Title 38—Pensions, Bonuses, and Veterans' Relief--Volume 1
PART 21—VETERAN READINESS AND EMPLOYMENT AND EDUCATION
§ 21.3046   Periods of eligibility; spouses and surviving spouses.
This section states how VA will compute the beginning date, the ending date and the length of a spouse's or surviving spouse's period of eligibility. The period of eligibility of a spouse computed under the provisions of paragraph (a) of this section will be recomputed under the provisions of paragraph (b) of this section if her or his status changes to that of surviving spouse.
(a) Beginning date of eligibility period-spouses. (1) If the permanent total rating is effective before December 1, 1968, the beginning date of the 10-year period of eligibility is December 1, 1968.
(2) The beginning date of eligibility—
(i) Shall be determined as provided in paragraph (a)(2) of this section when—
(A) The permanent total rating is effective after November 30, 1968, or the notification to the veteran of the rating was after that date, and
(B) Eligibility does not arise under § 21.3021(a)(3)(ii) of this part.
(ii) For spouses for whom VA made a final determination of eligibility before October 28, 1986, shall be—
(A) The effective date of the rating, or
(B) The date of notification, whichever is more advantageous to the spouse.
(iii) For spouses for whom VA made a final determination of eligibility after October 27, 1986, shall be—
(A) The effective date of the rating, or
(B) The date of notification, or
(C) Any date between the dates specified in paragraphs (a)(2)(iii) (A) and (B) of this section as chosen by the eligible spouse.
(iv) May not be changed once a spouse has chosen it as provided in paragraph (a)(2)(iii) of this section.
(3) If eligibility arises under § 21.3021(a)(3)(ii) of this part, the beginning date of the 10-year eligibility period is—
(i) December 24, 1970, or
(ii) The date the member of the Armed Forces on whose service eligibility is based was so listed by the Secretary concerned, whichever last occurs.
(b) Beginning date of eligibility period-surviving spouses. (1) If VA determines before December 1, 1968, that the veteran died of a service-connected disability, the beginning date of the 10-year period is December 1, 1968.
(2) If the veteran's death occurred before December 1, 1968, but VA does not determine that the veteran died of a service-connected disability until after November 30, 1968, the beginning date of the 10-year period is the date on which VA determines that the veteran died of a service-connected disability.
(3) If the veteran's death occurred before December 1, 1968, while a total, service-connected disability evaluated as permanent in nature was in existence, the beginning date of the 10-year period is December 1, 1968.
(4) If the veteran's death occurred after November 30, 1968, and VA makes a final decision concerning the surviving spouse's eligibility for dependents' educational assistance before October 28, 1986, the beginning date of the 10-year period is—
(i) The date of death of the veteran who dies while a total, service-connected disability evaluated as permanent in nature was in existence, or
(ii) The date on which VA determines that the veteran died of a service-connected disability.
(5) If the veteran's death occurred after November 30, 1968, and VA makes a final decision concerning the surviving spouse's eligibility for dependents educational assistance after October 27, 1986, VA will determine the beginning date of the 10-year period as follows.
(i) If the surviving spouse's eligibility is based on the veteran's death while a total, service-connected disability evaluated as permanent in nature was in existence, the beginning date of the 10-year period is the date of death.
(ii) If the surviving spouse's eligibility is based on the veteran's death from a service-connected disability, the surviving spouse will choose the beginning date of the 10-year period. That date will be no earlier than the date of death and no later than the date of the VA determination that the veteran's death was due to a service-connected disability.
(6) Once a surviving spouse has chosen a beginning date of eligibility as provided in paragraph (b)(5) of this section, the surviving spouse may not revoke that choice.
(c) Ending date of eligibility period —(1) Spouses. (i) If on or after December 27, 2001, VA makes a determination of eligibility for a spouse, the period of eligibility cannot exceed 10 years. The eligibility period can be extended only as provided in paragraph (c)(3) of this section and § 21.3047.
(ii) If before December 27, 2001, VA made a determination of eligibility for a spouse, the eligibility period has no ending date unless the spouse changes his or her program of education. If on or after December 27, 2001, the spouse changes his or her program of education, the eligibility period cannot exceed 10 years. The beginning date of the eligibility period is determined as provided in paragraph (a) of this section. The 10-year eligibility period can be extended only as provided in paragraph (c)(3) of this section and § 21.3047.
(iii) Notwithstanding the provisions of paragraph (c)(1)(i) of this section, if eligibility arises before October 24, 1972, educational assistance will not be afforded later than October 23, 1982, based on a course or program of correspondence, apprentice, or other on-the-job training, approved under the provisions of § 21.4256, § 21.4261, or § 21.4262, except that VA may award educational assistance beyond October 23, 1982, if the eligible spouse qualifies for the extended period of eligibility as provided in paragraph (c)(3) of this section and § 21.3047.
(2) Surviving spouses. (i) For surviving spouses, the period of eligibility cannot exceed 10 years and can be extended only as provided in paragraph (c)(3) of this section and § 21.3047.
(ii) If eligibility arises before October 24, 1972, educational assistance will not be afforded later than October 23, 1982, based on a course or program of correspondence, apprentice, or other on-the-job training approved under the provisions of § 21.4256, § 21.4261, or § 21.4262, except that VA may award educational assistance beyond October 23, 1982, if the eligible surviving spouse qualifies for an extended period of eligibility as provided in paragraph (c)(3) of this section and § 21.3047.
(iii) The eligibility period for a surviving spouse is not reduced by any earlier period during which the surviving spouse was eligible for educational assistance under this chapter as a spouse.
(3) Extensions due to certain orders dated after September 10, 2001. Notwithstanding any other provisions of this section, if a spouse or surviving spouse, during the eligibility period otherwise applicable to such individual under this section, serves on active duty pursuant to an order to active duty dated after September 10, 2001, issued under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, or is involuntarily ordered by an order dated after September 10, 2001, to full-time National Guard duty under 32 U.S.C. 502(f), VA will grant the individual an extension of the ending date of his or her eligibility period. The extension will equal the length of the period of such active duty plus four months.
(d) Extension to ending date. (1) The ending date of a spouse's period of eligibility may be extended when the spouse is enrolled and eligibility ceases for one of the following reasons:
(i) The veteran is no longer rated permanently and totally disabled;
(ii) The spouse is divorced from the veteran without fault on the spouse's part; or
(iii) The spouse no longer is listed in any of the categories of § 21.3021(a)(3)(ii) of this part.
(2) If the spouse is enrolled in a school operating on a quarter or semester system, VA will extend the period of eligibility to the end of the quarter or semester, regardless of whether the spouse has reached the midpoint of the quarter, semester or term.
(3) If the spouse is enrolled in a school not operating on a quarter or semester system, VA will extend the period of eligibility to the earlier of the following:
(i) The end of the course, or
(ii) 12 weeks.
(4) If the spouse is enrolled in a course pursued exclusively by correspondence, VA will extend the period of eligibility to whichever of the following will result in the lesser expenditure:
(i) The end of the course, or
(ii) The total additional amount of instruction that—
(A) $2,206 provides during the period July 1, 2004, through September 30, 2004;
(B) $2,248 provides during the period October 1, 2004, through September 30, 2005;
(C) $2,316 provides during the period October 1, 2005, through September 30, 2006;
(D) $2,408 provides during the period October 1, 2006, through September 30, 2007;
(E) $2,467 provides during the period October 1, 2007, through September 30, 2008; or
(F) $2,562 provides after September 30, 2008.
(5) VA will not extend the period of eligibility when the spouse is pursuing training in a training establishment as defined in § 21.4200(c) of this part.
(6) An extension may not—
(i) Exceed maximum entitlement, or
(ii) Extend beyond the delimiting date specified in paragraph (a) of this section or § 21.3047, as appropriate.
§ 21.3047   Extended period of eligibility due to physical or mental disability.
(a) General. (1) An eligible spouse or surviving spouse shall be granted an extension of the applicable period of eligibility as otherwise determined by § 21.3046 provided the eligible spouse or surviving spouse:
(i) Applies for the extension within the appropriate time limit;
(ii) Was prevented from initiating or completing the chosen program of education within the otherwise applicable period of eligibility because of a physical or mental disability that did not result from the willful misconduct of the eligible spouse or surviving spouse;
(iii) Provides VA with any requested evidence tending to show that the requirement of paragraph (a)(1)(ii) of this section has been met; and
(iv) Is otherwise eligible for payment of educational assistance for the training pursuant to 38 U.S.C. chapter 35.
(2) In determining whether the eligible spouse or surviving spouse was prevented from initiating or completing the chosen program of education because of a physical or mental disability, VA will consider the following:
(i) It must be clearly established by medical evidence that such a program of education was medically infeasible.
(ii) An eligible spouse or surviving spouse who is disabled for a period of 30 days or less will not be considered as having been prevented from initiating or completing a chosen program, unless the evidence establishes that the eligible spouse or surviving spouse was prevented from enrolling or reenrolling in the chosen program of education, or was forced to discontinue attendance, because of the short disability.
(iii) VA will not consider the disabling effects of chronic alcoholism to be the result of willful misconduct and will consider those disabling effects as physical or mental disabilities.
(b) Commencing date. The eligible spouse or surviving spouse 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 § 21.3046(c); and
(2) Must be on or before the ninetieth day following the date on which the eligible spouse's or surviving spouse's application for an extension was approved by VA, if the eligible spouse or surviving spouse is training during the extended period of eligibility in a course not organized on a term, quarter, or semester basis; or
(3) Must be on or before the first ordinary term, quarter, or semester following the ninetieth day after the eligible spouse's or surviving spouse's application for an extension was approved by VA if the eligible spouse or surviving spouse 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. An eligible spouse's or surviving spouse'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 eligible spouse or surviving spouse 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 eligible spouse's or surviving spouse's original period of eligibility that his or her training became medically infeasible to the earliest of the following dates:
(i) The commencing date of the ordinary term, quarter, or semester following the day the eligible spouse's or surviving spouse's training became medically feasible;
(ii) The ending date of the eligible spouse's or surviving spouse's period of eligibility as determined by § 21.3046(c); or
(iii) The date the eligible spouse or surviving spouse resumed training.
(2) If the eligible spouse or surviving spouse 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 from the date during the eligible spouse's or surviving spouse's original period of eligibility that his or her training became medically infeasible to the earlier of the following dates:
(i) The date the eligible spouse's or surviving spouse's training became medically feasible; or
(ii) The ending date of the eligible spouse's or surviving spouse's period of eligibility as determined by § 21.3046.
§ 21.3100   Counseling.
(a) Purpose of counseling. The purpose of counseling is to assist:
(1) In selecting an educational or training objective;
(2) In developing a suitable program of education or training;
(3) In selecting an educational institution or training establishment appropriate for the attainment of the educational or training objective;
(4) In resolving any personal problems which are likely to interfere with successful pursuit of a program;
(5) In selecting an employment objective for the eligible person that would be likely to provide the eligible person with satisfactory employment opportunities in light of his or her circumstances.
(b) Availability of counseling. Counseling assistance is available for—
(1) Identifying and removing reasons for academic difficulties which may result in interruption or discontinuance of training; or
(2) In considering changes in career plans, and making sound decisions about the changes.
(c) Provision of counseling. VA shall provide counseling as needed for the purposes identified in paragraphs (a) and (b) of this section upon the request of the eligible person.
§ 21.3102   Required counseling.
(a) Child. The Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) will provide counseling and assist in preparing the educational plan only if the eligible child or his or her parent or guardian requests assistance, except that counseling is required for an eligible child if—
(1) The eligible child may require specialized vocational training or special restorative training; or
(2) The eligible child has reached the compulsory school attendance age under State law, but has neither reached his or her 18th birthday, nor completed secondary schooling. See § 21.3040(a).
(b) Spouse or surviving spouse. Counseling is required for a spouse or surviving spouse only if he or she desires specialized vocational training.
§ 21.3103   Failure to cooperate.
VA will not act further on an eligible person's application for assistance under 38 U.S.C. chapter 35 when counseling is required for him or her and the eligible person—
(a) Fails to report;
(b) Fails to cooperate in the counseling process; or
(c) Does not complete counseling to the extent required under § 21.3102.
§ 21.3104   Special training.
(a) Initial counseling. A counseling psychologist or vocational rehabilitation counselor in the Veteran Readiness and Employment (VR&E) Division will counsel an eligible person with a disability who is a child, spouse, or surviving spouse before referring the case to the Vocational Rehabilitation Panel (established under § 21.60) for consideration as to the child's, spouse's or surviving spouse's need for a course of specialized vocational training or special restorative training. After consulting with the panel, and considering the panel's report, the counseling psychologist or vocational rehabilitation counselor will determine if the child, spouse, or surviving spouse needs a course of specialized vocational training or special restorative training, and where need is found to exist will prescribe a course which is suitable to accomplish the goals of 38 U.S.C. chapter 35.
(b) Counseling after special restorative training. When an eligible person completes or discontinues a course of special restorative training without having selected an objective and a program of education, a counseling psychologist or vocational rehabilitation counselor in the VR&E Division will provide additional counseling to assist him or her in selecting a program of education suitable to accomplish the purposes of 38 U.S.C. chapter 35.
§ 21.3105   Travel expenses.
(a) General. VA shall determine and pay the necessary expense of travel to and from the place of counseling for an eligible person who is required to receive counseling as provided under 38 U.S.C. 111 (a), (d), (e), and (g).
(b) Restriction. VA will not pay the necessary cost of travel to and from the place of counseling when counseling is not required, but is provided as a result of a voluntary request by the eligible person.
§ 21.3130   Educational assistance.
(a) Approval of a program of education. VA will approve a program of education selected by an eligible person if:
(1) The program is described in § 21.3021 (h) and (i) or (j);
(2) The individual is not already qualified for the objective of the program of education;
(3) The proposed educational institution or training establishment is in compliance with all the requirements of 38 U.S.C. chapters 35 and 36; and
(4) It does not appear that the enrollment in or pursuit of such person's program of education would violate any provision of 38 U.S.C. chapters 35 and 36.
(b) Payments. VA will pay educational assistance at the rate specified in § 21.3131 (subject to the reductions required by § 21.3132) while the eligible person is pursuing an approved program of education or training.
(c) No payment for excessive training. (1) VA will make no payment for:
(i) Training in an apprenticeship or other on-job training program in excess of the number of hours approved by the State approving agency or VA; or
(ii) Lessons completed in a correspondence course in excess of the number approved by the State approving agency.
(2) A school's standards of progress may permit a student to repeat a course or portion of a course in which he or she has done poorly. VA considers the repeated courses to be part of the program of education. VA will make no payment for courses or training if the courses or training are not part of the eligible person's program of education.
(d) Courses precluded. VA may not pay educational assistance:
(1) For pursuit of a course if approval of the enrollment in the course is precluded by § 21.4252;
(2) For training in a foreign country unless the training is in the Philippines or is approved pursuant to the provisions of § 21.4260;
(3) For pursuit of a course offered by open-circuit television, unless the eligible person's pursuit meets the requirements of § 21.4233(c); or
(4) For pursuit of a course offered by independent study, unless the course is accredited, meets the requirements of § 21.4253, and leads to a standard college degree.
(e) Commencing date. In determining the commencing date of an award of educational assistance, VA will apply the provisions of § 21.4131.
§ 21.3131   Rates of payment.
(a) Rates. (1) VA will publish the monthly rates of basic educational assistance allowance payable under paragraph (a)(2) of this section on the GI Bill education and training website each time there is an increase in the rates.
(2) Except as provided in § 21.3132, the monthly rate of basic educational assistance allowance payable to an eligible person, as defined in § 21.3021, will be the applicable rate provided in 38 U.S.C. 3532, 3686 or 3687, as increased each fiscal year in accordance with 38 U.S.C. 3564 and 3687(d). The rate of pursuit will be determined in accordance with § 21.4270.
(b) Less than half time. The monthly rate for an eligible person who is pursuing an institutional course on less than one-half time basis may not exceed the monthly rate of the cost of the course computed on basis of the total cost for tuition and fees which the school requires similarly circumstanced individuals enrolled in the same course to pay. “Cost of the course” does not include the cost of books or supplies which the student is required to purchase at his or her own expense.
(c) Courses leading to a secondary school diploma or equivalency certificate. The monthly rate of Survivors' and Dependents' Educational Assistance payable for an eligible person enrolled in a course leading to a secondary school diploma or equivalency certificate shall be the rate for institutional training stated in paragraph (a) of this section.
(d) Payments made to eligible persons in the Republic of the Philippines or to certain Filipinos. When the eligible person is pursuing training at an institution located in the Republic of the Philippines or when an eligible child's entitlement is based on the service of a veteran in the Philippine Commonwealth Army, or as a Philippine Scout as defined in § 3.40 (b), (c), or (d) of this chapter, payments of educational assistance allowance made after December 31, 1994, will be made at the rate of 50 cents for each dollar authorized.
§ 21.3132   Reductions in survivors' and dependents' educational assistance.
The monthly rates established in § 21.3131 shall be reduced as stated in this section whenever the circumstances described in this section arise.
(a) No educational assistance allowance for some incarcerated eligible persons. VA will pay no educational assistance allowance to an eligible person who:
(1) Is incarcerated in a Federal, State, or local penal institution for conviction of a felony; and
(2) Is enrolled in a course:
(i) For which there are no tuition or fees, or charges for books, supplies, and equipment; or
(ii) For which tuition and fees are being paid by a Federal program (other than one administered by VA) or by a State or local program, and the eligible person is incurring no charge for the books, supplies, and equipment necessary for the course.
(b) Reduced educational assistance allowance for some incarcerated eligible persons—felony conviction. (1) VA will pay a reduced educational assistance allowance to an eligible person who:
(i) Is incarcerated in a Federal, State, or local penal institution for conviction of a felony; and
(ii) Is enrolled in a course:
(A) For which the eligible person pays some (but not all) of the charges for tuition and fees; or
(B) For which a Federal program (other than one administered by VA) or a State or local program pays all the charges for tuition and fees, but which requires the eligible person to pay for books, supplies, and equipment.
(2) The monthly rate of educational assistance allowance payable to such an eligible person who is pursuing a course on a half-time or greater basis shall be the lesser of the following:
(i) The monthly rate of the portion of the tuition and fees that the eligible person must pay plus the monthly rate of the charge to the eligible person for the cost of necessary supplies, books, and equipment; or
(ii) The monthly rate stated in § 21.3131.
(3) The monthly rate of educational assistance payable to such an eligible person who is pursuing the course on a less than half-time basis or on a one quarter-time basis shall be the lowest of the following:
(i) The monthly rate of the tuition and fees charged for the course;
(ii) The monthly rate of tuition and fees which the eligible person must pay plus the monthly rate of the charge to the eligible person for the cost of necessary supplies, books, and equipment; or
(iii) The monthly rate stated in § 21.3131.
(c) Reduction in training assistance allowance. (1) For any month in which an eligible person pursuing an apprenticeship or on-job training program fails to complete 120 hours of training, VA shall reduce the rate specified in § 21.3131(a) proportionally. In this computation VA shall round the number of hours worked to the nearest multiple of eight.
(2) For the purpose of this paragraph hours worked include only:
(i) The training hours the eligible person worked; and
(ii) All hours of the eligible person's related training which occurred during the standard workweek and for which the eligible person received wages.
(d) Mitigating circumstances. (1) VA will not pay benefits to any eligible person for a course from which the eligible person withdraws or receives a nonpunitive grade which is not used in computing the requirements for graduation unless the provisions of this paragraph are met.
(i) The eligible person withdraws because he or she is ordered to active duty; or
(ii) All of the following criteria are met:
(A) There are mitigating circumstances;
(B) The eligible person submits a description of the circumstances in writing to VA either within one year from the date VA notifies the eligible person that he or she must submit the mitigating circumstances or at a later date if the eligible person is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the description of the mitigating circumstances; and
(C) The eligible person submits evidence supporting the existence of mitigating circumstances within one year of the date that evidence is requested by VA, or at a later date if the eligible person is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the evidence supporting the existence of mitigating circumstances.
(2) The following circumstances are representative of those which the Department of Veterans Affairs considers to be mitigating provided they prevent the eligible person from pursuing the program of education continuously. This list is not all inclusive.
(i) An illness of the eligible person,
(ii) An illness or death in the eligible person's family,
(iii) An unavoidable geographical transfer resulting from the eligible person's employment,
(iv) An unavoidable change in the eligible person's conditions of employment,
(v) Immediate family or financial obligations beyond the control of the eligible person which require him or her to suspend pursuit of the program of education to obtain employment,
(vi) Discontinuance of a course by a school,
(vii) Unanticipated active duty for training,
(viii) Unanticipated difficulties in caring for the eligible person's child or children.
(3) If the eligible child fails to complete satisfactorily a course of special restorative training or if the eligible person fails to complete satisfactorily a course under section 3533, Title 38 U.S.C., without fault, the Department of Veterans Affairs will consider the circumstances which caused the failure to be mitigating. This will be the case even if the circumstances were not so severe as to preclude continuous pursuit of a program of education.
(4) In the first instance of a withdrawal after May 31, 1989, from a course or courses for which the eligible person received educational assistance under title 38 U.S.C. or under chapter 1606, title 10 U.S.C., VA will consider that mitigating circumstances exist with respect to courses totaling not more than six semester hours or the equivalent. Eligible persons to whom the provisions of this subparagraph apply are not subject to the reporting requirement found in paragraph (d)(1)(ii) of this section.
(5) If an eligible person withdraws from a course during a drop-add period, VA will consider the circumstances which caused the withdrawal to be mitigating. Eligible persons who withdraw from a course during a drop-add period are not subject to the reporting requirement found in paragraph (d)(1)(ii) of this section.
§ 21.3133   Payment procedures.
(a) Release of payments and payment procedures. In determining whether payments of educational assistance allowance may be made in a lump sum, in advance, for an interval or if a certification is required from an eligible person before a payment may be made, VA will apply the provisions of § 21.4138.
(b) Payee. (1) VA will pay an educational assistance allowance to the eligible person if he or she has attained majority and has no known legal disability.
(2) If an eligible person has not attained majority, VA will pay an educational assistance allowance directly to an eligible person, a relative, or some other person for the use and benefit of the eligible person notwithstanding a legal disability on the part of the eligible person when VA determines:
(i) The best interest of the eligible person would be served;
(ii) Undue delay in payment would be avoided; or
(iii) Payment would otherwise not be feasible.
(c) Payment of accrued benefits. Educational assistance remaining due and unpaid at the date of the eligible person's death is payable under the provisions of § 3.1000 of this chapter.
(d) Tutorial assistance. An individual who is otherwise eligible to receive benefits under the Survivors' and Dependents' Educational Assistance program may receive supplemental monetary assistance to provide tutorial services. In determining whether VA will pay the individual this assistance, VA will apply the provisions of § 21.4236.
(e) Offsets: 38 U.S.C. chapter 35, compensation, pension and dependency and indemnity compensation. Payment of dependents' educational assistance will be subject to offset of amounts of pension, compensation or dependency and indemnity compensation paid over the same period on behalf of a child based on school attendance.
(f) Final payment. VA may withhold final payment until VA receives proof of continued enrollment and adjusts the eligible person's account.
§ 21.3135   Reduction or discontinuance dates for awards of educational assistance allowance.
The reduction or discontinuance date of an award of educational assistance will be as stated in this section. If more than one basis for reduction or discontinuance is involved, the earliest date will control.
(a) Ending date of course. Educational assistance allowance will be discontinued on the ending date of the course or period of enrollment as certified by the school.
(b) Ending date of eligibility. Educational assistance allowance will be discontinued on the ending date of the eligible person's eligibility as determined by § 21.3041, § 21.3042, § 21.3043, or § 21.3046.
(c) General reduction or discontinuance dates. Educational assistance allowance will be reduced or discontinued on the date specified in § 21.4135.
(d) Divorce. If the veteran and eligible spouse divorce, the discontinuance date for the eligible spouse's award of educational assistance will be:
(1) The end of the quarter or semester if the school is operated on a quarter or semester system, and the divorce was without fault on the eligible spouse's part;
(2) The end of the course or a 12-week period, whichever is earlier, if the school does not operate on a quarter or semester system, and the divorce was without fault on the eligible spouse's part; or
(3) In all other instances, the date the divorce decree becomes final.
(e) Remarriage or other relationship of spouse or surviving spouse. (1) If an eligible surviving spouse remarries, the date of discontinuance of his or her award of educational assistance allowance will be the last date of attendance before remarriage.
(2) If a spouse or surviving spouse begins a relationship by living with another person and holding himself or herself out openly to the public to be the spouse of the other person, the date of discontinuance of his or her award of educational assistance allowance will be the last date of the month before the spouse's or surviving spouse's relationship began.
(f) Entrance on active duty (§ 21.3042). If an eligible person enters on active duty, VA will terminate his or her educational assistance allowance on the day before the day of entrance on active duty. Brief periods of active duty for training, if the school permits such an absence without interruption of training, will not result in termination of the allowance under this paragraph.
(g) Eligible stepchild ceases to be a stepchild or stepchild ceases to be a member of the veteran's household. (1) If the child ceases to be the veteran's stepchild because the veteran and the stepchild's natural or adoptive parent divorce, the eligibility ending date is as follows:
(i) If the child ceases to be the veteran's stepchild while the child is not in training, the ending date of the child's period of eligibility is the date on which the child ceases to be the veteran's stepchild.
(ii) If the child ceases to be the veteran's stepchild while the child is training in a school organized on a term, semester, or quarter basis, the ending date of the child's eligibility is the last day of the term, semester, or quarter during which the child ceases to be the veteran's stepchild.
(iii) If the child ceases to be the veteran's stepchild while the child is training in a school not organized on a term, semester, or quarter basis, the ending date of the child's eligibility is the end of the course, or 12 weeks from the date on which the child ceases to be the veteran's stepchild, whichever is earlier.
(2) If the stepchild ceases to be a member of the veteran's household, he or she is no longer eligible. For purposes of this paragraph, VA considers a stepchild a member of the veteran's household even when the stepchild is temporarily not living with the veteran, so long as the actions and intentions of the stepchild and veteran establish that normal family ties have been maintained during the temporary absence. VA will determine the stepchild's eligibility ending date as follows:
(i) If the stepchild ceases to be a member of the veteran's household while the stepchild is not in training, the eligibility ending date is the date on which the stepchild ceases to be a member of the veteran's household.
(ii) If the stepchild ceases to be a member of the veteran's household while the stepchild is training in a school organized on a term, semester, or quarter basis, the ending date of the stepchild's eligibility is the last day of the term, semester, or quarter during which the stepchild ceases to be a member of the veteran's household.
(iii) If the stepchild ceases to be a member of the veteran's household while the stepchild is training in a school not organized on a term, semester, or quarter basis, the ending date of the stepchild's eligibility is the end of the course, or 12 weeks from the date on which the stepchild ceases to be a member of the veteran's household. See § 21.3041(f).
(h) Veteran no longer rated permanently and totally disabled. (1) If the veteran on whose service an eligible person's eligibility is based is no longer permanently and totally disabled, VA will discontinue the educational assistance allowance—
(i) On the last date of the quarter or semester during which VA rated the veteran as no longer permanently and totally disabled if the eligible person's educational institution is organized on a quarter or semester basis; or
(ii) On the earlier of the following dates when the eligible person's educational institution is not organized on a quarter or semester basis:
(A) The last date of the course;
(B) The end of a 12-week period beginning on the date VA rated the veteran as being no longer permanently and totally disabled.
(i) Serviceperson is removed from “missing status” listing. (1) If the serviceperson on whose service an eligible person's eligibility is based is removed from the “missing status” listing, VA will discontinue the educational assistance allowance—
(i) On the last date of the quarter or semester during which the serviceperson was removed from the “missing status” listing if the eligible person's educational institution is organized on a quarter or semester basis; or
(ii) On the earlier of the following dates when the eligible person's educational institution is not organized on a quarter or semester basis:
(A) The last date of the course;
(B) The end of a 12-week period beginning on the date the serviceperson was removed from the “missing status” listing.
(j) Fugitive felons. (1) VA will not award educational assistance allowance to an otherwise eligible person for any period after December 26, 2001, during which the—
(i) Eligible person is a fugitive felon; or
(ii) Veteran from whom eligibility is derived is a fugitive felon.
(2) The date of discontinuance of an award of educational assistance allowance to an eligible person is the later of—
(i) The date of the warrant for the arrest of the felon; or
(ii) December 27, 2001.
§ 21.3300   Special restorative training.
(a) Purpose of special restorative training. The Department of Veterans Affairs may prescribe special restorative training where needed to overcome or lessen the effects of a physical or mental disability for the purpose of enabling an eligible person to pursue a program of education, special vocational program or other appropriate goal. Medical care and treatment or psychiatric treatment are not included.
(b) Eligible persons. VA may prescribe special restorative training for an eligible person who is a child, spouse, or surviving spouse except for a spouse whose qualification as an eligible person is under § 21.3021(a)(3)(ii). The special restorative training must begin after December 26, 2001, for a spouse or surviving spouse.
(c) Special restorative training courses. The counseling psychologist or vocational rehabilitation counselor, after consulting with the Vocational Rehabilitation Panel, may prescribe for special restorative training purposes courses such as—
(1) Speech and voice correction or retention,
(2) Language retraining,
(3) Speech (lip) reading,
(4) Auditory training,
(5) Braille reading and writing,
(6) Training in ambulation,
(7) One-hand typewriting,
(8) Nondominant handwriting,
(9) Personal, social and work adjustment training,
(10) Remedial reading, and
(11) Courses at special schools for mentally and physically disabled or
(12) Courses provided at facilities which are adapted or modified to meet special needs of disabled students.
(d) Duration of special restorative training. VA may provide special restorative training in excess of 45 months where an additional period of time is needed to complete the training. Entitlement, including any authorized in excess of 45 months, may be expended through an accelerated program requiring a rate of payment for tuition and fees in excess of—
(1) $247.00 a month for the period beginning July 1, 2004, and ending September 30, 2004;
(2) $251.00 a month for the period beginning October 1, 2004, and ending September 30, 2005;
(3) $258.00 a month for the period beginning October 1, 2005, and ending September 30, 2006;
(4) $268.00 a month for the period beginning October 1, 2006, and ending September 30, 2007;
(5) $274.00 a month for the period beginning October 1, 2007, and ending September 30, 2008; and
(6) $284.00 a month for months after September 30, 2008.
(e) Special restorative training precluded in Department of Veterans Affairs facilities. Special restorative training will not be provided in Department of Veterans Affairs facilities.
§ 21.3301   Need.
(a) Determination of need. When special restorative training has been requested or is being considered for an eligible person with a disability who is a child, spouse, or surviving spouse, a counseling psychologist or vocational rehabilitation counselor will obtain all information necessary to determine the need for and feasibility of special restorative training. After the counseling psychologist or vocational rehabilitation counselor completes this task, he or she will refer the case to the Vocational Rehabilitation Panel. The panel will consider whether—
(1) There exists a handicap which will interfere with pursuit of a program of education;
(2) The period of special restorative training materially will improve the child's, spouse's, or surviving spouse's ability to:
(i) Pursue a program of education,
(ii) Pursue a program of specialized vocational training,
(iii) Obtain continuing employment in a sheltered workshop, or
(iv) Adjust in his or her family or community;
(3) The special restorative training may be pursued concurrently with a program of education;
(4) Training will affect adversely the child's, spouse's, or surviving spouse's mental or physical condition;
(5) In the case of a child, whether it is in the best interest of the child to begin special restorative training after his or her 14th birthday; and
(6) The Department of Veterans Affairs:
(i) Has considered assistance available under provisions of State-Federal programs for education of individuals with disabilities; and
(ii) Has determined that it is in the eligible person's interest to receive benefits under 38 U.S.C. chapter 35.
(b) Report. The Vocational Rehabilitation Panel will prepare a written report of its findings and recommendations as to the need for assistance and the types of assistance which should be provided. The report will be sent to the counseling psychologist or vocational rehabilitation counselor.
(c) Development and implementation. Following consultation with the panel and receipt of the panel's report, the counseling psychologist or vocational rehabilitation counselor will determine the need for and feasibility of special restorative training. If this determination is affirmative, the counseling psychologist or vocational rehabilitation counselor will prepare an individualized written plan comparable to a plan for an extended evaluation under 38 U.S.C. chapter 31. In the case of an eligible person who is a spouse or surviving spouse, or a child who has attained majority under laws applicable in his or her State of residence, the plan will be developed jointly with the spouse or surviving spouse, or the child, respectively. In the case of an eligible person who has a guardian or has not attained majority under laws applicable in his or her State of residence, the plan will be developed jointly with the eligible person and his or her parent or guardian (see § 21.3021(d)).
(d) Notification of disallowance. When an eligible person, or a parent or guardian on behalf of an eligible person, has requested special restorative training, and the counseling psychologist or vocational rehabilitation counselor finds that this training is not needed or will not materially improve the eligible person's condition, VA will inform the eligible person, except that VA will inform his or her parent or guardian (see § 21.3021(d)) if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, in writing of the finding and of his or her appeal rights.
(e) Reentrance after interruption. The case of an eligible person shall be referred to the panel for consideration of whether the eligible person may be permitted reentrance into special restorative training following interruption. The panel will recommend approval to the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC) if there is a reasonable expectation that the purpose of special restorative training will be accomplished. See § 21.3306.
§ 21.3302   Special restorative training agreements and reports.
(a) Agreements to provide training. The Department of Veterans Affairs may make agreements with public or private educational institutions or others to provide suitable and necessary special restorative training for an eligible person.
(b) Tuition charge. When a customary tuition charge is not applicable, the agreement will include the fair and reasonable amounts charged for the training provided to the eligible person.
(c) Reports. Each educational institution or other provider of a course of special restorative training must report promptly the eligible person's enrollment in, interruption of, or termination of the course of special restorative training.
§ 21.3303   Extent of training.
(a) Length of special restorative training. Ordinarily, special restorative training may not exceed 12 months. When the counseling psychologist or vocational rehabilitation counselor, after consulting with the Vocational Rehabilitation Panel, determines that more than 12 months of training is necessary, he or she will refer the program to the Executive Director, Veteran Readiness and Employment (VR&E) Service for prior approval. Where the plan for a program of special restorative training itself (not in combination with the program of education) will require more than 45 months (or its equivalent in accelerated payments) the plan will be included in the recommendation to the Executive Director, VR&E Service for approval.
(b) Ending dates of eligibility. (1) No child may receive special restorative training after reaching the end of his or her eligibility period as determined under § 21.3041.
(2) No spouse or surviving spouse may receive special restorative training after reaching the end of his or her eligibility period as determined under §§ 21.3046 and 21.3047.
(c) Full-time training. An eligible person will pursue special restorative training on a full-time basis.
(1) Full-time training requires training for:
(i) That amount of time per week which commonly is required for a full-time course at the educational institution when, based on medical findings, the Department of Veterans Affairs determines that the eligible person's physical or mental condition permits training for that amount of time, or
(ii) The maximum time per week permitted by the eligible person's disability, as determined by the Department of Veterans Affairs, based on medical findings, if the disability precludes the weekly training time stated in paragraph (c)(1)(i) of this section.
(2) If the hours per week that can reasonably be devoted to restorative training will not of themselves equal the time required by paragraph (c)(1) of this section, the course will be supplemented with subject matter which will contribute toward the objective of the program of education.
§ 21.3304   Assistance during training.
(a) General. A counseling psychologist or vocational rehabilitation counselor will provide the professional and technical assistance needed by the eligible person in pursuing special restorative training. The assistance will be timely, sustained and personal.
(b) Adjustments in the training situation. The counseling psychologist or vocational rehabilitation counselor must be continually aware of the eligible person's progress. At frequent intervals he or she will determine whether the eligible person is progressing satisfactorily. When the counseling psychologist or vocational rehabilitation counselor determines that adjustments are needed in the course or in the training situation, he or she will act immediately to bring about the adjustments in accordance with the following:
(1) When the eligible person or his or her instructor indicates dissatisfaction with elements of the program, the counseling psychologist or vocational rehabilitation counselor, through personal discussion with the eligible person or his or her instructor or both, will, if possible, correct the difficulty through such means as making minor adjustments in the course or by persuading the eligible person to give more attention to performance.
(2) When major difficulties cannot be corrected, the counseling psychologist or vocational rehabilitation counselor will prepare a report of pertinent facts and recommendations for action in consultation with the Vocational Rehabilitation Panel.
(3) Action will be taken to terminate the eligible person's course at the proper time so that his or her entitlement may be conserved when the counseling psychologist or vocational rehabilitation counselor determines that:
(i) The eligible person is progressing much faster than anticipated, and
(ii) The eligible person's course may be terminated with satisfactory results before the time originally planned.
§ 21.3305   “Interrupted” status.
(a) Special restorative training should be uninterrupted. An eligible person once entered into special restorative training should pursue his or her course to completion without interruption. Wherever possible, continuous training shall be provided for each eligible person, including training during the summer, except where, because of his or her physical condition or other good reason, it would not be to his or her best interest to pursue training. As long as the eligible person is progressing satisfactorily toward overcoming the effects of his or her disability(ies), the eligible person will be continued in his or her course of training without accounting for days of nonattendance within the authorized enrollment.
(b) Interrupting special restorative training. Special restorative training will be interrupted as necessary under the following conditions:
(1) During summer vacations or periods when no instruction is given before and after summer sessions.
(2) During a prolonged period of illness or medical infeasibility.
(3) When the eligible person voluntarily abandons special restorative training.
(4) When the eligible person fails to make satisfactory progress in the special restorative training course.
(5) When the eligible person is no longer acceptable to the institution because of failure to maintain satisfactory conduct or progress in accordance with the rules of the institution.
(6) When the eligible person's progress is materially retarded because of his or her negligence, lack of application or misconduct.
§ 21.3306   Reentrance after interruption.
When a course of special restorative training has been interrupted and the eligible person presents himself or herself for reentrance, the Department of Veterans Affairs will act as follows:
(a) Reentrance without corrective action. A counseling psychologist or vocational rehabilitation counselor will approve reentrance when special restorative training was interrupted:
(1) For a scheduled vacation period, such as a summer break,
(2) For a short period of illness, or
(3) For other reasons which permit reentrance in the same course of special restorative training without corrective action.
(b) Consultation with Vocational Rehabilitation Panel. (1) A counseling psychologist or vocational rehabilitation counselor will consult with the Vocational Rehabilitation Panel when special restorative training was interrupted—
(i) By reason of failure to maintain satisfactory conduct or progress, or
(ii) For any other reason, which requires corrective action, such as changes of place of training, change of course, personal adjustment, etc.
(2) If the counseling psychologist or vocational rehabilitation counselor determines that the conditions which caused the interruption can be overcome, he or she will approve the necessary adjustment.
(3) The counseling psychologist or vocational rehabilitation counselor will make a finding of infeasibility if—
(i) All efforts to effect proper adjustment in the case have failed; and
(ii) There is substantial evidence, resolving any reasonable doubt in favor of the eligible person (as discussed in § 3.102 of this chapter), that additional efforts will be unsuccessful.
§ 21.3307   “Discontinued” status.
(a) Placement in “discontinued” status. If reentrance from interrupted status into a program of special restorative training is not approved under the provisions of § 21.3306, a counseling psychologist or vocational rehabilitation counselor will place the case in discontinued status.
(b) Notification. In any case of discontinuance the Department of Veterans Affairs will:
(1) Notify the eligible person of the action taken, except that if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, VA will notify his or her parent or guardian (see § 21.3021(d)) of the action taken.
(2) Inform the eligible person of his or her potential right to a program of education, except that if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, VA will inform his or her parent or guardian (see § 21.3021(d)) of the eligible person's potential right to a program of education.
(c) Effect of discontinuance. An eligible person who has been placed in discontinued status is precluded from any further pursuit of special restorative training until a Department of Veterans Affairs counseling psychologist or vocational rehabilitation counselor in the Veteran Readiness and Employment (VR&E) Division determines that the cause of the discontinuance has been removed.
§ 21.3330   Payments.
(a) Payments will be made to the person designated to receive the payments under the provisions of § 21.3133(b).
(b) VA will pay special training allowance only for the period of the eligible person's approved enrollment as certified by the counseling psychologist or vocational rehabilitation counselor. In no event, however, will VA pay such allowance for any period during which:
(1) The eligible person is not pursuing the prescribed course of special restorative training that has been determined to be full-time training with respect to his or her capacities; or
(2) An educational assistance allowance is paid.
(c) The provisions of § 21.3133(e) apply to the payment of special restorative training allowance.
§ 21.3331   Commencing date.
The commencing date of an authorization of a special training allowance will be the date of entrance or reentrance into the prescribed course of special restorative training, or the date the counseling psychologist or vocational rehabilitation counselor approved the course for the eligible person whichever is later. See also § 21.4131.
§ 21.3332   Discontinuance dates.
VA will discontinue special training allowance as provided in this section on the earliest date of the following:
(a) The ending date of the course.
(b) The ending date of the period of enrollment as certified by the counseling psychologist or vocational rehabilitation counselor.
(c) The ending date of the period of eligibility.
(d) The expiration of the eligible person's entitlement.
(e) Date of interruption of course as determined by the counseling psychologist or vocational rehabilitation counselor under § 21.3305.
(f) Date of discontinuance under the applicable provisions of § 21.4135.
§ 21.3333   Rates.
(a) Rates. Special training allowance is payable at the following monthly rates, except as provided in paragraph (c) of this section.
(1) For special restorative training pursued after June 30, 2004, and before October 1, 2004:
(2) For special restorative training pursued after September 30, 2004, and before October 1, 2005:
(3) For special restorative training pursued after September 30, 2005, and before October 1, 2006:
(4) For special restorative training pursued after September 30, 2006, and before October 1, 2007:
(5) For special restorative training pursued after September 30, 2007, and before October 1, 2008:
(6) For special restorative training pursued after September 30, 2008:
(b) Accelerated charges. (1) VA may pay the additional monthly rate if the eligible person, or his or her parent or guardian (see § 21.3021(d)) if the eligible person has a guardian or has not attained majority under laws applicable in his or her State of residence, concurs in having his or her period of entitlement reduced by 1 day for each—
(i) $26.27 that the special training allowance exceeds the basic monthly rate of $803.00 for the period July 1, 2004, through September 30, 2004;
(ii) $26.77 that the special training allowance exceeds the basic monthly rate of $803.00 for the period October 1, 2004, through September 30, 2005;
(iii) $27.57 that the special training allowance exceeds the basic monthly rate of $827.00 for the period October 1, 2005, through September 30, 2006;
(iv) $28.67 that the special training allowance exceeds the basic monthly rate of $860.00 for the period October 1, 2006, through September 30, 2007;
(v) $29.37 that the special restorative training allowance exceeds the basic monthly rate of $881.00 for the period October 1, 2007, through September 30, 2008; and
(vi) $30.50 that the special restorative training allowance exceeds the basic monthly rate of $915.00 for months after September 30, 2008.
(2) VA will:
(i) Charge fractions of more than one-half day as 1 day;
(ii) Disregard fractions of one-half or less; and
(iii) Record charges when the eligible child is entered into training.
(c) Payments made to eligible persons in the Republic of the Philippines or to certain Filipinos. When the eligible person is pursuing training at an institution located in the Republic of the Philippines or when an eligible child's entitlement is based on the service of a veteran in the Philippine Commonwealth Army, or as a Philippine Scout as defined in § 3.40(b), (c), or (d) of this chapter, payments of special training allowance made after December 31, 1994, will be made at the rate of 50 cents for each dollar authorized.
§ 21.3344   Special assistance for the educationally disadvantaged.
(a) Enrollment. VA may approve the enrollment of an eligible person in an appropriate course or courses at the secondary school level. This approval may be made only if the eligible person—
(1) Has not received a secondary school diploma (or an equivalency certificate);
(2) Needs additional secondary school education, remedial, refresher, or deficiency courses, to qualify for admission to an appropriate educational institution in a State in order to pursue a program of education; and
(3) Is to pursue the course or courses in a State.
(b) Measurement. VA will measure remedial, deficiency, or refresher courses offered at the secondary school level as provided in §§ 21.4270(a)(2) and 21.4272(k).
(c) Educational assistance. VA will authorize educational assistance at the monthly rates specified in § 21.3131.
(d) Entitlement charge. The provisions of § 21.3045 will determine whether VA will make a charge against the period of the entitlement of the eligible person because of enrollment in a course under the provisions of this section.
(e) Certifications. (1) Certifications of the eligible person's need for deficiency or remedial courses in basic English language skills and mathematics skills may be made by:
(i) A VA counseling psychologist or vocational rehabilitation counselor in the Veteran Readiness and Employment (VR&E) Division;
(ii) The educational institution administering the course; or
(iii) The educational institution where the student has applied for admission.
(2) Certification of need for other refresher, remedial or deficiency course requirements are to be made by the educational institution—
(i) Administering the course which the eligible person is planning to enter; or
(ii) Where the eligible person has applied for admission.
(f) Basic skills. Basic English language courses or mathematics courses will be authorized when it is found by accepted testing methods that the eligible person is lacking in basic reading, writing, speaking, or essential mathematics.
§ 21.4001   Delegations of authority.
(a) Except as otherwise provided, authority is delegated to the Under Secretary for Benefits and to supervisory or adjudicative personnel within the jurisdiction of the Education Service, designated by him or her to make findings and decisions under 38 U.S.C. Chapters 34 and 36 and the applicable regulations, precedents and instructions, as to programs authorized by these paragraphs.
(b) Authority is delegated to the Under Secretary for Benefits and the Director, Education Service, to enter into agreements for the reimbursement of State approving agencies under § 21.4153.
(c) Authority is delegated to the Director, Education Service, to exercise the functions required of the Secretary for:
(1) Waiver of penalties for conflicting interests as provided by § 21.4005;
(2) Actions otherwise required of State approving agencies under § 21.4150(c);
(3) Approval of courses under § 21.4250(c)(2).
(d) The Under Secretary for Benefits is delegated responsibility for obtaining evidence of voluntary compliance for vocational rehabilitation, education and special restorative training to implement Title VI, Civil Rights Act of 1964. Authority is delegated to him or her and his or her designee to take any necessary action as to programs of vocational rehabilitation, education or special restorative training under 38 U.S.C. Chapters 31, 34, 35 and 36 for the purpose of securing evidence of voluntary compliance directly or through the agencies to whom the Secretary has delegated responsibility for various schools or training establishments to implement §§ 18.1 through 18.13 of this chapter.
(e) The Under Secretary for Benefits is delegated responsibility for obtaining evidence of voluntary compliance from recognized national organizations whose representatives are afforded space and office facilities in facilities under his or her jurisdiction.
(f) The Under Secretary for Benefits is delegated responsibility to enter into an agreement with the Federal Trade Commission to utilize, where appropriate, its services and facilities, consistent with its available resources, to carry out investigations and make determinations as to enrollment of an eligible veteran or eligible person in any course offered by an institution which utilizes advertising, sales, or enrollment practices of any type which are erroneous, deceptive, or misleading either by actual statement, omission, or intimation.
(g) Authority is delegated to the Executive Director, Veteran Readiness and Employment (VR&E) Service to exercise the functions required of the Secretary for approval of courses under § 21.4250(c)(1).
§ 21.4002   Finality of decisions.
(a) The decision of a duly constituted agency of original jurisdiction on which an action was predicated will be final and binding upon all field offices of the Department of Veterans Affairs as to conclusions based on evidence on file at that time and will not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 21.4003.
(b) Current determinations of line of duty, character of discharge, relationship, and other pertinent elements of eligibility for a program of education or special restorative training, made by either an adjudicative activity or an insurance activity by application of the same criteria and based on the same facts are binding one upon the other in the absence of clear and unmistakable error.
§ 21.4003   Revision of decisions.
The revision of a decision on which an action was predicated will be subject to the following sections:
(a) Clear and unmistakable error, § 3.105(a) of this chapter;
(b) Difference of opinion, § 3.105(b) of this chapter;
(c) Character of discharge, § 3.105(c) of this chapter;
(d) Severance of service connection, § 3.105(d) of this chapter;
(e) Veteran no longer totally and permanently disabled, § 21.4135(o).
§ 21.4005   Conflicting interests.
For the purposes of this section, a person will be considered to be an “officer” of the State approving agency or VA when he or she has authority to exercise supervisory authority, and “educational institution” includes an organization or entity offering licensing or certification tests.
(a) A conflict of interest can cause the dismissal of a VA or State approving agency officer or employee and other adverse consequences. (1) An officer or employee of VA will be immediately dismissed from his or her office or employment, if while such an officer or employee he or she has owned any interest in, or received any wages, salary, dividends, profits, gratuities, or services from any educational institution operated for profit—
(i) In which a veteran or eligible person was pursuing a course of education under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 33, 35, or 36; or
(ii) Offering a licensing or certification test that is approved for payment of educational assistance under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, or 35 to veterans, reservists, or eligible individuals who take that test.
(2) Except as provided in paragraph (a)(3) or (c) of this section, VA will discontinue payments under § 21.4153 to a State approving agency when the Secretary finds that any individual who is an officer or employee of a State approving agency has, while he or she was such an officer or employee, owned any interest in, or received any wages, salary, dividends, profits, gratuities, or services from any educational institution operated for profit—
(i) In which a veteran or eligible person was pursuing a course of education or training under 10 U.S.C. chapter 1606 or 38 U.S.C. chapter 30, 32, 33, 35, or 36; or
(ii) Offering a licensing or certification test that is approved for payment of educational assistance under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, or 35 to veterans, reservists, or eligible individuals who take that test.
(3) VA will not discontinue payments to a State approving agency under paragraph (a)(2) of this section if the State approving agency, after learning that it has any officer or employee described in that paragraph, acts without delay to end the employment of that individual.
(4) If VA discontinues payments to a State approving agency pursuant to paragraph (a)(2) of this section, VA will not resume these payments while such an individual is an officer or employee of the:
(i) State approving agency;
(ii) State Department of Veterans Affairs; or
(iii) State Department of Education.
(5) A State approving agency will not approve any course offered by an educational institution operated for profit and, if any such course has been approved, will disapprove each such course, if it finds that any officer or employee of the Department of Veterans Affairs, or the State approving agency owns an interest in, or receives any wages, salary, dividends, profits, gratuities, or service from, such educational institution.
(6) If a State approving agency finds that any officer or employee of VA or of the State approving agency owns an interest in, or receives wages, salary, dividends, profits, gratuities, or services from an organization or entity, operated for profit, that offers licensing or certification tests, the State approving agency:
(i) Will not approve any licensing or certification test that organization or entity offers; and
(ii) Will withdraw approval of any licensing or certification test that organization or entity offers.
(7) The Secretary may, after reasonable notice, and public hearings if requested, waive in writing the application of this paragraph in the case of any officer or employee of the Department of Veterans Affairs or of a State approving agency, if it is found that no detriment will result to the United States or to veterans or eligible persons by reason of such interest or connection of such officer or employee.
(b) Waiver. (1) Where a request is made for waiver of application of paragraph (a)(1) of this section, it will be considered that no detriment will result to the United States or to veterans or eligible persons by reason of such interest or connection of such officer or employee of the Department of Veterans Affairs, if the officer or employee:
(i) Acquired his or her interest in the educational institution by operation of law, or before the statute became applicable to the officer or employee, and his or her interest has been disposed of and his or her connection discontinued, or
(ii) Meets all of the following conditions:
(A) His or her position involves no policy determinations, at any administrative level, having to do with matters pertaining to payment of educational assistance allowance, or special training allowance.
(B) His or her position has no relationship with the processing of any veteran's or eligible person's application for education or training.
(C) His or her position precludes him or her from taking any adjudicative action on individual applications for education or training.
(D) His or her position does not require him or her to perform duties involved in the investigation of irregular actions on the part of educational institutions or veterans or eligible persons in connection with 10 U.S.C. chapter 1606 or 38 U.S.C. chapters 30, 32, 33, 35 or 36.
(E) His or her position is not connected with the processing of claims by, or payments to, schools, or their students enrolled under the provisions of 10 U.S.C. chapter 1606 or 38 U.S.C. chapters 30, 32, 33, 35 or 36.
(F) His or her position is not connected in any way with the inspection, approval, or supervision of educational institutions desiring to train veterans or eligible persons or to offer a licensing or certification test; or with the processing of claims by or making payments to veterans and eligible persons for taking an approved licensing or certification test.
(2) Where a request is made for waiver of application of paragraph (a) (2) of this section, it will be considered that no detriment will result to the United States or to veterans or eligible persons by reason of such interest or connection of such officer or employee of a State approving agency, if the officer or employee:
(i) Acquired his or her interest in the educational institution by operation of law, or before the statute became applicable to the officer or employee, and his or her interest has been disposed of and his or her connection discontinued, or
(ii) Meets all of the following conditions:
(A) His or her position does not require him or her to perform duties involved in the investigation of irregular actions on the part of educational institutions or veterans or eligible persons in connection with 10 U.S.C. chapter 1606 or 38 U.S.C. chapters 30, 32, 33, 35 or 36.
(B) His or her work is not connected in any way with the inspection, approval, or supervision of educational institutions desiring to train veterans or eligible persons, or desiring to offer licensing or certification tests to veterans or eligible persons.
(c) Authority. (1) Authority is delegated to the Director, Education Service, and to the facility head in the cases of VA employees under his or her jurisdiction, to waive the application of paragraph (a)(1) of this section in the case of any VA employee who meets the criteria of paragraph (b)(1) of this section, and to deny requests for a waiver which do not meet those criteria. If the circumstances warrant, a waiver request may be submitted to the Secretary for a decision.
(2) Authority is delegated to the Director, Education Service, in cases of State approving agency employees to waive the application of paragraph (a)(2) of this section in the case of anyone who meets the criteria of paragraph (b)(2) of this section, and to deny requests for a waiver which do not meet those criteria. If the circumstances warrant, a waiver request may be submitted to the Secretary for a decision.
(3) Authority is reserved to the Secretary to waive the requirement of paragraphs (a) (1) and (2) of this section in the case of an officer of the Department of Veterans Affairs or a State approving agency and in the case of any employee of either who does not meet the criteria of paragraph (b) of this section.
(d) Notice when VA does not grant a requested waiver. When VA has denied a request for waiver of application of paragraph (a)(1) or (a)(2) of this section, VA will immediately notify the State approving agency and the educational institution:
(1) That the approval of courses or licensing and certification tests offered by the educational institution must be withdrawn;
(2) The reasons for the withdrawal of approval; and
(3) The conditions that will permit the courses or such tests to be approved again.
(e) Notice to veterans, reservists, and eligible individuals. (1) The veteran or eligible person will be notified in writing sent to his or her latest address of record when, in circumstances involving a finding of conflicting interests:
(i) The course or courses are disapproved by the State approving agency, or
(ii) The State approving agency fails to disapprove the course or courses within 15 days after the date of written notice to the agency, and no waiver has been requested, or
(iii) Waiver has been denied.
(2) The veteran or eligible person will be informed that he or she may apply for enrollment in an approved course in another educational institution, but that in the absence of such transfer, educational assistance allowance payments will be discontinued effective the date of discontinuance of the course, or the 30th day following the date of such letter, whichever is earlier.
§ 21.4006   False or misleading statements.
(a) Payments may not be based on false statements. Except as provided in this section payments may not be authorized based on a claim where it is found that the school or any person has willfully submitted a false or misleading claim, or that the veteran or eligible person with the complicity of the school or other person has submitted such a claim. A complete report of the facts will be made to the State approving agency, and if in order to the Attorney General of the United States.
(1) Where it is determined prior to payment that a certification or claim is false or misleading, payment will be authorized for only that portion of the claim to which entitlement is established on the basis of other evidence of record.
(2) When the Department of Veterans Affairs discovers that a certification or claim is false after it has released payment, the Department of Veterans Affairs will establish an overpayment for only that portion of the claim to which the claimant was not entitled.
(b) Effect of false statements on subsequent payments. A claimant's false or misleading statements are not a bar to payments based on further training.
(c) Forfeiture. The provisions of this section do not apply when forfeiture of all rights has been or may be declared under the provisions of § 21.4007.
§ 21.4007   Forfeiture.
The rights of a veteran or eligible person to receive educational assistance allowance or special training allowance are subject to forfeiture under the provisions of §§ 3.900, 3.901 (except paragraph (c)), 3.902 (except paragraph (c)), 3.903, 3.904, 3.905 and 19.2 of this chapter.
§ 21.4008   Prevention of overpayments.
(a) Prevention of overpayments to veterans and eligible persons enrolled in educational institutions. When approval of a course may be withdrawn, and overpayments may exist or may be created, VA may suspend further payments to veterans and eligible persons enrolled in the educational institution offering the course until the question of withdrawing approval is resolved. See § 21.4210.
(b) Prevention of overpayments to veterans and eligible persons taking licensing and certification tests. When approval of a licensing or certification test may be withdrawn, and overpayments may exist or may be created, VA may suspend payments to veterans and eligible persons taking that test until the question of withdrawing approval is resolved. See § 21.4210.
§ 21.4009   Waiver or recovery of overpayments.
For the purposes of this section, “educational institution” includes an organization or entity offering licensing or certification tests.
(a) General. (1) The amount of the overpayment of educational assistance allowance or special training allowance paid to a veteran or eligible person constitutes a liability of that veteran or eligible person.
(2) The amount of the overpayment of educational assistance allowance or special training allowance paid to a veteran or eligible person constitutes a liability of the education institution if the Department of Veterans Affairs determines that the overpayment was made as the result of willful or negligent:
(i) Failure of the educational institution to report, as required by §§ 21.4203 and 21.4204, discontinuance or interruption of a course by a veteran, reservist or eligible person, or
(ii) False certification by the educational institution.
(3) If it appears that the falsity or misrepresentation was deliberate, the Department of Veterans Affairs may not pursue administrative collection pending a determination whether the matter should be referred to the Department of Justice for possible civil or criminal action. However, the Department of Veterans Affairs may recover the amount of the overpayment from the educational institution by administrative collection procedure when the Department of Veterans Affairs determines the false certification or misrepresentation resulted from an administrative error or a misstatement of fact and that no criminal or civil action is warranted.
(4) If the Department of Veterans Affairs recovers any part of the overpayment from the educational institution, it may reimburse the educational institution, if the Department of Veterans Affairs subsequently collects the overpayment from a veteran or eligible person. The reimbursement—
(i) Will be made when the total amount collected from the educational institution and from the veterans and eligible persons (less any amount applied toward marshal fees, court costs, administrative cost of collection and interest) exceeds the total amount for which the educational institution is liable, and
(ii) Will be equal to the excess.
(5) This paragraph does not preclude the imposition of any civil or criminal liability under this or any other law.
(b) Reporting. (1) If a school is required to make periodic or other certifications, the Department of Veterans Affairs may consider the following in determining whether a school is potentially liable for an overpayment:
(i) The school's failure to report, or to report timely facts which resulted in an overpayment, or
(ii) The school's submission of an incorrect certification as to fact.
(2) In either instance the Department of Veterans Affairs will consider other pertinent factors such as:
(i) Allowing for occasional clerical error or occasional administrative error:
(ii) The school's past reliability in reporting;
(iii) The adequacy of the school's reporting system; and
(iv) The extent of noncompliance with reporting requirements.
(c) Committee on School Liability. (1) Each VA Regional Processing Office shall have a Committee on School Liability. For the purposes of this section, the Manila Regional Office is considered the VA Regional Processing Office of jurisdiction for educational institutions located in the Philippines.
(2) The Secretary delegates to each Committee on School Liability, and to any panel that the chairperson of the Committee may designate and draw from the Committee, the authority to find whether an educational institution is liable for an overpayment.
(d) Initial decision. (1) The Education Officer of the VA Regional Processing Office of jurisdiction, or the Service Center Manager when the Manila Regional Office is considered the VA Regional Processing Office of jurisdiction, will decide whether there is evidence that would warrant a finding that an educational institution is potentially liable for an overpayment.
(2) Following each finding of potential liability, the Finance Officer of the VA Regional Processing Office of jurisdiction will notify the educational institution in writing of VA's intent to apply the liability provisions of paragraph (a) of this section. The notice will—
(i) Identify the students who were overpaid;
(ii) Identify the veterans and eligible persons who took the licensing or certification test and were overpaid;
(iii) Set out in the case of each student, or in the case of each veteran or eligible person who took the test, the educational institution's actions or omissions which resulted in the finding that the educational institution was potentially liable for the overpayment; and
(iv) State that VA will determine liability on the basis of the evidence of record unless the VA Regional Processing Office of jurisdiction receives additional evidence or a request for a hearing within 30 days of the date the educational institution received the notice.
(e) Hearings. An educational institution is entitled to a hearing before a panel drawn from the Committee on School Liability before a decision is made as to whether it is liable for an overpayment. Every hearing will be preceded by a prehearing conference unless the conference is waived by the educational institution. The Committee on School Liability will consider all evidence and testimony presented at the hearing.
(f) Extent of liability. Waiver of collection of an overpayment as to a veteran, reservist, or eligible person will not relieve the educational institution of liability for the overpayment. Recovery in whole or in part from the veteran, reservist, or eligible person will limit such liability accordingly. If an overpayment has been recovered from the educational institution and the veteran, reservist, or eligible person subsequently repays the amount in whole or in part, the amount repaid will be reimbursed to the educational institution.
(g) Notice to educational institution. The educational institution shall be notified in writing of the decision of the Committee on School Liability. If the educational institution is found liable for an overpayment, the educational institution also will be notified of the right to appeal the decision to the Central Office School Liability Appeals Board within 60 days from the date of the letter to the educational institution containing notice of the decision. The 60-day time limit may be extended to 90 days at the discretion of the chairperson of the Committee on School Liability. The appeal must be in writing setting forth fully the alleged errors of fact and law. If an appeal is not received within the 60-day time limit, the Committee decision is final.
(h) Appeals. An appeal will be forwarded to Central Office where it will be considered by the School Liability Appeals Board. The Board's decision will serve as authority for instituting collection proceedings, if appropriate, or for discontinuing collection proceedings instituted on the basis of the original decision of the Committee on School Liability in any case where the Board reverses a decision made by the Committee that the educational institution is liable.
(i) Review. Review by the School Liability Appeals Board is limited to the issues raised by the educational institution and shall be on the record and not de novo in character. The Board may affirm, modify or reverse a decision of the Committee on School Liability or may remand an appeal for further consideration by the appropriate Committee on School Liability. If new and material evidence is discovered while the School Liability Appeals Board is considering a case, the Board may remand the case to the appropriate Committee on School Liability.
(j) Finality of decisions. The School Liability Appeals Board has authority to act for the Secretary in deciding appeals concerning an educational institution's liability for an overpayment. There is no right of additional administrative appeal of a decision of the School Liability Appeals Board.
§ 21.4020   Two or more programs.
(a) Limit on training under two or more programs. The aggregate period for which any person may receive assistance under two or more of the following laws may not exceed 48 months (or the part-time equivalent):
(1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended:
(2) Title II of the Veterans' Readjustment Assistance Act of 1952;
(3) The War Orphans' Educational Assistance Act of 1956;
(4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36;
(5) 10 U.S.C. chapters 106a, 1606, and 1607;
(6) Section 903 of the Department of Defense Authorization Act, 1981,
(7) The Hostage Relief Act of 1980, and
(8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986.
(b) Limit on combining assistance received under Chapter 31 with assistance under another program. No person may receive assistance under Chapter 31, Title 38 U.S.C. in combination with any provisions of law listed in paragraph (a) of this section in excess of 48 months (or the part-time equivalent) unless the Department of Veterans Affairs determines that additional months of benefits under Chapter 31 are necessary to accomplish the purpose of the veteran's rehabilitation program.
§ 21.4022   Nonduplication—programs administered by VA.
A veteran, reservist, or eligible individual, who is eligible for educational assistance allowance or subsistence allowance under more than one of the provisions of law listed in this section, whether based on his or her own service or the service of another person, cannot receive such benefits concurrently. The individual must choose under which program he or she will receive benefits for the particular period(s) during which education or training is to be pursued. The individual may choose to receive benefits under another program (other than 38 U.S.C. chapter 33) at any time, but not more than once in a calendar month. The individual may choose to receive benefits under 38 U.S.C. chapter 33 at any time, but not more than once during a certified term, quarter, or semester.
(a) 38 U.S.C. 30 (Montgomery GI Bill—Active Duty);
(b) 38 U.S.C. 31 (Veteran Readiness and Employment (VR&E) Program);
(c) 38 U.S.C. 32 (Post-Vietnam Era Veterans' Educational Assistance);
(d) 38 U.S.C. 33 (Post-9/11 GI Bill);
(e) 38 U.S.C. 35 (Survivors' and Dependents' Educational Assistance);
(f) 10 U.S.C. 1606 (Montgomery GI Bill—Selected Reserve);
(g) 10 U.S.C. 1607 (Reserve Educational Assistance Program);
(h) 10 U.S.C. 106a (Educational Assistance Test Program);
(i) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);
(j) The Hostage Relief Act of 1980 (Pub. L. 96-449), 5 U.S.C. 5661 note);
(k) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399); and
(l) Effective August 1, 2011, 10 U.S.C. 510 (National Call to Service).
§ 21.4131   Commencing dates.
VA will determine under this section the commencing date of an award or increased award of educational assistance provided pursuant to subpart C or G. When more than one paragraph in this section applies, VA will award educational assistance using the latest of the applicable commencing dates.
(a) Entrance or reentrance including change of program or educational institution: individual eligible under 38 U.S.C. chapter 32. When an eligible veteran or servicemember enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows:
(1) For other than licensing or certification tests. (i) If the award is the first award of educational assistance for the program of education the veteran or servicemember is pursuing, the commencing date of the award of educational assistance is the latest of:
(A) The date the educational institution certifies under paragraph (b) or (c) of this section;
(B) One year before the date of claim as determined by § 21.1029(b);
(C) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later; or
(ii) If the award is the second or subsequent award of educational assistance for the program of education the veteran or servicemember is pursuing, the effective date of the award of educational assistance is the later of—
(A) The date the educational institution certifies under paragraph (b) or (c) of this section; or
(B) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later.
(2) For licensing or certification tests. VA will award educational assistance for the cost of a licensing or certification test only when the veteran or servicemember takes such test—
(i) While the test is approved under 38 U.S.C. chapter 36;
(ii) While the veteran or servicemember is eligible for educational assistance under subpart G; and
(iii) No more than one year before the date VA receives a claim for reimbursement of the cost of the test.
(b) Certification by school—the course or subject leads to a standard college degree. (1) When the student enrolls in a course offered by independent study, the commencing date of the award or increased award of educational assistance will be the date the student began pursuit of the course according to the regularly established practices of the educational institution.
(2) Except as provided in paragraphs (b)(3), (b)(4) and (b)(5) of this section when a student enrolls in a resident course or subject, the commencing date of the award or increased award of educational assistance will be the first scheduled date of classes for the term, quarter or semester in which the student is enrolled.
(3) When the student enrolls in a resident course or subject whose first scheduled class begins after the calendar week when, according to the school's academic calendar, classes are scheduled to commence for the term, quarter, or semester, the commencing date of the award or increased award of educational assistance allowance will be the actual date of the first class scheduled for that particular course or subject.
(4) When a student enrolls in a resident course or subject, the commencing date of the award will be the date the student reports to the school provided that—
(i) The published standards of the school require the student to register before reporting, and
(ii) The published standards of the school require the student to report no more than 14 days before the first scheduled date of classes for the term, quarter or semester for which the student has registered, and no later than the first scheduled date of classes for the term, quarter or semester for which the student has registered.
(5) When the student enrolls in a resident course or subject and the first day of classes is more than 14 days after the date of registration, the commencing date of the award or the increased award of educational assistance will be the first day of classes.
(c) Certification by school or establishment—course does not lead to a standard college degree. (1) Residence school: See paragraph (b) of this section.
(2) Correspondence school: Date first lesson sent or date of affirmance whichever is later.
(3) Job training: First date of employment in training position.
(d) Entrance or reentrance including change of program or educational institution: individual eligible under 38 U.S.C. chapter 35. When a person eligible to receive educational assistance under 38 U.S.C. chapter 35 enters or reenters into training (including a reentrance following a change of program or educational institution), the commencing date of his or her award of educational assistance will be determined as follows:
(1) For other than licensing or certification tests. (i) If the award is the first award of educational assistance for the program of education the eligible person is pursuing, the commencing date of the award of educational assistance is the latest of:
(A) The beginning date of eligibility as determined under § 21.3041 or under § 21.3046(a) or (b), whichever is applicable;
(B) One year before the date of claim as determined by § 21.1029(b);
(C) The date the educational institution certifies under paragraph (b) or (c) of this section;
(D) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later; or
(ii) If the award is the second or subsequent award of educational assistance for that program, the effective date of the award of educational assistance is the later of—
(A) The date the educational institution certifies under paragraph (b) or (c) of this section; or
(B) The effective date of the approval of the course, or one year before the date VA receives the approval notice, whichever is later.
(2) For licensing or certification tests. VA will award educational assistance for the cost of a licensing or certification test only when the eligible person takes such test—
(i) While the test is approved under 38 U.S.C. chapter 36;
(ii) While he or she is eligible for educational assistance under subpart C; and
(iii) No more than one year before the date VA receives a claim for reimbursement of the cost of the test.
(e) Adjusted effective date for award of educational assistance under 38 U.S.C. chapter 35 based on an original claim. When determining the commencing date under § 21.4131(d)(1), the Secretary will consider an eligible person's application for Survivors' and Dependents' Educational Assistance under 38 U.S.C. chapter 35 as having been filed on his or her eligibility date if—
(1) The eligibility date is more than 1 year before the date of the initial rating decision that establishes either:
(i) The veteran's death is service-connected, or
(ii) The veteran has a P&T disability;
(2) The eligible person files his or her original application for benefits under 38 U.S.C. chapter 35 with VA within 1 year of the initial rating decision;
(3) The eligible person claims educational assistance for pursuit of an approved program of education for a period that is more than 1 year before the date VA receives his or her original claim;
(4) VA either:
(i) Received the original application on or after November 1, 2000; or
(ii) Received the original application and, as of November 1, 2000, either—
(A) Had not acted on it; or
(B) Had denied it in whole or in part, but the claimant remained entitled to pursue available administrative and judicial remedies as to the denial; and
(5) The eligible person would have been eligible to educational assistance under 38 U.S.C. chapter 35 if he or she had filed a claim on his or her eligibility date.
(f) Liberalizing laws and Department of Veterans Affairs issues. In accordance with facts found, but not earlier than the effective date of the act or administrative issue.
(g) Correction of military records. Eligibility of a veteran or eligible person may arise as the result of correction or modification of military records under 10 U.S.C. 1552, or a change, correction or modification of a discharge or dismissal under 10 U.S.C. 1553, or other competent military authority. In these cases the commencing date of educational assistance 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.
(h) Individuals in a penal institution. If a veteran or eligible person is paid a reduced rate of educational assistance or no educational assistance under § 21.3132 (a) or (b) or § 21.5139, the rate will be increased or benefits will commence effective the earlier of the following dates:
(1) The date the tuition and fees are no longer being paid under another Federal program, or a State or local program, or
(2) The date of the release from the prison or jail.
(i) Fugitive felons. An award of educational assistance allowance to an otherwise eligible veteran or person will begin effective the date the warrant for the arrest of the felon is cleared by—
(1) Arrest;
(2) Surrendering to the issuing authority;
(3) Dismissal; or
(4) Court documents (dated after the warrant for the arrest of the felon) showing the individual is no longer a fugitive.
(j) [Reserved]
§ 21.4135   Discontinuance dates.
The effective date of reduction or discontinuance of educational assistance allowance will be as specified in this section. If more than one type of reduction or discontinuance is involved, the earliest date will control.
(a) Death of veteran or eligible person. (1) If the veteran or eligible person receives an advance payment pursuant to 38 U.S.C. 3680(d) and dies before the period covered by the advance payment ends, the discontinuance date of educational assistance shall be the last date of the period covered by the advance payment.
(2) In all other cases if the veteran or eligible person dies while pursuing a program of education, the discontinuance date of educational assistance shall be the last date of attendance.
(b) Election to receive educational assistance under the Montgomery GI Bill—Active Duty. If a veteran makes a valid election, as provided in § 21.7045(d), to receive educational assistance under the Montgomery GI Bill—Active Duty in lieu of educational assistance under the Post-Vietnam Era Veterans' Educational Assistance Program, the discontinuance date of educational assistance under the Post-Vietnam Era Veterans' Educational Assistance Program shall be the date on which the election was made pursuant to procedures described in § 21.7045(d)(2).
(c)-(d) [Reserved]
(e) Course discontinued; course interrupted; course terminated; course not satisfactorily completed or withdrawn from. (1) If the individual receives all nonpunitive grades, or withdraws from all courses other than because of being ordered to active duty, and no mitigating circumstances are found, VA will terminate the individual's educational assistance allowance effective the first date of the term in which the withdrawal occurs.
(2) If the individual withdraws from all other courses other than courses in paragraph (e)(3) of this section and with mitigating circumstances, or withdraws from all courses such that a punitive grade is or will be assigned for those courses:
(i) Residence training: Last date of attendance.
(ii) Independent study: Official date of change in status under the practices of the institution.
(3) If the individual withdraws from correspondence, flight, farm cooperative, cooperative or job training, benefits will be terminated effective:
(i) Correspondence training: Date last lesson is serviced.
(ii) Flight training: Date of last instruction.
(iii) Job training: Date of last training.
(iv) Farm cooperative training: Date of last class attendance.
(v) Cooperative training: Date of last training.
(f) Discontinued by VA (§§ 21.4215, 21.4216). If VA discontinues payments of educational assistance as provided by §§ 21.4215(d) and 21.4216, the effective date of discontinuance will be as follows:
(1) The date on which payments first were suspended by the Director of a VA facility as provided in § 21.4210, if the discontinuance were preceded by such a suspension.
(2) End of the month in which the decision to discontinue is effective pursuant to § 21.4215(d), if the Director of a VA facility did not suspend payments prior to the discontinuance.
(g) Unsatisfactory progress, conduct or attendance § 21.4277. The date the veteran's or eligible person's enrollment is discontinued by the school or the date determined under § 21.4277, whichever is earlier.
(h) Required certifications not received after certification of enrollment (§§ 21.4203 and 21.4204 ). (1) If required certification of attendance of a veteran or eligible person enrolled in a course not leading to a standard college degree is not timely received, payments will be terminated date of last certification. If certification is later received, adjustment will be made based on facts found.
(2) If verification of enrollment and certificate of delivery of the check is not received within 60 days, in the case of an advance payment, the actual facts will be determined and adjustment made, if required, on the basis of facts found. If student failed to enroll, termination will be effective the beginning date of the enrollment period.
(i) False or misleading statements. See § 21.4006.
(j) Disapproval by State approving agency (§ 21.4259(a)). If a State approving agency disapproves a course, the date of discontinuance of payments to those receiving educational assistance while enrolled in the course will be as follows:
(1) The date on which payments first were suspended by the Director of a VA facility as provided in § 21.4210, if disapproval were preceded by such a suspension.
(2) End of the month in which disapproval is effective or notice of disapproval is received in the Department of Veterans Affairs, whichever is later, provided that the Director of a Department of Veterans Affairs facility did not suspend payments prior to the disapproval.
(k) Disapproval by Department of Veterans Affairs (§§ 21.4215, 21.4259(c)). If VA disapproves a course, the date of discontinuance of payments to those receiving educational assistance while enrolled in the course will be as follows:
(1) Date on which payments first were suspended by the Director of a VA facility as provided in § 21.4210, if disapproval were preceded by such a suspension.
(2) End of the month in which disapproval occurred, provided that the Director of a Department of Veterans Affairs facility did not suspend payments prior to the disapproval.
(l) Conflicting interests ( not waived ) (§ 21.4005 ). Thirty days after date of letter notifying veteran or eligible person, unless terminated earlier for other reason.
(m) Incarceration in prison or penal institution for conviction of a felony. (1) The provisions of this paragraph apply to a veteran or eligible person whose educational assistance must be discontinued or who becomes restricted to payment of educational assistance allowance at a reduced rate under § 21.3132(a) or (b) or § 21.5139.
(2) The reduced rate or discontinuance will be effective the latest of the following dates.
(i) The first day on which all or part of the veteran's or eligible person's tuition and fees were paid by a Federal, State or local program,
(ii) The date the veteran or eligible person is incarcerated in prison or penal institution, or
(iii) The commencing date of the award as determined by § 21.4131.
(n) Fugitive felons: veterans eligible under 38 U.S.C. chapter 32. VA will not award educational assistance allowance to an otherwise eligible veteran for any period after December 26, 2001, during which the veteran is a fugitive felon. The date of discontinuance of an award of educational assistance allowance to a veteran who is a fugitive felon is the later of—
(1) The date of the warrant for the arrest of the felon; or
(2) December 27, 2001.
(o) [Reserved]
(p) Error; payee's or administrative. (1) Effective date of award or day preceding act, whichever is later, but not prior to the date entitlement ceased, on an erroneous award based on an act of commission or omission by a payee or with his or her knowledge.
(2) Date of last payment on an erroneous award based solely on administrative error by VA or error in judgment by VA.
(q) Fraud; forfeiture resulting (§ 21.4007 ). Beginning date of award or day preceding date of fraudulent act whichever is later.
(r) Treasonable acts or subversive activities; forfeiture (§ 21.4007 ). Beginning date of award or date preceding date of commission of treasonable act or subversive activities for which convicted, whichever is later.
(s) Reduction in rate of pursuit of course (§ 21.4270). (1) VA will reduce an individual's educational assistance allowance effective the first date of the term in which the individual reduces training by withdrawing from part of a course, if the reduction occurs at the beginning of the term.
(2) VA will reduce an individual's educational assistance allowance effective the earlier of the end of the month or end of the term in which an individual reduces training by withdrawing from part of a course when:
(i) The reduction does not occur at the beginning of the term;
(ii) The individual received a lump-sum payment for the quarter, semester, term or other enrollment period during which he or she reduced training; and
(iii) There are mitigating circumstances, or the individual receives a punitive grade for the portion of the course from which he or she withdrew.
(3) VA will reduce an individual's educational assistance allowance effective the date on which an individual reduces training when:
(i) The reduction does not occur at the beginning of the term;
(ii) The individual did not receive a lump-sum payment for the quarter, semester, term or other enrollment period during which he or she reduced training; and
(iii) There are mitigating circumstances, or the individual receives a punitive grade for the portion of the course from which he or she withdrew.
(4) If the individual reduces training by withdrawing from a part of a course and the withdrawal does not occur because the individual was ordered to active duty; there are no mitigating circumstances; and the individual receives a nonpunitive grade from that portion of the course from which he or she withdrew; VA will reduce the individual's educational assistance effective the later of the following:
(i) The first date of enrollment of the term in which the reduction occurs; or
(ii) December 1, 1976. See paragraphs (e) and (w) of this section also.
(5) An individual who enrolls in several subjects and reduces his or her rate of pursuit by completing one or more of them while continuing training in others, may receive an interval payment based on the subjects completed, if the requirements of § 21.4138(f) of this part are met. If those requirements are not met, VA will reduce the individual's educational assistance allowance effective the date the subject or subjects were completed.
(t) Change in law or Department of Veterans Affairs issue, or interpretation. See § 3.114(b) of this chapter.
(u) Except as otherwise provided. On basis of facts found.
(v) [Reserved]
(w) Nonpunitive grade assigned without a withdrawal from courses. (1) If an individual receives a nonpunitive grade for a particular course for any reason other than a withdrawal from it, VA will reduce the individual's educational assistance allowance effective the last date of attendance when mitigating circumstances are found.
(2) If an individual receives a nonpunitive grade in a particular course for any reason other than a withdrawal from it, and there are no mitigating circumstances, VA will reduce his or her educational assistance effective the later of the following:
(i) The first date of enrollment for the term in which the grade applies, or
(ii) December 1, 1976. See paragraphs (e) and (s) of this section.
(x) Independent study course loses accreditation. Except as otherwise provided in § 21.4252(g), if the veteran or eligible person is enrolled in a course offered in whole or in part by independent study, and the course loses its accreditation (or the educational institution offering the course loses its accreditation), the date of reduction or discontinuance will be the effective date of the withdrawal of accreditation by the accrediting agency.
(y)-(aa) [Reserved]
Special restorative training. See § 21.3332.
§ 21.4136   Withdrawals or nonpunitive grades may result in nonpayment.
(a) General. VA will not pay benefits to an individual for a course from which the individual withdraws or receives a nonpunitive grade which is not used in computing the requirements for graduation unless:
(1) The individual withdraws because he or she is ordered to active duty; or
(2) All of the following criteria are met:
(i) There are mitigating circumstances;
(ii) The individual submits a description of the circumstances in writing to VA either within one year from the date VA notifies the individual that he or she must submit the mitigating circumstances or at a later date if the individual is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the description of the mitigating circumstances; and
(iii) The individual submits evidence supporting the existence of mitigating circumstances within one year of the date that evidence is requested by VA, or at a later date if the individual is able to show good cause why the one-year time limit should be extended to the date on which he or she submitted the evidence supporting the existence of mitigating circumstances.
(b) Representative mitigating circumstances. The following circumstances, which are not all inclusive, are representative of those that VA considers to be mitigating provided they prevent the individual from pursuing the program of education continuously:
(1) An illness of the individual;
(2) An illness or death in the individual's family;
(3) An unavoidable geographical transfer resulting from the individual's employment;
(4) An unavoidable change in the individual's conditions of employment;
(5) Immediate family or financial obligations beyond the control of the individual that require him or her to suspend pursuit of the program of education to obtain employment;
(6) Discontinuance of the course by the school;
(7) Unanticipated active duty for training;
(8) Unanticipated difficulties in caring for the individual's child or children.
(c) Failure to complete a course for the educationally disadvantaged. If the individual fails to satisfactorily complete a course under 38 U.S.C. 3491(a) without fault, VA will consider the circumstances that caused the failure to be mitigating. This will be the case even if the circumstances were not so severe as to preclude continuous pursuit of a program of education.
(d) Withdrawals after May 31, 1989. In the first instance of a withdrawal after May 31, 1989, from a course or courses for which the individual received educational assistance under 38 U.S.C. chapter 32, VA will consider that mitigating circumstances exist with respect to courses totaling not more than six semester hours or the equivalent, and paragraphs (a)(2)(ii) and (a)(2)(iii) of this section will not apply.
(e) Withdrawals during a drop-add period. If the individual withdraws from a course during a drop-add period, VA will consider the circumstances that caused the withdrawal to be mitigating, and paragraphs (a)(2)(ii) and (a)(2)(iii) of this section will not apply.
§ 21.4138   Certifications and release of payments.
For the purposes of this section, the Manila Regional Office is considered the VA Regional Processing Office of jurisdiction for educational assistance allowance claims processed under 38 U.S.C. chapter 35 for educational institutions located in the Philippines.
(a) Advance payments. (1) VA will make payments of educational assistance in advance when:
(i) The veteran, servicemember, reservist, or eligible person has specifically requested such a payment;
(ii) The student is enrolled for half time or more;
(iii) The educational institution at which the veteran, servicemember, reservist, or eligible person is accepted or enrolled has agreed to and can satisfactorily carry out the provisions of 38 U.S.C. 3680(d)(4)(B) and (C) and (5) pertaining to receipt, delivery, or return of checks and certifications of delivery and enrollment;
(iv) The Director of the VA Regional Processing Office of jurisdiction has not acted under paragraph (a)(4) of this section to prevent advance payments being made to the veteran's, servicemember's, reservist's, or eligible person's educational institution;
(v) There is no evidence in the veteran's, servicemember's, reservist's, or eligible person's claim file showing that he or she is not eligible for an advance payment;
(vi) The period for which the veteran, servicemember, reservist, or eligible person has requested a payment either—
(A) Is preceded by an interval of nonpayment of 30 days or more; or
(B) Is the beginning of a school year that is preceded by a period of nonpayment of 30 days or more; and
(vii) The educational institution or the veteran, servicemember, reservist, or eligible person has submitted the certification required by § 21.7151.
(2) The amount of the advance payment to a veteran, reservist, or eligible person is the educational assistance for the month or fraction thereof in which the term or course will begin plus the educational assistance for the following month. The amount of the advance payment to a servicemember is the amount payable for the entire term, quarter, or semester, as applicable.
(3) VA will mail advance payments to the educational institution for delivery to the veteran, servicemember, reservist, or eligible person. The educational institution will not deliver the advance payment check more than 30 days in advance of the first date of the period for which VA makes the advance payment.
(4) The Director of the VA Regional Processing Office of jurisdiction may direct that advance payments not be made to individuals attending an educational institution if:
(i) The educational institution demonstrates an inability to comply with the requirements of paragraph (a)(3) of this section;
(ii) The educational institution fails to provide adequately for the safekeeping of the advance payment checks before delivery to the veteran, servicemember, reservist, or eligible person or return to VA; or
(iii) The Director determines, based on compelling evidence, that the educational institution has demonstrated its inability to discharge its responsibilities under the advance payment program.
(b) Lump-sum payments. A lump-sum payment is a payment of all educational assistance due for an entire quarter, semester, or term. VA will make a lump-sum payment to:
(1) A veteran or servicemember pursuing a program of education at less than the half-time rate under 38 U.S.C. chapter 30;
(2) A servicemember pursuing a program of education at the half-time rate or greater under 38 U.S.C. chapter 30, provided that VA did not make an advance payment to the servicemember for the term for which a lump-sum payment would otherwise be due; and
(3) An eligible person pursuing a program of education at less than the half-time rate under 38 U.S.C. chapter 35.
(c)-(d) [Reserved]
(e) Other payments. An individual must be pursuing a program of education in order to receive payments. To ensure that this is the case the provisions of this paragraph must be met.
(1) VA will pay educational assistance to an individual (other than one pursuing a program of apprenticeship or other on-job training or a correspondence course, one who qualifies for an advance payment or one who qualifies for a lump-sum payment) only after—
(i) The educational institution has certified his or her enrollment as provided in § 21.4203; and
(ii) VA has received from the individual a verification of the individual's enrollment or verification of pursuit and continued enrollment, as appropriate. Generally, this verification will be required monthly, resulting in monthly payments.
(2) VA will pay educational assistance to an individual pursuing a program of apprenticeship or other on-job training only after—
(i) The training establishment has certified his or her enrollment in the training program as provided in § 21.4203; and
(ii) VA has received from the training establishment a certification of hours worked.
(3) VA will pay educational assistance to an individual who is pursuing a correspondence course only after—
(i) The educational institution has certified his or her enrollment;
(ii) VA has received from the individual a certification as to the number of lessons completed and serviced by the educational institution; and
(iii) VA has received from the educational institution a certification or an endorsement on the individual's certificate, as to the number of lessons completed by the individual and serviced by the educational institution.
(f) Payment for intervals and temporary school closings before August 1, 2011. VA may authorize payment for an interval or for a temporary school closing that occurs within a certified enrollment period. If a school closing that is or may be temporary occurs during an interval, VA will apply any applicable provisions in paragraphs (f)(1) through (f)(5) of this section concerning intervals and in paragraph (f)(6) of this section concerning temporary school closings. For the purposes of this paragraph, interval means a period without instruction between consecutive school terms, quarters, or semesters or a period without instruction between a summer term and a term, quarter, or semester. (See definitions of divisions of the school year in § 21.4200(b).)
(1) Payment for intervals. In determining whether a student will be paid for an interval, VA will first review the provisions of paragraph (f)(2) of this section. If none of the provisions apply, VA will review the provisions of paragraphs (f)(3), (f)(4), and (f)(5) of this section to determine if payments may be made for the interval. In determining the length of a summer term, VA will disregard a fraction of a week consisting of 3 days or less, and will consider 4 days or more to be a full week.
(2) Restrictions on payment for intervals. VA will make no payment for an interval if:
(i) The student is training at less than the half-time rate on the last day of training during the term, quarter, semester, or summer term preceding the interval;
(ii) The student is on active duty;
(iii) The student requests, prior to authorization of an award or prior to negotiating the check, that no benefits be paid for the interval period;
(iv) The student's entitlement applicable to such payment will be exhausted by receipt of such payment, and it is to the advantage of the student not to receive payment;
(v) The interval occurs between school years at a school that is not organized on a term, quarter, or semester basis,
(vi) The student withdraws from all courses in the term, quarter, semester, or summer session preceding the interval, or discontinues training before the scheduled start of an interval in a school not organized on a term, quarter, or semester basis; or
(vii) The student receives an accelerated payment for the term, quarter, semester, or summer session preceding the interval.
(3) Payment for interval between periods of enrollment at different schools. If the student transfers from one approved school for the purpose of enrolling in and pursuing a similar course at the second school, VA may make payments for an interval that does not exceed 30 days. If the student does not enroll in a similar course at the second school, VA may not make payments for the interval.
(4) Payment for intervals that occur at the same school. (i) If the student remains enrolled at the same school, VA may make payment for an interval which does not exceed 8 weeks and which occurs between:
(A) Semesters or quarters,
(B) A semester or quarter and a term that is at least as long as the interval,
(C) A semester or quarter and a summer term that is at least as long as the interval,
(D) Consecutive terms (other than semesters or quarters) provided that both terms are at least as long as the interval, or
(E) A term and summer term provided that both the term and the summer term are at least as long as the interval.
(ii) If the student remains enrolled at the same school, VA may make payment for an interval that does not exceed 30 days and that occurs between summer sessions within a summer term.
(5) Payment for intervals that occur between overlapping enrollments. (i) If a student is enrolled in overlapping enrollment periods whether before or after an interval (either at the same or different schools), VA will determine whether the student is entitled to payment for the interval between the overlapping enrollment periods, and what dates the interval and enrollment periods will be considered to begin and end, as follows:
(A) By treating the ending date of each enrollment period as though it were the student's last date of training before the interval,
(B) By treating the beginning date of each enrollment period as though it were the student's first date of training after the interval,
(C) By examining the interval payment that would be made to the student on the basis of the various combinations of beginning and ending dates, and
(D) By choosing the ending date and beginning date that result in the highest payment rate as the start and finish of the interval for VA measurement purposes.
(ii) VA will not reduce the interval rate of payment as a result of training the student may take during the interval, but VA will increase the interval rate of payment if warranted by such training.
(6) Payment for temporary school closings. VA may authorize payment for temporary school closings that are due to emergencies (including strikes) or established policy based upon an Executive Order of the President. If a school closing that is or may be temporary occurs in whole or in part during an interval, VA will first review the provisions of paragraphs (f)(2) through (f)(5) of this section to determine if payment may be continued during the interval.
(i) If payment would not be inconsistent with the provisions of paragraphs (f)(2) through (f)(5) of this section, a determination to authorize payment for a period of a temporary school closing, or to not authorize payment if, in the judgment of the VA official specified in this paragraph, either the school closing will not be temporary or payment would not otherwise be in accord with this section, or both, will be made by:
(A) The Director of the VA Regional Processing Office of jurisdiction if:
( 1 ) The reason for the school closing does not result in the closing of a school or schools in the jurisdiction of the Director of another VA Regional Processing Office, and
( 2 ) If the reason for the closing is a strike, the strike has lasted 30 days or less and is not anticipated to last more than 30 days.
(B) The Director, Education Service if:
( 1 ) The reason for the school closing results in the closing of schools in the jurisdiction of more than one Director of a VA Regional Processing Office, or
( 2 ) The reason for the closing is a strike and the strike lasts, or is anticipated to last, more than 30 days.
(ii) A school that disagrees with a decision made under paragraph (f)(6) of this section may request an administrative review. The review request must be submitted in writing and received by the Director of the VA Regional Processing Office of jurisdiction within one year of the date of VA's letter notifying the school of the decision. A review of the decision will include the evidence of record and any other pertinent evidence the school may wish to submit. The affirmation or reversal of the initial decision based on an administrative review is final. The review will be conducted by the—
(A) Director, Education Service, if the Director of the VA Regional Processing Office of jurisdiction made the initial decision to continue or discontinue payments.
(B) Under Secretary for Benefits, if the Director, Education Service, made the initial decision to continue or discontinue payments.
(g) Payment for temporary school closings after July 31, 2011. (1) Subject to paragraph (g)(2) of this section, VA may authorize payment for a temporary school closing that occurs during a certified period of enrollment if the closing is due to an emergency (including a strike) or established policy based on an Executive order of the President.
(2) An individual may not receive more than 4 weeks of payment for temporary school closings in any 12-month period.
(3) The decision as to whether a school closing is permanent or temporary will be made by—
(i) The director of the VA regional processing office of jurisdiction; or
(ii) The Director, Education Service, if the emergency or established policy based on an Executive Order of the President results in the closing of schools in the jurisdiction of more than one VA regional processing office.
(4) A school that disagrees with a decision made under paragraph (g)(3) of this section may request an administrative review. The review request must be submitted in writing and received by the director of the VA regional processing office of jurisdiction, or the Director, Education Service, whoever made the decision under paragraph (g)(3) of this section, within one year of the date of VA's letter notifying the school of the decision. A review of the decision will include the evidence of record and any other pertinent evidence the school may wish to submit. The affirmation or reversal of the initial decision based on an administrative review is final. The review will be conducted by the—
(i) Director, Education Service, if the director of the VA regional processing office of jurisdiction made the initial decision to continue or discontinue payments.
(ii) Under Secretary for Benefits, if the Director, Education Service, made the initial decision to continue or discontinue payments.
(h) Authority. (1) Paragraph (a) of this section issued under the authority of 10 U.S.C. 16136(b); 38 U.S.C. 3034, 3680(d);
(2) Paragraph (b) of this section issued under the authority of 38 U.S.C. 3034(c), 3680(f);
(3) Paragraph (e) of this section issued under the authority of 38 U.S.C. 5113, 3680(b), 3680(c), 3680(g);
(4) Paragraph (f) of this section issued under the authority of 38 U.S.C. 3680;
(5) Paragraph (f)(5) of this section issued under the authority of 38 U.S.C. 3680(a);
(6) Paragraph (f)(6) of this section issued under the authority of 38 U.S.C. 512, 3680(a); and
(7) Paragraph (g) of this section issued under the authority of 38 U.S.C. 512, 3680(a).
§ 21.4145   Work-study allowance.
(a) Eligibility. (1) A veteran or reservist pursuing a program of education under either 38 U.S.C. chapter 30, 32 or 33 or 10 U.S.C. chapter 1606 at a rate of three-quarter time or full time is eligible to receive a work-study allowance.
(2) An eligible person is eligible to receive a work-study allowance when-
(i) The eligible person is pursuing a program of education under 38 U.S.C. chapter 35 on at least a three-quarter-time basis;
(ii) The eligible person is pursuing a program of education in a State; and
(iii) The eligible person is not pursuing a program of special restorative training.
(b) Selection criteria. Whenever feasible, the Department of Veterans Affairs will give priority in selection for this allowance to veterans with service-connected disabilities rated at 30 percent or more. The Department of Veterans Affairs shall consider the following additional selection criteria:
(1) Need of the veteran, reservist, or eligible person to augment his or her educational assistance allowance;
(2) Availability to the veteran, reservist, or eligible person of transportation to the place where his or her services are to be performed;
(3) Motivation of the veteran, reservist, or eligible person; and
(4) Compatibility of the work assignment to the veteran's, reservist's, or eligible person's physical condition.
(c) Utilization. Work-study services may be utilized in connection with:
(1) Outreach services program as carried out under the supervision of a Department of Veterans Affairs employee;
(2) Preparation and processing of necessary papers and other documents at educational institutions or regional offices or facilities of the Department of Veterans Affairs;
(3) Hospital and domiciliary care and medical treatment at VA facilities;
(4) For a reservist training under 10 U.S.C. chapter 1606, activities relating to the administration of 10 U.S.C. chapter 1606 at Department of Defense facilities, Coast Guard facilities, or National Guard facilities; and
(5) Any other appropriate activity of VA.
(d) Rate of payment. In return for the veteran's, reservist's, or eligible person's agreement to perform services for VA totaling not more than 25 hours times the number of weeks contained in an enrollment period, VA will pay an allowance in an amount equal to the higher of:
(1) The hourly minimum wage in effect under section 6(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)) times the number of hours the veteran, reservist, or eligible person has agreed to work; or
(2) The hourly minimum wage under comparable law of the State in which the services are to be performed times the number of hours the veteran, reservist, or eligible person has agreed to work.
(e) Payment in advance. VA will pay in advance an amount equal to the lesser of the following:
(1) 40 percent of the total amount payable under the contract; or
(2) An amount equal to 50 times the applicable minimum hourly wage in effect on the date the contract is signed.
(f) Veteran, reservist, or eligible person reduces rate of training. In the event the veteran, reservist, or eligible person reduces his or her training to less than three-quarter-time before completing an agreement, the veteran, reservist, or eligible person, with the approval of the Director of the VA field station, or designee, may be permitted to complete the portions of an agreement in the same or immediately following term, quarter, or semester in which the veteran, reservist, or eligible person ceases to be a three-quarter-time student.
(g) Veteran, reservist, or eligible person terminates training. (1) If the veteran, reservist, or eligible person terminates all training before completing an agreement, the Director of the Department of Veterans Affairs facility or designee:
(i) May permit him or her to complete the portion of the agreement represented by the money the Department of Veterans Affairs has advanced to the veteran, reservist, or eligible person for which he or she has performed no services, but
(ii) Will not permit him or her to complete that portion of an agreement for which no advance has been made.
(2) The veteran, reservist, or eligible person must complete the portion of an agreement in the same or immediately following term, quarter or semester in which the veteran, reservist, or eligible person terminates training.
(h) Indebtedness for unperformed service. (1) If the veteran, reservist, or eligible person has received an advance for hours of unperformed service, and the Department of Veterans Affairs has evidence that he or she does not intend to perform that service, the advance:
(i) Will be a debt due the United States, and
(ii) Will be subject to recovery the same as any other debt due the United States.
(2) The amount of indebtedness for each hour of unperformed service shall equal the hourly wage that formed the basis of the contract.
(i) Survey. The Department of Veterans Affairs will conduct an annual survey of its regional offices to determine the number of veterans, reservists, or eligible persons whose services can be utilized effectively.
(ii) [Reserved]
§ 21.4146   Assignments of benefits prohibited.
(a) General. Section 5301(a), Title 38 U.S.C., provides that payments of benefits due or to become due under the laws administered by the Department of Veterans Affairs shall not be assigned, except to the extent specifically authorized by law. No law specifically authorizes assignments of educational assistance allowances payable under 38 U.S.C. chapters 30, 32, 33, 35, or 36, or 10 U.S.C. chapter 1606, and therefore none shall be made.
(b) Designating an attorney-in-fact. In any case where a payee of an educational assistance allowance has designated the address of an attorney-in-fact as the payee's address for the purpose of receiving his or her benefit check and has executed a power of attorney giving the attorney-in-fact authority to negotiate such benefit check, such action shall be deemed to be an assignment and is prohibited.
(c) Arrangements amounting to an assignment. Payments may be made to a post office box address or a bank address only if the educational institution (other than an organization or entity offering a licensing or certification test) attests that it has not entered into an assignment agreement with the student, and is not the attorney-in-fact of the student with power to negotiate an educational assistance check on behalf of the student and is not otherwise able to control the proceeds of the benefits check. Such statements shall be subject to review and when determined to be false, may be cause for creation of an overpayment to the account of the veteran or other eligible person, for which the educational institution (other than an organization or entity offering a licensing or certification test) may be liable under the provisions of § 21.4009.
(d) Correspondence school addresses. A request by a veteran or other eligible person to send the benefit check payable to him or her at an address which is an educational institution primarily engaged in correspondence course instruction will be presumed not to be the actual address of the veteran or other eligible person and will not be honored. Benefits checks will not be sent to the veteran or other eligible person in that event until a new address is provided designating the individual's mailing address.
(e) Referral to Committee on Educational Allowances. When the evidence of record indicates that an educational institution has violated the terms of this section, the matter will be referred to the facility Committee on Educational Allowances as provided in §§ 21.4210(g) and 21.4212.
§ 21.4150   Designation.
(a) The Chief Executive of each State is requested to create or designate a State department or agency as the State approving agency for his State, for the purpose of assuming the responsibilities delegated to the State under 38 U.S.C. chapter 36, or if the law of the State provides otherwise, to indicate the agency provided by such law (38 U.S.C. 3671(a)).
(b) The Chief Executive of each State will notify the Department of Veterans Affairs of any change in the designation of a State approving agency.
(c) The provisions of 38 U.S.C. chapter 36 and the sections in this part which refer to the State approving agency will be deemed to refer to VA:
(1) With respect to a State, when that State:
(i) Does not have and fails or declines to create or designate a State approving agency, or
(ii) Fails to enter into an agreement as provided in § 21.4153; and
(2) When VA has approval, disapproval, or suspension authority.
(d) Any function, power or duty otherwise required to be exercised by a State, or by an officer or agency of a State, will, with respect to the Republic of Philippines, be exercised by the station head.
(e) The Secretary shall act as State approving agency for programs of apprenticeship, the standards for which have been approved by the Secretary of Labor pursuant to section 50a of title 29 U.S.C. as a national apprenticeship program for operation in more than one State and the training establishment is a carrier directly engaged in interstate commerce which provides such training in more than one State.
(f)(1) The Secretary is responsible for approving programs of education offered by any agency or instrumentality of the Federal Government.
(2)(i) Effective August 1, 2011, subject to §§ 21.4201, 21.4203, 21.4251, 21.4252, and 21.4253(d)(2) and (3), the following programs of education are deemed approved—
(A) An accredited standard college degree program offered at a public or not-for-profit proprietary institution of higher learning that is accredited by a national or regional agency or organization recognized for that purpose by the Department of Education.
(B) A flight training course approved by the Federal Aviation Administration that is offered by a certified pilot school that possesses a valid Federal Aviation Administration pilot school certificate or provisional pilot school certificate under 14 CFR part 141.
(C) An apprenticeship program registered with the Office of Apprenticeship of the Employment Training Administration of the Department of Labor or a State apprenticeship agency recognized by the Office of Apprenticeship under 29 U.S.C. 50, et seq.
(D) A program of education leading to a secondary school diploma offered by a secondary school approved in the State in which it is operating.
(E) A licensure test offered by a Federal, State, or local government.
(ii) [Reserved]
(g) Approval under 38 U.S.C. 3689 of a licensing or certification test offered by any agency or instrumentality of the Federal government will be under the authority of the Secretary.
(h)(1) Paragraph (c)(2) of this section issued under the authority of 38 U.S.C. 3671(b)(1);
(2) Paragraph (d) of this section issued under the authority of 38 U.S.C. 512(a), 3561(b);
(3) Paragraph (e) of this section issued under the authority of 38 U.S.C. 3672(c);
(4) Paragraph (f) of this section issued under the authority of 38 U.S.C. 3672(b); and
(5) Paragraph (g) of this section issued under the authority of 38 U.S.C. 3689.
Course and licensing and certification test approval; jurisdiction and notices. See § 21.4250.
§ 21.4151   Cooperation.
(a) The Department of Veterans Affairs and the State approving agencies will take cognizance of the fact that definite duties, functions and responsibilities are conferred upon each of them. To assure that programs of education are administered effectively and efficiently, the cooperation of the Department of Veterans Affairs and the State approving agencies is essential.
(b) State approving agency responsibilities. State approving agencies are responsible for:
(1) Inspecting and supervising schools within the borders of their respective States;
(2) Determining those courses which may be approved for the enrollment of veterans and eligible persons;
(3) Ascertaining whether a school at all times complies with its established standards relating to the course or courses which have been approved;
(4) Determining those licensing and certification tests that may be approved for cost reimbursement to veterans and eligible persons;
(5) Ascertaining whether an organization or entity offering an approved licensing or certification test complies at all times with the provisions of 38 U.S.C. 3689;
(6) Effective August 1, 2011, performing compliance and risk-based surveys and oversight (in accordance with the provisions in the State approving agency contract) without regard to whether the Secretary or the State approving agency approved the courses offered at the educational institution or the courses were deemed approved; and
(7) Under an agreement with VA rendering services and obtaining information necessary for the Secretary's approval or disapproval under chapters 30 through 36, title 38 U.S.C. and chapters 107 and 1606, title 10 U.S.C., of courses of education offered by any agency or instrumentality of the Federal Government within the borders of their respective States.
(c) The Department of Veterans Affairs will furnish State approving agencies with copies of such Department of Veterans Affairs informational and instructional material as may aid them in carrying out the provisions of 38 U.S.C. chapter 36.
(d)(1) Paragraph (a) of this section issued under the authority of 38 U.S.C. 3673(a);
(2) Paragraph (b) of this section issued under the authority of 38 U.S.C. 3672, 3673, 3674, 3689; and
(3) Paragraph (c) of this section issued under the authority of 38 U.S.C. 3673(b).
§ 21.4152   Control by agencies of the United States.
(a) Control of educational institutions and State agencies generally prohibited. No department, agency, or officer of the United States will exercise any supervision or control over any State approving agency or State educational agency, or any educational institution.
(b) Authority retained by VA. The provisions of paragraph (a) of this section do not restrict authority conferred on VA
(1) To define full-time training in certain courses.
(2) To determine whether overcharges were made by a school and to disapprove the school for enrollment of veterans or eligible persons not previously enrolled. See § 21.4210(d).
(3) To determine whether the State approving agencies under the terms of contract or reimbursement agreements are complying with the standards and provisions of the law.
(4) To examine the records and accounts of schools which are required to be made available for examination by duly authorized representatives of the Federal Government. See §§ 21.4209 and 21.4263.
(5) To disapprove schools, courses, or licensing or certification tests for reasons stated in the law and to approve schools, courses, or licensing or certification tests notwithstanding lack of State approval.
§ 21.4153   Reimbursement of expenses.
For the purposes of this section, other than paragraph (d)(4) of this section, “educational institution” includes an organization or entity offering licensing or certification tests.
(a) Expenses will be reimbursed under contract —(1) Scope of contracts. (i) If a State or local agency requests payment for service contemplated by law, and submits information prescribed in paragraph (e) of this section, VA will negotiate a contract or agreement with the State or local agency to pay (subject to available funds and acceptable annual evaluations) reasonable and necessary expenses incurred by the State or local agency in—
(A) Determining the qualifications of educational institutions and training establishments to furnish programs of education to veterans and eligible persons,
(B) Supervising educational institutions and training establishments, and
(C) Furnishing any other services VA may request in connection with the law governing VA education benefits.
(ii) VA will take into account the results of annual evaluations carried out under § 21.4155 of this part when negotiating the terms and conditions of the contract or agreement.
(2) Reimbursable supervision. Supervision will consist of the services required:
(i) To determine that the programs are furnished in accordance with the law and with any other reasonable criteria as may be imposed by the State, and
(ii) To disapprove any programs which fail to meet the law and the established criteria.
(b) Reimbursement. The Under Secretary for Benefits and the Director, Education Service, are authorized to enter into agreements necessary to fulfill the purpose of paragraph (a) of this section. See § 21.4001(b).
(c) Reimbursable expenses. Reimbursement may be made from the funds provided in the existing contract with the State approving agency under the provisions of this section. No reimbursement may be authorized for expenses incurred by any individual who is not an employee of the State approving agency.
(1) Salaries. Salaries for which reimbursement may be authorized under a contract:
(i) Will not be in excess of the established rate of pay for other employees of the State with comparable or equivalent duties and responsibilities,
(ii) Will be limited to the actual salary expense incurred by the State, and
(iii) Will include the basic salary rate plus fringe benefits, such as social security, retirement, and health, accident, or life insurance, that are payable to all similarly circumstanced State employees.
(2) Travel. (i) Reimbursement will be made under the terms of the contract for travel of personnel engaged in activities in connection with the inspection, approval or supervision of educational institutions, including—
(A) Travel of personnel attending training sessions sponsored by VA and the State approving agencies.
(B) Expenses of attending out-of-State meetings and conferences only if the Director, Education Service, authorizes the travel.
(ii) Travel expenses for which reimbursement may be authorized under a contract will be limited to:
(A) Expenses allowable under applicable State laws or travel regulations of the State or agency;
(B) Expenses for travel actually performed by employees specified under the terms of the contract and;
(C) Either actual expenses for transportation, meals, lodging and local telephone calls, or the regular State or agency per diem allowance.
(iii) All claims for travel expenses payable under the terms of a contract must be supported by factual vouchers and all transportation allowances must be supported by detailed claims which can be checked against work assignments in the office of the State approving agency.
(3) Administrative expenses. In determining the allowance for administrative expenses for which payment may be authorized, VA will apply the provisions of 38 U.S.C. 3674(b). In making that application, VA will determine reimbursable salary cost pursuant to paragraph (c)(1) of this section.
(4) Subcontracts. The State approving agency may also be reimbursed for work performed by a subcontractor provided:
(i) The work has a direct relationship to the requirements of 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, 35, or 36; and
(ii) The Contracting Officer has approved the subcontract in advance.
(d) Nonreimbursable expenses. The Department of Veterans Affairs will not provide reimbursement under reimbursement contracts for:
(1) Expenditures other than salaries and travel of personnel required to perform the services specified in the contract and Department of Veterans Affairs regulations.
(2) Supplies, equipment, printing, postage, telephone services, rentals, and other miscellaneous items or a service furnished directly or indirectly.
(3) Except as provided in paragraph (c)(2) of this section, the salaries and travel of personnel while attending training sessions, or when they are engaged in activities other than those in connection with the inspection, approval, or supervision of educational institutions.
(4) The supervision of educational institutions which do not have veterans or eligible persons enrolled.
(5) Expenses incurred in the administration of an educational program which are costs properly chargeable as tuition costs, such as the development of course material or individual educational programs, teacher training or teacher improvement activities, expenses of coordinators, or administrative costs, such as those involving selection and employment of teachers. (This does not preclude reimbursement for expenses of the State agency incurred in the development of standards and criteria for the approval of courses under the law.)
(6) Expenses of a State approving agency for inspecting, approving or supervising courses when the agency is responsible for establishing, conducting or supervising those courses.
(7) Any expense for supervision or other services to be covered by contract which are already being reimbursed or paid from tuition funds under this law.
(e) Agency operating plan. A request by a State approving agency for reimbursement under the law will be subject to the requirements of 41 CFR 8-7.5101-8 as to “Equal Opportunity”. The request will be accompanied by the proposed plan of operation and the specific duties and responsibilities of all personnel for which reimbursement of salaries and travel expense is required.
(1) The Department of Veterans Affairs will determine personnel requirements for which the Department of Veterans Affairs provides reimbursement on the basis of estimated workloads agreed upon between the Department of Veterans Affairs and the State agency. Agreements are subject to review and adjustment.
(2) Workloads will be determined upon three factors:
(i) Inspection and approval visits,
(ii) Supervisory visits, and
(iii) Special visits at the request of the Department of Veterans Affairs.
(f) Contract compliance. Reimbursement under each contract or agreement is conditioned upon compliance with the standards and provisions of the contract and the law. If the Contracting Officer determines that the State has failed to comply with the standards or provisions of the law or with terms of the reimbursement contract, he or she will withhold reimbursement for claimed expenses under the contract. If the State disagrees, the State may request the Contracting Officer to reconsider his or her decision or may initiate action under the Disputes clause of the contract. See 48 CFR 801.602.
(g) Contract disputes. The State approving agency reimbursement contract is subject to the Contract Disputes Act of 1978. Disputes arising under, or relating to, the contract will be resolved in accordance with the disputes article of the contract and with appropriate procurement regulations.
§ 21.4154   Report of activities.
(a) State approving agencies must report their activities. Each State approving agency entering into a contract or agreement under § 21.4153 of this part must submit a report of its activities to VA. The report may be submitted monthly or quarterly by the State approving agency as provided in the contract or agreement.
(b) Content of the report. The report:
(1) Shall be in the form prescribed by the Secretary;
(2) Shall detail the activities of the State approving agencies under the agreement or contract during the preceding month or quarter, as appropriate;
(3) May include, at the option of the State approving agency, a cumulative report of its activities from the beginning of the fiscal year to date;
(4) Shall describe the services performed and the determination made in supervising and ascertaining the qualifications of educational institutions in connection with the programs of the Department of Veterans Affairs; and
(5) Shall include other information as the Secretary may prescribe.
§ 21.4155   Evaluations of State approving agency performance.
(a) Annual evaluations required. (1) VA shall conduct in conjunction with State approving agencies an annual evaluation of each State approving agency. The evaluation shall be based on standards developed by VA with State approving agencies. VA shall provide each State approving agency an opportunity to comment upon the evaluation.
(2) VA shall take into account the result of the annual evaluation of a State approving agency when negotiating the terms and conditions of a contract or agreement as provided in § 21.4153(a) of this part.
(b) Development of a training curriculum. (1) VA shall cooperate with State approving agencies in developing and implementing a uniform national curriculum, to the extent practicable, for—
(i) Training new employees of State approving agencies, and
(ii) Continuing the training of the employees of the State approving agencies.
(2) VA with the State approving agencies shall sponsor the training and continuation of training provided by this paragraph.
(c) Development, adoption and application of qualification and performance standards for employees of State approving agencies. (1) VA shall:
(i) Develop with the State approving agencies prototype qualification and performance standards;
(ii) Prescribe those standards for State approving agency use in the development of qualification and performance standards for State approving agency personnel carrying out approval responsibilities under a contract or agreement as provided in § 21.4153(a) of this part; and
(iii) Review the prototype qualification and performance standards with the State approving agencies no less frequently than once every five years.
(2) In developing and applying standards described in paragraph (d)(1) of this section, a State approving agency may take into consideration the State's merit system requirements and other local requirements and conditions. However, no State approving agency may develop, adopt or apply qualification or performance standards that do not meet the requirements of paragraph (d)(3) of this section.
(3) The qualification and performance standards adopted by the State approving agency shall describe a level of qualification and performance which shall equal or exceed the level of qualification and performance described in the prototype qualification and performance standards developed by VA with the State approving agencies. The State approving agency may amend or modify its adopted qualification and performance standards annually as circumstances may require.
(4) VA shall provide assistance in developing these standards to a State approving agency that requests it.
(5) After November 19, 1989, each State approving agency carrying out a contract or agreement with VA under § 21.4153(a) shall:
(i) Apply qualification and performance standards based on the standards developed under this paragraph, and
(ii) Make available to any person, upon request, the criteria used to carry out its functions under a contract or agreement entered into under § 21.4153(a) of this part.
(6) A State approving agency may not apply these standards to any person employed by the State approving agency on May 20, 1988, as long as that person remains in the position in which the person was employed on that date.
§ 21.4200   Definitions.
The definitions in this section apply to this subpart, except as otherwise provided. The definitions of terms defined in this section also apply to subparts C, G, H, K, L, and P if they are not otherwise defined for purposes of those subparts.
(a) School, educational institution, institution. The terms school, educational institution and institution mean:
(1) A vocational school or business school;
(2) A junior college, teachers' college, college, normal school, professional school, university, or scientific or technical institution;
(3) A public or private elementary school or secondary school;
(4) A training establishment as defined in paragraph (c) of this section;
(5) Any entity other than an institution of higher learning, that provides training for completion of a State-approved alternative teacher certification program; or
(6) Any private entity that offers, either directly or indirectly under an agreement with another entity, a course or courses to fulfill requirements for the attainment of a license or certificate generally recognized as necessary to obtain, maintain, or advance in employment in a profession or vocation in a high technology occupation.
(b) Divisions of the school year. (1) Ordinary School Year is generally a period of 2 semesters or 3 quarters which is not less than 30 nor more than 39 weeks in total length.
(2) Term, any regularly established division of the ordinary school year under which the school operates.
(3) Quarter, a division of the ordinary school year, usually a period from 10 to 13 weeks long.
(4) Semester, a division of the ordinary school year, usually a period from 15 to 19 weeks long.
(5) Summer term, the whole of the period of instruction at a school which takes place between ordinary school years. A summer term may be divided into several summer sessions.
(6) Summer session, any division of a summer term.
(c) 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.
(d) External degree. This term means a standard college degree given by an accredited college or university based on satisfactory completion of a prescribed program of independent study. The program may require occasional attendance for a workshop or seminar and may include some regular residence course work.
(e) Standard college degree. The term means an associate or higher degree awarded by:
(1) An institution of higher learning that is accredited as a collegiate institution by a recognized regional or national accrediting agency; or
(2) An institution of higher learning that is a candidate for accreditation, as that term is used by the regional or the national accrediting agencies; or
(3) An institution of higher learning upon completion of a course which is accredited by an agency recognized to accredit specialized degree-level programs.
(f) Undergraduate college degree. The term means a college or university degree obtained through the pursuit of unit subjects which are below the graduate level. Included are associate degrees, bachelors' degrees and first professional degrees.
(g) Standard class session. The term standard class session means the time an educational institution schedules for class each week in a regular quarter or semester for one quarter or one semester hour of credit. It is not less than 1 hour (or one 50-minute period) of academic instruction, 2 hours (or two 50-minute periods) of laboratory instruction, or 3 hours (or three 50-minute periods) of workshop training.
(h) Institution of higher learning. This term means:
(1) A college, university, or similar institution, including a technical or business school, offering postsecondary level academic instruction that leads to an associate or higher degree if the school is empowered by the appropriate State education authority under State law to grant an associate or higher degree.
(2) When there is no State law to authorize the granting of a degree, a school which:
(i) Is accredited for degree programs by a recognized accrediting agency, or
(ii) Is a recognized candidate for accreditation as a degree-granting school by one of the national or regional accrediting associations and has been licensed or chartered by the appropriate State authority as a degree-granting institution.
(3) A hospital offering medical-dental internships or residencies approved in accordance with § 21.4265(a) without regard to whether the hospital grants a post-secondary degree.
(4) An educational institution which:
(i) Is not located in a State,
(ii) Offers a course leading to a standard college degree or the equivalent, and
(iii) Is recognized as an institution of higher learning by the secretary of education (or comparable official) of the country in which the educational institution is located.
(i) Audited course. The term means any credit course which a student attends as a listener only with a prior understanding between school officials and the student that such attendance will not result in credit being granted toward graduation. See § 21.4252(i).
(j) Nonpunitive grade. The term means any grade assigned for pursuit of a course, whether upon completion of the course or at the time of withdrawal from the course, which has the effect of excluding the course from any consideration in determining progress toward fulfillment of requirements for graduation. No credit toward the school's requirements for graduation is granted for such a grade, nor does the grade affect any other criteria for graduation by the policies of the school, such as a grade point average. Therefore, it has the same effect as an audited course. See § 21.4135(e).
(k) Punitive grade. The term means a grade assigned for pursuit of a course which is used in determining the student's overall progress toward completion of the school's requirements for graduation. Unlike the nonpunitive grade, the punitive grade does affect the criteria to be met by the student for graduation, i.e. , it is a factor in computing the student's grade average or grade point average, for example. For this reason it is not the same as an audited course, since it does have an effect upon the student's ability to meet the school's criteria for graduation. See § 21.4135(e).
(l) Drop-add period. The term means a reasonably brief period at the beginning of a term, not to exceed 30 days, officially designated by a school for unrestricted enrollment changes by students.
(m) Normal commuting distance. Two locations that are within 55 miles of each other are within normal commuting distance. Furthermore, a branch, extension or additional facility of a school located more than 55 miles from the school's main campus or parent facility will be considered within normal commuting distance only if:
(1) School records show that, prior to the establishment of the additional teaching site, at least 20 students or 5 percent of the enrollment, whichever is the lesser, on the main campus or parent facility were regularly commuting from the area where the additional teaching site is located; or
(2) Other comparable evidence clearly shows that students commute regularly between the two locations.
(n) Enrollment. This term means the state of being on that roll, or file of a school which contains the names of active students.
(o) Pursuit of a program of education. (1) This term means to work, while enrolled, toward the objective of a program of education. This work must be in accordance with approved institution 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:
(i) Resident courses,
(ii) Independent study courses,
(iii) Correspondence courses,
(iv) An apprenticeship or other on-the-job training program,
(v) Flight courses,
(vi) A farm cooperative course,
(vii) A cooperative course, or
(viii) A graduate program of research in absentia.
(2) The Department of Veterans Affairs will consider a veteran or eligible person who qualifies under § 21.4138 for payment during an interval or school closing, or who qualifies for payment but whose work is interrupted by a holiday vacation as defined in § 21.7020(b)(16), to be in pursuit of a program of education during the interval, school closing or holiday vacation.
(p) Enrollment period. (1) This term means an interval of time during which a veteran or eligible person:
(i) Is enrolled in an educational institution; and
(ii) Is pursuing his or her program of education.
(2) This term applies to each unit course or subject in the veteran's or eligible person's program of education.
(q) Attendance. This term means the presence of a veteran or eligible person:
(1) In the class where the approved course is being taught in which he or she is enrolled;
(2) At a training establishment; or
(3) Any other place of instruction, training or study designated by the educational institution or training establishment where the veteran or eligible person is enrolled and is pursuing a program of education.
(r) In residence on a standard quarter- or semester-hour basis. This term means study at a site or campus of a college or university, or off-campus at an official resident center, requiring pursuit of regularly scheduled weekly class instruction at the rate of one standard class session per week throughout a standard quarter or semester for one quarter- or one semester-hour credit.
(s) Deficiency course. This term means any secondary level course or subject not previously completed satisfactorily which is specifically required for pursuit of a post-secondary program of education.
(t) Remedial course. This term means a special 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.
(u) Refresher course. This term means a course at the elementary or secondary level to review or update material previously covered in a course that has been satisfactorily completed.
(v) Reservist. The term reservist means a member of 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 who is eligible to receive educational assistance under 38 U.S.C. chapter 30 or 10 U.S.C. chapter 1606.
(w) 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 (a)(5) 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.
(x) State. The term State has the same meaning as provided in § 3.1(i) of this chapter.
(y) Pilot certificate. A pilot certificate is a pilot certificate issued by the Federal Aviation Administration. The term means a pilot's license as that term is used in 10 U.S.C. chapter 1606 and 38 U.S.C. chapters 30 and 32.
(z) Proprietary educational institution. The term proprietary educational institution (including a proprietary profit or proprietary nonprofit educational institution) means an educational institution that:
(1) Is not a public educational institution;
(2) Is in a State; and
(3) Is legally authorized to offer a program of education in the State where the educational institution is physically located.
(aa) High technology industry: The term high technology industry includes the following industries:
(1) Biotechnology;
(2) Life science technologies;
(3) Opto-electronics;
(4) Computers and telecommunications;
(5) Electronics;
(6) Computer-integrated manufacturing;
(7) Material design;
(8) Aerospace;
(9) Weapons;
(10) Nuclear technology; and
(11) Any other identified advanced technologies in the biennial Science and Engineering Indicators report published by the National Science Foundation.
(bb) Employment in a high technology industry. Employment in a high technology industry means employment in a high technology occupation specific to a high technology industry.
(cc) High technology occupation. The term high technology occupation means an occupation that leads to employment in a high technology industry. These occupations consist of:
(1) Life and physical scientists;
(2) Engineers;
(3) Mathematical specialists;
(4) Engineering and science technicians;
(5) Computer specialists; and
(6) Engineering, scientific, and computer managers.
(dd) Computer specialists. The term computer specialists includes the following occupations:
(1) Database, system, and network administrators;
(2) Database, system, and network developers;
(3) Computer and network engineers;
(4) Systems analysts;
(5) Programmers;
(6) Computer, database, and network support specialists;
(7) All computer scientists;
(8) Web site designers;
(9) Computer and network service technicians;
(10) Computer and network electronics specialists; and
(11) All certified professionals, certified associates and certified technicians in the information technology field.
(ee) Certification test. The term certification test means a test an individual must pass in order to receive a certificate that provides an affirmation of an individual's qualifications in a specified occupation.
(ff) 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.
(gg) Organization or entity offering a licensing or certification test. (1) The term organization or entity offering a licensing or certification test means:
(i) 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;
(ii) 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
(iii) An organization or entity that administers a licensing or certification test for the organization or entity that will issue a license or certificate, respectively, to the 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.
(2) This term does not include:
(i) An organization or entity that develops and/or proctors a licensing or certification test but does not issue the license or certificate; or
(ii) 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.
(hh) 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).
(ii) VA Regional Processing Office. The term VA Regional Processing Office means a VA office where claims for educational assistance under 38 U.S.C. chapters 30, 32, and 35 and 10 U.S.C. chapter 1606 are allowed or disallowed.
(jj) [Reserved]
(kk) Fugitive felon. The term fugitive felon means an individual identified as such by Federal, State, or local law enforcement officials and who is a fugitive by reason of—
(1) Fleeing to avoid prosecution for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees;
(2) Fleeing to avoid custody or confinement after conviction for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or
(3) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law.
(ll) Felony. The term felony means a major crime or offense defined as such under the law of the place where the offense was committed or under Federal law. It includes a high misdemeanor under the laws of a State which characterizes as high misdemeanors offenses that would be felony offenses under Federal law.
(mm) National test for admission. (1) A national test for admission is a test used for admission to an institution of higher learning or graduate school (such as the Scholastic Aptitude Test (SAT), Law School Admission Test (LSAT), Graduate Record Exam (GRE), and Graduate Management Admission Test (GMAT)). A list of national tests approved by VA can be found at: https://inquiry.vba.va.gov/weamspub/buildSearchNE.do.
(2) This paragraph (mm) issued under the authority of 38 U.S.C. 3452(b), 3315A, 3501(a)(5).
(nn) National test for credit. (1) A national test for credit is a test that provides an opportunity for course credit at an institution of higher learning (such as the Advanced Placement (AP) exam and College-Level Examination Program (CLEP)). A list of national tests approved by VA can be found at: https://inquiry.vba.va.gov/weamspub/buildSearchNE.do.
(2) This paragraph (nn) issued under the authority of 38 U.S.C. 3452(b), 3315A, 3501(a)(5).
(oo) We, us, our. When we use the terms we, us, or our, we mean the United States Department of Veterans Affairs.
§ 21.4201   Restrictions on enrollment; percentage of students receiving financial support.
(a) General. Except as otherwise provided in this section the Department of Veterans Affairs shall not approve an enrollment in any course for an eligible veteran, not already enrolled, for any period during which more than 85 percent of the students enrolled in the course are having all or part of their tuition, fees or other charges paid for them by the educational institution or by VA under title 38, U.S.C., or under title 10, U.S.C. This restriction may be waived in whole or in part.
(b) Affected schools. The requirements of paragraph (a) of this section apply to all courses not otherwise exempt or waived offered by all educational institutions, regardless of whether the institution is degree-granting, proprietary profit, proprietary nonprofit, eleemosynary, public and/or tax-supported.
(c) Affected courses. (1) The following courses or programs are exempt from the requirements of paragraph (a) of this section:
(i) Any farm cooperative course; and
(ii) Any course offered by a flying club established, organized and operated pursuant to regulations of a military department of the Armed Forces as nonappropriated sundry fund activities which are governmental instrumentalities.
(2) The provisions of paragraph (a) of this section apply to the enrollment of a serviceperson in a course leading to a high school diploma, equivalency certificate, or a refresher, remedial or deficiency course, but they do not apply to the enrollment of a veteran in such a course.
(3) Except as provided in paragraph (c)(2) of this section, the provisions of paragraph (a) of this section do not apply to an approved course which:
(i) Is offered under contract with the Department of Defense,
(ii) Is on or immediately adjacent to a military base, or a facility of the National Guard (including the Air National Guard) or the Selected Reserve,
(iii) Has been approved by the State approving agency of the State:
(A) Where the base is located or
(B) Where the parent school is located if the course is offered overseas, and
(iv) Is available only to:
(A) Military personnel and their dependents, or
(B) Military personnel, their dependents and civilian employees of a base located in a State, or
(C) Persons authorized by the base commander to attend the course provided the base is located outside the United States.
(D) In the case of a course offered on or immediately adjacent to a facility of the National Guard or the Selected Reserve, members of the National Guard, members of the Selected Reserve and their dependents.
(4) The provisions of paragraph (a) of this section generally do not apply to a course when the total number of veterans, eligible persons, and reservists receiving assistance under 38 U.S.C. chapters 30, 31, 32, 33, 35 and 36, and 10 U.S.C. chapter 1606, who are enrolled in the educational institution offering the course, equals 35 percent or less of the total student enrollment at the educational institution (computed separately for the main campus and any branch or extension of the institution). However, the provisions of paragraph (a) of this section will apply to such a course when—
(i) The course is a course of Special Assistance for the Educationally Disadvantaged and a serviceperson enrolls in it, or
(ii) The Director of the Department of Veterans Affairs facility of jurisdiction has reason to believe that the enrollment of veterans and eligible persons in the course may exceed 85 percent of the total student enrollment in the course.
(d) Applications for exemptions. No applications are required for any exemptions except that found in paragraph (c)(4) of this section. To obtain an exemption as stated in paragraph (c)(4) of this section schools must submit reports as required in paragraph (f)(1) of this section.
(e) Computing the 85-15 percent ratio —(1) Determining when separate computations are required. Except as provided in paragraph (c) of this section and in paragraph (e)(3) of this section, an 85-15 percent ratio must be computed for each course of study or curriculum leading to a separately approved educational or vocational objective. Computations will not be made for unit subjects, unless only one unit subject is approved by the State approving agency to be offered at a separate branch or extension of a school. Courses or curricula which are offered at separately approved branches or extensions, as well as courses or curricula leading to a secondary school diploma or equivalency certificate offered at any branch or extension, must have an 85-15 percent ratio computed separately from the same course offered at the parent institution. The count of students attending the branch may not be added to those attending the parent institution even for the same courses or curricula. However, the count of those attending courses or curricula offered at an additional facility, as opposed to a branch or extension, must be added to those attending the same course at the parent institution. Pursuit of a course or curriculum that varies in any way from a similar course, although it may have the same designation as the other similar course or curriculum, will require a separate 85-15 percent computation. A course or curriculum will be considered to vary from another if there are different attendance requirements, required unit subjects are different, required completion length is different, etc.
(i) Separate courses for computation purposes in institutions of higher learning will be determined by general curriculum only until the point at which it is reasonable to assume a major field would be declared and after that point by specific curriculum.
(A) General 2-year curricula at 2-year institutions of higher learning, general curricula such as AA (Associate of Arts) or AS (Associate of Science) degrees with no major specified, will require separate computations for each curriculum. Terminal 2-year courses ( i.e. , AAS (Associate of Applied Science), dental technology or auto mechanics certificate) and other associate degree courses where a field is specified must be computed separately for each objective.
(B) Students attending 4-year institutions of higher learning and graduate schools may be counted in general curricula such as BA (Bachelor of Art) and BS (Bachelor of Science) only until the normal point at which the school requires the student to declare a major subject. Then the 85-15 percent computation must be made for each specific curriculum, i.e. , BS (Bachelor of Science) in electrical engineering, MA (Master of Arts) in English, etc.
(ii) NCD (noncollege degree) courses must be computed separately by approved vocational objective. If several curricula lead to the same coded vocational objective, each must meet the 85-15 percent requirement separately, unless it can be shown that two or more courses are identical in all respects (scheduling, hours devoted to each unit subject, etc.). Branch or extension courses will be computed separately from courses at the parent facility. Courses offered on a full- and part-time basis which are identical in length and content will be combined for computing the ratio.
(2) Assigning students to each part of the ratio. In accordance with the provisions of paragraph (a) of this section, non-supported students are those students enrolled in the course who are having none of their tuition, fees or other charges paid for them by the educational institution, or by VA under title 38, U.S.C., or under title 10, U.S.C., while supported students are those students enrolled in the course who are in receipt of institutional aid or VA educational assistance benefits ( i.e., having all or part of their tuition, fees or other charges paid for them by the educational institution, or by VA under chapter 36, title 38, United States Code, or under title 10, United States Code.). Institutional aid does not include Federal, state, or municipal grant funding, nor does it include matching funds provided by the educational institution through participation in such Federal, state, or municipal grant programs. Recipients of these funds are to be counted as non-supported students barring receipt of other institutional aid or VA educational assistance benefits.
(3) Calculation. (i) To determine if the requirement of paragraph (a) of this section has been met for all courses except flight courses the full-time equivalent, nonsupported students as defined by paragraph (e)(2) of this section will be compared to the full-time equivalent students enrolled in the course. If the full-time equivalent, nonsupported students do not equal at least 15 percent of the total full-time enrollment, the 85-15 percent requirement has not been met for the course. If a non-Department of Veterans Affairs student in a correspondence course has not completed a lesson nor made a payment toward the cost of the course during the 6-month period immediately prior to the computation, the student will not be counted in computing the 85-15 percent ratio.
(ii) The 85-15 percent ratio for flight courses shall be computed by comparing the number of hours of training received by or tuition charged to nonsupported students in the preceding 30 days to the total number of hours of training received by or tuition charged to all students in the same period. All approved courses offered under 14 CFR parts 141 and 142 at a flight school will be considered to be one course for the purpose of making this computation. Similarly, all other approved courses offered at a flight school will be considered to be one course for the purpose of making this computation. In this computation hours of training or tuition charges for students enrolled—
(A) In the recreational pilot certification course and the private pilot certification course will be excluded;
(B) In a ground instructor certification course will be included;
(C) In courses approved under 14 CFR part 141, other than a ground instructor certification course, will be actual hours of logged instructional flight time or the charges for those hours; and
(D) In courses not approved under 14 CFR part 141, such as courses offered by flight simulator or courses for navigator or flight engineer, shall include ground training time or charges; actual logged instructional flight time or charges; and instructional time in a flight simulator or charges for that training.
(f) Reports. (1) Schools must submit to VA all calculations (those needed to support the exemption found in paragraph (c)(4) of this section as well as those made under paragraph (e)(3) of this section). If the school is organized on a term, quarter, or semester basis, it shall make that submission no later than 30 days after the beginning of the first term for which the school wants the exemption to apply. If the school is organized on a non-standard term basis, it shall make its submission no later than 30 days after the beginning of the first non-standard term for which the school wishes the exemption to apply. A school having received an exemption found in paragraph (c)(4) of this section shall not be required to certify that 85 percent or less of the total student enrollment in any course is receiving Department of Veterans Affairs assistance:
(i) Unless the Director of the VA facility of jurisdiction has reason to believe that the enrollment of eligible veterans and eligible persons in a specific course may exceed 85 percent of the total enrollment in a specific course, or
(ii) Until such time as the total number of veterans, eligible persons and reservists receiving assistance under 38 U.S.C. chapters 30, 31, 32, 33, 35 and 36, and 10 U.S.C. chapter 1606, who are enrolled in the educational institution offering the course, equals more than 35 percent of the total student enrollment at the educational institution (computed separately for the main campus and any branch or extension of the institution). At that time the procedures contained in paragraph (f)(2) of this section shall apply.
(2) The school must submit all calculations made under paragraph (e)(3) of this section to the Department of Veterans Affairs according to these time limits.
(i) If the school is organized on a term, quarter or semester basis, the calculations must be submitted no later than 30 days after the beginning of each regular school term (excluding summer sessions), or before the beginning date of the next term, whichever occurs first.
(ii) If a school is organized on a non-standard term basis, reports must be received by the Department of Veterans Affairs no later than 30 days after the beginning of each non-standard term.
(g) Effect of the 85-15 percent ratio on processing new enrollments. (1) The Department of Veterans Affairs will process new enrollments of eligible veterans (and servicepersons where this provision applies to them), in a course on the basis of the school's submission of the most recent computation showing that:
(i) The 85-15 percent ratio is satisfactory, or
(ii) The course is exempt under paragraph (c)(4) of this section.
(2) Except for those enrollments with a beginning date before or the same as the date the school completed the most recent computation, no benefits will be paid under 10 U.S.C. chapter 1606 or under 38 U.S.C. chapter 30, 32, 33, or 36, when that computation establishes that the course:
(i) Neither has a satisfactory 85-15 percent ratio, nor
(ii) Is exempt under paragraph (c)(4) of this section.
(3) If a school fails to submit a timely computation, no benefits will be paid for:
(i) The enrollment of a serviceperson in a course leading to a secondary school diploma or an equivalency certificate if the enrollment has beginning dates beyond the expiration of the allowable computation period, or
(ii) The enrollment of a veteran in any course to which the provisions of paragraph (a) of this section apply if the enrollment has beginning dates beyond the expiration of the allowable computation period.
(4) Enrollments with later beginning dates may be processed only after the school certifies that:
(i) The proper ratio has been reestablished for the course, or
(ii) The course is exempt from the requirement under paragraph (c)(4) of this section.
(5) When a school shows a reestablished 85-15 percent ratio, each new veteran enrollment or enrollment of a serviceperson in a course leading to a secondary school diploma or an equivalency certificate which is submitted after reestablishment must be individually computed into the ratio to ensure that the 85 percent limitation is not again immediately exceeded. The Department of Veterans Affairs will require individual computations until:
(i) The end of the term for which the ratio was reestablished, or
(ii) The end of the calendar quarter during which the ratio was reestablished if the school is not operated on a term, quarter or semester basis.
(6) Once a student is properly enrolled in a course which either meets the 85-15 percent requirement or which is exempt pursuant to paragraph (c) of this section, such a student may not have benefits for that course terminated because the 85-15 percent requirement subsequently is not met or because the course loses its exemption, as long as the student's enrollment remains continuous. A student enrolled in an institution organized on a term basis need not attend summer sessions in order to maintain continuous enrollment. An enrollment may also be considered continuous if a “break” in enrollment is wholly due to circumstances beyond the student's control such as serious illness.
(h) Waivers. Schools which desire a waiver of the provisions of paragraph (a) of this section for a course where the number of full-time equivalent supported students receiving VA education benefits equals or exceeds 85 percent of the total full-time equivalent enrollment in the course may apply for a waiver to the Director, Education Service. When applying, a school must submit sufficient information to allow the Director, Education Service, to judge the merits of the request against the criteria shown in this paragraph. This information and any other pertinent information available to VA shall be considered in relation to these criteria:
(1) Availability of comparable alternative educational facilities effectively open to veterans in the vicinity of the school requesting a waiver.
(2) General effectiveness of the school's program in providing educational and employment opportunities to the particular veteran population it serves. Factors to be considered should include, but are not limited to: percentage of veteran-students completing the entire course, graduate employment statistics, graduate salary statistics, satisfaction of Department of Education requirements regarding gainful employment (where applicable), other Department of Education metrics (such as student loan default rate), student complaints, industry endorsements, participation in and compliance with the Principles of Excellence program, established by Executive Order 13607 (where applicable), etc.
(3) Whether the educational institution's aid program appears to be consistent with or appears to undermine the 85/15 rule's tuition and fee costs market validation mechanism.
§ 21.4202   Overcharges; restrictions on enrollments.
(a)-(b) [Reserved]
(c) Restrictions; proprietary schools. Enrollment will not be approved for any veteran or eligible person under the provisions of Chapter 34 or 35 respectively, in any proprietary school of which the veteran or eligible person is an official authorized to sign certificates of enrollment or monthly certificates of attendance, an owner or an officer.