Custom Federal Regulations Service™

**This is supplemental material**

**for Book G of your set of**

**Federal Regulations**

Title 38, Part 21

*Vocational Rehabilitation and Education*

**Veterans Benefits Administration**

Supplement No. 64

Covering period of *Federal Register* issues

through October 20, 2003

Copyright © 2003 Jonathan Publishing

**Need Assistance?**

Printing for all supplements is performed by the United States
Government

Printing Office. Distribution is the responsibility of the

VA Forms and Publications Depot. Accordingly:

Questions concerning **[missing supplements]{.smallcaps}**, need for
**[additional books]{.smallcaps}**, and other **[distribution
list]{.smallcaps}** issues for this loose-leaf service should be
directed to:

Department of Veterans Affairs

Veterans Benefits Administration

Directives, Forms and Records Staff

Mail Code: 20S5

810 Vermont Avenue, N.W.

Washington DC 20420

Telephone: 202/273-7080

Fax: 202/275-5947

Questions concerning the **[filing instructions]{.smallcaps}** for this
loose-leaf service,

or the reporting of **[substantive errors]{.smallcaps}** in the text,

may be directed to:

Jonathan Publishing

855 Yorks Crossing

Driftwood TX 78619

Telephone: 512/858-1225

Fax: 512/858-1230

E-mail: garyknight@ev1.net

**Internet: http://www.jonpub.com**

Copyright © 2003 Jonathan Publishing

> **GENERAL INSTRUCTIONS**

Custom Federal Regulations Service™

**Supplemental Materials for *Book G***

**Code of Federal Regulations**

**Title 38, Part 21**

***Vocational Rehabilitation and Education***

**Veterans Benefits Administration**

**Supplement No. 64**

25 October 2003

Covering the period of Federal Register issues

through October 20, 2003

When **Book G** was originally prepared, it was current through final
regulations published in the *Federal Register* of 25 February 1992.
These supple­mental materials are designed to keep your regulations up to
date. You should file the attached pages immediately, and record the
fact that you did so on the *Supplement Filing Record* which is at page
G-8 of Book G, *Vocational Rehabilitation and Education*.

> **To ensure accuracy and timeliness of your materials,**
>
> **it is important that you follow these simple procedures:**
>
> 1\. Always file your supplemental materials immediately upon receipt.
>
> 2\. Before filing, always check the Supplement Filing Record (page
> G-8) to be sure that all prior supplements have been filed. If you are
> missing any supple­ments, contact the Veterans Benefits Administration
> at the address listed on page G-2.
>
> 3\. After filing, enter the relevant information on the Supplement
> Filing Record sheet (page G-8)---the date filed, name/initials of
> filer, and date through which the *Federal Register* is covered.
>
> 4\. If as a result of a failure to file, or an undelivered supplement,
> you have more than one supplement to file at a time, be certain to
> file them in chronological order, lower number first.
>
> 5\. Always retain the filing instructions (simply insert them at the
> back of the book) as a backup record of filing and for reference in
> case of a filing error.
>
> 6\. Be certain that you *permanently discard* any pages indicated for
> removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove *and throw away* the
pages listed under *Remove These Old Pages,* and replace them in each
case with the corres­pond­ing pages from this supplement listed under *Add
These New Pages*. Occasionally new pages will be added without removal
of any old material (reflecting new regulations), and occasionally old
pages will be removed with­out addition of any new material (reflecting
rescinded regulations)---in these cases the word *None* will appear in
the appropriate column.

> **FILING INSTRUCTIONS**

**Book G, Supplement No. 64**

**October 25, 2003**

*Remove these Add these Section(s)*

*[old pages]{.underline} [new pages]{.underline} [Affected]{.underline}*

**Do not file this supplement until you confirm that all prior
supplements have been filed**

**G-1 to G-2 G-1 to G-2 New contact information**

21.7530-2 to 21.7550-2 21.7530-2 to 21.7550-2 §§21.7540 & 21.7550

21.7570-1 to 21.7600-1 21.7570-1 to 21.7600-1 §21.7576

21.7612-1 to 21.7622-1 21.7612-1 to 21.7622-1 §21.7620

**Be sure to complete the**

***Supplement Filing Record* (page G-8)**

**when you have finished filing this material.**

> **HIGHLIGHTS**

**Book G, Supplement No. 64**

**October 25, 2003**

***Supplement* Highlights *references***: Where substantive changes are
made in the text of regulations, the paragraphs of *Highlights* sections
are cited at the end of the relevant section of text. Thus, if you are
reading §3.263, you will see a note at the end of that section which
reads: "Supplement *Highlights* references---6(2)." This means that
paragraph 2 of the *Highlights* section in Supplement No. 6 contains
information about the changes made in §3.263. By keeping and filing the
*Highlights* sections, you will have a reference source explaining all
substantive changes in the text of the regulations.

***Supplement frequency***: This Book G (*Rehabilitation and Education*)
was originally supplemented six times a year, in February, April, June,
August, October, and December. Beginning 1 August 1995, supplements will
be issued *every month* during which a final rule addition or
modification is made to the parts of Title 38 covered by this book.
Supplements will be numbered consecutively as issued.

**Modifications in this supplement include the following:**

1\. On 17 October 2003, the VA published a final rule, effective that
same date, to amend regulations in order to reflect statutory changes:
(a) in the Veterans Education and Benefits Expansion Act of 2001 which
allows payment of Montgomery GI Bill---Selected Reserve (MGIB-SR)
benefits for accredited independent study courses that lead to a
certificate that reflects educational attainment; and (b) in the
National Defense Authorization Act for Fiscal Year 1998 which removed
the language "in connection with the Persian Gulf War" and "during the
Persian Gulf War" from certain sections in title 10, United States Code,
regarding preservation of entitlement to MGIB-SR benefits for Selected
Reserve members ordered to active duty in support of contingency
operations. Changes:

• In §21.7540, revised paragraph (b);

• In §21.7550, revised paragraphs (a)(3) and (d)(1);

• In §21.7576, revised paragraph (e)(1)(i); and

• In §21.7620, revised paragraph (c)(2).

\-

**Veterans Benefits Administration**

**Department of Veterans Affairs**

Custom Federal Regulations Service™

**Book G---Vocational Rehabilitation and Education**

Code of Federal Regulations

Title 38, Part 21

Jonathan Publishing

Copyright © 2003 Jonathan Publishing

**Need Assistance?**

Printing for all supplements is performed by the United States
Government

Printing Office. Distribution is the responsibility of the

VA Forms and Publications Depot. Accordingly:

Questions concerning **[missing supplements]{.smallcaps}**, need for
**[additional books]{.smallcaps}**, and other **[distribution
list]{.smallcaps}** issues for this loose-leaf service should be
directed to:

Department of Veterans Affairs

Veterans Benefits Administration

Directives, Forms and Records Staff

Mail Code: 20S5

810 Vermont Avenue, N.W.

Washington DC 20420

Telephone: 202/273-7080

Fax: 202/275-5947

Questions concerning the **[filing instructions]{.smallcaps}** for this
loose-leaf service,

or the reporting of **[substantive errors]{.smallcaps}** in the text,

may be directed to:

Jonathan Publishing

855 Yorks Crossing

Driftwood TX 78619

Telephone: 512/858-1225

Fax: 512/858-1230

Internet: http://www.jonpub.com

Copyright © 2003 Jonathan Publishing

Reserved

**Eligibility**

**§21.7540 Eligibility for educational assistance.**

\(a\) *Basic eligibility requirements*. The Armed Forces will determine
whether a reservist is eligible to receive benefits pursuant to 10
U.S.C. chapter 1606 (or 10 U.S.C. chapter 106 as in effect before
December 1, 1994). To be eligible a reservist:

\(1\) Shall:

\(i\) Enlist, reenlist, or extend an enlistment as a Reserve for service
in the Selected Reserve so that the total period of obligated service is
at least six years from the date of such enlistment, reenlistment, or
extension; or

\(ii\) Be appointed as, or be serving as, a reserve officer and agree to
serve in the Selected Reserve for a period of not less than six years in
addition to any other period of obligated service in the Selected
Reserve to which the person may be subject;

\(2\) Must complete his or her initial period of active duty for
training;

\(3\) Must be participating satisfactorily in the Selected Reserve; and

\(4\) Must not have elected to have his or her service in the Selected
Reserve credited toward establishing eligibility to benefits provided
under 38 U.S.C. chapter 30. (Authority: 10 U.S.C. 2132; 38 U.S.C.
3033(c); §705(a)(1), Pub. L. 98-525, 98 Stat. 2565; §4, Pub. L. 100-48,
101 Stat. 331; §§643, 645, Pub. L. 101-189, 103 Stat. 1458)

\(b\) *Eligibility requirements for expanded benefits*.

\(1\) A reservist shall be eligible to pursue all types of training
described in subpart L of this part regardless of whether he or she has
received a baccalaureate degree or equivalent evidence of completion of
study if:

\(i\) After September 30, 1990, he or she takes one of the actions
described in paragraph (a)(1)(i) or (a)(1)(ii) of this section;

\(ii\) The reservist meets the criteria of paragraphs (a)(2) through
(a)(4) of this section; and

\(iii\) The reservist does not have his or her eligibility limited as
described in paragraph (c) of this section.

\(2\) A reservist shall be eligible to pursue all types of training
described in subpart L of this part except the training described in
paragraph (b)(3) of this section if:

\(i\) After June 30, 1985, but not after September 30, 1990, he or she
takes one of the actions described in paragraph (a)(1) or (a)(2) of this
section;

\(ii\) The reservist has not received a baccalaureate degree or the
equivalent evidence of completion of study;

\(iii\) The reservist meets all the other eligibility criteria of
paragraph (a) of this section; and

\(iv\) The reservist does not have his or her eligibility limited by
paragraph (c) of this section.

\(3\) The types of training which a reservist described in paragraph
(b)(1) of this section may pursue, but which may not be pursued by a
reservist described in paragraph (b)(2), are:

\(i\) A course which is offered by an educational institution which is
not an institution of higher learning (to determine if a nursing course
is offered by an institution of higher learning, see §21.7622(f));

\(ii\) A correspondence course;

\(iii\) An accredited independent study course leading to a standard
college degree. (See §21.7622(f) concerning enrollment in a
nonaccredited independent study course after October 28, 1992);

\(iv\) An accredited independent study course leading to a certificate
that reflects educational attainment from an institution of higher
learning. This provision applies to enrollment in an independent study
course that begins on or after December 27, 2001. (See §21.7622(f)
concerning enrollment in a nonaccredited independent study course after
October 28, 1992);

\(v\) A refresher, remedial or deficiency course;

\(vi\) A cooperative course;

\(vii\) An apprenticeship or other on-job training; and

\(viii\) A flight course. (Authority: 10 U.S.C. 16131, 16132, 16136;
sec. 705(a)(1), Pub. L. 98-525, 98 Stat. 2565, 2567; 38 U.S.C. 3680A)

\(c\) *Limitations on establishing eligibility*.

\(1\) An individual must elect in writing whether he or she wishes
service in the Selected Reserve to be credited towards establishing
eligibility under 38 U.S.C. chapter 30 or under 10 U.S.C. chapter 1606
when:

\(i\) The individual is a reservist who is eligible for basic
educational assistance provided under 38 U.S.C. 3012, and has
established eligibility to that assistance partially through service in
the Selected Reserve; or

\(ii\) The individual is a member of the National Guard or Air National
Guard who has established eligibility for basic educational assistance
provided under 38 U.S.C. 3012 through activation under a provision of
law other than 32 U.S.C. 316, 502, 503, 504, or 505 followed by service
in the Selected Reserve.

\(2\) An election under this paragraph (c) to have Selected Reserve
service credited towards eligibility for payment of educational
assistance under 38 U.S.C. chapter 30 or under 10 U.S.C. chapter 1606 is
irrevocable when the reservist either negotiates the first check or
receives the first payment by electronic funds transfer of the
educational assistance elected.

\(3\) If a reservist is eligible to receive educational assistance under
both 38 U.S.C. chapter 30 and 10 U.S.C. chapter 1606, he or she may
receive educational assistance alternately or consecutively under each
of these chapters to the extent that the educational assistance is based
on service not irrevocably credited to one or the other chapter as
provided in paragraphs (c)(1) and (c)(2) of this section. (Authority: 10
U.S.C. 16132; 38 U.S.C. 3033(c))

\(d\) *Dual eligibility*. An individual who has established eligibility
for basic educational assistance under 38 U.S.C. chapter 30 solely
through service on active duty may establish eligibility for educational
assistance under 10 U.S.C. chapter 1606 by meeting the requirements of
paragraph (a) of this section. (Authority: 10 U.S.C. 16132(d), 16134)

(The information collection requirements in this section have been
approved by the Office

\[53 FR 34740, Sept. 8, 1988, as amended at 56 FR 9628, Mar. 7, 1991; 57
FR 57106, Dec. 3, 1992; 61 FR 20729, May 8, 1996; 61 FR 29301, June 10,
1996; 63 FR 45718, Aug. 27, 1998; 68 FR 59731, Oct. 17, 2003\]

**Supplement *Highlights* references**: 27(4), 40(1), 64(1).

*Next Section is §21.7550*

**§21.7550 Ending dates of eligibility.**

\(a\) *Time limit on eligibility*. Except as provided in §21.7551 and
paragraphs (a)(3), (b), (c), and (d) of this section, a reservist's
period of eligibility expires effective the earlier of the following
dates:

\(1\) The last day of the 10-year period beginning on the date the
reservist becomes eligible for educational assistance; or

\(2\) The date the reservist is separated from the Selected Reserve.
(Authority: 10 U.S.C. 16133; Pub. L. 98-525)

\(3\) If the reservist serves on active duty pursuant to an order to
active duty issued under sections 12301(a),(d),(g), 12302, or 12304 of
title 10, U.S. Code, the period of this active duty plus 4 months shall
not be considered in determining the time limit on eligibility found in
paragraphs (a)(1) and (a)(2) of this section. (Authority: 10 U.S.C.
16133)

\(b\) *Completion of term of program.*

\(1\) If a reservist is enrolled in an educational institution regularly
operated on the quarter or semester system, and the reservist's period
of eligibility as defined in paragraph (a) of this section would expire
during a quarter or semester, the period of eligibility shall be
extended to the end of the quarter or semester.

\(2\) If a reservist is enrolled in an educational institution not
regularly operated on the quarter or semester system and the reservist's
period of eligibility as defined in paragraph (a) of this section would
expire after a major portion of the course is completed, the period of
eligibility shall be extended until the earlier of the following occurs:

\(i\) The end of the course, or

\(ii\) 12 weeks from the date on which the reservist's eligibility
otherwise would have expired. (Authority: 10 U.S.C. 16133(b)(1); Pub. L.
98-525)

\(c\) *Discharge for disability*. In the case of a reservist separated
from the Selected Reserve because of a disability which was not the
result of the individual's own willful misconduct and which was incurred
on or after the date on which the reservist became entitled to
educational assistance, the reservist's period of eligibility expires
effective the last day of the 10-year period beginning on the date the
reservist becomes eligible for educational assistance. (Authority: 10
U.S.C. 16133(b); Pub. L. 100-689) (Nov. 18, 1988) \[Paragraph (c) is
effective retroactively to Nov. 18, 1988\]

\(d\) *Unit deactivated*.

\(1\) Except as provided in paragraph (d)(3) or (d)(4) of this section,
the period of eligibility of a reservist, eligible for educational
assistance under this subpart, who ceases to be a member of the Selected
Reserve during the period beginning October 1, 1991, and ending December
31, 2001, under either of the conditions described in paragraph (d)(2)
of this section, will expire on the date 10 years after the date the
reservist becomes eligible for educational assistance.

\(2\) The conditions referred to in paragraph (d)(1) of this section for
ceasing to be a member of the Selected Reserve are:

\(i\) The deactivation of the reservist's unit of assignment; and

\(ii\) The reservist's involuntarily ceasing to be designated as a
member of the Selected Reserve pursuant to 10 U.S.C. 10143(a).

\(3\) The provisions of paragraphs (d)(1) and (d)(2) of this section do
not apply if the reservist ceases to be a member of the Selected Reserve
under adverse conditions, as characterized by the Secretary of the
military department concerned. The expiration of such a reservist's
period of eligibility will be on the date the reservist ceases, under
adverse conditions, to be a member of the Selected Reserve.

\(4\) A reservist's period of eligibility will expire if he or she is a
member of a reserve component of the Armed Forces and (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.
The expiration of such a reservist's period of eligibility will be on
the date the reservist is involuntarily separated under adverse
conditions from the Armed Forces. (Authority: 10 U.S.C. 16133)

\[53 FR 34740, Sept. 8, 1988, as amended at 57 FR 57106, Dec. 3, 1992;
58 FR 51783, Oct. 5, 1993; 61 FR 20729, May 8, 1996; 61 FR 29302, June
10, 1996; 68 FR 59731, Oct. 17, 2003\]

**Supplement *Highlights* references**: 9(2), 27(4), 64(1).

**Entitlement**

**§21.7570 Entitlement.**

Except as provided in §21.7576(e) each reservist is entitled to a
maximum of 36 months of educational assistance (or its equivalent in
part-time educational assistance) under this program, but is also
subject to the provisions of §21.4020(a) and (b). (Authority: 10 U.S.C.
16131(c); Pub. L. 98-525, Pub. L. 102-127) (Oct. 10, 1991)

\[53 FR 34740, Sept. 8, 1988, as amended at 58 FR 51783, Oct. 5, 1993;
61 FR 20729, May 8, 1996\]

**Supplement *Highlights* reference**: 9(2)

*Next Section is §21.7576*

**§21.7576 Entitlement charges.**

\(a\) *Overview*. VA will make charges against entitlement as stated in
this section. Charges are based upon the principle that a reservist who
trains full time for one day should be charged one day of entitlement,
except for those pursuing:

\(1\) Flight training;

\(2\) Correspondence training;

\(3\) Cooperative training; or

\(4\) Apprenticeship or other on-job training. (Authority: 10 U.S.C.
2131(c); §705(a)(1), Pub. L. 98-525, 98 Stat. 2565; §642(a), (b), (d),
Pub. L. 101-189, 103 Stat. 1456-1458)

\(b\) *Determining entitlement charge.* This paragraph states how VA
will generally determine the charge against the entitlement of a
reservist who is receiving educational assistance. However, when the
circumstances described in paragraph (e) of this section apply to a
reservist, VA will use that paragraph to determine an entitlement charge
instead of this paragraph.

\(1\) Except for those pursuing flight training, correspondence
training, cooperative training, apprenticeship or other on-job training,
VA will make a charge against entitlement:

\(i\) On the basis of total elapsed time (one day for each day of
pursuit for which the reservist is paid educational assistance) if the
reservist is pursuing the program of education on a full-time basis; or

\(ii\) On the basis of a proportionate rate of elapsed time, if the
reservist is pursuing the program of education on a three-quarter,
one-half, or one-quarter-time basis.

\(2\) VA will compute elapsed time from the commencing date of the award
of educational assistance to the date of discontinuance. If the
reservist changes his or her training time after the commencing date of
the award, VA will:

\(i\) Divide the enrollment period into separate periods of time during
which the reservist's training time remains constant; and

\(ii\) Compute the elapsed time separately for each time period.

\(3\) For each month that a reservist is paid a monthly educational
assistance allowance while undergoing apprenticeship or other on-job
training, VA will make a charge against entitlement of:

\(i\) .75 of a month in the case of payments made during the first six
months of the reservist's pursuit of the program of apprenticeship or
other on-job training;

\(ii\) .55 of a month in the case of payments made during the second six
months of the reservist's pursuit of the program of apprenticeship or
other on-job training; and

\(iii\) .35 of a month in the case of payments made following the first
twelve months of the reservist's pursuit of the program of
apprenticeship or other on-job training.

\(4\) When a reservist is pursuing a program of education by
correspondence, VA will make a charge against entitlement for each
payment made to him or her. The charge will be made in months and
decimal fractions of a month, as determined by dividing the amount of
the payment by an amount equal to the rate stated in §21.7636(a)(1) as
the rate otherwise applicable to the reservist for full-time training.

\(5\) When a reservist is pursuing a program of education partly in
residence and partly by correspondence, VA will make a charge against
entitlement:

\(i\) For the residence portion of the program as provided in paragraphs
(b)(1) and (b)(2) of this section; and

\(ii\) For the correspondence portion of the program as provided in
paragraph (b)(4) of this section.

\(6\) When a reservist is pursuing a program of education through
cooperative training, VA will make a charge against entitlement of .8 of
a month for each month in which the reservist is receiving payment at
the rate for cooperative training. If the reservist is pursuing
cooperative training for a portion of a month, VA will make a charge
against entitlement on the basis of total elapsed time (.8 of a day for
each day of pursuit). (Authority: 10 U.S.C. 2131(c), (d); §705(a)(1),
Pub. L. 98-525, 98 Stat. 2565; §642(b), (d), Pub. L. 101-189, 103 Stat.
1456-1458)

\(7\) When a reservist is pursuing a program of education through flight
training, VA will make a charge against entitlement at the rate of one
month for each amount equal to the monthly rate stated in §21.7636(a)(1)
as applicable for the month in which the training occurred. (Authority:
10 U.S.C. 16136(c))

\(c\) *Overpayment cases.* VA will make a charge against entitlement for
an overpayment only if the overpayment is discharged in bankruptcy; is
waived and is not recovered; or is compromised.

\(1\) If the overpayment is discharged in bankruptcy or is waived and is
not recovered, 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).

\(2\) 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
determined in paragraph (c)(3)(i) of this section from the amount of the
original overpayment (exclusive of interest, administrative costs of
collection, court costs and marshal fees),

\(iii\) Dividing the result obtained in paragraph (c)(3)(i) of this
section by the amount of the original overpayment (exclusive of
interest, administrative costs of collection, court costs and marshal
fees), and

\(iv\) Multiplying the percentage obtained in paragraph (c)(3)(iii) of
this section by the amount of the entitlement otherwise chargeable for
the period of the original overpayment. (Authority: 10 U.S.C. 16133(c);
Pub. L. 98-525)

\(d\) *Interruption to conserve entitlement.* A reservist may not
interrupt a certified period of enrollment for the purpose of conserving
entitlement. An institution of higher learning may not certify a period
of enrollment for a fractional part of the normal term, quarter or
semester if the reservist is enrolled for the entire term, quarter or
semester. VA will make a charge for the entire period of certified
enrollment, if the reservist is otherwise eligible for educational
assistance, except when educational assistance is interrupted under any
of the following conditions:

\(1\) Enrollment is terminated;

\(2\) The reservist cancels his or her enrollment, and does not
negotiate an educational assistance check for any part of the certified
period of enrollment;

\(3\) The reservist interrupts his or her enrollment at the end of any
term, quarter or semester within the certified period of enrollment, and
does not negotiate a check for educational assistance for the succeeding
term, quarter or semester; and

\(4\) The reservist requests interruption or cancellation for any break
when an institution of higher learning 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. In such a case entitlement will be restored unless the
reservist negotiated a check for educational assistance for the
certified period and does not repay the amount received. (Authority: 10
U.S.C. 16133(c); Pub. L. 98-525)

\(e\) *No entitlement charge for some reservists*. When the criteria
described in this paragraph are met, there is an exception to the
charges against entitlement described in paragraph (b) of this section.

\(1\) VA will make no charge against a reservist's entitlement when the
reservist:

\(i\) While not serving on active duty, had to discontinue pursuit of a
course or courses as a result of being ordered to serve on active duty
under sections 12301(a),(d),(g), 12302, or 12304 of title 10, U. S.
Code; and

\(ii\) Failed to receive credit or lost training time toward completion
of the reservist's approved educational, professional or vocational
objective as a result of having to discontinue his or her course
pursuit.

\(2\) The period for which receipt of educational assistance allowance
is not charged against a reservist's entitlement shall not exceed the
portion of the period of enrollment in the course or courses for which
the reservist failed to receive credit or with respect to which the
reservist lost training time. (Authority: 10 U.S.C. 16131(c)(3))

\[53 FR 34740, Sept. 8, 1988, as amended at 58 FR 51783, Oct. 5, 1993;
61 FR 20729, May 8, 1996; 61 FR 29302, June 10, 1996; 68 FR 59731, Oct.
17, 2003\]

**Supplement *Highlights* references**: 9(2), 27(4), 64(1).

*Next Section is §21.7600*

**Counseling**

**§21.7600 Counseling.**

A reservist may receive counseling from VA before beginning training and
during training.

\(a\) *Purpose.* The purpose of counseling is:

\(1\) To assist in selecting an objective;

\(2\) To develop a suitable program of education;

\(3\) To select an institution of higher learning appropriate for the
educational or training objective;

\(4\) To resolve any personal problems which are likely to interfere
with the successful pursuit of a program; and

\(5\) To select an employment objective for the reservist that would be
likely to provide the reservist with satisfactory employment
opportunities in light of his or personal circumstances. (Authority: 10
U.S.C. 16136(b), 38 U.S.C. 3233; Pub. L. 98-525)

\(b\) *Required counseling.*

\(1\) In any case in which the Department of Veterans Affairs has rated
the reservist as being incompetent, the reservist must be counseled
before selecting a program of education. The requirement that counseling
be provided is met when:

> \(i\) The reservist has had one or more personal interviews with the
> counselor;
>
> \(ii\) The counselor and the reservist have jointly developed
> recommendations for selecting a program of education; and
>
> \(iii\) The counselor has reviewed the recommendations with the
> reservist.

\(2\) The veteran may follow the recommendations developed in the course
of counseling, but is not required to do so.

\(3\) The Department of Veterans Affairs will take no further action on
a reservist's application for assistance under this chapter when he or
she:

\(i\) Fails to report for counseling;

\(ii\) Fails to cooperate in the counseling process; or

**§21.7612 Programs of education combining two or more types of
courses.**

An approved program may consist of courses offered by two educational
institutions concurrently, or courses offered through class attendance
and by television concurrently. An educational institution may contract
the actual training to another educational institution, provided the
course is approved by the State approving agency having approval
jurisdiction over the educational institution actually providing the
training.

\(a\) *Concurrent enrollment*. When a reservist cannot schedule his or
her complete program at one educational institution, VA may approve a
program of concurrent enrollment. When requesting such a program, the
reservist must show that his or her complete program of education is not
available at the educational institution in which he or she will pursue
the major portion of his or her program (the primary educational
institution), or that it cannot be scheduled within the period in which
he or she plans to complete his or her program. A reservist who is
limited in the types of courses he or she may pursue, as provided in
§21.7540(b)(2) and (b)(3), may pursue courses only at an institution of
higher learning. If such a reservist cannot complete his or her program
at one institution of higher learning, VA may approve a concurrent
enrollment only if both the educational institutions the reservist
enrolls in are institutions of higher learning. (Authority: 10 U.S.C.
2131(c), 2136(b); 38 U.S.C. 3680(g); §705(a)(1), Pub. L. 98-525, 98
Stat. 2565, 2567; §642, Pub. L. 101-189, 103 Stat. 1456-1458)

\(b\) *Television*. In determining whether a reservist may pursue all or
part of a program of education by television, VA will apply the
provisions of §21.4233(c). (Authority: 10 U.S.C. 16136(b); 38 U.S.C.
3680A)

\[53 FR 34740, Sept. 8, 1988, as amended at 61 FR 20729, May 8, 1996; 61
FR 29303, June 10, 1996; 62 FR 40280, July 28, 1997\]

**Supplement *Highlights* references**: 27(4), 33(1).

**§21.7614 Changes of program.**

In determining whether a change of program of education may be approved
for the payments of educational assistance, VA will apply §21.4234 of
this part. (Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3691; Pub. L.
98-525, Pub. L. 101-366) (June 1, 1991)

\[53 FR 34740, Sept. 8, 1988, as amended at 58 FR 50846, Sept. 29, 1993;
61 FR 20729, May 8, 1996\]

**Supplement *Highlights* reference**: 8(6)

*Next Section is §21.7620*

**Courses**

**§21.7620 Courses included in programs of education.**

\(a\) *General.* Generally, VA will approve, and will authorize payment
of educational assistance for the reservist's enrollment in any course
or subject which a State approving agency has approved as provided in
§21.7720 of this part, and which forms a part of a program of education
as defined in §21.7520(b)(17). Restrictions on this general rule are
stated in the other paragraphs in this section and in §21.7722(b) of
this part, however. (Authority: 10 U.S.C. 16131; Pub. L. 98-525)

\(b\) *Flight training*.

\(1\) VA may pay educational assistance for an enrollment in a flight
training course when:

\(i\) An institution of higher learning offers the course for credit
toward the standard college degree the reservist is pursuing; or

\(ii\) When:

> \(A\) The reservist is eligible to pursue flight training as provided
> in §21.7540(b)(1) and (b)(3);
>
> \(B\) The State approving agency has approved the course;
>
> \(C\) A flight school is offering the course;
>
> \(D\) The reservist's training meets the requirements of
> §21.4263(b)(1);
>
> \(E\) The reservist meets the requirements of §21.4263(a); and
>
> \(F\) The training for which payment is made occurs after September
> 29, 1990.

\(2\) VA will not pay educational assistance for an enrollment in a
flight training course when the reservist is pursuing an ancillary
flight objective. (Authority: 10 U.S.C. 16131, 16136(c)(1); 38 U.S.C.
3034)

\(c\) *Independent study*.

\(1\) VA will pay educational assistance to a reservist who is limited
in the types of courses he or she may pursue, as provided in
§21.7540(b)(2) and (b)(3), for an enrollment in any course or unit
subject offered by independent study only when the reservist is enrolled
concurrently in one or more courses or unit subjects offered by resident
training.

\(2\) Only a reservist who meets the requirements of §21.7540(b)(1) may
be paid educational assistance for an enrollment in an independent study
course or unit subject without a simultaneous enrollment in a course or
unit subject offered by resident training. The independent study course
or unit subject must be accredited and lead to a standard college
degree. Beginning with enrollments on or after December 27, 2001, a
reservist may receive educational assistance for an independent study
course that leads to a certificate. The certificate must reflect
educational attainment and must be offered by an institution of higher
learning. (Authority: 38 U.S.C. 3680A(a)(4))

\(3\) Except as provided in paragraph (c)(4) of this section and subject
to the restrictions found in paragraph (c)(1) of this section, effective
October 29, 1992, VA may pay educational assistance to a reservist who
is enrolled in a nonaccredited course or unit subject offered entirely
or partly by independent study only if:

\(i\) Successful completion of the nonaccredited course or unit subject
is required in order for the reservist to complete his or her program of
education and the reservist:

\(A\) Was receiving educational assistance on October 29, 1992, for
pursuit of the program of education of which the nonaccredited
independent study course or unit subject forms a part; and

\(B\) Has remained continuously enrolled in the program of education of
which the nonaccredited independent study course or unit subject forms a
part from October 29, 1992, to the date the reservist enrolls in the
nonaccredited independent study course or unit subject; or

\(ii\) (A) Was enrolled in and receiving educational assistance for the
nonaccredited independent study course or unit subject on October 29,
1992; and

\(B\) Remains continuously enrolled in that course or unit subject.

\(4\) Whether or not the reservist is enrolled will be determined by the
regularly prescribed standards and practices of the educational
institution offering the course or unit subject. (Authority: 10 U.S.C.
16136(b); 38 U.S.C. 3680A(a)(4); §313(b), Pub. L. 102-568, 106 Stat.
4332)

\(d\) *Graduate study*. VA will pay educational assistance for an
enrollment in a course or subject leading to a graduate degree or
certificate when the training occurs after November 29, 1993.
(Authority: 10 U.S.C. 16131(c))

\[53 FR 34740, Sept. 8, 1988, as amended at 61 FR 20729, May 8, 1996; 61
FR 29303, June 10, 1996; 68 FR 59731, Oct. 17, 2003\]

**Supplement *Highlights* references**: 27(4), 64(1).

*Next Section is §21.7622*

**§21.7622 Courses precluded.**

\(a\) *Unapproved courses.* VA will not pay educational assistance for
an enrollment in any course which has not been approved by a State
approving agency or by VA when that agency acts as a State approving
agency. VA will not pay educational assistance for a new enrollment in a
course when a State approving agency has suspended the approval of the
course for new enrollments, nor for any period within any enrollment
after the date that the State approving agency disapproves a course. See
§21.7720 of this part. (Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3672;
Pub. L. 98-525)

\(b\) *Courses not part of a program of education.* VA will not pay
educational assistance for an enrollment in any course which is not part
of a program of education. (Authority: 10 U.S.C. 16131; Pub. L. 98-525)

\(c\) *Erroneous, deceptive, misleading practices*. VA will not pay
educational assistance for an enrollment in any courses offered at an
educational institution that uses advertising, sales, or enrollment
practices that are erroneous, deceptive, or misleading by actual
statement, omission, or intimation. VA will apply the provisions of
§21.4252(h) in making these decisions with regard to enrollments under
10 U.S.C. chapter 1606. (Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3696)

\(d\) *Avocational and recreational.*

\(1\) VA will not pay educational assistance for an enrollment in any
course:

\(i\) Which is avocational or recreational in character, or

\(ii\) The advertising for which contains significant avocational or
recreational themes.

\(2\) VA presumes that the following courses are avocational or
recreational in character unless the reservist justifies their pursuit
to VA as provided in paragraph (3) of this section. The courses are:

\(i\) Any photography course or entertainment course; or

\(ii\) Any music course, instrumental or vocal, public speaking course,
or course in dancing, sports or athletics, such as horseback riding,
swimming, fishing, skiing, golf, baseball, tennis, bowling, sports
officiating, or other sport or athletic courses, except courses of
applied music, physical education, or public speaking which are offered
by institutions of higher learning for credit as an integral part of a
program leading to an educational objective; or

\(iii\) Any other type of course which VA determines to be avocational
or recreational.

\(3\) To overcome a presumption that a course is avocational or
recreational in character, the reservist must establish that the course
will be of bona fide use in the pursuit of his or her present or
contemplated business or occupation. (Authority: 10 U.S.C. 16136(b), 38
U.S.C. 3473(d); Pub. L. 98-525)