Duty Periods

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AH70

Duty Periods

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA)

adjudication regulations to clarify the status of individuals attending

the preparatory schools of the United States Air Force Academy, the

United States Military Academy, and the United States Naval Academy for

purposes of compensation and pension eligibility. This amendment is

necessary to reflect opinions of VA's General Counsel setting out the

circumstances under which preparatory school attendance will constitute

active duty or active duty for training for VA purposes.

EFFECTIVE DATE: This amendment is effective October 3, 1994, the date

of the initial General Counsel opinion upon which it is based.

FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant,

Regulations Staff (211B), Compensation and Pension Service, Veterans

Benefits Administration, 810 Vermont Avenue, NW., Washington, DC 20420,

telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION: In most instances, an individual qualifies

for VA compensation or pension by meeting the statutory definition of a

``veteran'' or by being the survivor of a ``veteran.'' 38 U.S.C. 101(2)

and 38 CFR 3.1(d) state that a ``veteran'' is a person who served in

the ``active military, naval, or air service,'' and who was discharged

or released therefrom under conditions other than dishonorable.

The phrase ``active military, naval, or air service'' is defined in

38 CFR 3.6(a) as including ``active duty'' as well as certain periods

of active- or inactive-duty training during which the individual was

disabled or died. If the individual upon whose service the claim is

based had ``active military, naval, or air service'' and was discharged

under other than dishonorable conditions, that individual qualifies as

a ``veteran.''

Under 38 U.S.C. 101(21)(D), service as a cadet at the United States

Military, Air Force, or Coast Guard Academy, or as a midshipman at the

United States Naval Academy is considered ``active duty.'' A precedent

opinion of the VA General Counsel (VAOPGCPREC 18-94) dated October 3,

1994, addressed the question of whether attendance at the United States

Air Force Academy Preparatory School constituted ``active duty.'' (Such

precedent opinions are binding in VA benefit decisions; see 38 CFR

3.101, 14.507(b), and 19.5.) The General Counsel noted that attendance

at a service academy preparatory school does not constitute service as

a cadet or midshipman at a service academy.

In VAOPGCPREC 18-94 the General Counsel held that an enlisted

servicemember who is reassigned to the United States Air Force Academy

Preparatory School without a release from active duty continues on

``active duty'' but that persons who enlisted directly from civilian

life, a reserve component, or the Air National Guard for the sole

purpose of attending the Air Force Academy Preparatory School are on

``active duty for training.'' The General Counsel found it significant

that an enlisted servicemember who is disenrolled from a preparatory

school prior to completion of the school program still has a military

obligation to complete while an individual attending a preparatory

school from the Reserves, National Guard, or civilian life is generally

discharged from the service in the event of premature disenrollment.

In VAOPGCPREC 6-95 dated February 10, 1995, the VA General Counsel

held that the analysis in VAOPGCPREC 18-94 for determining whether

service at the United States Air Force Academy Preparatory School

constitutes ``active duty'' is generally applicable to service

consisting of attendance at the United States Military Academy

Preparatory School and the United States Naval Academy Preparatory

School.

However, the opinion stated that in individual cases it would be

advisable to determine whether a student had made a commitment to

active-duty service which would be binding upon disenrollment because

such a student, even though not transferring directly from enlisted

active-duty status, would be considered to be on active duty while

attending a preparatory school. Paragraphs (b) and (c) of 38 CFR 3.6

are amended by this document to reflect the holdings in VAOPGCPREC 18-

94 and VAOPGCPREC 6-95.

In the second sentence of Sec. 3.6(a) the phrase ``any period of

active duty for training'' is substituted for ``and period of active

duty for training.'' This corrects a typographical error. No

substantive rule change is involved.

Under 5 U.S.C. 553, there is a basis for dispensing with prior

notice and comment and for dispensing with a 30-day delay of the

effective date since the final rule constitutes an interpretive rule

[[Page 57179]]

regarding 38 U.S.C. 101, paragraphs 21 (definition of active duty) and

22 (definition of active duty for training).

The Secretary certifies that this regulatory amendment will not

have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act, 5

U.S.C. 601-612. This amendment, which constitutes an interpretive rule,

will affect only individuals and will not directly affect any small

entities. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is

exempt from the initial and final regulatory flexibility analyses

requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers are

64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Health care,

Individuals with disabilities, Pensions, Veterans.

Approved: November 3, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 3 is amended

as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

1. The authority citation for part 3, subpart A continues to read

as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. In Sec. 3.6, paragraph (a) is amended by removing ``active duty,

and'' and adding in its place ``active duty, any''; paragraphs (b)(5)

and (b)(6) are redesignated as paragraphs (b)(6) and (b)(7),

respectively; paragraph (c)(5) is redesignated as paragraph (c)(6); and

new paragraphs (b)(5) and (c)(5) are added to read as follows:

Sec. 3.6 Duty periods.

* * * * *

(b) * * *

(5) Attendance at the preparatory schools of the United States Air

Force Academy, the United States Military Academy, or the United States

Naval Academy for enlisted active-duty members who are reassigned to a

preparatory school without a release from active duty, and for other

individuals who have a commitment to active duty in the Armed Forces

that would be binding upon disenrollment from the preparatory school;

* * * * *

(c) * * *

(5) Attendance at the preparatory schools of the United States Air

Force Academy, the United States Military Academy, or the United States

Naval Academy by an individual who enters the preparatory school

directly from the Reserves, National Guard or civilian life, unless the

individual has a commitment to service on active duty which would be

binding upon disenrollment from the preparatory school.

* * * * *

[FR Doc. 95-27995 Filed 11-13-95; 8:45 am]

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