of
the irrevocable elections described in paragraph (b)(1) of this section
is required by 38 U.S.C. 3018B to be reduced by \$1,200.

\(i\) If for any reason the basic pay of an individual who received an
involuntary separation is not so reduced by \$1,200, the failure to make
the reduction will not affect the individual's eligibility for
educational assistance under 38 U.S.C. ch. 30.

\(ii\) If the individual is voluntarily separated, such reduction of the
individual's basic pay by \$1,200 is a precondition to establishing
eligibility. Hence, educational assistance under 38 U.S.C. ch. 30 may
not be paid to such an individual when the reduction does not occur.

\(3\) *Educational requirement*.

\(i\) Before the date on which VA receives the individual's application
for educational assistance under subpart K of this part, the individual
must have:

> \(A\) Successfully completed the requirements of a secondary school
> diploma (or equivalency certificate); or
>
> \(B\) Successfully completed (or otherwise received academic credit
> for) 12 semester hours (or the equivalent) in a program of education
> leading to a standard college degree.

\(ii\) If a veteran's application for educational assistance is denied
due to failure to meet the requirements of paragraph (b)(3)(i) of this
section at the time of his or her application for educational
assistance, the veteran may reapply if the requirements are subsequently
met. (Authority: 38 U.S.C. 3018B)

\(c\) *Additional requirements for individuals who are voluntarily
discharged before October 23, 1992*. If an individual meets the
requirements of paragraph (a)(2) of this section and is voluntarily
discharged before October 23, 1992, he or she must also meet the
following requirements in order to establish eligibility for educational
assistance.

\(1\) *Required election*.

\(i\) If, under §21.7042(f), the individual elected not to receive
educational assistance under 38 U.S.C. ch. 30, he or she must
irrevocably withdraw that election and make an election to receive
educational assistance under 38 U.S.C. ch. 30. The withdrawal and the
new election must be made:

\(A\) Before October 23, 1993, and

\(B\) In the form and manner prescribed by the Secretary of Veterans
Affairs; and

\(ii\) If the individual is a participant (as defined in §21.5021(e)) in
the educational program provided in 38 U.S.C. ch. 32, the individual
must make an irrevocable election to receive educational assistance
under 38 U.S.C. ch. 30 rather than under 38 U.S.C. ch. 32. Such an
election must be made:

\(A\) Before October 23, 1993, and

\(B\) In the form and manner prescribed by the Secretary of Veterans
Affairs.

\(iii\) If the individual is not described in either paragraph (c)(1)(i)
or (ii) of this section, he or she must make an irrevocable election to
receive educational assistance under 38 U.S.C. ch. 30. This election
must be made:

\(A\) Before October 23, 1993, and

\(B\) In the form and manner prescribed by the Secretary of Veterans
Affairs.

\(2\) *\$1,200 collection*. VA must collect \$1,200 from the individual
before awarding educational assistance under 38 U.S.C. ch. 30.
Collection of \$1,200 is a precondition to establishing eligibility.

\(3\) *Educational requirement*.

\(i\) Before the date on which VA receives the individual's application
for educational assistance under subpart K of this part, the individual
must have:

> \(A\) Successfully completed the requirements of a secondary school
> diploma (or equivalency certificate); or
>
> \(B\) Successfully completed (or otherwise received academic credit
> for) 12 semester hours (or the equivalent) in a program of education
> leading to a standard college degree.

\(ii\) If a veteran's application for educational assistance under
subpart K of this part is denied due to failure to meet the requirements
of paragraph (c)(3)(i) of this section at the time of his or her
application for educational assistance, the veteran will be permitted to
apply at a later date. (Authority: 38 U.S.C. 3018B)

\(d\) *Alternate eligibility requirements for participants in the
Post-Vietnam Era Veterans' Educational Assistance Program*.

\(1\) *Making an election*. To receive educational assistance under the
authority of paragraph (d) of this section, a veteran or servicemember
must:

> \(i\) Have elected to do so before October 9, 1997;
>
> \(ii\) Have been a participant (as that term is defined in
> §21.5021(e)) in the Post-Vietnam Era Veterans' Educational Assistance
> Program on October 9, 1996;
>
> \(iii\) Have been on active duty on October 9, 1996; and
>
> \(iv\) Receive an honorable discharge.

\(2\) *Election*. The election to receive educational assistance payable
under this subpart in lieu of educational assistance payable under the
Post-Vietnam Era Veterans' Educational Assistance Program is
irrevocable. The election must have been made before October 9, 1997,
pursuant to procedures provided by the Secretary of the military
department concerned in accordance with regulations prescribed by the
Secretary of Defense or provided by the Secretary of Transportation with
respect to the Coast Guard when it is not operating as a service in the
Navy.

\(3\) *\$1,200 collection*. An individual who has made the election
described in paragraph (d)(2) of this section shall have his or her
basic pay reduced by \$1,200 in a manner prescribed by the Secretary of
Defense. To the extent that basic pay is not so reduced before the
individual's discharge or release from active duty, VA will collect from
the individual an amount equal to the difference between \$1,200 and the
total amount of the reductions. Reduction in basic pay by \$1,200 or
collection of \$1,200 is a precondition to establishing eligibility.

\(4\) *Educational requirement*. Before applying for benefits that may
be payable as the result of making a valid election, an individual must
have:

> \(i\) Completed the requirements of a secondary school diploma (or
> equivalency certificate); or
>
> \(ii\) Successfully completed the equivalent of 12 semester hours in a
> program of education leading to a standard college degree. (Authority:
> 38 U.S.C. 3018C)

\(e\) *Alternate eligibility requirements for former participants in the
Post-Vietnam Era Veterans' Educational Assistance Program*.

\(1\) *Definition*. For the purpose of this paragraph a participant is a
veteran or servicemember who:

\(i\) Had enrolled in the Post-Vietnam Era Veterans' Educational
Assistance Program, contributed to the fund described in §21.5021(f),
and either:

> \(A\) Is making contributions by monthly payroll deduction to that
> fund;
>
> \(B\) Has some or all of the contributions remaining in that fund;
>
> \(C\) Has disenrolled, and received a refund of contributions; or
>
> \(D\) Has used all of his or her entitlement to benefits under the
> Post-Vietnam Era Veterans' Educational Assistance Program; or

\(ii\) Had enrolled in the Post-Vietnam Era Veterans' Educational
Assistance Program, and has had the Secretary of Defense make
contributions to the fund described in §21.5021(f) for him or her.

\(2\) *Making an election*. To receive educational assistance under
authority of this paragraph, a veteran or servicemember must:

\(i\) Have elected before November 1, 2001, to receive educational
assistance payable under 38 U.S.C. chapter 30 in lieu of educational
assistance payable under the Post-Vietnam Era Veterans' Educational
Assistance Program;

\(ii\) Have been a participant in the Post-Vietnam Era Veterans'
Educational Assistance Program on or before October 9, 1996;

\(iii\) Have served continuously on active duty since October 9, 1996,
through at least April 1, 2000;

\(iv\) Receive an honorable discharge when discharged or released from
the period of active duty during which the servicemember made the
election described in paragraph (e)(3) of this section.

\(3\) *Election*. The election to receive educational assistance payable
under 38 U.S.C. chapter 30 in lieu of educational assistance payable
under the Post-Vietnam Era Veterans' Educational Assistance Program is
irrevocable. The election must have been made before November 1, 2001,
pursuant to procedures provided by the Secretary of the military
department concerned.

\(4\) *\$2,700 collection*.

\(i\) An individual who has made the election described in paragraph
(e)(3) of this section must have his or her basic pay reduced by \$2,700
in a manner prescribed by the Secretary of the military department
concerned. To the extent that basic pay is not so reduced before the
individual's discharge or release from active duty, the Secretary of the
military department concerned will collect from the individual an amount
equal to the difference between \$2,700 and the amount that the
individual's basic pay has been reduced. The individual may choose how
the \$2,700 is to be collected. The Secretary of the military department
concerned, according to the choice the individual makes, will collect
this amount:

\(A\) From the individual; or

\(B\) By reducing the individual's retired or retainer pay.

\(ii\) The individual must pay \$2,700 to the Secretary of the military
department concerned, as provided for by that Secretary, during an
18-month period beginning on the date the individual made the election
described in paragraph (e)(3) of this section.

\(iii\) Educational assistance under authority of paragraph (e) of this
section to an individual who was discharged or released from active duty
before the Secretary of the military department concerned had collected
the full \$2,700 described in paragraph (e)(4) of this section is not
payable until that Secretary either:

\(A\) Collects in full the \$2,700; or

\(B\) Has made the first reduction in retired or retainer pay for the
purpose of the \$2,700 payment described in paragraph (e)(4) of this
section. Thus, a veteran who is making the \$2,700 payment through
having retired or retainer pay reduced may be eligible before the
Secretary of the military department concerned collects the full
\$2,700.

\(5\) *Educational requirement*. Before applying for benefits that may
be payable as the result of making a valid election, an individual must
have:

\(i\) Completed the requirements of a secondary school diploma (or
equivalency certificate); or

\(ii\) Successfully completed the equivalent of 12 semester hours in a
program of education leading to a standard college degree. (Authority:
38 U.S.C. 3018C(e))

\[59 FR 24052, May 10, 1994, as amended at 61 FR 6786, Feb. 22, 1996; 61
FR 29297, June 10, 1996; 65 FR 5787, Feb. 7, 2000; 65 FR 20745, Apr. 18,
2000; 68 FR 34329, June 9, 2003\]

**Supplement *Highlights* references**: 12(3), 23(1), 27(3), 47(1),
49(1), 62(2).