Title 38—Pensions, Bonuses, and Veterans' Relief--Volume 1
PART 21—VETERAN READINESS AND EMPLOYMENT AND EDUCATION
§ 21.5831   Commencing date of subsistence allowance.
The commencing date of an award or increased award of subsistence allowance will be determined by this section
(a) Entrance or reentrance. Latest of the following dates:
(1) Date certified by school or establishment under paragraph (b) or (c) of this section.
(2) Date 1 year before the date of receipt of the application or enrollment certification.
(3) Date of reopened application under paragraph (d) of this section.
(4) In the case of a spouse, surviving spouse, or dependent child, the date that transfer of eligibility and entitlement to the individual was effective.
(b) Certification by the school-course leads to a standard college degree. The date of registration or the date of reporting where the student is required by the school's published standard to report in advance of registration, but not later than the date the individual first reports for classes.
(c) Certification by school or establishment-course does not lead to a standard college degree. First date of class attendance.
(d) Reopened application after abandonment. Date of receipt in VA of application or enrollment certification, whichever is later.
(e) Increase due to increased training time. The date the school certifies the individual became a full-time student.
(f) Liberalizing laws and administrative issues. In accordance with facts found, but not earlier than the effective date of the act or administrative issue.
(g) Correction of military records. When a veteran becomes eligible following correction or modification of military records under 10 U.S.C. 1552 or change, correction or modification of a discharge or dismissal under 10 U.S.C. 1553; or other competent military authority, the commencing date of subsistence allowance will be in accordance with the facts found, but not earlier than the date the change, correction or modification was made by the service department.
§ 21.5834   Discontinuance dates: General.
(a) Educational assistance. Although educational assistance is paid only once in a term, quarter, or semester, VA may discontinue it under the circumstances stated in § 21.5835. The discontinuance may cause an overpayment. (See also § 21.5838.) If the individual dies during an enrollment period, the provisions of § 21.5835(a) will apply, even if other types of discontinuances are involved. In all other cases where more than one type of reduction or discontinuance is involved, the earliest date found in § 21.5835 will control.
(b) Subsistence allowance. The effective date of a reduction or discontinuance of subsistence allowance will be as specified in § 21.5835. If more than one type of discontinuance is involved, the earliest date will control.
§ 21.5835   Specific discontinuance dates.
The following rules will govern reduction and discontinuance dates for educational assistance and subsistence allowance.
(a) Death of individual. If an individual dies—
(1) VA will discontinue educational assistance effective the last day of the most recent term, quarter, semester or enrollment period of which the individual received educational assistance.
(2) VA will discontinue subsistence allowance effective the individual's last date of attendance.
(b) Lump-sum payment. When a servicemember accepts a lump-sum payment in lieu of educational assistance, VA will discontinue educational assistance effective the date on which he or she elects to receive the lump-sum payment.
(c) Reduction due to decreased training time. (1) If a decrease in an individual's training time requires a decrease in educational assistance, the decrease is effective the end of the month in which the individual become a part-time student or the end of the term, whichever is earlier.
(2) When an individual decreases his or her training time from full-time to part-time, VA will decrease his or her subsistence allowance effective the end of the month in which the individual became a part-time student, or the end of the term, whichever is earlier.
(d) Course discontinued, interrupted, terminated or withdrawn from. If an individual withdraws, discontinues, ceases to attend, interrupts or terminates all courses, VA will discontinue educational assistance and subsistence allowance effective the last date of attendance.
(e) False claim. VA will discontinue educational assistance and subsistence allowance effective the first day of the term for which the false claim is submitted.
(f) Withdrawal of accreditation. If an accrediting agency withdraws accreditation from a course in which an individual is enrolled, VA will discontinue educational assistance and subsistence allowance effective the end of the month in which the accrediting agency withdrew accreditation, or the end of the term, whichever is earlier.
(g) Remarriage of surviving spouse. VA will discontinue educational assistance and subsistence allowance effective the last date of attendance before the date on which the surviving spouse remarries.
(h) Divorce. If entitlement has been transferred to the veteran's or servicemember's spouse, and the spouse is subsequently divorced from the veteran or servicemember, the spouse's award of educational assistance and subsistence allowance will end on the last date of attendance before the divorce decree becomes final.
(i) Revocation of transfer. If a veteran or servicemember revokes a transfer of entitlement, the spouse's or dependent child's award of educational assistance will end on the effective date of the revocation. See § 21.5743(e).
(j) Dependent child ceases to be dependent: veteran or servicemember living. If a veteran or servicemember is living and has transferred entitlement to his or her dependent child who is not incapable of self support due to physical or mental incapacity, VA will discontinue the dependent child's award of educational assistance and subsistence allowance whenever the child does not meet the definition of a dependent child found in § 21.5720(c). The effective date of discontinuance is the earliest of the following:
(1) The child's 21st birthday, if on that date—
(i) The veteran or servicemember is not providing over one-half the child's support, or
(ii) The child is not enrolled in a full-time course of study in an institution of higher learning approved by the Secretary of Defense or the Secretary of Education, as the case may be;
(2) The date, following the child's 21st birthday, on which the veteran or servicemember stops providing over one-half the child's support;
(3) The date, following the child's 21st birthday, on which he or she is no longer enrolled in a full-time course of study in an institution of higher learning approved by the Secretary of Defense or the Secretary of Education, as the case may be;
(4) The child's 23rd birthday;
(5) the date the child marries.
(k) Dependent child ceases to be dependent: veteran or servicemember deceased. If a veteran or servicemember is deceased and his or her dependent child is not incapable of self support due to physical or mental incapacity, VA will discontinue the dependent child's award of educational assistance whenever the child does not meet the definition of a dependent child found in § 21.5720(c). The effective date of discontinuance is the earliest of the following:
(1) The day after the child's 21st birthday, if on that date the child is not enrolled in a full-time course of study in an institution of higher learning approved by the Secretary of Defense or the Secretary of Education, as the case may be;
(2) The date following the child's 21st birthday on which he or she is no longer enrolled in a full-time course of study in an institution of higher learning approved by the Secretary of Defense or the Secretary of Education, as the case may be;
(3) The child's 21st birthday; or
(4) The date the child marries.
§ 21.5838   Overpayments.
(a) Educational assistance. If an individual receives educational assistance but the educational assistance must be discontinued according to § 21.5835, the amount of educational assistance attributable to the portion of the term, quarter or semester following the effective date of discontinuance shall constitute a debt due the United States.
(1) The amount of the debt is equal to the product of—
(i) The number of days the individual was entitled to receive subsistence allowance during the enrollment period for which educational assistance was paid, divided by the total number of days in that enrollment period, and
(ii) The amount of educational assistance provided for that enrollment period.
(2) Nothing in this method of calculation shall change the fact that the number of months of educational assistance to which the individual remains entitled shall always be the same as the number of months of subsistence allowance to which the individual is entitled.
(b) Subsistence allowance. If an individual receives subsistence allowance under any of the following conditions, the amount of that subsistence allowance shall constitute a debt due the United States unless the debt is waived as provided by §§ 1.955 through 1.970 of this chapter.
(1) Subsistence allowance received for courses pursued while on active duty;
(2) Subsistence allowance received for courses which are precluded under § 21.5800(b);
(3) Subsistence allowance received by a person who is not eligible for educational assistance under § 21.5740;
(4) Subsistence allowance received by an individual who has exhausted all entitlement provided under § 21.5742;
(5) Subsistence allowance received by an individual for a period before the commencing date determined by § 21.5831.
(6) Subsistence allowance received by an individual for a period following a discontinuance date determined by § 21.5835.
(7) Subsistence allowance received by an individual in excess of the part-time rate for a period following a reduction date determined by § 21.5835.
§ 21.5870   Measurement of courses.
(a) Credit hour measurement: undergraduate, standard term. An individual who enrolls in a standard quarter or semester for 12 undergraduate credit hours is a full-time student. An individual who enrolls in a standard quarter or semester for less than 12 undergraduate credit hours is a part-time student.
(b) Credit hour measurement: Undergraduate, nonstandard term. (1) If an individual enrolls in a nonstandard term, quarter or semester, and the school measures the course on a credit-hour basis, VA will determine whether that individual is a full-time student by—
(i) Multiplying the credits earned in the term by 18 if credit is granted in semester hours, or by 12 if credit is granted in quarter hours, and
(ii) Dividing the product by the number of whole weeks in the term.
(2) In determining whole weeks VA will—
(i) Divide the number of days in the term by 7;
(ii) Disregard a remainder of 3 days or less, and
(iii) Consider 4 days or more to be a whole week.
(3) If the number obtained by using the formula in paragraphs (b)(1) and (2) of this section is 12 or more, the individual is a full-time student. If that number is less than 12, the individual is a part-time student.
(c) Credit hour measurement: graduate. (1) If it is the established policy of a school to consider less than 12 credit hours to be full-time for graduate students, VA will accept the statement of a responsible school offical as to whether the student is a full-time or part-time student. If the school does not have such a policy, VA will measure the student's enrollment according to the provisions of paragraphs (a) and (b) of this section.
(2) VA will measure undergraduate courses required by the school according to the provisions of paragraphs (a) and (b) of this section, even though the individual is enrolled as a graduate student. If the individual is taking both graduate and undergraduate courses, the school will report the credit-hour equivalent of the graduate work. VA will first measure the undergraduate courses according to the provisions of paragraphs (a) and (b) of this section and combine the result with the credit-hour equivalent of the graduate work in order to determine the extent of training.
(d) Clock hour measurement. (1) If an individual enrolls in a course measured in clock hours and shop practice is an integral part of the course, he or she is a full-time student when enrolled in 22 clock hours or more per week with not more than a 2 1/2 hour rest period allowance per week. For all other enrollments the individual is a part-time student. VA will exclude supervised study in determining the number of clock hours in which the individual is enrolled.
(2) If an individual enrolls in a course measured in clock hours and theory and class instruction predominate in the course, he or she is a full-time student enrolled in 18 clock hours or more per week. He or she is a part-time student when enrolled in less than 18 clock hours per week. Customary intervals not to exceed 10 minutes between classes will be included in measuring net instruction. Shop practice, rest periods, and supervised study are excluded. Supervised instruction periods in schools' shops and the time involved in field trips and individual and group instruction may be included in computing the clock hour requirements.
§ 21.5900   Administration of benefits program—chapter 107, title 10 U.S.C.
In administering benefits payable under Chapter 107, Title 10 U.S.C, VA will be bound by the provisions of the §§ 21.5700, 21.5800 and 21.5900 series of regulations.
§ 21.5901   Delegations of authority.
(a) General delegation of authority. Except as otherwise provided, authority is delegated to the Under Secretary for Benefits and to supervisory or adjudication personnel within the jurisdiction of the Education Service of VA, designated by him or her to make findings and decisions under 10 U.S.C. chapter 107 and the applicable regulations, precedents and instructions concerning the program authorized by these regulations.
(b) Delegation of authority concerning the Civil Rights Act of 1984. The Under Secretary for Benefits is delegated the responsibility to obtain evidence of voluntary compliance with title VI of the Civil Rights Act of 1964 from educational institutions and from recognized national organizations whose representatives are afforded space and office facilities under his or her jurisdiction. See part 18 of this title.
§ 21.6001   Temporary vocational training program for certain pension recipients.
This program provides certain veterans awarded pension with an evaluation and, if feasible, with vocational training, employment assistance and other services to enable them to achieve a vocational goal.
§ 21.6005   Definitions.
(a) Temporary program. The term temporary program means the program of vocational training for certain pension recipients authorized by section 1524, chapter 15, title 38 U.S.C.
(b) Program period. The term program period means the period beginning on February 1, 1985, and ending on December 31, 1992.
(c) Qualified veteran. The term qualified veteran means—
(1) A veteran awarded disability pension during the program period; or
(2) A veteran who was awarded disability pension prior to the beginning of the program period on February 1, 1985, has been continuously in receipt of pension since that time, and is in receipt of pension on the date his or her claim for assistance under the vocational training program is received by VA.
(d) Program participant. The term program participant means a qualified veteran as defined in paragraph (c) of this section who, following an evaluation in which VA finds achievement of a vocational goal is reasonably feasible for the veteran, elects to participate in a vocational training program.
(e) Vocational training program. The term vocational training program means vocationally oriented services and assistance of the kind provided under chapter 31 of the title 38 U.S.C. and such other services and assistance of the kind provided under that chapter as are necessary to enable the veteran to prepare for, and participate in, vocational training or employment.
(f) Employment assistance. The term employment assistance means employment counseling and placement and postplacement services, and personal and work adjustment training.
(g) Program of employment services. The term program of employment services is used when the veteran's entire program is limited to employment assistance as that term is defined in paragraph (f) of this section.
(h) Job development. The term job development means comprehensive professional services to assist the individual veteran to actually obtain a suitable job, and not simply the solicitation of jobs on behalf of the veteran.
(i) Institution of higher learning. The term institution of higher learning shall have the same definition as is provided in § 21.4200(a) of this part.
(j) Other terms. The following terms shall have the same meaning or explanation provided in § 21.35 of this part.
(1) Vocational goal.
(2) Program of education.
(3) Rehabilitation to the point of employability.
(4) Counseling psychologist.
(5) Vocational rehabilitation specialist.
(6) School, educational institution or institution.
(7) Training establishment.
(8) Rehabilitation facility.
(9) Workshop.
(10) Vocational Rehabilitation Counselor.
§ 21.6010   Applicability of rules and administrative procedures under 38 U.S.C., Chapter 31.
(a) General. Title 38 U.S.C., section 1524(b)(2)(A) provides, in part, that a vocational training program shall consist of vocationally oriented services and assistance of the kind provided service-disabled veterans under chapter 31, Title 38 U.S.C., and other services and assistance of the kind provided under that chapter as are necessary to enable the veteran to prepare for and participate in vocational training or employment.
(b) Applicable chapter 31 rules—general. The rules and procedures in force for administration of the chapter 31 program (§§ 21.1-21.430) are deemed to be applicable to administration of this program in so far as their use shall not conflict with 38 U.S.C. 1524 or the rules under this subpart. Where a particular grouping of chapter 31 rules are generally applicable, without modification, the rules under this subpart will be deemed to incorporate the chapter 31 rules. The chapter 31 rules may be read as written, but terms such as chapter 31 and service-connected disability shall be understood to read chapter 15 and disabilities whenever used. References in the chapter 31 rules to benefits (subsistence allowances, loans) or eligibility (dependents, service-connection, serious employment handicap) are to be considered inapplicable to this program and do not confer benefits or rights not provided by 38 U.S.C. 1524.
§ 21.6015   Claims and elections.
(a) Claims by veterans under age 45 for whom participation in an evaluation is required. A veteran under age 45 who is awarded pension during the program period will be scheduled for an evaluation to determine whether achievement of a vocational goal is reasonably feasible, unless it is determined that the veteran is unable to participate in an evaluation for reasons beyond his or her control. If VA, as a result of the evaluation, determines that achievement of a vocational goal is reasonably feasible, the veteran may elect to pursue a vocational training program. To make this election, the veteran must file a claim, in a form prescribed by VA, for services under this temporary program.
(b) Claims by qualified veterans for whom participation in an evaluation is not required. Qualified veterans in the following categories will be provided an evaluation if they request assistance under the temporary program, and are found to have good employment potential. These veterans include:
(1) Veterans age 45 and more who are awarded pension during the program period;
(2) Veterans awarded pension prior to the beginning of the program period on February 1, 1985, who meet the conditions contained in § 21.6005(c) of this part.
(c) Filing a claim. A veteran in one of the categories identified in paragraph (b) of this section must file a claim in the form prescribed by VA in order to be considered for an evaluation of his or her ability to achieve a vocational goal through participation in this temporary program. The veteran's claim is considered a request for both the evaluation, and if achievement of a vocational goal is found reasonably feasible, for participation in the vocational training program.
(d) Claims following failure to timely pursue a vocational training program. (1) If a veteran for whom achievement of a vocational goal is found reasonably feasible does not undertake a vocational training program within the time limits specified in § 21.32, he or she must file an original or reopened claim, as appropriate, in a form prescribed by VA in order to be considered for such services to determine if achievement of the previous vocational goal or a new vocational goal is reasonably feasible.
(2) If a veteran has been placed in discontinued case status by the VA, he or she must file a new claim in a form prescribed by the VA to reopen the case.
(e) Informal claims. Informal claims shall be governed by § 21.31 of this part.
(f) Time limit. The time limit for making a claim to pursue a vocational training program shall be governed by § 21.32 of this part.
§ 21.6021   Nonduplication—38 U.S.C., chapters 30, 31, 32, 34 and 35.
(a) Election between this temporary program and chapter 31 required. A service-disabled veteran awarded VA pension who is offered a vocational training program under 38 U.S.C. chapter 15 and is also eligible for such assistance under chapter 31, must elect which benefit he or she will receive. The veteran may reelect at any time if he or she is still eligible for the benefit desired.
(b) VA educational assistance programs. A veteran who is eligible under this program may receive an educational assistance allowance under chapter 30, 32, 34 or 35 if he or she is otherwise eligible under one of these programs.
(c) Prior training under VA programs. If a veteran has pursued an educational or training program under chapter 30, 32, 34 or 35, or a vocational rehabilitation program under chapter 31, the training received in the earlier program shall be considered, to the extent feasible, in determining the character and duration of the services to be furnished under this program.
(d) Other prior training. If a veteran has pursued other significant training under non-VA programs or on his or her own, such training will be considered in determining the character and duration of services to be furnished.
(e) Not limited by use of other entitlement. The number of months of services provided under this program are not subject to the provisions of § 21.4020 of this part which limit the aggregate months of VA benefits to be provided.
§ 21.6040   Eligibility for vocational training and employment assistance.
(a) Basic eligibility requirements. A veteran may be provided vocational training, employment assistance and related services to achieve a vocational goal under this program, if the following basic requirements are met:
(1) The veteran is a qualified veteran as described in § 21.6005(c) of this part;
(2) The veteran participates in a VA evaluation of his or her rehabilitation potential to determine whether achievement of a vocational goal is reasonably feasible;
(3) Achievement of a vocational goal is found reasonably feasible, following evaluation by VA;
(4) The veteran elects to pursue a vocational training program;
(5) The veteran and VA develop and agree to an Individualized Written Rehabilitation Plan (IWRP) identifying the vocational goal and the means through which this goal will be achieved.
(b) Eligibility for employment assistance. (1) As provided in this paragraph, a veteran who is a participant in this program shall be eligible to receive counseling, placement, postplacement, work and personal adjustment services furnished under § 21.6060(a)(2) of this part for a period not to exceed 18 months. These services are further described in §§ 21.140(d)(2), 21.250(a), (b)(2), (c)(3), and (4), and 21.252, 21.254, 21.256, 21.257, and 21.258 of this part.
(2) The participants who qualify for the services described in paragraph (a) of this section include a veteran who:
(i) Has completed a vocational rehabilitation training program;
(ii) Undertakes a vocational training program, but voluntarily terminates training. If VA determines the veteran to be employable at the time participation in training ends, the veteran shall be deemed to have completed the vocational training program and may be provided the employment services described in paragraph (b)(1) of this section if he or she requests such assistance;
(iii) Does not require a vocational training program because VA determines as a result of an evaluation that he or she already possesses the training necessary for suitable employment and is able to achieve a vocational goal without further training; and
(iv) Has been a prior participant in a vocational training program, is currently employable, but needs employment assistance to obtain employment in a suitable occupation.
(3) The 18-month period of employment services allowed under this section shall begin upon the date that a veteran under paragraph (b)(2)(i) of this section completes the vocational training program or in the case of a veteran under paragraphs (b)(2)(ii), (iii), and (iv) of this section is found to be employable. If a veteran has been provided such services and obtains suitable employment, but is later found to require additional services of this kind, the veteran may be provided such additional services during any portion of the original 18-month period remaining.
(c) Eligibility if pension is terminated. A qualified veteran for whom a program of vocational training has been found reasonably feasible shall remain eligible for the temporary program, subject to the rules of this subpart and section 1524 of 38 U.S.C. ch. 15, even if his or her pension award is subsequently terminated, except when the veteran's award of VA pension was the result of fraud or administrative error.
§ 21.6042   Entry, reentry and completion.
(a) Dates of entry. A veteran found eligible under the provisions of § 21.6040 of this part may not begin pursuit of a vocational training program before February 1, 1985, or later than December 31, 1992, except under the following circumstances:
(1) The veteran receives a pension award less than 120 days before December 31, 1992;
(2) Illness or other circumstance beyond the veteran's control prevent earlier entry.
(b) Entry precluded. In no event may a veteran begin a vocational training program after August 1, 1993.
(c) Reentry. The provisions of paragraphs (a) and (b) of this section are also applicable to veterans reentering a vocational training program following a redetermination of eligibility.
(d) Final termination of services. No veteran may receive assistance under this temporary program after January 31, 1998.
(e) Provision of vocational training and services during the period beginning February 1, 1992 and ending May 20, 1992. The provision of a vocational training program (including related evaluations and other related services) to a veteran under the provisions of subpart I of this part, and related determinations during the period beginning February 1, 1992, and ending May 20, 1992, is ratified.
§ 21.6050   Participation of eligible veterans in an evaluation.
(a) Veterans under age 45. A veteran under age 45 awarded pension during the program period shall be provided an evaluation of his or her rehabilitation potential to determine whether achievement of a vocational goal is reasonably feasible. The veteran must report for and participate in the evaluation unless the failure to do so is for reasons beyond the veteran's control. Failure to report for and participate in the evaluation, for reasons other than those beyond the veteran's control, will result in suspension of the veteran's pension under § 3.342 of this chapter. See § 21.6056.
(b) Evaluating other qualified veterans. An evaluation shall be accorded each qualified veteran as described in § 21.6005(c) of this part who seeks to become a program participant provided VA first determines the veteran has good potential for achieving employment. Failure to choose to participate in an evaluation shall have no adverse effect upon the veteran's continued receipt of pension under § 3.342 of this chapter.
(c) Notice to eligible veteran. (1) A qualified veteran under age 45 awarded pension during the program period for whom participation in an evaluation is not clearly precluded by reasons beyond the veteran's control shall be sent a notice at the time he or she is awarded pension. The notice will inform the veteran of the provisions of this temporary program, the conditions under which participation in an evaluation is required, and the consequences of nonparticipation.
(2) A qualified veteran age 45 or older awarded pension during the program period will be informed of the provisions of this temporary program and the procedure for requesting an evaluation.
(d) Scheduling the evaluation. (1) An evaluation will be arranged as promptly as practicable for each qualified veteran:
(i) Under age 50 who is sent the notice required under paragraph (c)(1) of this section; and
(ii) [Reserved]
(2) Other qualified veterans identified in § 21.6005(c) who are found to have good employment potential under § 21.6054.
(e) Followup of qualified veterans who do not complete an evaluation. The case of each qualified veteran under age 45 awarded pension during the program period for whom an evaluation was not scheduled or who does not complete an evaluation shall be reviewed for followup action by Veteran Readiness and Employment (VR&E) staff as provided in §§ 21.197(c)(4) and 21.198(d).
(f) Limitation on the number of evaluations. Notwithstanding the provisions of paragraphs (a) through (e) of this section, the number of evaluations which may be provided under this temporary program is subject to the limitations contained in § 21.6059 of this part.
§ 21.6052   Evaluations.
(a) Scope and nature of evaluation. The scope and nature of the evaluation under this program shall be the same as for an evaluation of the reasonable feasibility of achieving a vocational goal under the procedures described for chapter 31 benefits. See § 21.50(b)(5) and § 21.53 (d) and (f).
(b) Specific services which may be provided in the course of evaluation in determining the reasonable feasibility of achieving a vocational goal. The following specific services may be provided as a part of the evaluation of reasonable feasibility of achieving a vocational goal, as appropriate:
(1) Assessment of feasibility by a Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC);
(2) Review of feasibility assessment and of need for special services by the Vocational Rehabilitation Panel;
(3) Provision of medical and other diagnostic services;
(4) Evaluation of employability, for a period not to exceed 30 days, by professional staff of an educational or rehabilitation facility.
(c) Responsibility for evaluation. All determinations as to the reasonable feasibility of vocational training and entitlement to assistance under 38 U.S.C. 1524 shall be made by a CP or VRC in the Veteran Readiness and Employment (VR&E) Division.
§ 21.6054   Criteria for determining good employment potential.
(a) Determining good employment potential. Before scheduling an evaluation of feasibility to pursue a vocational goal for a qualified veteran under § 21.6005(c)(2), VA will first determine whether the veteran has good potential for achieving employment if provided a vocational training or employment program. This determination shall be made on the basis of the information of record, including information submitted by the veteran at the time of the veteran's request to participate in this temporary program.
(b) Criteria. The criteria contained in paragraphs (c) and (d) of this section are to be applied by Veteran Readiness and Employment (VR&E) professional staff members to determine whether information of record supports a determination that a veteran age 50 or older has good potential for employment. Any reasonable doubt shall be resolved in the veteran's favor.
(c) Indicators of good potential for employment. Indicators of good potential for employment include one or more of the following:
(1) A period of stable employment prior to the onset of disability.
(2) Strong motivation to return to the work force.
(3) Successful pursuit of education or training.
(4) Cooperation in treatment of disabling conditions.
(5) Stabilization of medical conditions or substance abuse problems.
(6) Participation in therapeutic work programs.
(7) Evidence of recent sustained job-seeking.
(d) Contraindications of good potential for employment. Contraindications of good potential for employment include one or more of the following:
(1) A lifelong history of unstable employment with long periods of employment before the onset of disability.
(2) Being out of the labor market for five years or more preceding the evaluation.
(3) Unsuccessful pursuit of education or training.
(4) Noncooperation in the treatment of disability.
(5) Need for an additional period of medical care or treatment before training would be feasible.
(6) Nonparticipation in prescribed or recommended therapeutic work programs.
(7) Failure of previous vocational rehabilitation programs to achieve employability.
(e) Negative determinations. If VA does not find good employment potential, VA will notify the veteran that he or she is not eligible to receive an evaluation. Since this finding will preclude program participation, the veteran will be informed of his or her appellate rights as described in § 21.59 of this part.
(1) If the determination cannot be made on the evidence of record, VA shall advise the veteran and may provide him or her with an opportunity to submit additional information within a reasonable time.
(2) A veteran's disagreement with a negative finding shall be considered evidence of motivation for employment, and may, when considered in relation to other information, provide a basis for finding that good employment potential exists;
(3) If the final VA determination, following a review of a contested negative finding, is that good potential for achieving employment does not exist, a personal interview will be scheduled, and the reasons for VA's determination shall be discussed with the veteran.
§ 21.6056   Cooperation of the veteran in an evaluation.
(a) Cooperation of the veteran. The cooperation of the veteran is essential to a successful evaluation. The purpose of the evaluation and the steps in the process shall be explained to the veteran, and the importance of his or her cooperation shall be stressed. If the veteran does not cooperate in the initiation or completion of the evaluation, the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) shall make a reasonable effort through counseling to secure the veteran's cooperation.
(b) Consequences of noncooperation when evaluation is required. If the veteran fails to report for or cooperate in a required evaluation and the CP or VRC has made a reasonable effort to secure his or her participation, VA shall take appropriate action, including discontinuance of the evaluation under the provisions of § 21.364 of this part. If the veteran's case is discontinued under § 21.364 of this part, the Veterans Service Center will be notified. The Veterans Service Center also will be informed if the reason for discontinuance is subsequently removed and the evaluation process is resumed.
(c) Consequences of noncooperation when evaluation is not required. If the veteran fails to report for or cooperate in an optional evaluation and the CP or VRC has made a reasonable effort to secure the veteran's participation, VA shall take appropriate action, including discontinuance of the evaluation under the provisions of § 21.364 of this part. The evaluation may be resumed if the reason for the discontinuance is removed and the veteran is otherwise eligible.
§ 21.6058   Consequences of evaluation.
(a) Eligible veteran may choose to participate. If VA finds, based on the evaluation, that achievement of a vocational goal by the veteran is reasonably feasible, the veteran shall be offered and may elect to pursue a vocational training program. If the veteran elects to pursue such a program, the program shall be designed in consultation with the veteran in order to meet the veteran's individual needs, and shall be set forth in an Individualized Written Rehabilitation Plan (IWRP) under the provisions of § 21.84 of this part or an Individualized Employment Assistance Plan (IEAP) under § 21.88 of this part.
(b) Veteran ineligible to participate. A veteran for whom achievement of a vocational goal is not found reasonably feasible shall be notified of this finding and be informed of his or her appellate rights as described in § 21.416 of this part. The veteran shall be provided the assistance described in § 21.50(b)(9) of this part.
§ 21.6059   Limitations on the number of evaluations.
(a) Number of evaluations. No more than 3,500 evaluations of the reasonable feasibility of achieving a vocational goal may be given during any 12-month period, beginning on February 1, 1985, and each subsequent February 1 during the program period.
(b) Cases counted as evaluation. An evaluation is deemed to be countable against the 3,500 limit permitted during each 12-month period when the following conditions are met:
(1) The veteran is provided one or more personal interviews by a Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC); and
(2) A determination of the reasonable feasibility of achieving a vocational goal is made by the CP or VRC.
(c) Cases not counted as evaluations. Computation of the number of evaluations which may be provided in a 12-month period shall exclude cases in which:
(1) The veteran under age 45 awarded pension during the program period is unable to participate for reasons beyond his or her control;
(2) Review of available information does not indicate a good potential for employment of other qualified veterans.
(3) The veteran either fails to keep a scheduled appointment to complete the evaluation or withdraws the claim for an evaluation, or
(4) The veteran who has completed an evaluation requires or requests a reevaluation.
(d) Priority. If a veteran below age 45 for whom an evaluation is required cannot be provided an evaluation during a particular 12-month period because of the limitation on the number of evaluations, the veteran will be given first priority for evaluation during the following 12-month period, or first available subsequent 12-month period, if otherwise eligible.
§ 21.6060   Services and assistance.
(a) General. VA may provide to program participants:
(1) Vocationally oriented services and assistance of the kind provided veterans under chapter 31, title 38 U.S.C.;
(2) Employment assistance during the 18 month period following completion of a vocational training program, including:
(i) Educational, vocational, psychological, employment and personal adjustment counseling;
(ii) Placement services to effect suitable placement in employment, and post-placement services to attempt to insure satisfactory adjustment in employment; and
(iii) Personal adjustment and work adjustment training.
(3) Such other services and assistance of the kind provided veterans under chapter 31, except as provided in paragraph (b) of this section, as are necessary to enable the veteran to prepare for, and participate in, vocational training or employment.
(b) Services and assistance not provided. VA will not provide to a participant under this program any:
(1) Loan;
(2) Subsistence allowance;
(3) Automobile adaptive equipment of the kind provided eligible veterans under 38 U.S.C., chapter 39 or chapter 31;
(4) Training at an institution of higher learning in a program of education that is not predominantly vocational in content;
(5) Employment adjustment allowance;
(6) Room and board in a special rehabilitation facility for a period in excess of 30 days;
(7) Independent living services, except those which are indispensable to the pursuit of the vocational training program during the period of rehabilitation to the point of employability under § 21.6160 of this part; or
(8) Period of extended evaluation under 38 U.S.C. 3106(e).
§ 21.6070   Basic duration of a vocational training program.
(a) Basic duration of a vocational training program. The duration of a vocational training program may not exceed 24 calendar months of full-time training except as provided in § 21.6072 of this part.
(b) Responsibility for estimating the duration of a vocational training program. The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) is responsible for estimating the time needed by the veteran to complete a vocational training program. The estimate is made in consultation with the veteran and the vocational rehabilitation specialist during the preparation of the IWRP.
(c) Duration of training prescribed must meet general requirements for entry into the occupation selected. The veterans will be provided training for a period sufficient for the veteran to reach the level generally recognized as necessary for entry into employment in a suitable occupational objective. Where a particular degree, diploma or certificate is generally necessary for entry into employment, the veteran may be trained to that level.
(d) When duration of the training period may be expanded beyond the entry level. If the amount of training the particular veteran needs in order to qualify for employment in a particular occupation will exceed the amount generally needed for employment in that occupation, VA may provide the necessary additional training under one or more of the following conditions:
(1) Training requirements for employment in the area in which the veteran lives or will seek employment exceed those generally needed for employment;
(2) The veteran is preparing for a type of work in which he or she will be at a definite disadvantage in competing with nondisabled persons for a job or business, and the additional training will offset the competitive disadvantage;
(3) The choice of a feasible occupation is limited and additional training will enhance the veteran's employability in one of the feasible occupations; or
(4) The number of employment opportunities within a feasible occupation is restricted.
(e) Estimating the duration of the training period needed. The CP or VRC, in estimating duration of the training period needed, must determine that:
(1) The proposed vocational training program must be one which, when pursued full-time by a nondisabled person, would not normally require more than 24 calendar months of pursuit for successful completion;
(2) The program of training and other services needed by the veteran, based upon VA's evaluation, will not exceed 24 calendar months, if training is pursued on a full-time basis, or 36 calendar months if pursued on a less than full-time basis. In making this determination the following criteria will be applied:
(i) The number of actual months and days of the period during which the veteran will pursue the training program will be counted;
(ii) Days of authorized leave and other periods during which the veteran will not be pursuing training, such as periods between terms will also be counted;
(iii) The period of evaluation prior to determination of reasonable feasibility will be excluded but the actual number of months and days needed to evaluate and improve rehabilitation potential during the training program will be included;
(iv) The time required, as determined in months and days under paragraph (e)(2)(i) through (iii) of this section, will be the total period that would be required for the veteran to accomplish the vocational program under consideration;
(v) If the total period the veteran requires exceeds 24 calendar months, when pursued on a full-time basis, and an extension of the basic training period may not be approved under § 21.6072 of this part, another suitable vocational goal must be selected for which training can be completed within that period.
(3) If the veteran's vocational training program would require more than 36 calendar months when pursued on a less than full-time basis, the program must be reevaluated to select a vocational goal for which a suitable vocational training program can be completed within that period.
(f) Effect of change in the vocational goal on duration of training period. The veteran's vocational goal may be changed during the program in accordance with § 21.94 (a) through (d) of this part. The extent to which such changes may be made is limited by the following considerations:
(1) A change of the vocational goal from one field or occupational family to another field or occupational family may only be approved before the end of the first 24 months of training, whether training is pursued on a full-time or a less than full-time basis; and
(2) A change from one occupational objective to another within the same field or occupational family shall not be considered a change in the vocational goal identified in the veteran's IWRP.
§ 21.6072   Extending the duration of a vocational training program.
(a) Extension of the duration of a vocational training program. An extension of a vocational training program as formulated in the IWRP may only be approved to enable the veteran to achieve a vocational goal identified before the end of the first 24 calendar months of the program.
(b) Maximum number of months for which a program for new participants may be approved. If a veteran had never participated in this temporary program of vocational training, the originally planned period of training may be extended to a total period consisting of the number of months necessary to attain the vocational goal, but in no case will a program be extended for:
(1) More than 24 calendar months beyond the originally planned period; or
(2) A period which, when added to the originally planned period, totals more than 48 months, as provided in § 21.6074(c) of this part.
(c) Maximum number of months by which a program may be extended for prior participants in the temporary program. (1) A veteran who has previously participated in this program, but who was not rehabilitated to the point of employability, may be provided additional training under this program to complete the prior vocational goal or a different vocational goal, subject to the same provisions as apply to new participants;
(2) If a finding of prior rehabilitation to the point of employability is set aside to enable a veteran to pursue a program of on-job training or work experience, including the provision of employer incentives under § 21.256 of this part, the number of months for which assistance may be authorized under this program shall be established as provided in § 21.256 of this part to the extent consistent with the rules of this section;
(3) If the determination of rehabilitation to the point of employability has been set aside under § 21.6284 (a) or (b) of this part, additional training may be provided subject to the same provisions as apply to new participants.
(d) Who may authorize an extension to a vocational training program. (1) The Vocational Rehabilitation Specialist (VRS) may authorize an extension of up to 3 calendar months of full-time or up to 6 calendar months of less than full-time training to the period of an existing vocational training program, if the VRS determines that the additional time is needed to successfully complete training and the following conditions are met:
(i) The veteran is in rehabilitation to the point of employability status under § 21.190 of this part;
(ii) The veteran has completed more than half of the prescribed training;
(iii) The veteran is making satisfactory progress;
(iv) The extension is necessary to complete training;
(v) Training can be completed with 3 months of full-time training or not more than 6 calendar months of less than full-time training; and
(vi) The extension plus the original program period will not result in a program of vocational training greater than 36 total calendar months;
(2) The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) may approve any other extensions of the vocational training program, except as provided in paragraph (d)(3) of this section, if it is determined that the additional time is needed and the conditions for extension under paragraphs (a) and (b) of this section are met;
(3) The VR&E Officer must also concur in an extension of the vocational training program beyond 24 months when paragraphs (a) through (c) of this section are met.
§ 21.6074   Computing the period of vocational training program participation.
(a) Computing the participation period. The number of months and days used in a vocational training program shall be computed on the basis of calendar months and days during which the program participant is receiving services under the plan developed in accordance with § 21.6080 of this part, whether training is pursued on a full-time or less than full-time basis. Leaves of absence during a period of instruction and periods in which the veteran does not pursue actual training, such as breaks between periods of instruction, are included.
(b) Period of employment services separate. The period during which employment services may be provided pursuant to § 21.6040(b) of this part is not included in computing the period used for vocational training under this program.
(c) Limitations. (1) A program participant may receive the services necessary to carry out the vocational training program during a maximum period of 48 months. The 48-month period begins to run on the day the veteran begins to receive the services needed to carry out the vocational training program as specified in the IWRP, and ends 48 months from that date.
(2) Employment services which begin before the end of the 48-month period may be continued for the period specified in the IEAP, or may be provided after the end of the 48 month period if so specified in the IWRP or IEAP, subject to the provisions of § 21.6040(b) of this part.
§ 21.6080   Requirement for an individualized written rehabilitation or employment assistance plan.
(a) General. An Individualized Written Rehabilitation Plan (IWRP) and/or Individualized Employment Assistance Plan (IEAP) will be developed for each program participant for services under 38 U.S.C. 1524. These plans shall be developed in the same manner as for chapter 31 purposes. See §§ 21.80, 21.84, 21.88, 21.90, 21.92, 21.94 (a) through (d), and 21.96.
(b) Selecting the type of training to include in the plan. The use of on-job training, including non-pay training, a combination of on-job and institutional training, or institutional training to accomplish the goals of the program should be explored in each case. On-job training, or a combination of on-job and institutional training, should generally be used:
(1) When these options are available;
(2) When these options are as suitable as institutional training for accomplishing the goals of the program; and
(3) The veteran agrees that such training will meet his or her needs.
(c) Changes in the plan. Any change amending the duration of a veteran's plan is subject to provisions governing duration of a vocational training program described in § 21.6070 and § 21.6072 of this part.
(d) Change in the vocational goal after 24 months of training. If a veteran seeks to change the vocational goal after receipt of 24 months of training and the change is not permitted under § 21.6070(f) of this part, the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) shall inform the veteran that:
(1) No change of goal may be authorized but training for the vocational goal previously established may be continued, if it is still reasonably feasible for the veteran to pursue the training under appropriate extensions of the program pursuant to § 21.6072 of this part;
(2) If the veteran elects to terminate the planned vocational training program, he or she shall be provided assistance, to the extent provided under § 21.80(d) of this part, in identifying other resources through which the training desired may be secured;
(3) If the veteran disagrees with the decision, the veteran's case shall be considered under the provisions of § 21.416 of this part.
§ 21.6082   Completing the plan.
(a) Completing the plan. If the VA determines that the veteran is unable to complete the program within the time limits of the plan after training has begun and the conditions for extension are not met, the long-range vocational goal of the veteran must be reevaluated, and another vocational goal selected which can be completed within the limits prescribed in § 21.6054 and § 21.6072 of this part.
(b) Employment assistance when training is not completed under 38 U.S.C. chapter 15. A plan for employment assistance may be implemented under § 21.6040(b) of this part even though the veteran's vocational training program has not been, or will not be, completed under this temporary program, provided the other requirements for participation in the program are met.
§ 21.6100   Counseling.
A veteran requesting or being furnished assistance under this temporary program shall be provided professional counseling services by the Veteran Readiness and Employment (VR&E) Division and other qualified staff as necessary, and in the same manner as such services are provided veterans participating in a chapter 31 program. See §§ 21.100, 21.380.
§ 21.6120   Educational and vocational training services.
(a) Purposes. Educational and vocational training services are to be provided to a veteran eligible for services and assistance under this temporary program to enable the veteran to:
(1) Become employable in the occupational objective established in an IWRP; and
(2) Receive incidental training necessary to achieve the employment objective established in an IEAP.
(b) Selection of courses. VA and the veteran will select vocationally oriented courses of study and training, completion of which usually results in a diploma, certificate, degree, qualification for licensure, or employment. The educational and training services to be provided include:
(1) Remedial, deficiency and refresher training; and
(2) Training which leads to a vocational objective. All of the forms of program pursuit presented in § 21.122 through § 21.132 of this part may be authorized. Education and training programs in institutions of higher learning are authorized provided the courses are part of a program which is predominantly vocational in content. The program of education and training shall be considered to be predominantly vocational in content if the majority of the instruction offered provides the technical skills and knowledge generally regarded as specific to, and required for, entry into the vocational goal approved for the veteran. Such education and training may generally be authorized at an undergraduate or advanced degree level. However the following are excluded:
(i) An associate degree program in which the content of the majority of the instruction provided is not vocationally oriented;
(ii) The first two years of a 4-year baccalaureate degree program;
(iii) The last two or more years of a 4-year baccalaureate degree program except in degree programs with majors in engineering, teaching, or other similar degree programs with vocational content which ordinarily lead directly to employment in an occupation that is usually available to persons holding such a degree; or
(iv) An advanced degree program, except for a degree program required for entry into the veteran's employment objective, such as a master's degree in social work.
(c) Charges for education and training services. The cost of education and training services will be considered in selecting a facility when:
(1) There is more than one facility in the area in which the veteran resides which:
(i) Meets the requirements for approval under § 21.290 through § 21.299 of this part;
(ii) Can provide the education and training services and other supportive services specified in the veteran's plan; and
(iii) Is within reasonable commuting distance; or
(2) The veteran wishes to train at a suitable facility in another area, even though training can be provided at a suitable facility in the area in which the veteran resides. See §§ 21.120, 21.370, 21.372.
(d) Courses not available. If suitable educational and training courses are not available in the area in which the veteran resides, or if they are available but not accessible to the veteran, other arrangements may be made. Such arrangements may include, but are not limited to:
(1) Relocation of the veteran to another area in which necessary services are available, or
(2) Use of an individual instructor to provide necessary training as provided under § 21.146 of this part.
§ 21.6140   Evaluation and improvement of rehabilitation potential.
(a) General. The services described in paragraph (d) of this section may be used to:
(1) Evaluate rehabilitation potential;
(2) Provide a basis for planning:
(i) A program of services and assistance to improve the veteran's potential for vocational rehabilitation; or
(ii) A vocational training program; and
(3) Reevaluate the vocational training potential of a veteran participating in a rehabilitation program.
(b) Periods during which evaluation and improvement services may be provided. Services described in paragraph (d) of this section may be provided during:
(1) An evaluation or reevaluation;
(2) Rehabilitation to the point of employability;
(3) Employment services.
(c) Duration of services. The duration of services needed to improve rehabilitation potential, furnished on a full-time basis either as a preliminary part of the period of rehabilitation to the point of employability or as the total program, may not exceed 9 months. If these services are furnished on a less than full-time basis the duration will be for the period necessary, but may not exceed the equivalent of 9 months of full-time training. See § 21.6310.
(d) Scope of services. Evaluation and improvement services include:
(1) Diagnostic services;
(2) Personal and work adjustment training;
(3) Medical care and treatment;
(4) Independent living services indispensable to pursuing a vocational training program;
(5) Language training, speech and voice correction, training in ambulation, and one-hand typewriting;
(6) Orientation, adjustment, mobility and related services; and
(7) Other appropriate services.
(e) Applicability of chapter 31 rules. the provisions of § 21.140 of this part are not applicable to this temporary program. The provisions of § 21.142 through § 21.156 of this part are applicable, subject to provisions of this section.
§ 21.6160   Independent living services.
(a) Services must be part of a vocational training program. Independent living services may be provided as a part of a veteran's IWRP when such services are indispensable to the achievement of the vocational goal, but may not be provided as the sole program of rehabilitation for the veteran, since a vocational training program for the veteran must be found reasonably feasible before the IWRP is prepared.
(b) Independent living services which may be furnished under this program. The independent living services which may be furnished include:
(1) Training in independent living skills;
(2) Health management programs;
(3) Identification of appropriate housing accommodations; and
(4) Personal care service for a transitional period not to exceed two months.
(c) Coordination with other VA elements and other Federal, State, and local programs. Provision of independent living services and assistance will generally require extensive coordination with other VA and non-VA programs. The resources of VA medical centers shall be utilized as prescribed in § 21.6242 of this part. If appropriate arrangements cannot be made to provide these services through VA medical centers, other governmental and private nonprofit programs may be used to secure necessary services if the facility or individual providing services meets the requirements of § 21.294 of this part.
(d) Applicability of chapter 31 rules. Neither § 21.160 nor § 21.162 of this part are applicable to provision of independent living services under this program.
§ 21.6180   Case status system.
(a) General. The case status system used in administering benefits under the chapter 31 program, as provided in § 21.180 through § 21.198 of this part, will be utilized in a similar manner in this program subject to the provisions of paragraph (b) of this section.
(b) Limitations of applicability of chapter 31 rules. (1) The provisions of § 21.180(e)(2) and (3), § 21.188, and § 21.192 of this part are not applicable to this temporary program;
(2) Other incidental references to service-connected disability Chapter 31, extended evaluation status, or independent living status or other services precluded under § 21.6060(b) of this part, found in § 21.180 to § 21.198 of this part, are not for application to this temporary program.
§ 21.6210   Supplies.
(a) Purpose of furnishing supplies. Supplies are furnished to enable a veteran to pursue training, obtain and maintain employment and achieve the goals of his or her program.
(b) Definition. The term supplies includes books, tools and other supplies and equipment which VA determines are necessary for the veteran's vocational training program.
(c) Periods during which supplies may be furnished. Supplies may be furnished to a veteran receiving:
(1) An evaluation or reevaluation;
(2) Rehabilitation to the point of employability; or
(3) Employment services.
(d) Applicability of 38 U.S.C. chapter 31 regulations. The provisions of § 21.210 of this part are not applicable to veterans in this temporary program. The provisions of § 21.212 through § 21.224 of this part are applicable to veterans pursuing vocational training and employment under this program in a similar manner as under chapter 31, except the portions thereof noted as follows:
(1) Section 21.216(a)(3) of this part pertaining to special modifications, including automobile adaptive equipment;
(2) Section 21.220(a)(1) of this part pertaining to advancements from the revolving fund loan;
(3) Section 21.222(b)(x) of this part pertaining to a veteran discontinued from an independent living services program.
§ 21.6240   Medical treatment, care and services.
(a) General. A participant in a vocational training program or receiving employment assistance shall be furnished medical treatment, care and services which VA determines are necessary to develop, carry out and complete the veteran's plan.
(b) Scope of services. The services which may be furnished include the medical treatment, care and dental services described in part 17 of this chapter. In addition, the following services may be authorized even if not included or described in part 17:
(1) Prosthetic appliances, eyeglasses, and other corrective or assistive devices;
(2) Services to a veteran's family as necessary for the effective rehabilitation of the veteran;
(3) Special services (including services related to blindness and deafness) including:
(i) Language training, speech and voice correction, training in ambulation, and one-hand typewriting;
(ii) Orientation, adjustment, mobility and related services; and
(iii) Telecommunications, sensory and other technical aids and devices.
(c) Periods of eligibility. A veteran is eligible for the services described in paragraph (b) of this section during:
(1) Evaluation;
(2) Rehabilitation to the point employability;
(3) Employment services; and
(4) Other periods, to the extent that services are needed to begin or continue in any of the periods described in paragraphs (c)(1) through (3) of this section. Such periods include, but are not limited to, those when services are needed to facilitate reentry into training following:
(i) Interruption; or
(ii) Discontinuance because of illness or injury.
§ 21.6242   Resources for provision of medical treatment, care and services.
(a) General. VA medical centers are the primary resources for the provision of medical treatment, care and services for program participants which may be authorized under the provisions of § 21.6240 of this part. The availability of necessary services in VA facilities shall be ascertained in each case.
(b) Hospital care and medical services. Hospital care and medical services provided to program participants shall only be furnished in facilities over which VA has direct jurisdiction, except as authorized on a contract or fee basis under the provisions of part 17 of this chapter.
See § 17.30(1) Hospital care. § 17.30(m) Medical services.
(c) Provisions of § 21.240 and § 21.242. The provisions of §§ 21.240 and 21.242 of this part are not applicable to this temporary program.
§ 21.6260   Financial assistance.
(a) Direct financial assistance prohibited. The provisions of § 21.260 and § 21.264 through § 21.276 of this part are not applicable to veterans pursuing training and employment under this temporary program, except as indicated in paragraph (b) of this section.
(b) Training costs. The provisions of § 21.262 of this part pertaining to reimbursement for training costs will be followed to reimburse vendors for services provided under this temporary program.
§ 21.6282   Effective dates of induction into and termination of vocational training.
(a) Induction. Subject to the limitations set forth in § 21.6042 of this part, the date a veteran is inducted into vocational training shall be the earlier of:
(1) The date of the facility requires the veteran to report for prescribed activities; or
(2) The date the program begins at the facility providing services.
(b) Termination. A veteran's training program shall be terminated under the provisions of § 21.6180. of this part.
§ 21.6284   Reentrance into a training program.
(a) Reentrance into rehabilitation to the point of employability following a determination of rehabilitation. A veteran in a vocational training program under this temporary program who has been found rehabilitated under provisions of § 21.196 of this part may be provided an additional period of training or services only if the following conditions are met and the veteran is otherwise eligible.
(1) Current facts, including any relevant medical findings, establish that the veteran's disability has worsened to the extent that he or she is precluded from performing the duties of the occupation for which the veteran previously was found rehabilitated; or
(2) The occupation for which the veteran previously was found rehabilitated under this temporary program is found to be unsuitable.
(b) Reentrance into rehabilitation to the point of employability during a period of employment services. A finding of rehabilitation to the point of employability by VA may be set aside during a period of employment services and an additional period of training and related services provided if any of the conditions in paragraph (a) of this section or one of the following conditions are met and the veteran is otherwise eligible:
(1) The services originally given to the veteran are now inadequate to make the veteran employable in the occupation for which he or she pursued training;
(2) Experience during the period of employment services has demonstrated that employment in the objective or field for which the veteran was rehabilitated to the point of employability should not reasonably have been expected at the time the program was originally developed; or
(3) The veteran, because of technological change which occurred subsequent to the declaration of rehabilitation to the point of employability, is no longer able:
(i) To perform the duties of the occupation for which he or she trained, or in a related occupation; or
(ii) To secure employment in the occupation for which he or she trained, or in a related occupation.
§ 21.6290   Training resources
(a) Applicable 38 U.S.C. chapter 31 provisions. The provisions of § 21.290 through § 21.299 are applicable to veterans pursuing vocational training and employment under this program in the same manner as under 38 U.S.C. chapter 31, except as specified in paragraph (b).
(b) Limitations. The provisions of § 21.294(b)(1)(i) and (ii) of this part pertaining to independent living services are not applicable to this temporary program. The provisions of § 21.294(b)(1)(iii) of this part pertaining to authorization of independent living services as a part of an Individualized Written Rehabilitation Plan (IWRP) are applicable to this temporary program to the extent provided under § 21.6160 of this part.
§ 21.6310   Rate of pursuit.
(a) General requirements. A veteran should pursue a vocational training program at a rate which is consistent with his or her ability to successfully pursue training, considering:
(1) Effects of his or her disability;
(2) Family responsibilities;
(3) Travel;
(4) Reasonable adjustment to training; and
(5) Other circumstances which affect the veteran's ability to pursue training.
(b) Continuous pursuit. A veteran should pursue a program of vocational training with as little interruption as necessary, considering the factors described in paragraph (a) of this section.
(c) Responsibility for determining the rate of pursuit. VR&E staff, in consultation with the veteran, will determine the rate and continuity of pursuit of training. Consultation with the medical consultant and the Vocational Rehabilitation Panel should be utilized as necessary. This determination will be made in the course of developing the plan, but may be changed later, as necessary to enable the veteran to complete his or her training.
(d) Measurement of training time used. The rate of pursuit shall be measured on the basis of the provisions of § 21.310 of this part. A veteran may not pursue training on a less than half-time basis as measured under § 21.310 of this part, except for brief periods, after which training must be resumed on a half-time or greater basis. Brief periods are limited to all or part of a semester, term or quarter, or up to 90 days in a course not conducted on a semester, term, or quarter basis.
(e) Reduced work tolerance. The provisions of § 21.312 of this part are not applicable to this temporary program.
(f) Pursuit of training under special circumstances. The provisions of § 21.314 of this part are not applicable to this temporary program.
§ 21.6320   Authorization of services under Chapter 31 rules.
(a) General. Sections 21.320 through 21.334 of this part are not applicable to a veteran pursuing a vocational training program except as specified in paragraph (b) of this section.
(b) Applicable rule. Section 21.326 of this part pertaining to the beginning and ending dates of a period of employment services is applicable to veterans under this temporary program.
§ 21.6340   Leaves of absence.
(a) General. VA may approve leaves of absence under certain conditions. During approved leaves of absence, a veteran shall be considered to be pursuing training for purposes of computing the duration of a vocational training program under §§ 21.6070 through 21.6074. Leave may only be authorized for a veteran during a period of rehabilitation to the point of employability.
(b) Purpose. The purpose of the leave system is to enable the veteran to maintain his or her status as an active participant and avoid interruption or discontinuance of training.
(c) Applicability of chapter 31 rules. The provisions of § 21.340 of this part are not applicable to this temporary program. The provisions of § 21.342 through § 21.350 of this part are applicable except for § 21.346 of this part.
§ 21.6362   Satisfactory conduct and cooperation.
The provisions of § 21.362 and § 21.364 of this part are applicable to veterans pursuing vocational training under this program in the same manner as under 38 U.S.C. chapter 31.
§ 21.6370   Authorization of transportation services.
(a) General. VA shall authorize transportation services necessary for a veteran to pursue a vocational training program under this temporary program. Transportation services include:
(1) Transportation for evaluation, reevaluation or counseling authorized under § 21.376 of this part;
(2) Inter- and intraregional travel which may be authorized under § 21.370 (except for (b)(2)(iii)(B)) and § 21.372 of this part;
(3) Special transportation allowance authorized under § 21.154 of this part;
(4) Commuting to and from training and seeking employment as authorized under paragraphs (c) and (d) of this section.
(b) Reimbursement. Payment of transportation services authorized by VA shall normally be made in arrears and in the same manner as tuition, fees and other services authorized under this program.
(c) Transportation payment. A veteran may be reimbursed for the costs of commuting to and from training and seeking employment if he or she requests such assistance and VA determines after careful examination of the veteran's situation, and subject to the limitation contained in paragraph (d) of this section, that the veteran would be unable to pursue training without such assistance. VA may:
(1) Reimburse the facility at which the veteran is training if the facility provides transportation or related services;
(2) Reimburse the veteran for his or her actual commuting expense.
(d) Limitations. Payment of commuting expenses may not be made for any period:
(1) Except during the period of training and the first three months of employment services;
(2) When a program participant is employed;
(3) In which a program participant is eligible for, and entitled to, payment of commuting costs through other VA and non-VA programs;
(4) In which it becomes feasible for the veteran to commute to school with family, friends or fellow students.
(e) Amount which may be paid. VA will reimburse the veteran for his or her actual cost, not to exceed $70 per month. Necessary supportive documentation must be submitted with each request for reimbursement. Payment will be made monthly or at longer intervals as may be agreed to in the IWRP.
(f) Nonduplication. A veteran eligible for reimbursement of transportation services under this section and § 21.154 of this part may only receive the benefit provided under § 21.154 of this part.
§ 21.6380   Additional applicable Chapter 31 regulations.
The following regulations are applicable to veterans pursuing the vocational training under this program in the same manner as they apply to 38 U.S.C. chapter 31: § 21.380, § 21.390, § 21.400, § 21.402, § 21.412, § 21.414 (except (d) and (e)), § 21.420, and § 21.430 (except (a)) of this part.
§ 21.6410   Delegation of authority.
(a) General. Authority is delegated to the Under Secretary for Benefits and to supervisory or non-supervisory personnel within the jurisdiction of the Veteran Readiness and Employment (VR&E) Service, to make findings and decisions under 38 U.S.C. 1524 and the applicable regulations, precedents and instructions pertaining to this program. See § 2.6(b).
(b) Applicability of §§ 21.412 and 21.414. The provisions of §§ 21.412 and 21.414 (except for (d) and (e)) are applicable to this temporary program.
§ 21.6420   Coordination with the Veterans Service Center.
It is the responsibility of the VR&E Division to inform the Veterans Service Center in writing of the following changes in the veteran's circumstances contained in the following paragraphs.
(a) Evaluation. (1) The date an evaluation being provided a veteran under age 45, who is required to participate in such evaluation, is suspended because of unsatisfactory conduct or cooperation; and
(2) The date the evaluation is resumed.
(b) Income information. Any information relating to income from work or training which may affect the veteran's continued entitlement to pension, including participation in:
(1) A work adjustment program, incentive or therapeutic work program, vocational training in a rehabilitation facility, or employment in a rehabilitation facility or sheltered workshop;
(2) On-job training;
(3) The work portion of a cooperative or combination program;
(4) Internships; and
(5) Full- or part-time employment.
(c) Dependency changes. Information regarding dependency changes if the case manager learns of such changes in the normal course of performing his or her duties.
(d) Information to determine if the veteran's permanent and total disability rating is protected under § 3.343. The information provided by the case manager includes:
(1) The employment was within the scope of the vocational goal identified in the veteran's individualized written plan of vocational rehabilitation, or in a related field, and the employment secured by the veteran requires the use of the training or services furnished under the rehabilitation plan.
(2) Employment was secured not later than one year after the date the veteran's eligibility for counseling expired. A veteran's eligibility for counseling expires on the date employment services are terminated by VA or the veteran completes rehabilitation to the point of employability and terminates program participation, whichever is later; and
(3) The veteran maintained his or her employment for 12 consecutive months.
§ 21.6501   Overview.
(a) Purpose. The temporary program for trial work periods and vocational rehabilitation is intended to test the extent to which a veteran, who has been awarded a VA compensation rating of total disability by reason of inability to secure or follow a substantially gainful occupation as a result of service-connected disability, may benefit from vocational rehabilitation services which may be authorized under 33 U.S.C. chapter 31, and 38 U.S.C. 1163. See §§ 3.340 and 3.341 of this title.
(b) Chapter 31 evaluations. All veterans participating in this temporary program are to be evaluated to determine whether:
(1) They are eligible for and entitled to receive assistance under chapter 31; and
(2) Achievement of a vocational goal is reasonably feasible.
(c) Applicability of chapter 31 provisions. The provisions of §§ 21.1 through 21.430, generally applicable to veterans eligible for benefits under chapter 31, apply except as added to or modified by the provisions of the following sections. Participants not found eligible for chapter 31 benefits may nevertheless receive counseling services under 38 U.S.C. 3104(a)(2) and placement and postplacement services under 38 U.S.C. 3104(a)(5).
§ 21.6503   Definitions.
(a) Program period. The term program period means the period beginning on February 1, 1985, and ending December 31, 1992.
(b) Qualified veteran. The term qualified veteran means a veteran who has a service-connected disability, or service-connected disabilities, not rated as total, but who has been awarded a rating of total disability by reason of inability to secure or follow a substantially gainful occupation as a result of such disability or disabilities. Such a rating is referred to as an IU (individual unemployability) rating. See §§ 3.340, 3.341, and 4.16 of this title.
(c) Receives an IU rating. The phrase receives an IU rating refers to the date of the rating decision authorizing total disability compensation based upon individual unemployability.
§ 21.6505   Participation in the temporary program.
Participation in this temporary program of trial work periods and vocational rehabilitation is limited to qualified veterans.
§ 21.6507   Special benefits for qualified veterans under test program.
(a) Protection of IU rating under 38 CFR 3.343(c)(2). The total disability rating of any qualified veteran who begins to engage in a substantially gainful occupation during the program period is protected from reduction by VA on the basis of the veteran's having secured and followed a substantially gainful occupation under the provisions of § 3.343(c)(2) of this title.
(b) Counseling and employment services for qualified veterans. During the program period, VA will make the counseling services described in 38 U.S.C. 3104(a)(2), and the placement and postplacement services described in 38 U.S.C. 3104(a)(5), available to each qualified veteran for whom achievement of a vocational goal is reasonably feasible. These services will be made available regardless of the veteran's entitlement to or desire to participate in a vocational rehabilitation program under chapter 31. See § 21.6519.
§ 21.6509   Notice to qualified veterans.
(a) At the time notice is provided to a qualified veteran of an award of an IU rating, VA shall provide the veteran with an additional statement. These statements shall contain the following information:
(1) Notice of the provisions of 38 U.S.C. 1163;
(2) Information explaining the purposes and availability of, as well as eligibility requirements and procedures for pursuing a vocational rehabilitation program under Chapter 31; and
(3) A summary description of the scope of services and assistance available under that chapter.
(b) Opportunity for evaluation. After providing the notice required under paragraph (a) of this section, VA shall offer the veteran the opportunity for an evaluation under § 21.50 of this part.
(c) Evaluation. The term evaluation hereinafter shall be understood to mean the same evaluation accorded in an initial evaluation and an extended evaluation as those terms are described in §§ 21.50 and 21.57 of this part.
(d) Responsible staff member. The evaluation or reevaluation will be provided by a Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) in the Veteran Readiness and Employment (VR&E) Division.
§§ 21.6511-21.6513   [Reserved]
§ 21.6515   Formulation of rehabilitation plan.
(a) Formulation of plan. Following an evaluation, the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) will formulate an IWRP (individualized written rehabilitation plan) or an IEAP (individualized employment assistance plan) for each participating qualified veteran for whom achievement of a vocational goal is reasonably feasible. These plans shall be prepared in accordance with § 21.84 (IWRP) or § 21.88 (IEAP).
(b) Existing plan. If the veteran already has undertaken a rehabilitation program under Chapter 31, a new plan shall not be developed unless circumstances indicate that the existing plan should be modified or replaced.
§ 21.6517   [Reserved]
§ 21.6519   Eligibility of qualified veterans for employment and counseling services.
(a) General. A qualified veteran for whom vocational rehabilitation and achievement of a vocational goal are reasonably feasible may be provided the employment and counseling services to which he or she may be entitled under chapter 31. If the qualified veteran is not eligible for such assistance under chapter 31, he or she may be provided, nevertheless, the counseling, placement and postplacement services provided under 38 U.S.C. 3104(a)(2) and (5). The specific services which may be authorized are discussed in §§ 21.100, 21.252 and 21.254(a).
(b) Services under other VA and non-VA programs. Veterans being provided counseling, placement and postplacement services under §§ 21.100, 21.252, and 21.254(a) will also be aided in identifying services of other VA and non-VA programs which may be of assistance in securing employment. All elements of a program of these services shall be incorporated in the IEAP.
(c) Veteran elects counseling, placement and postplacement services. If a qualified veteran elects not to undertake the IWRP and is otherwise eligible for counseling, placement and postplacement services under 38 U.S.C. 3104(a)(2) and (5), he or she may be provided those services.
(d) Duration of services under 38 U.S.C. 3104(a) (2) and (5). The services provided under 38 U.S.C. 3104(a)(2) and (5), are limited to an 18-month period of employment assistance as described in § 21.73.
§ 21.6521   Employment of qualified veterans.
(a) Provisions of the IEAP (Individualized Employment Assistance Plan). Each IEAP of a qualified veteran shall require that the:
(1) Case manager maintain close contact with qualified veterans who become employed to help assure adjustment to employment;
(2) Veteran discuss any plan to leave employment during the trial work period with the case manager.
(b) Coordination with the Veterans Service Center. The VR&E Division will inform the Veterans Service Center in writing upon employment of the participating qualified veteran during a program of either vocational rehabilitation services or counseling and employment services and when such employment has continued for 12 consecutive months. See § 3.343(c)(2) of this title.
§ 21.6523   Entry and reentry into a program of counseling and employment services under 38 U.S.C. 3104(a) (2) and (5).
(a) Dates of entry. A qualified veteran, not eligible to receive Chapter 31 benefits, may not enter or pursue a program of counseling and employment services under 38 U.S.C. 3104(a) (2) and (5), before February 1, 1985, or later than December 31, 1992.
(b) Reentry. The provisions of paragraph (a) of this section are also applicable to veterans being provided additional counseling and employment services following a redetermination of eligibility and entitlement to such services.
§ 21.6525   [Reserved]
§ 21.7000   Establishment of educational assistance program.
(a) Establishment. An educational assistance program for certain veterans and servicemembers is established.
(b) Purpose. The purpose of this program is as stated in 38 U.S.C. 3001.
§ 21.7020   Definitions.
For the purposes of regulations from § 21.7000 through § 21.7499 and the payment of basic educational assistance and supplemental educational assistance under 38 U.S.C. chapter 30, the following definitions apply.
(a) Definitions of participants —(1) Servicemember. The term servicemember means anyone who:
(i) Meets the eligibility requirements of § 21.7042 or § 21.7044, and
(ii) Is on active duty with the Army, Navy, Air Force, Marine Corps, Coast Guard, Public Health Service or National Oceanographic and Atmospheric Administration.
(2) Veteran. The term veteran means anyone who—
(i) Meets the eligibility requirements of § 21.7042, § 21.7044, or § 21.7045, and
(ii) Is not on active duty. The term veteran includes an individual who is actively participating in the Selected Reserve.
(b) Other definitions —(1) Active duty.
(i) The term active duty means—
(A) Full-time duty in the Armed Forces, other than active duty for training,
(B) Full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service,
(C) Full-time duty as a commissioned officer of the National Oceanic and Atmospheric Administration, and
(D) Authorized travel to or from such duty or service.
(ii) The term active duty does not include any period during which an individual:
(A) Was assigned full time by the Armed Forces to a civilian institution for a course of education which was substantially the same as established courses offered to civilians,
(B) Served as a cadet or midshipman at one of the service academies, or
(C) Served under the provisions of 10 U.S.C. 511(d) pursuant to an enlistment in the Army National Guard or the Air National Guard, or as a Reserve for service in the Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve.
(iii) When referring to individuals who, before November 30, 1989, had never served on active duty (as that term is defined by § 3.6b of this title), the term “active duty” when used in this subpart includes full-time National Guard duty first performed after November 29, 1989, by a member of the Army National Guard of the United States or the Air National Guard of the United States in the servicemember's status as a member of the National Guard of a State for the purpose of organizing, administering, recruiting, instructing or training the National Guard.
(iv) When referring to individuals who, before June 30, 1985, had never served on active duty (as that term is defined by § 3.6(b) of this chapter) and who made the election described in § 21.7042(a)(7) or (b)(10), the term active duty when used in this subpart includes full-time National Guard duty under title 32, U.S. Code first performed after June 30, 1985, by a member of the Army National Guard of the United States or the Air National Guard of the United States for the purpose of organizing, administering, recruiting, instructing, or training the National Guard.
(2) Attendance The term attendance means the presence of a veteran or servicemember—
(i) In the class where the approved course is being taught in which he or she is enrolled, or
(ii) At a training establishment, or
(iii) Any other place of instruction, training or study designated by the educational institution or training establishment where the veteran or servicemember is enrolled and is pursuing a program of education.
(3) Audited course. The term audited course has the same meaning as provided in § 21.4200(i) of this part.
(4) Basic educational assistance. The term basic educational assistance means a monetary benefit payable to all individuals who meet basic requirements for eligibility under chapter 30, title 38 U.S.C., for pursuit of a program of education.
(5) Break in service. (i) Except as provided in paragraph (b)(5)(ii) of this section, the term break in service means a period of more than 90 days between the date when an individual is released from active duty or otherwise receives a complete separation from active duty service and the date he or she reenters on active duty.
(ii) A period during which an individual is assigned full time by the Armed Forces to a civilian institution for a course of education substantially the same as established courses offered to civilians is not a break in service.
(6) Continuous active duty. (i) The term continuous active duty means active duty served without interruption. An interruption in service will only be found when the individual receives a complete separation from active duty.
(ii) A period during which an individual on active duty is assigned full time by the Armed Forces to a civilian institution for a course of education substantially the same as established courses offered to civilians will not interrupt the continuity of the individual's active duty.
(iii) If an individual, during an obligated period of active-duty service, is separated from active duty to pursue a course of education at a service academy or a post-secondary school preparatory to enrollment at a service academy, no interruption in service will be found and the individual's service will be considered continuous active-duty service, provided he or she—
(A) Commences pursuit of a course of education at a service academy or post-secondary school,
(B) Fails to complete the course of education, and
(C) Immediately reenters on a period of active duty.
(iv) An individual who is discharged or released from active duty for a reason stated in paragraph (b)(6)(iv) of this section after serving not more than 12 months of an obligated period of active duty, and who subsequently reenlists or reenters on a period of active duty, will not be considered to have an interruption in service. Except as provided in paragraph (b)(6)(vi) of this section, the individual's service during the two periods will be considered continuous active-duty service for the aggregate length of the two service periods. However, the individual's discharge or release from the earlier obligated period of service must have been:
(A) For a service-connected disability;
(B) For hardship;
(C) For a medical condition which preexisted such active-duty service and is not service connected;
(D) For a physical or mental condition not characterized as a disability and not resulting from the individual's own willful misconduct which interfered with the individual's performance of duty as determined by the Secretary concerned; or
(E) Involuntary, for the convenience of the Government as a result of a reduction in force as determined by the Secretary concerned.
(v) VA will not consider an individual to have an interruption of service when he or she:
(A) Serves a period of active duty without interruption (without a complete separation from active duty), as an enlisted member or warrant officer;
(B) While serving on such active duty is assigned to officer training school; and
(C) Following successful completion of the officer training school is discharged to accept, without a break in service, a commission as an officer in the Armed Forces for a period of active duty.
(vi) If the second period of active-duty service referred to in paragraph (b)(6)(iv) or (b)(6)(v) of this section is of such nature or character that, when aggregated with the earlier period of service referred to in that paragraph, it would cause the individual to be divested of entitlement to educational assistance otherwise established by the earlier period of active duty, the two periods of service will not be aggregated and will not be considered a single period of continuous active duty.
(vii) Time lost will not be considered to interrupt the continuity of service. For the purpose of this section, “time lost” includes excess leave, noncreditable time and not-on-duty time.
(7) Cost of course. The term cost of course means the total cost for tuition and fees for a course which an educational institution charges to nonveterans whose circumstances are similar to veterans enrolled in the same course. Cost of course does not include the cost of supplies which the student is required to purchase at his or her own expense.
(8) Deficiency course. The term deficiency course means any secondary level course or subject not previously completed satisfactorily which is specifically required for pursuit of a postsecondary program of education.
(9) Dependent. The term dependent means:
(i) A spouse as defined in § 3.50(a) of this chapter,
(ii) A child who meets the requirements of § 3.57 of this chapter, or
(iii) A parent who meets the requirements of § 3.59 of this chapter.
(10) Divisions of the school year. The term divisions of the school year has the same meaning as provided in § 21.4200(b) of this part.
(11) Drop-add period. The term drop-add period has the same meaning as provided in § 21.4200(1) of this part.
(12) Educational assistance. The term educational assistance means basic educational assistance, supplemental educational assistance, and all additional amounts payable, commonly called kickers.
(13) Educational objective. An educational objective is one that leads to the awarding of a diploma, degree or certificate which reflects educational attainment.
(14) Enrollment. The term enrollment has the same meaning as provided in § 21.4200(n) of this part.
(15) Enrollment period. The term enrollment period has the same meaning as provided in § 21.4200(p) of this part.
(16) Holiday vacation. The term holiday vacation means a customary, reasonable vacation period connected with a Federal or State legal holiday which is identified as a holiday vacation in the educational institution's approved literature. Generally, VA will interpret a reasonable period as not more than one calendar week at Christmas and one calendar week at New Year's and shorter periods of time in connection with other legal holidays.
(17) In residence on a standard quarter- or semester-hour basis. The term in residence on a standard quarter- or semester-hour basis has the same meaning as provided in § 21.4200(r) of this part.
(18) Institution of higher learning. The term institution of higher learning has the same meaning as provided in § 21.4200(h) of this part.
(19) Mitigating circumstances. (i) The term mitigating circumstances means circumstances beyond the veteran's or servicemember's control which prevent him or her from continuously pursuing a program of education. The following circumstances are representative of those which VA considers to be mitigating. This list is not all-inclusive.
(A) An illness of the veteran or servicemember,
(B) An illness or death in the veteran's or servicemember's family,
(C) An unavoidable change in the veteran's conditions of employment,
(D) An unavoidable geographical transfer resulting from the veteran's employment,
(E) Immediate family or financial obligations beyond the control of the veteran which require him or her to suspend pursuit of the program of education to obtain employment.
(F) Discontinuance of the course by the educational institution,
(G) Unanticipated active duty for training,
(H) Unanticipated difficulties in caring for the veteran's or eligible person's child or children.
(ii) In the first instance of a withdrawal after May 31, 1989, from a course or courses for which the veteran received educational assistance under title 38, U.S. Code, VA will consider that mitigating circumstances exist with respect to courses totaling not more than six semester hours or the equivalent.
(20) Nonpunitive grade. The term nonpunitive grade has the same meaning as provided in § 21.4200(j) of this part.
(21) Normal commuting distance. The term normal commuting distance has the same meaning as provided in § 21.4200(m) of this part.
(22) Professional or vocational objective. A professional or vocational objective is one that leads to an occupation. It may include educational objectives essential to prepare for the chosen occupation. When a program consists of a series of courses not leading to an educational objective, these courses must be directed toward attainment of a designated professional or vocational objective.
(23) Program of education. A program of education—
(i) Is any unit course or subject or combination of courses or subjects which is pursued by a veteran or servicemember at an educational institution, and which is required by the Secretary of the Small Business Administration as a condition to obtaining financial assistance under the provisions of 15 U.S.C. 636; or
(ii) Is a combination of subjects or unit courses pursued at an educational institution. The combination generally is accepted as necessary to meet requirements for a predetermined educational, professional or vocational objective. It may consist of subjects or courses which fulfill requirements for more than one objective if all objectives pursued are generally recognized as being related to a single career field;
(iii) Includes an approved full-time program of apprenticeship or of other on-job training;
(iv) Effective November 30, 1999, includes a preparatory course for a test that is required or used for admission to—
(A) An institution of higher education; or
(B) A graduate school; and
(v) Includes a licensing or certification test, the passing of which demonstrates an individual's possession of the knowledge or skill required to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession, provided that VA or a State approving agency has approved the test and the licensing or credentialing organization or entity that offers the test as provided in 38 U.S.C. 3689.
(24) Punitive grade. The term punitive grade has the same meaning as provided in § 21.4200(k) of this part.
(25) Pursuit. (i) The term pursuit means to work, while enrolled, towards the objective of a program of education. This work must be in accordance with approved institutional policy and regulations, and applicable criteria of title 38 U.S.C.; must be necessary to reach the program's objective; and must be accomplished through—
(A) Resident courses (including teacher training courses and similar courses which VA considers to be resident training),
(B) Independent study courses,
(C) Correspondence courses,
(D) An apprenticeship or other on-job training program,
(E) A graduate program of research in absentia,
(F) Medical-dental internships and residencies, nursing courses and other medical-dental specialty courses,
(G) A flight training course beginning on or after September 30, 1990, or
(H) A licensing or certification test taken on or after March 1, 2001.
(ii) VA will consider a veteran who qualifies for payment during an interval between terms or school closing, or who qualifies for payment during a holiday vacation to be in pursuit of a program of education during the interval, school closing, or holiday vacation.
(26) Refresher course. The term “refresher course” means—
(i) Either a course at the elementary or secondary level to review or update material previously covered in a course that has been satisfactorily completed, or
(ii) A course which permits an individual to update knowledge and skills or be instructed in the technological advances which have occurred in the individual's field of employment during and since the period of the individual's active military service.
(27) Remedial course. The term remedial course means a course designed to overcome a deficiency at the elementary or secondary level in a particular area of study, or a handicap, such as in speech.
(28) Secretary. The term Secretary means the Secretary of Defense with respect to members of the Armed Forces under the jurisdiction of the Secretary of a military department, and the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy.
(29) School, educational institution, institution. The terms school, educational institution, and institution mean—
(i) Any vocational school, correspondence school, business school, junior college, teachers' college, college, normal school, professional school, university or scientific or technical institution;
(ii) Any public or private elementary school or secondary school which offers courses for adults, provided that the courses lead to an objective other than an elementary school diploma, a high school diploma or their equivalents; and
(iii) An entity, other than an institution of higher learning, that provides training required for completion of a State-approved alternative teacher certification program.
(30) School year. The term school year means generally a period of 2 semesters or 3 quarters which is not less than 30 nor more than 39 weeks in total length.
(31) Selected Reserve. The term Selected Reserve means the Selected Reserve of the Ready Reserve of any of the reserve components (including the Army National Guard of the United States and the Air National Guard of the United States) of the Armed Forces, as required to be maintained under section 268(b), 10 U.S.C.
(32) Standard class session. The term standard class session has the same meaning as provided in § 21.4200(g) of this part.
(33) Standard college degree. The term standard college degree has the same meaning as provided in § 21.4200(e) of this part.
(34) Supplemental educational assistance. The term supplemental educational assistance means a benefit payable to a veteran or servicemember as a supplement to his or her basic educational assistance for pursuit of a program of education under 38 U.S.C. ch. 30.
(35) Established charge. The term established charge means the lesser of—
(i) The charge for the correspondence course or courses determined on the basis of the lowest extended time payment plan offered by the educational institution and approved by the appropriate State approving agency, or
(ii) The actual cost to the servicemember or veteran.
(36) Date of affirmance. The term date of affirmance means the date (after the expiration of ten days after a veteran or servicemember signs an enrollment agreement for a correspondence course), on which the veteran or servicemember signs and submits to VA a written agreement affirming the enrollment agreement.
(37) Training establishment. The term training establishment means any establishment providing apprentice or other training on-the-job, including those under the supervision of a college, university, any State department of education, any State apprenticeship agency, any State board of vocational education, any joint apprenticeship committee, the Bureau of Apprenticeship and Training established in accordance with 29 U.S.C. chapter 4C, or any agency of the Federal government authorized to supervise such training.
(38) Disabling effects of chronic alcoholism. (i) The term disabling effects of chronic alcoholism means alcohol-induced physical or mental disorders or both, such as habitual intoxication, withdrawal, delirium, amnesia, dementia, and other like manifestations of chronic alcoholism which, in the particular case—
(A) Have been medically diagnosed as manifestations of alcohol dependency or chronic alcohol abuse, and
(B) Are determined to have prevented commencement or completion of the affected individual's chosen program of education.
(ii) A diagnosis of alcoholism, chronic alcoholism, alcohol-dependency, chronic alcohol abuse, etc., in and of itself, does not satisfy the definition of this term.
(iii) Injury sustained by a veteran as a proximate and immediate result of activity undertaken by the veteran while physically or mentally unqualified to do so due to alcoholic intoxication is not considered a disabling effect of chronic alcoholism.
(39) Cooperative course. The term cooperative course means a full-time program of education which consists of institutional courses and alternate phases of training in a business or industrial establishment with the training in the business of industrial establishment being strictly supplemental to the institutional portion.
(40) Open period. The term “open period” means a period of time beginning on December 1, 1988, and ending on June 30, 1989.
(41) Persian Gulf War. The term “Persian Gulf War” means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law.
(42) Continuously enrolled. The term continuously enrolled means being in an enrolled status at an educational institution for each day during the school year, and for consecutive school years. Continuity of enrollment is not broken by holiday vacations; vacation periods; periods during the school year between terms, quarters, or semesters; or by nonenrollment during periods of enrollment outside the school year (e.g., summer sessions).
(43) Alternative teacher certification program. The term alternative teacher certification program, for the purposes of determining whether an entity offering such a program is a school, educational institution or institution as defined in paragraph (b)(29)(iii) of this section, means a program leading to a teacher's certificate that allows individuals with a bachelor's degree or graduate degree to obtain teacher certification without enrolling in an institution of higher learning.
(44) Date of election. The term date of election means:
(i) For an election that must be made in the form and manner determined by the Secretary of Defense, the date determined by the Secretary of Defense; and
(ii) For an election that must be submitted to VA, the date VA receives the written election.
(45) Institution of higher education. The term institution of higher education means either:
(i) An educational institution, located in a State, that—
(A) Admits as regular students only persons who have a high school diploma, or its recognized equivalent, or persons who are beyond the age of compulsory school attendance in the State in which the educational institution is located;
(B) Offers postsecondary level academic instruction that leads to an associate or baccalaureate degree; and
(C) Is empowered by the appropriate State education authority under State law to grant an associate or baccalaureate degree, or where there is no State law to authorize the granting of a degree, is accredited for associate or baccalaureate degree programs by a recognized accrediting agency; or
(ii) An educational institution, not located in a State, that—
(A) Offers a course leading to an undergraduate standard college degree or the equivalent; and
(B) Is recognized as an institution of higher education by the secretary of education (or comparable official) of the country or other jurisdiction in which the educational institution is located.
(46) Graduate school. The term graduate school means either:
(i) An educational institution, located in a State, that—
(A) Admits as regular students only persons who have a baccalaureate degree or the equivalent in work experience;
(B) Offers postsecondary level academic instruction that leads to a master's degree, doctorate, or professional degree; and
(C) Is empowered by the appropriate State education authority under State law to grant a master's degree, doctorate, or professional degree, or, where there is no State law to authorize the granting of a degree, is accredited for master's degree, doctorate, or professional degree programs by a recognized accrediting agency; or
(ii) An educational institution, not located in a State, that—
(A) Offers a course leading to a master's degree, doctorate, or professional degree; and
(B) Is recognized as an institution of higher education by the secretary of education (or comparable official) of the country or other jurisdiction in which the educational institution is located.
(47) High technology industry. The term high technology industry has the same meaning as provided in § 21.4200(aa).
(48) Employment in a high technology industry. Employment in a high technology industry has the same meaning as provided in § 21.4200(bb).
(49) High technology occupation. The term high technology occupation has the same meaning as provided in § 21.4200(cc).
(50) Computer specialist. The term computer specialist has the same meaning as provided in § 21.4200(dd).
(51) Accelerated payment. An accelerated payment is a lump sum payment of a maximum of 60 percent of the charged tuition and fees for an individual's enrollment for a term, quarter, or semester in an approved program of education leading to employment in a high technology industry. In the case of a program of education not offered on a term, quarter, or semester basis, the accelerated payment is a lump sum payment of a maximum of 60 percent of the charged tuition and fees for the entire such program.
(52) Certification test. The term certification test means a test that an individual must pass in order to receive a certificate that provides an affirmation of an individual's qualifications in a specified occupation.
(53) Licensing test. The term licensing test means a test offered by a State, local, or Federal agency, the passing of which is a means, or part of a means, to obtain a license. That license must be required by law in order for the individual to practice an occupation in the political jurisdiction of the agency offering the test.
(54) Organization or entity offering a licensing or certification test. (i) The term organization or entity offering a licensing or certification test means:
(A) An organization or entity that causes a licensing test to be given and that will issue a license to an individual who passes the test;
(B) An organization or entity that causes a certification test to be given and that will issue a certificate to an individual who passes the test; or
(C) An organization or entity that administers a certification test for the organization or entity that will issue a certificate to an individual who passes the test, provided that the administering organization or entity can provide all required information and certifications under § 21.4268 to the State approving agency and to VA.
(ii) This term does not include:
(A) An organization or entity that develops and/or proctors a licensing or certification test, but does not issue the license or certificate; or
(B) An organization or entity that administers a test but does not issue the license or certificate, if that administering organization or entity cannot provide all required information and certifications under § 21.4268 to the State approving agency and to VA.
(55) Tuition assistance top-up. The term tuition assistance top-up means a payment of basic educational assistance to meet all or a portion of the charges of an educational institution for the education or training of a servicemember that are not met by the Secretary of the military department concerned under 10 U.S.C. 2007(a) or (c).
(56) Fugitive felon. The term fugitive felon has the same meaning as provided in § 21.4200(kk).
(57) Felony. The term felony has the same meaning as provided in § 21.4200(ll).
(58) Transferor. The term transferor means an individual, who is—
(i) Entitled to educational assistance under the Montgomery GI Bill—Active Duty program based on his or her own active duty service; and
(ii) Approved by the service department to transfer a portion of his or her entitlement to his or her dependent or dependents.
(59) Transferee. The term transferee means an individual to whom entitlement has been transferred.
§ 21.7030   Applications, claims, and time limits.
The provisions of subpart B of this part apply with respect to claims for educational assistance under 38 U.S.C. chapter 30, VA actions upon receiving a claim, and time limits connected with claims.
§ 21.7032   Time limits for making elections.
(a) Scope of this section. The provisions of this section are applicable to certain elections to receive educational assistance under 38 U.S.C. ch. 30. For time limits governing formal and informal claims for educational assistance under 38 U.S.C. ch. 30, see § 21.1033.
(b) Time limit for completing certain elections. An individual who seeks to establish eligibility to receive educational assistance under § 21.7045 must—
(1) Within one year of the date of the VA letter or other written notice to the individual indicating that additional evidence is needed in order to complete the claim, submit that evidence to VA. This time limit may be extended if the individual is able to show good cause for an extension of the period to the date on which he or she actually submits the additional evidence; and
(2) Submit the $1,200 VA is required pursuant to § 21.7045(c)(2) to collect before educational assistance can be awarded. A delay in submitting the $1,200 may result in a later effective date for the award to the individual, and in no event will VA accept payment of the $1,200 from the individual after the last date of eligibility as determined by § 21.7050 or § 21.7051. See § 21.7131(l).
§ 21.7040   Categories of basic eligibility.
Eligibility for basic educational assistance can be established by:
(a) Some individuals who first become members of the Armed Forces or who first enter on active duty as a member of the Armed Forces after June 30, 1985, and
(b) Some individuals who are eligible for educational assistance allowance under 38 U.S.C. chapter 34.
§ 21.7042   Basic eligibility requirements.
An individual must meet the requirements of this section, § 21.7044, or § 21.7045 in order to be eligible for basic educational assistance. 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 the 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 after June 30, 1985, either—
(i) First become a member of the Armed Forces, or
(ii) First enter on active duty as a member of the Armed Forces;
(2) Except as provided in paragraph (a)(5) of this section, the individual must—
(i) If his or her obligated period of active duty is three years or more, serve at least three years of continuous active duty in the Armed Forces; or
(ii) If his or her obligated period of active duty is less than three years, serve at least two years of continuous active duty in the Armed Forces;
(3) The individual, before applying for educational assistance, must either—
(i) Complete the requirements of 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; and
(4) After completing the service requirements of this paragraph the individual must—
(i) Continue on active duty, or
(ii) Be discharged from service 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.
(5) An individual who does not meet the requirements of paragraph (a)(2) of this section is eligible for basic educational assistance when he or she is discharged or released from active duty—
(i) For a service-connected disability, or
(ii) For a medical condition which preexisted 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—
(A) After completing at least 20 continuous months of active duty of an obligated period of active duty that is less than three years, or
(B) After completing 30 continuous months of active duty of an obligated period of active duty that is at least three years, 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.
(6) An individual whose active duty meets the definition of that term found in § 21.7020(b)(1)(iv), and who wishes to become entitled to basic educational assistance, must have elected to do so before July 9, 1997. For an individual electing while on active duty, this election must have been made in the manner prescribed by the Secretary of Defense. For individuals not on active duty, this election must have been submitted in writing to VA.
(b) Eligibility based on 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, after June 30, 1985, either—
(i) First become a member of the Armed Forces, or
(ii) First enter on active duty as a member of the Armed Forces;
(2) The individual, before applying for educational assistance, must either—
(i) Complete the requirements of a high school diploma (or an equivalency certificate),
(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;
(3) Except as provided in paragraph (b)(6) of this section, the individual must serve at least two years of continuous active duty in the Armed Forces characterized by the Secretary concerned as honorable service.
(4) Except as provided in paragraph (b)(7) of this section, after completion of active duty service, the individual must serve at least four continuous years of service in the Selected Reserve. An individual whose release from active duty service occurs after December 17, 1989, must begin this service in the Selected Reserve within one year from the date of his or her release from active duty. During this period of service in the Selected Reserve the individual must satisfactorily participate in training as prescribed by the Secretary concerned.
(5) The individual must, after completion of all service described in this paragraph
(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 the individual is discharged or released from the Armed Forces 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) In the case of an individual discharged or released after 20 months of such service, for the convenience of the Government, or
(v) 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
(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.
(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 service required by this paragraph the individual serves a continuous period of service in the Selected Reserve and is discharged or released from service in the Selected Reserve—
(A) For a service-connected disability, or
(B) 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) Under 10 U.S.C. 1173 (hardship discharge), or
(D) After a minimum of 30 months of such service for the convenience of the Government, or
(E) 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) 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.
(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 subparagraph (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;
(B) For a medical condition which preexisted that period of active duty and which VA determines is not service connected; or
(C) 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.
(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-year 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.
(8) For purposes 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 though 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 paragraph (b)(8)(i) of this section.
(9) 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) of this section shall be binding upon VA.
(10) An individual whose active duty meets the definition of that term found in § 21.7020(b)(1)(iv), and who wishes to become entitled to basic educational assistance, must have elected to do so before July 9, 1997. For an individual electing while on active duty, this election must have been made in the manner prescribed by the Secretary of Defense. For individuals not on active duty, this election must have been submitted in writing to VA.
(c) Eligibility based on withdrawal of election not to enroll. As stated in paragraph (f) of this section, a veteran or servicemember who elects not to enroll in this educational assistance program is generally not eligible for educational assistance. However, such a person may establish eligibility by meeting the requirements of this paragraph.
(1) The individual must withdraw an election not to enroll. Only someone who meets the provisions of this subparagraph may make this withdrawal. Such a withdrawal is irrevocable. The withdrawal may only be made during the period beginning on December 1, 1988, and ending on June 30, 1989, by a servicemember who—
(i) Must have first become a member of the Armed Forces or first entered on active duty as a member of the Armed Forces during the period beginning July 1, 1985, and ending June 30, 1988;
(ii) As of the day of withdrawal of the election must have served continuously on active duty without a break in service since the date the individual first became a member of the Armed Forces or first entered on active duty as a member of the Armed Forces;
(iii) Must be serving on active duty on the day he or she withdraws the election;
(iv) Withdraws the election in the form prescribed by the Secretary of Defense or in the case of the Coast Guard by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy.
(2) The individual must continue to serve the period of service that the individual was obligated to serve on December 1, 1988.
(3) The individual must:
(i) Complete the period of service that he or she was obligated to serve on December 1, 1988, which will include completion of a period of extension or reenlistment if an individual's initial obligated period of service was scheduled to end after November 30, 1988, but he or she extended an enlistment or reenlisted before December 1, 1988; or
(ii) Before completing the period of service he or she was obligated to serve on December 1, 1988, have been discharged or released from active duty for—
(A) A service-connected disability, or
(B) A medical condition which preexisted that period of service and which the Secretary determines is not service connected, or
(C) Hardship (10 U.S.C. 1173); or
(iii) Before completing the period of service he or she was obligated to serve on December 1, 1988, have been—
(A) Discharged or released from active duty for the convenience of the Government after completing not less than 20 months of that period of service if such period was less than three years, or 30 months, if that period was at least three years;
(B) Involuntarily discharged or released from active duty for the convenience of the Government as a result of a reduction in force as determined by the Secretary concerned in accordance with regulations prescribed by the Secretary of Defense; or
(C) Discharged or released from active duty 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 the military department concerned in accordance with regulations prescribed by the Secretary of Defense (or by the Secretary of Transportation for the Coast Guard when the Coast Guard is not operating as a service of the Navy).
(4) Before applying for educational assistance, the individual—
(i) Must complete the requirements of 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.
(5) Upon completion of the period of service he or she was obligated to serve on December 1, 1988, the individual must—
(i) Be discharged from service with an honorable discharge, be placed on the retired list, be transferred to the Fleet Reserve or Fleet Marine Corps Reserve, or be placed on the temporary disability retired list; or
(ii) Continue on active duty; or
(iii) 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.
(d) Dual eligibility. (1) An individual who has established eligibility under paragraph (a) of this section through serving at least two years of continuous active duty of an obligated period of active duty of less than three years, as provided in paragraph (a)(2) of this section, may attempt to establish eligibility under paragraph (b) of this section through service in the Selected Reserve. If this veteran fails to establish eligibility under paragraph (b) of this section, he or she will retain eligibility established under paragraph (a) of this section.
(2) 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:
(A) Is a veteran who has established eligibility for basic educational assistance through meeting the provisions of paragraph (b) of this section; and
(B) Also is a reservist who has established eligibility for benefits under 10 U.S.C. chapter 1606 through meeting the requirements of § 21.7540; or
(ii) The individual is a member of the National Guard or Air National Guard who has established eligibility for basic educational assistance under 38 U.S.C. chapter 30 through activation under a provision of law other than 32 U.S.C. 316, 502, 503, 504, or 505.
(3) An election under this paragraph (d) 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 veteran either negotiates the first check or receives the first payment by electronic funds transfer of the educational assistance elected.
(4) If a veteran 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 (d)(1) through (d)(3) of this section.
(e) Eligibility to receive educational assistance while serving a qualifying period of active duty. (1) An individual on active duty who does not have sufficient active duty service to establish eligibility under paragraph (a) of this section, nevertheless is eligible to receive basic educational assistance when he or she
(i) After June 30, 1985, either—
(A) First becomes a member of the Armed Forces, or
(B) First enters on active duty as a member of the Armed Forces;
(ii) Has completed the requirements of a secondary school diploma (or an equivalency certificate) before beginning training;
(iii) Serves at least two years of continuous active duty in the Armed Forces; and
(iv) Remains on active duty.
(2) Subject to paragraph (e)(3) of this section, VA will consider an individual to have met the requirements of paragraph (b) of this section when he or she—
(i) Has met the active duty requirements of paragraph (b) of this section;
(ii) Is committed to serve 4 years in the Selected Reserve; and
(iii) Before beginning the training for which he or she wishes to receive educational assistance—
(A) Has completed the requirements of a high school diploma (or equivalency certificate), or
(B) Has successfully completed the equivalent of 12 semester hours or the equivalent in a program of education leading to a standard college degree.
(3) An individual who establishes basic eligibility under this paragraph shall lose that eligibility if, upon discharge or release from active duty, he or she is unable to establish eligibility under any of the other paragraphs of this section. The effective date for that loss of eligibility is the date the veteran was discharged or released from active duty.
(f) Restrictions on establishing eligibility. (1) An individual who, after June 30, 1985, first becomes a member of the Armed Forces or first enters on active duty as a member of the Armed Forces, may elect not to receive educational assistance under 38 U.S.C. ch. 30. This election must be made at the time the individual initially enters on active duty as a member of the Armed Forces. An individual who makes such an election is not eligible for educational assistance under 38 U.S.C. ch. 30 unless he or she withdraws the election as provided in paragraph (c) of this section or in § 21.7045(b) or (c) of this part.
(2) Except as provided in paragraph (f)(4) of this section, an individual is not eligible for educational assistance under 38 U.S.C. chapter 30 if after December 31, 1976, he or she receives a commission as an officer in the Armed Forces upon graduation from:
(i) The United States Military Academy;
(ii) The United States Naval Academy;
(iii) The United States Air Force Academy; or
(iv) The United States Coast Guard Academy.
(3) Except as provided in this paragraph and in paragraph (f)(4) of this section, an individual who after December 31, 1976, receives a commission as an officer in the Armed Forces upon completion of a program of educational assistance under 10 U.S.C. 2107 (the Senior Reserve Officers' Training Corps program) is not eligible for educational assistance under 38 U.S.C. chapter 30. This bar to eligibility under 38 U.S.C. chapter 30 does not apply to an individual who entered active duty after September 30, 1996, and received—
(i) $2,000 or less in educational assistance under 10 U.S.C. 2107 for at least one year of the individual's participation in that program of educational assistance; or
(ii) $3,400 or less in educational assistance under 10 U.S.C. 2107 for at least one year of the individual's participation in that program of educational assistance. This provision applies to payment of educational assistance under 38 U.S.C. chapter 30 for months after December 31, 2001.
(4) Paragraphs (f)(2) and (f)(3) of this section do not apply to a veteran who has met the requirements for educational assistance under paragraph (a), (b) or (c) of this section before receiving a commission in the Armed Forces upon graduation from the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, the United States Coast Guard Academy; or upon completion of a program of educational assistance under 10 U.S.C. 2107 (the Senior Reserve Officers Training Corps Scholarship Program).
(g) Reduction in basic pay. (1) Except as elsewhere provided in this paragraph, the basic pay of any individual described in paragraph (a), (b), or (c) of this section shall be reduced by $100 for each of the first 12 months that the individual is entitled to basic pay. If the individual does not serve 12 months, it shall be reduced by $100 for each month that the individual is entitled to basic pay.
(2) The basic pay of an individual who withdraws an election not to receive educational assistance under 38 U.S.C. ch. 30 as described in paragraph (c) of this section shall be reduced by
(i) $1,200, or
(ii) In the case of an individual whose discharge or release from active duty prevents the reduction of the individual's basic pay by $1,200, an amount less than $1,200.
(3) The basic pay of any individual who makes the election described in paragraph (e)(1) of this section and who does not withdraw that election will not be subject to the reduction described in either paragraph (g)(1) or paragraph (g)(2) of this section.
(4) The individual who makes the election described in either paragraph (a)(7) or (b)(10) 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 described in this paragraph. If the basic pay of an individual is not reduced and/or VA does not collect from the individual an amount equal to the difference between $1,200 and the total amount of the pay reductions, that individual is ineligible for educational assistance.
(5) If through administrative error, or other reason—
(i) The basic pay of an individual described in paragraph (a)(1) through (a)(6), (b)(1) through (b)(9), (c), or (d) of this section is not reduced as provided in paragraph (g)(1) or (g)(2) of this section, the failure to make the reduction will have no effect on his or her eligibility, but will negate or reduce the individual's entitlement to educational assistance under 38 U.S.C. chapter 30 determined as provided in § 21.7073 for an individual described in paragraph (c) of this section;
(ii) The basic pay of an individual, described in paragraph (a)(7) or (b)(10) of this section, is not reduced as described in paragraph (g)(4) of this section and/or VA does not collect from the individual an amount equal to the difference between $1,200 and the total amount of the pay reductions described in paragraph (g)(4) of this section, that individual is ineligible for educational assistance. If the failure to reduce the individual's basic pay and/or the failure to collect from the individual was due to administrative error on the part of the Federal government or any of its employees, the individual may be considered for equitable relief depending on the facts and circumstances of the case. See § 2.7 of this chapter.
§ 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
(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
(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.
(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.
(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.
(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
(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.
(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 though 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.
(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.
(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).
(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).
§ 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.
(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.
(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.
(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.
(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.
§ 21.7046   Eligibility for supplemental educational assistance.
The Secretary concerned, pursuant to regulations prescribed by that Secretary, has the discretion to provide for the payment of supplemental educational assistance to certain veterans and servicemembers eligible for basic educational assistance.
(a) Service requirements: eligibility based only on active duty service. The Secretary concerned may authorize supplemental educational assistance to an individual who is eligible for basic educational assistance under § 21.7042 or § 21.7044 of this part based solely on active duty service only if the individual meets the provisions of this paragraph.
(1) An individual may establish eligibility for supplemental educational assistance by serving five or more consecutive years of active duty in the Armed Forces in addition to the years counted to qualify the individual for basic educational assistance without a break in any such service.
(2) After completion of the service described in paragraph (a)(1) of this section the individual must either—
(i) Continue on active duty without a break,
(ii) Be discharged from service with an honorable discharge,
(iii) Be placed on the retired list,
(iv) Be transferred to the Fleet Reserve or the Fleet Marine Corps Reserve,
(v) Be placed on the temporary disability retired list, or
(vi) 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.
(b) Service requirements: eligibility based on service in the Selected Reserve. The Secretary concerned (pursuant to regulations which he or she may prescribe) has the discretion to authorize supplemental educational assistance to an individual who is eligible for basic educational assistance under § 21.7042 or § 21.7044 of this part through consideration of additional active duty service and additional service in the Selected Reserve only if the individual meets the provisions of this paragraph.
(1) The individual must serve—
(i) Two or more consecutive years of active duty in the Armed Forces in addition to the years on active duty counted to qualify the individual for basic educational assistance, and
(ii) Four or more consecutive years of duty in the Selected Reserve in addition to the years of duty in the Selected Reserve counted to qualify the individual for basic educational assistance.
(2) The individual after completion of the service described in paragraph (b)(1) must—
(i) Be discharged from service with an honorable discharge, or
(ii) Be placed on the retired list, or
(iii) Be transferred to the Fleet Reserve or Fleet Marine Corps Reserve, or
(iv) Be placed on the temporary disability retired list, or
(v) Continue on active duty, or
(vi) Continue in the Selected Reserve.
(3) 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 though he or she 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.
(4) 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 though he or she is not attached to a unit of the Selected Reserve for any reason (also to be prescribed by the Secretary concerned by regulation) other than those stated in paragraph (b)(3) of this section.
(5) 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) (3) or (4) of this section shall be binding upon VA.
§ 21.7050   Ending dates of eligibility.
The ending date of eligibility will be determined as follows:
(a) Ten-year time limitation. (1) Except as provided in paragraphs (c), (d), and (e) of this section and in § 21.7051, VA will not provide basic educational assistance or supplemental educational assistance to a veteran or servicemember beyond 10 years from the later of—
(i) The date of the veteran's last discharge or release from a period of active duty of 90 days or more of continuous service;
(ii) The date of the veteran's last discharge or release from a shorter period of active duty if the discharge or release is—
(A) For a service-connected disability, or
(B) For a medical condition which preexisted such service and which VA determines is not service-connected, or
(C) For hardship, or
(D) Involuntary, for the convenience of the government after October 1, 1987, 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;
(iii) The date on which the veteran meets the requirement for four years service in the Selected Reserve found in §§ 21.7042(b) and 21.7044(b); or
(iv) December 27, 2001, for individuals who become eligible for educational assistance under § 21.7044(a)(7) or (b)(4)(ii).
(2) In determining whether a veteran was discharged or released from active duty for a medical condition which preexisted that active duty, VA will be bound by a decision made by a competent military authority.
(b) Reduction of ten-year eligibility period. (1) Except as provided in paragraph (b)(2) of this section, a veteran who had eligibility for educational assistance under 38 U.S.C. ch. 34 and who is eligible for educational assistance under 38 U.S.C. ch. 30 as provided in § 21.7044 of this part shall have his or her ten-year period of eligibility reduced by the number of days he or she was not on active duty during the period beginning on January 1, 1977, and ending on June 30, 1985.
(2) A veteran's ten-year period of eligibility shall not be reduced by any period in 1977 before the veteran began serving on active duty when the veteran qualified for educational assistance under 38 U.S.C. ch. 34 through service on active duty which—
(i) Commenced within 12 months of January 1, 1977, and
(ii) Resulted from a contract with the Armed Forces in a program such as the DEP (Delayed Enlistment Program) or an ROTC (Reserve Officers' Training Corps) program for which a person enlisted in, or was assigned to, a reserve component before January 1, 1977.
(c) Time limit for some members of the Army and Air National Guard. (1) If a veteran or servicemember establishes eligibility for the educational assistance payable under this subpart by making the election described in § 21.7042(a)(7) or (b)(10), VA will not provide basic educational assistance or supplemental educational assistance to that veteran or servicemember beyond 10 years from the later of:
(i) The date determined by paragraph (a) or (b) of this section, as appropriate; or
(ii) The effective date of the election described in § 21.7042(a)(7) or (b)(10), as appropriate.
(2) The effective date of election is the date on which the election is made pursuant to the procedures described in § 21.7045(d)(2).
(d) Individual is eligible due to combining active duty as an enlisted member or warrant officer with active duty as a commissioned officer. If a veteran would not be eligible but for the provisions of § 21.7020(b)(6)(v), VA will not pay basic educational assistance or supplemental educational assistance to that veteran beyond 10 years after the veteran's last discharge or release from a period of active duty of 90 days or more of continuous service, or November 30, 2009, whichever is later.
(e) Some veterans have a later ending date. (1) The ending date of the eligibility period of a veteran described in paragraph (e)(2) of this section is the later of:
(i) November 1, 2010; or
(ii) 10 years after the date of the veteran's last discharge from a period of active duty of 90 days or more.
(2) The ending date of a veteran's eligibility period will be the date described in paragraph (e)(1) of this section if the veteran would have been prevented from establishing eligibility by one or more of the former requirements described in paragraphs (e)(2)(i) through (e)(2)(iv) of this section and the veteran is enabled to establish eligibility by the removal of the statutory bases for those requirements. (For the purposes of this paragraph, the applicable provisions of those former requirements appear in the July 1, 2002 revision of the Code of Federal Regulations, title 38.)
(i) A period of active duty other than the initial period was used to establish eligibility. The veteran was enabled to establish eligibility by the removal of the former eligibility requirement in 38 CFR 21.7042(a)(2)(ii), 21.7042(a)(5)(iv)(A), and 21.7042(a)(5)(iv)(B), revised as of July 1, 2002, that a veteran had to use his or her initial period of active duty to establish eligibility for educational assistance;
(ii) High school education eligibility criterion met after the qualifying period of active duty. The veteran was enabled to establish eligibility by the removal of the former eligibility requirement in 38 CFR 21.7042(a)(3), 21.7042(b)(2), and 21.7042(c)(4), revised as of July 1, 2002, that before completing the period of active duty used to establish eligibility for educational assistance, a veteran had to complete the requirements for a secondary school diploma (or an equivalency certificate) or 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;
(iii) High school education eligibility criterion met after October 29, 1994. The veteran was enabled to establish eligibility by the removal of the former eligibility requirement in 38 CFR 21.7042(a)(6), 21.7042(b)(11), and 21.7044(b)(13), revised as of July 1, 2002, that certain veterans meet the requirements for a secondary school diploma (or an equivalency certificate) before October 29, 1994, in order to establish eligibility for educational assistance;
(iv) High school education eligibility criterion for veterans formerly eligible under 38 U.S.C. chapter 34 met after January 1, 1990. The veteran was enabled to establish eligibility by the removal of the former eligibility requirement in 38 CFR 21.7044(a)(3) and 21.7044(b)(3), revised as of July 1, 2002, that, as one of the two ways that certain veterans could meet the educational criteria for establishing eligibility for educational assistance, the veteran must before January 1, 1990, meet the requirements for a secondary school diploma (or equivalency certificate).
(f) Correction of military records. A veteran may become eligible for educational assistance as the result of a correction of military records under 10 U.S.C. 1552, or change, correction or modification of a discharge or dismissal under 10 U.S.C. 1553, or other corrective action by competent military authority. When this occurs, the VA will not provide educational assistance later than 10 years from the date his or her dismissal or discharge was changed, corrected or modified (except as provided in § 21.7051 of this part).
(g) Periods excluded. VA will not include in computing the 10-year period of eligibility for educational assistance under this section, any period during which the veteran after his or her last discharge or release from active duty—
(1) Was captured and held as a prisoner of war by a foreign government or power, or
(2) Immediately following the veteran's release from this detention during which he or she was hospitalized at a military, civilian or VA medical facility.
(h) Time limitation for a spouse eligible for transferred entitlement. (1) Unless the transferor dies while on active duty, the ending date of the eligibility period for a spouse, who is eligible for transferred entitlement under § 21.7080, is the earliest of the following dates:
(i) The transferor's ending date of eligibility as determined under this section;
(ii) The ending date the transferor specified, if the transferor specified the period for which the transfer was effective; or
(iii) The effective date of the transferor's revocation of transfer of entitlement as determined under § 21.7080(g)(2).
(2) If the transferor dies while on active duty, the ending date of the eligibility period for a spouse, who is eligible for transferred entitlement under § 21.7080, is the earliest of the following dates:
(i) The date 10 years from the transferor's date of death;
(ii) The ending date the transferor specified, if the transferor specified the period for which the transfer was effective; or
(iii) The effective date of the transferor's revocation of transfer of entitlement as determined under § 21.7080(g)(2).
(i) Time limitation for a child eligible for transferred entitlement. (1) Unless the transferor dies while on active duty, the ending date of the eligibility period for a child, who is eligible for transferred entitlement under § 21.7080 is the earliest of the following dates:
(i) The transferor's ending date of eligibility as determined under this section;
(ii) The ending date the transferor specified, if the transferor specified the period for which the transfer was effective;
(iii) The effective date of the transferor's revocation of transfer of entitlement as determined under § 21.7080(g)(2); or
(iv) The day the child attains age 26.
(2) If the transferor dies while on active duty, the ending date of the eligibility period for a child, who is eligible for transferred entitlement under § 21.7080, is the earliest of the following dates:
(i) The date 10 years from the transferor's date of death;
(ii) The ending date the transferor specified, if the transferor specified the period for which the transfer was effective;
(iii) The effective date of the transferor's revocation of transfer of entitlement as determined under § 21.7080(g)(2); or
(iv) The day the child attains age 26.
§ 21.7051   Extended period of eligibility.
(a) Period of eligibility may be extended. VA shall grant an extension of the applicable delimiting period, as otherwise determined by § 21.7050 of this part provided:
(1) The veteran applies for an extension within the time specified in § 21.1033(c).
(2) The veteran was prevented from initiating or completing the chosen program of education within the otherwise applicable eligibility period because of a physical or mental disability that did not result from the veteran's willful misconduct. VA will not consider the disabling effects of chronic alcoholism to be the result of willful misconduct. (See § 21.7020(b)(38)) It must be clearly established by medical evidence that such a program of education was medically infeasible. VA will not consider a veteran who is disabled for a period of 30 days or less as having been prevented from initiating or completing a chosen program, unless the evidence establishes that the veteran was prevented from enrolling or reenrolling in the chosen program or was forced to discontinue attendance, because of the short disability.
(b) Commencing date. The veteran shall elect the commencing date of an extended period of eligibility. The date chosen—
(1) Must be on or after the original date of expiration of eligibility as determined by § 21.7050 of this part, and
(2) Must either be—
(i) On or before the 90th day following the date on which the veteran's application for an extension was approved by VA, if the veteran is training during the extended period of eligibility in a course not organized on a term, quarter or semester basis, or
(ii) On or before the commencing date of the first ordinary term, quarter or semester following the 90th day after the veteran's application for an extension was approved by VA, if the veteran is training during the extended period of eligibility in a course organized on a term, quarter or semester basis.
(c) Length of extended periods of eligibility. A veteran's extended period of eligibility shall be for the length of time that the individual was prevented from initiating or completing his or her chosen program of education. This shall be determined as follows:
(1) If the veteran is in training in a course organized on a term, quarter or semester basis, his or her extended period of eligibility shall contain the same number of days as the number of days from the date during the veteran's original eligibility period that his or her training became medically infeasible to the earliest of the following date.
(i) The commencing date of the ordinary term, quarter or semester following the day the veteran's training became medically infeasible,
(ii) The last date of the veteran's delimiting date as determined by § 21.7050 of this part, or
(iii) The date the veteran resumed training.
(2) If the veteran is training in a course not organized on a term, quarter or semester basis, his or her extended period of eligibility shall contain the same number of days as the number of days from the date during the veteran's original delimiting period that his or her training became medically infeasible to the earlier of the following dates:
(i) The date the veteran's training became medically feasible, or
(ii) The veteran's delimiting date as determined by § 21.7050 of this part.
§ 21.7070   Entitlement.
An eligible servicemember or veteran is entitled to a monthly benefit for periods of time during which he or she is enrolled in, and satisfactorily pursuing, an approved program of education.
§ 21.7072   Entitlement to basic educational assistance.
The provisions of this section apply to all veterans and servicemembers except to those to whom § 21.7073 applies.
(a) Most individuals are entitled to 36 months of assistance. Except as provided in paragraphs (b), (c), and (d) of this section and in § 21.7073, a veteran or servicemember who is eligible for basic educational assistance is entitled to 36 months of basic educational assistance (or the equivalent thereof in part-time educational assistance).
(b) Entitlement: individual discharged for service-connected disability, a medical condition which preexisted service, hardship, or involuntarily for the convenience of the Government as a result of a reduction in force. (1) Except as provided in § 21.7073, when the provisions of paragraph (b) of this section are met, an eligible individual is entitled to one month of basic educational assistance (or equivalent thereof in part-time basic educational assistance) for each month of the individual's continuous active duty service that is after June 30, 1985, and that, in the case of an individual who had no previous eligibility under 38 U.S.C. ch. 34, is part of the individual's qualifying obligated period of active duty. In the case of a veteran to whom the definition of continuous active duty found in either § 21.7020(b)(6)(iii) or § 21.7020(b)(6)(iv) applies, the length of the continuous active duty will be the aggregate length of the periods of active duty referred to in those paragraphs. Except as provided in § 21.7073, VA will apply paragraph (b) of this section when the individual:
(i) Establishes eligibility through meeting the eligibility requirements of § 21.7042 or § 21.7044,
(ii) Serves less than 36 months of continuous active duty service after June 30, 1985 (or less than 24 continuous months of a qualifying obligated period of active duty service after June 30, 1985, if his or her qualifying obligated period of active duty is less than 3 years), and
(iii) Is discharged or released from active duty either—
(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,
(C) Under 10 U.S.C. 1173 (hardship discharge), or
(D) 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;
(E) 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.
(2) Entitlement will be calculated in whole months.
(3) The following types of time lost are not countable in determining the extent of a veteran's or servicemember's entitlement:
(i) Excess leave,
(ii) Noncreditable time, and
(iii) Not-on-duty time.
(c) Entitlement based on service in the Selected Reserve. (1) Except as provided in § 21.7073, when the provisions of paragraph (c) of this section are met, an individual is entitled to one month of basic educational assistance (or the equivalent thereof in part-time basic educational assistance) for each month of the individual's active duty service that is after June 30, 1985, and that, in the case of an individual who had no previous eligibility under 38 U.S.C. chapter 34, is part of the individual's qualifying obligated period of active duty. An individual is entitled to one month of basic educational assistance (or the equivalent thereof in part-time basic educational assistance) for each four months served by the individual in the Selected Reserve after June 30, 1985 (other than a month in which the individual serves on active duty). Except as provided in § 21.7073, VA will apply the provisions of paragraph (c) of this section when the individual—
(i) Establishes eligibility through meeting the eligibility requirements of § 21.7042 or § 21.7044, and
(ii) Bases his or her eligibility upon a combination of service on active duty and service in the Selected Reserve as described in § 21.7042(b) and § 21.7044(b).
(2) Entitlement will be calculated in whole months.
(3) The following types of time lost are not countable in determining the extent of a veteran's or servicemember's entitlement:
(i) Excess leave,
(ii) Noncreditable time, and
(iii) Not-on-duty time.
(4) A veteran described in this paragraph is not entitled to any basic educational assistance for service in the Selected Reserve in excess of the number of months of service in the Selected Reserve which is evenly divisible by four.
(5) VA will consider a veteran to be entitled to 36 months of basic educational assistance when he or she—
(i) Initially enters on active duty after June 30, 1985;
(ii) Is attempting to establish eligibility through service in the Selected Reserve;
(iii) Has completed the active duty service required in § 21.7042 of this part; and
(iv) Is participating in the Selected Reserve, but has not participated for the length of time required in § 21.7042 of this part.
(d) Entitlement affected by failure to complete required Selected Reserve service. If a veteran attempts to establish eligibility through a combination of active duty service and service in the Selected Reserves, but fails to do so, his or her entitlement shall be the number of months to which he or she is entitled on the basis of his or her active duty service.
(e) Repayment of an education loan affects entitlement. A period of service counted for the purpose of repayment under section 902 of the Department of Defense Authorization Act, 1981, of an education loan may not also be counted for the purposes of determining the number of months of the veteran's or servicemember's entitlement to basic educational assistance. Therefore, in determining a veteran's or servicemember's entitlement, VA will—
(1) Determine his or her entitlement as provided in paragraph (a), (b), (c) or (d) of this section, as appropriate, and
(2) Subtract from the figure determined in paragraph (e)(1) of this section the number of months of service counted for the purposes of repayment of an educational loan under section 902 of the Department of Defense Authorization Act, 1981.
(f) Limitation on entitlement. Except as provided in § 21.7076(e) and § 21.7135(s) of this part no one is entitled to more than 36 months of full-time basic educational assistance (or its equivalent in part-time educational assistance).
§ 21.7073   Entitlement for some individuals who establish eligibility during the open period or who establish eligibility before involuntary separation.
(a) Individuals who establish eligibility during the open period. (1) The provisions of this paragraph apply to a veteran or servicemember who:
(i) Establishes eligibility by withdrawing an election not to enroll as provided in § 21.7042(c);
(ii) Has less than $1,200 deducted from his or her military pay; and
(iii) Before completing the period of service which the individual was obligated to serve on December 1, 1988, the individual:
(A) Is discharged or released from active duty for a service-connected disability, a medical condition which preexisted that service, or hardship; or
(B) 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.
(C) Is discharged or released from active duty for the convenience of the Government after completing not less than 20 months of that period of service, if that period was less than three years, or 30 months, if that period was at least three years; or
(D) Is involuntarily discharged or released from active duty for convenience of the Government as a result of a reduction in force, as determined by the Secretary 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.
(2) A veteran described in paragraph (a)(1) of this section is entitled to a number of months of basic educational assistance (or equivalent thereof in part-time basic educational assistance) equal to the lesser of:
(i) A number of months determined by multiplying 36 by a fraction the numerator of which is the amount by which the basic pay of the individual has been reduced as provided in § 21.7042(e)(2) and the denominator of which is $1,200, or
(ii) The number of months the veteran has served on continuous active duty after June 30, 1985.
(b) Individuals who establish eligibility following involuntary separation. (1) The provisions of this paragraph apply to a veteran who establishes eligibility by meeting the provisions of § 21.7045 of this part.
(2) A veteran described in paragraph (b)(1) of this section is entitled to a number of months of basic educational assistance (or equivalent thereof in part-time basic educational assistance) equal to the lesser of—
(i) 36 months, or
(ii) The number of months the veteran served on active duty.
§ 21.7074   Entitlement to supplemental educational assistance.
In determining the entitlement of a veteran or servicemember who is eligible for supplemental educational assistance VA shall—
(a) Calculate the veteran's or servicemember's entitlement to basic educational assistance on the day he or she establishes eligibility for supplemental educational assistance, and
(b) Credit the veteran or servicemember with the same number of months and days entitlement to supplemental educational assistance as the number calculated in paragraph (a) of this section.
§ 21.7075   Entitlement to tuition assistance top-up.
An individual who is entitled to educational assistance under 38 U.S.C. chapter 30 is also entitled to 36 months of tuition assistance top-up. This entitlement is parallel to, and does not replace, the entitlement to educational assistance available under § 21.7072. If the individual receives tuition assistance top-up, VA will make a charge against both the entitlement under § 21.7072 and the entitlement under this section. The charge will be as described in § 21.7076(b)(10).