Post-9/11 GI Bill

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AN10

Post-9/11 GI Bill

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is issuing this final rule to establish regulations regarding a new educational assistance program for individuals who serve on active duty after September 10, 2001. The new program, known as the Post-9/11 GI Bill, was authorized by title V of the Supplemental Appropriations Act, 2008 (Post-9/11 Veterans Educational Assistance Act of 2008). This final regulation includes the rules necessary to implement the provisions of the Post-9/11 Veterans Educational Assistance Act of 2008 that govern the Post-9/11 GI Bill.

DATES:

Effective Date:

This final rule will become effective on August 1, 2009.

FOR FURTHER INFORMATION CONTACT:

Brandye R. Terrell, Regulation Development Team Leader, Education Service, Department of Veterans Affairs (225C), 810 Vermont Avenue, NW., Washington, DC 20420. Telephone: (202) 461-9822. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

In a document published in the

Federal Register

on December 23, 2008 (73 FR 78876), VA published a proposal to establish VA regulations to implement the provisions of the Post-9/11 Veterans Educational Assistance Act of 2008 that govern the Post-9/11 GI Bill. Interested persons were invited to submit written comments on or before January 22, 2009. We received comments from 38 organizations and 8 individuals. We have made several changes based on these comments.

Eligibility

One commenter stated that the period of eligibility for retirees is not specifically addressed and noted that there is no definition of “retiree” in title 38, CFR. We did not define the term “retiree” or address retirees as a separate category in the regulation because an individual's period of eligibility is based on factors unrelated to the individual's status as a retiree. The period of eligibility for all individuals entitled to Post-9/11 GI Bill benefits is provided in § 21.9530. If the individual meets the eligibility requirements, the 15-year period of eligibility begins on the last date of discharge, without regard to the reason for separation, even if the individual was discharged prior to August 1, 2009, the effective date of the program.

We received three comments on the eligibility of members of the National Guard or Active Guard Reserve (AGR) serving on active duty under title 32, U.S.C. One commenter requested that these members be allowed to transfer Post-9/11 GI Bill benefits to their dependents. One commenter also suggested that any service under orders lasting 30 days or more that cite use of Operation Iraqi Freedom, Operation Enduring Freedom, or Operation Noble Eagle funds should be considered active duty for the purpose of the Post-9/11 GI Bill. Section 3301 of title 38, U.S.C., defines “active duty” as having the same meaning given such term in 38 U.S.C. 101(21)(A) for members of the regular components of the Armed Forces. This paragraph states that active duty means full-time duty in the Armed Forces, other than active duty for training. Active Duty is further defined in 38 U.S.C. 3301(1) to include a call or order to active duty under specific title 10 sections of the U.S. Code for members of the reserve components of the Armed Forces. Neither of the statutory definitions for active duty under section 3301(1) includes members of the National Guard or Active Guard Reserve serving under title 32, U.S.C.; therefore, we are unable to authorize eligibility for these individuals.

One commenter requested clarification on why commissioned officers of the Public Health Service (PHS) are excluded from eligibility for Post-9/11 GI Bill benefits. Another commenter requested a review of 42 U.S.C. 213(d) to determine if PHS officers qualify for the new benefit and suggested National Oceanic and Atmospheric Administration (NOAA) officers also be included as eligible. We agree that commissioned officers of PHS and NOAA are eligible for benefits under the Post-9/11 GI Bill. In a digested opinion from 1985, our General Counsel read the provisions of 42 U.S.C. 213 regarding PHS and 33 U.S.C. 857-1 and 857-3 (now in 33 U.S.C. 3002 and 3072, respectively) regarding NOAA as expanding the definition of “Armed Forces” in 38 U.S.C. 101(10) to also include PHS and NOAA for purposes of benefits administered by VA.

See

VADIGOP, 6-26-85 (8-28 Reentry in Active Service). Therefore, service as a commissioned officer of PHS or NOAA meets the “active duty in the Armed Forces” service requirement in section 3311 of title 38, U.S.C.

Transfer of Entitlement

Two commenters requested that retirees be allowed to transfer benefits to dependents. Two additional commenters wanted individuals to be allowed to transfer benefits to dependents even if they were unable to reenlist, or without their having to reenlist, if they met the minimum service requirements. While VA is responsible for administering payment of transferred benefits, the Department of Defense (DoD) is responsible for determining eligibility for transfer of entitlement to dependents. Specifically, the statute provides that the Secretary of Defense may authorize the Secretary of the Army, Secretary of the Navy, Secretary of the Air Force, and the Secretary of Homeland Security (with respect to the Coast Guard when it is not operating as a service in the Navy) to determine if individuals serving in the Armed Forces in their respective departments are eligible to transfer entitlement to dependents. As VA has no authority to determine eligibility for transfer of entitlement of educational assistance under the Post-9/11 GI Bill, individuals inquiring about eligibility for transfer of entitlement should contact DoD for information.

One commenter requested that VA clarify what happens to entitlement that was transferred under the Montgomery GI Bill (MGIB) if the transferor does not revoke the transferred entitlement before electing to receive benefits under the Post-9/11 GI Bill. Entitlement that was transferred under MGIB and not revoked prior to the transferor's election of Post-9/11 GI Bill benefits will remain available to the dependent to whom it was transferred. Dependents will remain eligible for transferred benefits under the provisions of the chapter from which benefits were transferred.

One commenter disagreed with the exclusion of transferred benefits as marital property. We made no change to this rule in the final regulation because 38 U.S.C. 3319(f)(3) prohibits the treatment of transferred entitlement as marital property.

We received one comment suggesting we specify the time limit for which dependents eligible for transferred entitlement may use their benefit. We make no change based on this comment as the period of eligibility for use of transferred benefits is listed in 38 CFR 21.9530, in paragraph (d) for spouses and in paragraph (e) for children.

One commenter recommended removing the kicker exclusion from the rate of payment for transferred benefits because there is no statutory provision limiting its payment to the dependent.

We agree that there is no statutory reason why kickers should not be paid to transferees. The Selected Reserve kicker is excluded under MGIB. In trying to be consistent, we excluded kickers from the Post-9/11 GI Bill also. While we intended to only exclude the Selected Reserve kicker, we inadvertently excluded all kickers. However, after reviewing the transfer-of-entitlement language used under MGIB and the Post-9/11 GI Bill, we find that, while the MGIB language is more restrictive and specifically pinpoints the section under which payments should be determined, the language in the Post-9/11 GI Bill is broader and simply says that individuals should receive the amount that the transferor would receive. Based on this language, we have changed the rate of payment for transferred benefits under the Post-9/11 GI Bill to include any kicker to which the transferor is entitled.

Another commenter suggested we clarify that “veteran rate” as used in 38 CFR 21.9570(k) means the dependent is eligible for the housing allowance. We do not agree that this term needs clarification. The term dependent is used to refer to both an eligible child and an eligible spouse or surviving spouse. A dependent child and surviving spouse will always receive transferred benefits in the same manner as an individual off active duty. This means that they will be eligible to receive the housing allowance if all other criteria are met. However, a dependent spouse will always receive benefits in the same manner as the transferor, thus he or she will not be eligible for the monthly housing allowance if the transferor is on active duty.

We received one comment suggesting we add reduction in force (RIF) to the list in 38 CFR 21.9570(l) of exceptions to the requirement that the transferor complete the service agreement that allowed the transferor to participate in the transferability program. We contacted DoD for clarification of what constitutes completion of a service agreement. DoD considers any individual released due to a disability or as a result of RIF to have completed his or her service agreement. Therefore, we amended the final rule to clarify that release due to a disability or as a result of RIF constitutes completion of the service agreement, and therefore does not result in loss of transferred entitlement for the transferor's dependents.

One commenter recommended allowing spouses to use their own Post-9/11 GI Bill benefits in addition to transferred benefits under the Post-9/11 GI Bill. We make no changes based on this comment since paragraph (m) of § 21.9570 states that all dependents may do this. The definition of dependent includes a spouse. Thus, spouses and children are both covered under this section. Spouses may use their own Post-9/11 GI Bill benefits and/or their transferred benefits.

Another commenter requested that the extension of entitlement provided in § 21.9635(o) be applied to a transferee if the transferor only transfers entitlement to one person. We do not agree to make this change because 38 U.S.C. 3319(d) specifically indicates that transferred entitlement may not exceed 36 months. Allowing an extension of entitlement for transferees would be a direct violation of the statute.

One commenter disagreed with the definition of “child” used in the proposed regulation. The commenter indicated that by adopting the definition of child as it is defined in § 3.57 (under the age of 18 or, if they are enrolled in school, under the age of 23), VA is defining the term narrower than required by legislation. The commenter recommended VA define child without the age requirements and, in addition, not make a distinction between a child and a foster child or stepchild.

Based on the definitions of child and spouse in the proposed regulation, DoD also expressed concern with regard to the loss of transferred entitlement for dependents who were deemed eligible for the program at the time of transfer, but who lost this eligibility based on their status at a later date. They contend that Post-9/11 GI Bill benefits belong to the veteran/servicemember and not the dependent. They base this on the provisions in 38 U.S.C. 3319(f) that allow the transferor to modify or revoke the transferred entitlement at any time within the transferor's 15-year eligibility period. DoD suggested VA apply the definitions of “spouse” and “child” effective the date of the transfer and disregard the dependent's status at the point the dependent utilizes the benefits.

We agree, in part, with these concerns and made clarifying changes in the final rule. A transferor may elect to transfer his or her entitlement to his or her child, but at the time of the designation the child must still meet the 38 U.S.C. 101(4) definition of “child,”

i.e.

, a legitimate child, a legally adopted child, a stepchild, or an illegitimate child, as those terms are explained in 38 CFR 3.57, and who is unmarried and under age 18, was permanently incapable of self-support before reaching age 18, or after attaining the age of 18 years and until completion of education or training (but not after attaining the age of 23 years) is pursuing a course of instruction at an approved educational institution. Thereafter, the child's subsequent marriage will not affect his or her entitlement. Finally, a child may continue to use entitlement so transferred until reaching age 26. If a transferor elects to transfer his or her entitlement to a spouse, a subsequent divorce will not affect the transferee's entitlement; however, the transferor retains the right to revoke or modify the transfer at any time.

Enrollment Certification

We received three comments requesting clarification on whether schools will be required to report the cost of dropped courses in order for VA to properly judge whether or not there has been an overpayment. One of the commenters asked if there will be a time limit for any refunds due to VA. We make no changes based on these comments. Schools are required to report the established charges associated with an individual's enrollment and, in the event an individual reduces the number of courses he or she is enrolled in, the established charges for the courses in which he or she remains enrolled. This process is the same process that is used in other educational assistance programs to certify enrollments and reductions of individuals training at less than one-half time or who are on active duty.

Furthermore, similar to existing procedures for other educational assistance programs, individuals will still be responsible for negotiating repayment of debts with our Debt Management Center or have money recouped from future payments. Schools that are required to return funds to VA, regardless of the reason, will send the money back electronically or send a payment to the Regional Processing Office's agent cashier.

We received two related comments regarding which charges should be reported to VA and whether VA will require certification of actual tuition and fees or estimated tuition and fees. One commenter stated that actual tuition and fees cannot be provided until an individual is invoiced and would require that schools certify each term separately. One commenter also requested clarification on whether fees should be reported regardless of pending aid, scholarships, state grants, etc. We make no changes based on these comments. The institution of higher learning must certify the eligible individual's enrollment before he or she may receive educational assistance and 38 U.S.C. 3313(h)(2) requires that VA

pay based on the actual tuition and fees charged to the student. Schools will be required to report actual tuition and fees in accordance with the statute.

One commenter requested that VA clarify the regulation to state that term-based institutions operating on a year-round basis should report on the same basis as other term-based institutions. We revised the language in paragraph (b) of § 21.9720 to clarify that institutions of higher learning organized on a year-round basis will report on the same basis as term-based institutions unless they do not offer courses on a term, quarter, or semester basis, in which case they will report enrollment for the length of the course.

Payments

One commenter indicated there currently is an approved apprenticeship program at an institution of higher learning and requested clarification on whether this program is payable under the Post-9/11 GI Bill. We cannot pay benefits for an apprenticeship or on-the-job training program at an institution of higher learning acting in the capacity of an employer. In order to be approved for Post-9/11 GI Bill benefits, individuals must be pursuing an approved program of education offered at an institution of higher learning. Section 21.4258(b)(iv), 38 CFR requires that institutions of higher learning list all approved programs of education in their catalog. If the program of education is offered by the institution of higher learning and is approved for the purposes of 38 U.S.C. chapter 30, VA will make the appropriate payment. Apprenticeship and on-the-job training programs are offered by employers and are generally not available to the entire student population. We have clarified the definition of “program of education” to state that “the curriculum or combination of courses pursued must be listed in the institution of higher learning's catalog and included in the approval notice provided by the State approving agency to VA in accordance with § 21.4258(b)(iv).”

Three commenters recommended expanding the advance payment option to include all educational assistance offered under the Post-9/11 GI Bill rather than limiting it to just the monthly housing allowance. Section 3680(d) of title 38, U.S.C., limits the amount of an advance payment to an amount equal to the first month, or fraction thereof, in which the individual is pursuing training plus the amount for the subsequent month of training. Under the Post-9/11 GI Bill, VA is required to pay the tuition and fees, books and supplies stipend, and other payments (

e.g.

, rural relocation, licensing or certification test reimbursement) in a lump sum. As a result, we are unable to apply the advance payment provisions to such lump-sum payments.

Overpayments

We received three comments asking whether individuals who withdraw as a result of being called to active duty will be required to repay benefits. One of the commenters also asked whether the school will be required to return the funds if an individual is called to active duty. We make no changes based on these comments. Individuals who withdraw as a result of being called to active duty will not have to repay tuition and fees, Yellow Ribbon Program contributions, or the book stipend. If they are in receipt of the housing allowance, it will be discontinued at the end of the month in which the withdrawal occurred. If the school processes a refund for tuition and/or fees, it should be issued to the student following the regularly prescribed standards and practices of the institution.

One commenter proposed that the institution of higher learning be responsible for making a refund to VA when the student does not register for a class certified in advance of the registration period, and for which the institution received tuition and fees on behalf of the student. We agree with this comment and have clarified in § 21.9695(b) that an overpayment of educational assistance paid to the institution of higher learning on behalf of an eligible individual constitutes a liability of the individual unless the individual never attended the term, quarter, or semester certified by the institution of higher learning. When an individual never attends a term, quarter, or semester certified by the institution of higher learning, the institution must return to VA all educational assistance received under the provisions of 38 U.S.C. chapter 33 on behalf of the individual.

Two commenters wanted to know why individuals will be held accountable for repayment of tuition and fees if the money is sent directly to the school, especially since individuals in VA's Vocational Rehabilitation and Employment Program are not required to make repayment of tuition and fees. We make no changes in the final rule based on this comment, but we are providing the following clarification concerning this issue. Section 3313(a) of title 38, U.S.C., states that the Secretary shall pay to each individual entitled to educational assistance the amounts specified in subsection (c) to meet the expenses of such individual's subsistence, tuition, fees, and other costs for pursuit of such program of education. Paragraph (g) of that section subsequently directs that payment of the tuition and fees be made directly to the institution of higher learning; however, it is clear that the benefit and the associated responsibilities belong to the individual.

Additionally, the authority to establish an overpayment against a school is limited by statute, per 38 U.S.C. 3685(b), to instances where the Secretary finds that an overpayment has been made to a veteran or eligible person as the result of willful or negligent failure to report or false certification. Therefore, unless an overpayment results from the actions or inactions described in section 3685(b), VA cannot collect from the school amounts of tuition and fees that were properly paid on behalf of the individual.

Conversely, if VA makes an erroneous or improper payment not resulting from the negligent or willful actions or inactions on the part of a school, the erroneous or improper payment may be recovered from the receiver. This situation may arise if a school certifies an individual for multiple terms but the individual does not attend all of the terms certified. Section 21.4203 of title 38, CFR provides that schools shall report without delay a change in enrollment. If VA issues a tuition and fees payment to the school on behalf of an individual for a term that the individual never attends VA will collect the full amount of the payment from the school.

One commenter suggested § 21.9695(b)(3) be revised to clarify that if an individual does not complete one or more courses, but does complete at least one course, that the individual will not have an overpayment equaling the total amount of all educational assistance paid, but rather only for the course or courses the individual did not complete. Based on this comment, we clarified this section to indicate that if a student withdraws from a course or courses, the overpayment will only be established for the course or courses from which the student withdraws, not the amount of all educational assistance for that enrollment period.

One commenter requested clarification of how an “incomplete” grade designation, for which the individual is given additional time to finish a course, will be treated and whether it will be considered an overpayment. We agree this issue should be addressed in the final rule, and have added a paragraph to

§ 21.9635(f) clarifying that if the institution of higher learning records an incomplete grade for an individual's course (or courses) and allows the individual additional time to complete the coursework, VA will not create an overpayment for those course(s) unless one of the following occurs: The individual fails to complete the course within the regularly prescribed standards of the institution or one year from the date the incomplete was assigned, whichever is earlier, or the individual is permanently assigned a nonpunitive grade.

One commenter requested that schools be required to refund money to VA that would otherwise normally be refunded to the student based on the school's refund policy. We make no changes based on this comment. Institutions of higher learning have refund policies individualized to their institutions and students would not know when or if a refund was sent to VA. Additionally, VA will determine the amount of the student's overpayment, if any, after processing the change in enrollment. The amount the school refunds to the student and the amount the student owes to VA will generally not be equal as VA will pay to the end of the month for any reduction during the drop add period or for which the student provides evidence of mitigating circumstances. To reduce confusion on how much is owed and to whom, schools should continue to refund money to students based on their regularly established policies.

Tuition and Fees

Two commenters requested clarification on why, in § 21.9640(a), the 70 percent level would apply instead of the 80 percent level if the individual met the service requirements at both levels. One of the commenters suggested removing the requirement to use the 70 percent level instead of the 80 percent level because it is not justified legislatively. We do not agree to make this change because 38 U.S.C. 3311(e) specifically provides that individuals entitled to educational assistance under paragraphs (4) and (5) of 38 U.S.C. 3311(b) will be entitled to educational assistance using the provisions of paragraph (5). Paragraph (4) establishes eligibility for individuals with at least 24 months but less than 30 months of service, including entry level and skill training. Paragraph (5) establishes eligibility for individuals with at least 18 months but less than 24 months of service, excluding entry level and skill training. If both levels of service requirements are met, the lower percentage level must be used; therefore, applying the higher percentage level would be contrary to the clear requirement of the statute.

We received several comments regarding the effectual relationship between tuition and fees payments under the Post-9/11 GI Bill and other forms of aid, such as State veterans' tuition programs. One of the commenters suggested that 1st payer/2nd payer rules be clarified so that all parties clearly understand who pays what and when. VA will pay based on the amount the student is charged, not the amount the student has remaining after State programs have contributed funds. Schools should certify the total amount of tuition and the total amount of fees that a student is charged. The amount reported to VA should not be reduced for pending or subsequent payments to be credited to the student's account from State programs, scholarships, grants, or any title IV funds (including Pell Grants). If an institution is not able to charge a veteran for tuition due to a State waiver or other State funded program, the school should not report tuition to VA. However, if the State reimburses the institution and/or veteran for tuition and fees after the individual has been billed, then the institution should report the original amount charged to the student. The amount of tuition and fees submitted to VA in these instances should not be reduced based on any additional funds received that will reduce the student's out-of-pocket expenses. One commenter also asked that we clarify whether a student can opt out of State assistance to receive educational assistance under the Post-9/11 GI Bill. There is no requirement in 38 U.S.C. chapter 33 that requires an individual to opt in or out of existing State programs in order to receive benefits under the Post-9/11 GI Bill. The statute simply states that VA may pay all or a portion of the cost of the actual tuition and fees charged the individual. Each State will need to review the laws that govern their State programs to determine if individuals may opt in or out of receiving assistance under the State funded programs.

One commenter suggested VA provide a non-exhaustive list of approved fees to clarify which fees would be payable under the Post-9/11 GI Bill and further suggested that health insurance premiums be included on the list. Another recommended that VA redefine fees to include those charged to all students (unless waived) enrolled in the same program of education as the VA benefit recipient. This commenter also recommended removing the requirement that the amount of fees that can be paid is limited to those charged to undergraduates. Finally, one commenter indicated support for the definition as stated in the proposed regulation. Based on these comments, we are amending the definition of fees in the final rule. Accordingly, “fees” will include any mandatory charges (other than tuition, room, and board) that are applied by the institution of higher learning for pursuit of an approved program of education including, but not limited to, health insurance premiums, freshman fees, graduation fees, and lab fees. The term does not include study abroad fees unless the fees are assessed for courses that are required for completion of the program of education. The statute requires VA to calculate the highest in-State amount payable for tuition and fees using undergraduate tuition and fees. However, individuals may receive payment for tuition and fees for graduate programs or other approved programs up to the amount of the highest in-State amount payable for undergraduate fees.

One commenter suggested that VA clarify that the amounts payable for established charges and the book stipend are adjusted by the individual's eligibility percentage. We make no changes based on this comment. Section 21.9640(a) indicates that the amounts payable for pursuit of an approved program of education under that section are subject to the individual's eligibility percentage as determined by his or her aggregate length of creditable active duty service after September 10, 2001.

One commenter expressed concern that the tuition and fees payments made on behalf of students attending part-time are not lowered based on the student's rate of pursuit. The commenter indicated that not reducing the maximum amount payable based on rate of pursuit will reward students for pursuing education part-time instead of full-time. We do not agree that this is an area of concern. Many schools charge students proportionately less for part-time enrollment because they base charges on a per-credit-hour rate. Furthermore, the statute does not require VA to reduce the maximum amounts payable proportionally based on rate of pursuit. It only dictates that the maximum payable be reduced based on the eligibility percentage. Nonetheless, based on several other comments regarding tuition and fees payments, we are amending the final rule to clarify that individuals will receive a tuition payment not to exceed the amount determined by multiplying the number of certified credit hours for the term, quarter, or semester by the

highest in-State amount charged per credit hour. Individuals will receive the amount for fees certified for the term, quarter, or semester, not to exceed the highest amount of fees that could be charged in any term.

One commenter suggested allowing schools to certify the actual amount of tuition and fees charged minus any applicable military tuition assistance (TA) without requiring additional paperwork from the individual student. We make no changes based on this comment. Currently, VA requires that the student submit the TA form to VA prior to the issuance of a (top-up) payment. This form is necessary to determine the appropriate amount of tuition and fees VA will pay. Schools may submit the top-up form for the individual; however, VA should have the form on file and use it to make the determination of how much payment is due. Requiring certifying officials to make determinations on the amount of top-up payment an individual is due would add an additional step in the process that already exists and create an unnecessary burden on the schools. The TA form already provides VA with all of the information needed to determine the appropriate payment.

We received one comment requesting that the maximum rate for tuition and fees fluctuate during the academic year whenever the State makes changes in the tuition and/or fees rates after the academic year begins. We make no changes based on this comment other than clarifying that the maximum amounts payable for tuition and fees, as published, will be effective for each term, quarter, or semester that begins during the academic year. The State approving agency of jurisdiction will determine each State's highest in-State amounts payable for tuition per credit hour and for fees each term during an academic year. VA will publish the maximum amounts payable for tuition and fees on the GI Bill Web site at

http://www.gibill.va.gov

and in the

Federal Register

by August 1st of each year to allow institutions of higher learning and students to take this information into consideration when making relevant decisions. If VA were to change these figures each time an institution of higher learning or a State changed the amount of tuition or fees it charged, it could adversely affect the students if the amount was decreased and could adversely affect institutions of higher learning participating in the Yellow Ribbon Program if the amount increased.

Book Stipend

One commenter recommended VA issue promissory notes for the book stipends. We make no changes based on this comment. Book stipends are paid directly to the individual. VA sees no benefit in issuing a promissory note for books instead of issuing the book stipend payment directly to the individual.

Several commenters expressed concern about the method of payment for the book stipend. Four of these commenters asked how the summer term or mini-terms would impact the payment, especially since many students do not attend the summer sessions. Two commenters suggested that VA redefine academic year so that individuals could receive the full book stipend and two commenters requested the method of calculating the book stipend be clarified. Based on these comments, we clarified the method VA will use to determine how the book stipend payment is calculated. A book stipend of up to $1,000 is available to veterans (and transferees). Section 3313(c)(1)(B)(ii) of title 38, U.S.C., provides a formula for determining the amount of the book stipend payable each academic year. The formula instructs VA to pay a portion of the book stipend equal to the amount determined by multiplying $1,000 by the fraction of the academic year that the term, quarter, or semester represents. We choose to divide the academic year by 24 credit hours (the minimum number of credit hours generally considered to be full-time for an undergraduate in an academic year). Using this calculation, an individual eligible for 100 percent of the amounts payable under the Post-9/11 GI Bill who is pursuing training at more than one-half-time will receive $41.67 for each credit hour certified up to 24 credit hours in an academic year.

Monthly Housing Allowance

Several comments were received agreeing with VA's interpretation of the statute with regard to how distance learning courses affect eligibility for the monthly housing allowance (MHA); however, many other commenters expressed concern that the MHA is not available for additional categories of individuals. While one commenter supported prohibiting individuals from receiving the MHA if they are pursuing programs of education entirely by distance learning because of the potential for abuse, six commenters requested that the MHA be available to individuals pursuing a program of education entirely by distance learning. One of the commenters in favor of the MHA for distance learners also recommended that it be paid to these students based on the ZIP code of the student's address instead of the school's ZIP code as is done for students taking in-residence courses. Other commenters requested clarification on how partial pursuit of distance learning impacts the receipt of the MHA. Section 3313(c) of title 38, U.S.C., prohibits an individual from receiving the MHA if the individual is pursuing a program of education offered by distance learning. While we have interpreted this as broadly as possible to include individuals taking even one course in-residence as eligible to receive the MHA (if all other requirements are met), VA would be in violation of the statute if we allowed individuals pursuing a program of education entirely by distance learning to receive the MHA. Additionally, another commenter requested that VA define a qualifier for “a single resident course.” The commenter indicated that distance learning institutions may begin creating one-credit courses or one-half credit courses just to meet the residency requirement. It was suggested that VA set a minimum unit or percentage of courses that must be pursued in residence in order for individuals to qualify for the MHA. While VA notes the concern of the commenter, we disagree that institutions will create frivolous courses solely for the purpose of qualifying their students for the MHA. Further, many of the individuals enrolled in distance learning courses are unable to attend school in the traditional classroom setting due to other life circumstances. However, VA may only pay educational assistance under the Post-9/11 GI Bill for an approved program of education. Any courses pursued must be necessary for the attainment of the individual's identified objective. If the course has not been approved for pursuit of an approved program of education by the State approving agency or the course is not required for an individual's objective, VA will not be able to provide educational assistance for such course or include any credit for such course when determining eligibility for the MHA.

One commenter recommended allowing veterans to receive the MHA when training at more than one-half time but less than three-quarter time. We are retaining the wording contained in the proposed regulation that will permit individuals who are training at greater than one-half time to receive the MHA if all other criteria are met. Any

individual who is not on active duty, who is enrolled in at least one in-residence course, and who is pursuing a program of education with a rate of pursuit greater than 50 percent, will receive the housing allowance.

Two commenters recommended providing a monthly housing allowance to individuals attending foreign schools using the DoD's overseas housing allowance (OHA) rates for the locale where the individual is residing, rather than the average of the monthly housing allowances payable in the United States. One commenter also requested that we clarify how the “average” will be determined. We considered these comments, but make no substantive changes in the final rule other than to clarify that we will use the unweighted arithmetic mean to determine the average monthly housing allowance payable. DoD adjusts the basic allowance for housing (BAH) rates effective the first of January each year. The OHA rates are reviewed, and are subject to change, every 6 months. To maintain consistency in applying the MHA rate changes, VA will continue to use the national average to determine the maximum MHA payable for students attending foreign institutions.

We received one comment suggesting VA use the rate of pursuit to adjust the amount of MHA an individual will receive. The statute does not require that we limit the housing allowance based on rate of pursuit. We are only directed to limit it based on the individual's eligibility percentage level. We have decided not to unnecessarily limit the housing allowance and will pay individuals according to the direction provided in 38 U.S.C. 3313(c).

One commenter recommended the determination of eligibility for the MHA be established annually based on the individual's program rather than basing it on courses taken in a single term. We make no changes based on this comment. It would be extremely difficult for VA to determine the amount of MHA to pay on an annual basis. To do so would require that every school certify every student for all terms during the academic year. All institutions do not require students to register for every term (Fall, Winter, Spring, Summer) at the start of the school year. Having such a requirement would require students to register and schools to report actual tuition and fees for an entire year. Many schools cannot report actual tuition and fees until registration has ended. Determining receipt of MHA annually would burden the schools to make major changes in their registration and certification processes.

Kickers

We received four comments regarding payment of Post-9/11 GI Bill kickers. One commenter felt strongly that the Post-9/11 GI Bill kicker payments should not be denied to active-duty members, students whose rate of pursuit is one-half time or less, and students pursuing a program of education entirely by distance learning. One commenter requested an explanation as to how the MHA and the kicker are related. Two commenters requested that the final rule permit the kicker to be paid even if the individual is not entitled to receive the MHA. One of these commenters suggested increasing a “zero” dollar MHA payment by the amount of the Post-9/11 GI Bill kicker and the other commenter suggested paying the Post-9/11 GI Bill kicker in a lump sum payment in the same manner as the MGIB and Selected Reserve kickers are paid. We make no changes based on these comments. Section 3316(a)(1) of title 38, U.S.C., provides that DoD kickers will increase the monthly amount otherwise payable under 38 U.S.C. 3313(c)(1)(B). Section 3313(c)(1)(B) of title 38, U.S.C., is the section that authorizes the monthly housing allowance. Section 3313(a) of that title specifically indicates that the amounts specified in subsection (c) will be paid to individuals entitled to educational assistance under the Post-9/11 GI Bill who are pursuing an approved program of education, other than a program discussed in subsections (e) and (f). Subsection (e) details assistance payable for individuals on active duty, and subsection (f) details assistance payable for individuals pursuing training at one-half time or less. Neither subsection (e) nor (f) references nor authorizes a monthly housing allowance. VA is unable to increase the amount of an assistance payment that the individual is not eligible to receive. Additionally, section 3313(c)(1)(B)(i) specifically excludes the housing allowance for individuals pursuing a program of education offered entirely by distance learning. As a result of these statutory provisions, VA is unable to make Post-9/11 GI Bill kicker payments for a term, quarter, or semester in which an individual is on active duty, for an individual whose rate of pursuit is one-half time or less, or for an individual who is pursuing a program of education entirely by distance learning.

Another commenter inquired whether students will be required to fill out additional paperwork to receive MGIB kicker payments while receiving benefits under the Post-9/11 GI Bill. We make no change based on this comment because no additional paperwork is required. DoD will continue to notify VA of MGIB kicker eligibility. If an individual is eligible, VA will process the MGIB kicker payment without any additional paperwork from the individual.

Chapter 30 Refunds

One commenter requested clarification on how refunds of MGIB contributions will be handled, and asked if the refund will be automatic or if the individual will have to complete a form to request the refund. Another commenter asked when an individual will actually receive the refund. A third commenter recommended that a refund of the MGIB contributions be made even if the individual is not in receipt of the monthly housing allowance. We make no changes based on these comments. If the individual is in receipt of the housing allowance, VA will automatically refund the appropriate amount of the MGIB contributions when the individual exhausts his or her entitlement under the Post-9/11 GI Bill. Section 5003(c)(6) of Public Law 110-252 (122 Stat. 2377-2378) states that an individual may receive a refund of the basic contributions paid toward MGIB as an increase to the last monthly stipend payable to the individual under 38 U.S.C. 3313(c)(1)(B),

i.e.

, the monthly housing allowance. VA has no authority to ignore the statute and pay the refund when an individual is not eligible to receive the monthly housing allowance.

Two commenters addressed the additional $600 contribution (buy-up) that can be made towards increased educational assistance under MGIB. One commenter wanted to know if these contributions will also be refunded. The other commenter requested the final rule clearly state that the $600 is not refundable, if that is the case. Since the statute does not authorize a refund of the $600 contribution, we changed the wording in the final rule to clearly reflect that these contributions cannot be refunded.

Tutorial Assistance

One commenter requested clarification regarding whether an individual who received tutorial assistance under MGIB could also receive up to $1,200 for tutorial assistance under the Post-9/11 GI Bill. We make no changes based on this comment. Individuals who received tutorial assistance under MGIB may receive up to $1,200 for tutorial assistance under the Post-9/11 GI Bill. The $1,200 payable for tutorial assistance is the maximum amount that

can be paid for such assistance under each program.

Another commenter recommended removing the requirement that the individual be pursuing a program of education on a one-half time or more basis in order to be eligible for receipt of tutorial assistance. We make no changes based on this comment because the requirement is statutory. Section 3314(b)(1) of title 38, U.S.C., incorporates the provisions of 38 U.S.C. 3492, which requires that individuals be pursuing training at one-half time or more to receive tutorial assistance.

We received one comment indicating that there should not be a requirement that a student be failing a course before tutorial assistance can be authorized. We make no changes based on this comment. Section 3314(b)(2) of title 38, U.S.C., requires that the professor or teacher certify that tutorial assistance is essential to correct a deficiency of the student in a course that is required for satisfactory pursuit of the student's program of education. While this requirement is statutory, it should not be construed to mean tutorial assistance is only available if the individual is already failing the course. If the professor or teacher identifies that the individual has a justifiable need for tutorial assistance or the individual will not be able to continue pursuing his or her approved program of education, either in that course or as a prerequisite for other required courses, then VA would consider tutorial assistance to be warranted.

Yellow Ribbon Program

The proposed regulation provided that institutions of higher learning agree to the following to participate in the Yellow Ribbon Program—

• Provide contributions to eligible individuals who apply for such program at that institution (in a manner prescribed by the institution) on a first-come-first-served basis, regardless of the rate at which the individual is pursuing training (

i.e.

, full-time versus less than full-time), in any given academic year;

• Make contributions toward the program on behalf of the individual in the form of a waiver;

• State the maximum number of individuals for whom contributions will be made in any given academic year;

• Waive the same percentage of unmet established charges for all eligible individuals in any given academic year; and

• Commit to provide contributions for eligible individuals for the entire academic year specified in the agreement.

Several commenters requested the ability to set different contribution levels for one or more subelements (

e.g.

, School of Business, School of Liberal Arts) of the institution of higher learning. Another commenter requested the ability to set the contribution level by student status (

e.g.

, undergraduate, graduate, doctoral). The commenters noted that the subelements within the institution of higher learning have their own course schedule, tuition and fee structure, funding, and administrative requirements. Additionally, it was noted that tuition and fees for graduate students are generally higher than that of undergraduate students.

Five commenters requested that institutions of higher learning have the ability to set the maximum amount contributed in dollar amounts. The commenters noted that it would be easier for institutions of higher learning to budget for the program if the institutions had the ability to set a maximum dollar amount per student. They stated that using a percentage would require institutions to be more conservative in contributions.

We received several comments regarding the requirement that schools provide contributions in the form of a waiver. Some commenters requested that the term “waiver” be defined while other commenters requested that the “waiver” requirement be removed altogether. The commenters noted that some schools do not “waive” tuition and fees as a matter of policy. Other commenters asked if fee remission or a tuition discount qualified as a waiver.

We also received comments regarding continuous eligibility under the Yellow Ribbon Program. VA's Web site stated that institutions of higher learning must agree to continue Yellow Ribbon Program contributions for participating students as long as the institution continues to participate in the program and the student remains in good academic standing in accordance with the regularly prescribed standards of the institution. One commenter noted that it would be difficult for institutions to commit to provide contributions in subsequent years due to the novelty of the program, while two commenters suggested that VA state that contributions will continue throughout all subsequent years of continuous enrollment.

We agree, in general, with the above comments and, based on those comments, have substantially changed the requirements for participation in the Yellow Ribbon Program. VA has amended the Yellow Ribbon Program provisions to allow institutions of higher learning to set contribution levels by student status or subelement, state the maximum dollar amount that may be provided to each participant during the academic year, and provide contributions by direct grant, scholarship, or otherwise. We also clarified that institutions of higher learning must agree to provide Yellow Ribbon Program contributions to participating students as long as the institution participates in the program and the student remains in good academic standing in accordance with the regularly prescribed standards of the institution, and to provide the maximum amount of contributions payable for a participating individual each term he or she is enrolled as long as the amount paid will not exceed the maximum dollar amount payable for the academic year as specified in the agreement.

We received three comments requesting the ability to amend agreements during the academic year to increase the maximum number of students eligible to participate in the program, and we received one comment requesting a formal procedure to amend the agreement and the ability to negotiate the terms of the agreement prior to the beginning of the academic year. VA will continue to require that the initial agreement be binding for the entire academic year. While it is commendable that institutions of higher learning want to provide Yellow Ribbon Program contributions for additional individuals if money is available, the institutions are only required to report a maximum. The maximum number of participants listed in the agreement could be set high enough to cover all individuals that may apply. Additionally, VA will draft an agreement in accordance with statute that will be used in the administration of the Yellow Ribbon Program. For equality and consistency, VA chooses to reject the idea of allowing schools to individually negotiate the terms of the agreement. Having a standard agreement for all participating institutions will allow potential Yellow Ribbon Program participants to easily compare the program at different institutions.

We also received three comments expressing opposition to the first-come-first-served rule. Specifically, two commenters noted that requiring schools to provide contributions based on a first-come-first-served basis does not allow the institution to determine who is selected to participate and one commenter noted that several institutions offer financial aid on a need-basis only. VA included the first-come-first-served rule to ensure that there was a fair method of determining

who received Yellow Ribbon Program contributions at each participating institution. While VA notes that many schools provide financial aid on a need-basis only, the Yellow Ribbon Program is not a need-based program and should be available to any individual (and/or dependent of the individual) who has met the requirements to qualify for the program.

Elections

The proposed regulations stated that individuals eligible for educational assistance under 38 U.S.C. chapter 30 or 10 U.S.C. chapter 106a, 1606, or 1607 and who have met the service requirements to qualify for the Post-9/11 GI Bill must make an irrevocable election to receive educational assistance under the Post-9/11 GI Bill in lieu of one of the above-mentioned programs. One commenter noted that it is not fair for students to make an irrevocable election for a new benefit without access to complete and accurate information because it will permanently affect the course of their education. Another commenter suggested that VA allow individuals at least one opportunity to change their mind after making the irrevocable election or provide benefits counseling. Section 5003(c)(8) of Public Law 110-252 (122 Stat. 2375-2378) states that elections to receive educational assistance under the Post-9/11 GI Bill in lieu of other specific educational assistance programs are irrevocable. Accordingly, VA is unable to regulate exceptions to the provision. However, individuals may call VA's customer service number for assistance in making an informed decision before making an election. Additionally, VA offers vocational and educational counseling to eligible individuals upon request.

We also received comments requesting clarification on how the irrevocable eligibility elections would be made. VA is amending proposed § 21.9520(c) to specify that elections may be made by properly completing VA Form 22-1990, submitting a Post-9/11 GI Bill transfer-of-entitlement designation to DoD, or by submitting a written statement that includes identification information, the benefit being relinquished (if applicable), the effective date of the election, and a statement acknowledging that the individual understands that the election is irrevocable.

Three commenters requested that VA amend proposed § 21.9635(w) to clarify that an election to receive benefits under an existing educational assistance program on or after August 1, 2009, does not negate the opportunity to elect or use the Post-9/11 GI Bill at a later date. As proposed this provision stated that if an individual was eligible under more than one program and the individual elected to receive benefits under a previously existing program that VA would terminate assistance under the Post-9/11 GI Bill effective the date of the election. The elections referred to in § 21.9635(w) are not irrevocable eligibility elections. Individuals who are eligible for the Post-9/11 GI Bill and another educational assistance program at the same time may specify under which program they wish to receive payment. VA is amending the language of the section to clarify that individuals who are in receipt of benefits under the Post-9/11 GI Bill who choose to receive benefits under another program will receive benefits under such program effective the first day of the enrollment period during which the individual requested to receive benefits under the other program.

Academic Year

Five commenters suggested that VA amend the dates of the academic year to coincide with the Department of Education's award year that runs from July 1st of each calendar year through June 30th of the subsequent calendar year. VA set the beginning date of each academic year of August 1st to coincide with the effective date of the Post-9/11 GI Bill benefit for clarity and ease of administration. In determining the maximum amounts payable during each academic year, VA will obtain the highest tuition per credit hour and the highest fees that can be charged an undergraduate student at a public institution in each State from the State approving agency (SAA) of jurisdiction. Based on feedback from several SAAs, many institutions of higher learning do not set the rates for tuition and fees until June or July of each year. Moving the beginning date of the academic year to July would not provide VA adequate time to update systems, post the new maximums on the Web site, or timely process claims with the newly established maximums in July.

Rate of Pursuit

The proposed regulation states that the rate of pursuit will be the percentage determined by dividing the number of course hours an individual is enrolled in by the number of course hours considered to be full-time at the institution of higher learning. Additionally, in proposed § 21.9750, VA defined full-time pursuit to equal 14 credit hours unless the institution of higher learning certifies that all undergraduate students enrolled for 13 credit hours, or for 12 credit hours, are charged full-time tuition and are considered full-time for other administrative purposes. We received comments requesting that VA define full-time enrollment as a minimum of 12 credit hours. VA is unable to consider a minimum of 12 credit hours as full-time training for all institutions. Section 3688(a)(4) of title 38, U.S.C., defines “full-time” as a minimum of 14 hours unless the institution certifies that all undergraduate students enrolled for at least 12, but less than 14, hours are considered full-time for other administrative purposes.

One commenter suggested that VA always consider traumatic brain injury (TBI) veterans to be training at full-time (a rate of pursuit of 100%) even when the training time (or rate of pursuit) does not equal full-time. The commenter noted that TBI veterans are sometimes unable to pursue a full course load and should not be penalized due to their disability. Unfortunately, there are no provisions in the statute that will allow VA to pay a different rate to a specific class of veterans.

Another commenter requested that VA pay educational assistance for courses that are not part of an individual's program of education. Section 3452 of title 38, U.S.C, defines program of education to include any curriculum or combination of unit courses or subjects pursued at an educational institution that is generally accepted as necessary to fulfill requirements for the attainment of a predetermined and identified educational, professional, or vocational objective. VA will pay for refresher, remedial, and deficiency courses that are required for the attainment of an objective even though those courses will not be credited towards the objective. However, VA is unable to pay for courses that are not required for pursuit of the individual's identified objective.

Mitigating Circumstances

We received comments requesting clarification of when mitigating circumstances will be considered to exist and which mitigating circumstances will be accepted by VA. One commenter asked VA to include mental illness in the listing of acceptable mitigating circumstances. In this final rule, VA added a definition for mitigating circumstances that provides examples of situations that VA will consider acceptable. Additionally, we modified § 21.9635 to clarify that mitigating circumstances will always be considered to exist for the first reduction or withdrawal of less than seven hours. We also received a

comment requesting that we expand the consideration of existing mitigating circumstances to more than the first instance of reduction or withdrawal and increase the number of hours in the first instance of withdrawal from six credit hours to eight credit hours for which mitigating circumstances will automatically be considered to exist. Section 3680(a)(1) of title 38, U.S.C., limits the automatic consideration of existing mitigating circumstances to the first reduction or withdrawal of less than seven hours. The statute does not provide VA the authority to increase the number of times mitigating circumstances will be considered to exist or the number of hours for which mitigating circumstances will automatically be considered to exist. Nevertheless, there is no statutory limit on the number of times that VA may consider evidence of mitigating circumstances submitted by the eligible individual. Any time an individual reduces or withdraws from training after the drop-add period, or receives a non-punitive grade (regardless of the number of credit hours reduced or withdrawn), he or she may submit evidence of mitigating circumstances to VA for review. If the mitigating circumstances are acceptable, VA will pay educational assistance through the end of the month of the reduction or through the last date of attendance for withdrawals.

Appeals

Two commenters requested that we clarify the appeals process for eligible individuals in receipt of educational assistance under the Post-9/11 GI Bill. Specifically, one commenter requested that VA provide a formal process for appealing the denial of the rural relocation benefit. Decisions regarding eligibility and entitlement to educational assistance under the Post-9/11 GI Bill are subject to the provisions of 38 U.S.C. chapters 71 and 72. Specifically, individuals may appeal a decision regarding eligibility or entitlement to educational assistance under the Post-9/11 GI Bill to the Board of Veterans' Appeals in accordance with the provisions of 38 CFR Part 20. To clarify this, VA is adding new § 21.1034 to notify claimants of their appeal rights regarding decisions of eligibility and entitlement to educational assistance administered by VA. Another commenter requested that VA provide a formal process for appealing a decision of eligibility to increased educational assistance (“kicker”). VA notes in newly added § 21.1034 that eligibility for educational assistance under 10 U.S.C. 510 or 10 U.S.C. chapter 106a, 1606, or 1607, and supplemental or increased assistance under 10 U.S.C. 16131(i), 38 U.S.C. 3015(d), 3021, and 3316, may not be appealed to VA, because the decision of eligibility for educational assistance and supplemental or increased educational assistance (“kicker”) under those sections rests solely with the DoD. Accordingly, VA will direct claimants appealing eligibility to supplemental or increased educational assistance (“kicker”) under the Post-9/11 GI Bill to the DoD.

General Comments

One commenter requested that VA explain why a certifying official who is eligible for the Post-9/11 GI Bill will be barred from receiving benefits at the school for which he or she is authorized to submit enrollments. VA included this language in the proposed regulation to help reduce the possibility of receiving fraudulent enrollment certifications. However, after further review, VA has determined that certifying officials eligible for receipt of benefits under the Post-9/11 GI Bill will be eligible to receive benefits for training pursued at the institution of higher learning for which he or she is authorized to sign enrollment certifications. However, certifying officials will be prohibited from submitting their own enrollment certification to VA.

Another commenter asked VA to consider exempting programs specifically provided for veterans from the 85-15 rule. Section 3680A of title 38, U.S.C., instructs VA to disapprove enrollment in certain courses, including those courses where more than 85 percent of the students are receiving educational assistance under programs administered by VA. However, that section provides an exception for courses offered at institutions of higher learning where less than 35 percent of the students on campus are receiving educational assistance under a program administered by VA.

We received a comment regarding the method in which students will certify their enrollment as stated in proposed § 21.9730. Due to system limitations, individuals will not be able to certify attendance to VA on a monthly basis, similar to individuals in receipt of benefits under 38 U.S.C. chapter 30. As a result, we removed proposed § 21.9730 and all references to that section from the final rule. However, the inability to certify attendance monthly does not relieve the individual of the responsibility of notifying VA of a change in enrollment in accordance with § 21.9735.

We received a comment requesting that beneficiaries under the Post-9/11 GI Bill also be provided with five months of free entitlement for remedial classes, noting that beneficiaries under 38 U.S.C. chapter 35 are not charged entitlement for the first 5 months of pursuit of remedial training. Chapter 33 of title 38, U.S.C., does not include a provision that would allow VA to provide five months of remedial training with no entitlement charge as is available for chapter 35 beneficiaries under 38 U.S.C. 3533 who meet the requirements of 38 U.S.C. 3491(a). However, the statute does provide that individuals may receive reimbursement for one licensing or certification test, tutorial assistance, and the rural relocation benefit with no charge to entitlement.

One commenter requested that VA allow individuals to pursue multiple objectives. The term “program of education” is defined in 38 U.S.C. 3452(b) for the purposes of chapter 36. Section 3323(a) of title 38, U.S.C., directs VA to the administrative provisions listed in 38 U.S.C. 3034(a) that further direct us to specific provisions of 38 U.S.C. chapter 36. Based on the statutory definition of “program of education” VA may approve the pursuit of multiple objectives as long as they lead to a single career field. Institutions of higher learning may request approval of dual degrees with the State approving agency of jurisdiction if they can show that the objectives are complementary and will lead to a single career field.

Two commenters requested that VA publish the State maximums prior to August 1st of each calendar year. Due to the novelty of the program, we are unable to predict how far ahead of the academic year we will have access to the State maximums. Based on recently received information from several State approving agencies, many public institutions do not set their tuition and fees until June or July of each year. We published the State maximums for the 2008-2009 academic year on our Web site in February. We will publish the State maximums for upcoming academic years as early as possible, but not later than August 1st of each calendar year.

In proposed § 21.9625(h), VA indicated that individuals who qualify for an increase in the percentage of the maximum amount payable based on length of active duty service during a certified enrollment period would receive payment based on such increase the first day of the term, quarter, or semester during which he or she was enrolled following the date the individual became entitled to such increase. A commenter requested that VA consider allowing individuals who are not enrolled in quarter or semester

schools to receive an increased payment within 4 months of the date the individual became entitled to the increase. VA will continue to increase percentages effective the date of the award or the first day of the certified enrollment period during which the individual is enrolled following the date the individual became entitled to such increase. Payments for tuition, fees, and, if applicable, the Yellow Ribbon Program are issued as lump sums at the beginning of the certified enrollment period. Those payments are issued for the entire enrollment period certified to VA. Increasing payments mid-term could adversely affect schools participating in the Yellow Ribbon Program. If VA readjusts the individual's claim to pay additional assistance, the amount of Yellow Ribbon Program contributions that the school could legally provide may be reduced. In these situations, the school would be required to refund money back to VA. For consistency among all schools, VA chooses to continue authorizing payment of educational assistance at an increased percentage effective the first date of the award or the first day of the certified enrollment period following the effective date of the increased percentage.

One commenter asked VA to clarify how entitlement would be charged for an individual who was called to active duty for a short period of time. Section 21.9560(d)(4) of title 38, CFR, states that entitlement will not be charged to individuals who are called or ordered to active duty or a new assignment and who do not receive credit or lose training time for any portion of the enrollment period. If the institution of higher learning grants the individual a leave of absence and the student returns and completes the courses following the leave of absence with no loss of credit or training time, VA would not reduce or alter the training time.

Another commenter requested that VA reconsider applying the administrative provisions (of chapter 36) for existing educational assistance programs to the Post-9/11 GI Bill. Section 3323(a) of title 38, U.S.C., directs VA to apply the provisions listed in 38 U.S.C. 3034(a) in the administration of the Post-9/11 GI Bill. Section 3034(a) requires that VA use existing provisions of 38 U.S.C. chapters 34 and 36. The use of the existing structure is mandated by statute and can not be changed by regulation.

We received a comment requesting that we create a regulatory pilot program for educational assistance that will provide less oversight for institutions with graduation-rate track records in the top half of the institutions in the country. The commenter noted that the current provisions in place are necessary to protect veterans, but added that the provisions are cumbersome and unnecessary for successful institutions. The commenter specifically suggested that VA create a second set of less obtrusive rules for specific institutions. Chapter 36 of title 38, U.S.C., directs VA to work cooperatively with State approving agencies to approve programs of education for educational assistance. As a result, VA can not remove statutory oversight requirements by regulation.

A commenter suggested that VA clarify whether the conversion rate for foreign currency will be based on a rate determined at an exchange where currencies are traded or at a commercial bank. VA amended the final rule to clarify that the foreign exchange rates effective July 1st of each calendar year as published by the Federal Reserve will be used to convert foreign currency for enrollments certified for the following academic year (August 1st through July 31st).

Additional Changes

We received several comments requesting technical changes to increase the clarity and readability of the regulatory text. VA appreciates the comments and incorporated several of the suggested changes in the final rule. In addition to the numerous non-substantive technical changes that were made, VA is also amending the final rule to clarify that individuals making an irrevocable eligibility election to receive benefits under the Post-9/11 GI Bill may receive a retroactive payment of educational assistance under the program for training pursued not earlier than one year prior to the date the election request was received. However, the retroactive payment can never begin prior to August 1, 2009, or the date the individual qualified for educational assistance under the program. We are also revising the formula for determining the maximum amount of tuition and fees that can be paid for individuals pursuing training at a foreign institution each year based on the current in-State maximums rather than the in-State maximums for the previous academic year. Additionally, we are revising § 21.9750 to include the formulas that will be used to assess courses at institutions of higher learning that do not use credit hours.

Other Comments

VA received several comments suggesting support for, or proposal of, legislative changes to certain provisions of the Post-9/11 GI Bill. Our primary focus is on ensuring that all requirements are met and all systems are in place for issuing payments on August 1, 2009; therefore, at this time, VA cannot support any legislative changes that would interfere with our ability to achieve this objective. We will take each of these suggestions submitted during the comment period into consideration when developing future legislative proposals. We also received numerous comments regarding the implementation of the program itself. Some commenters asked when institutions would be able to certify enrollments, when institutions would receive funds, how payments would be delivered, when and how students will be notified of application procedures, and if schools will have access to an individual's certificate of eligibility. We also received comments expressing concern regarding how often enrollment information will be reported and what additional information will be required. VA is in the process of developing the procedures necessary to implement the Post-9/11 GI Bill in accordance with statutory and regulatory provisions. We will continue to update our Web site at

http://www.gibill.va.gov

as information becomes available regarding the procedures that will be used to administer the program. VA appreciates the eagerness of the institutions to assist VA in providing our nation's veterans with this well-deserved benefit. We also appreciate the support and patience of each of our stakeholders during this process.

Benefits Costs

The benefit costs for implementing this final rule are slightly higher than the cost of implementing the proposed rule based on the opinion of our General Counsel that members of the PHS and NOAA are eligible for educational assistance under the Post-9/11 GI Bill. We estimate that the addition of PHS and NOAA members will result in an additional 332 trainees per year at the cost of $2.1 million for FY 2009 and nearly $56.5 million over 10 years.

Paperwork Reduction Act

This final rule contains provisions that constitute collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (“Act”). In the preamble of the proposed rule, we identified 5 existing information collections that would be used in the administration of the Post-9/11 GI Bill. VA subsequently determined that the “Student Verification of Enrollment” (OMB control number 2900-0465) will not be necessary for the administration of the

program. VA also identified additional existing information collections that are necessary for the administration of the program. VA will use these existing information collections with the following Office of Management and Budget (OMB) control numbers in the administration of the Post-9/11 GI Bill:

• 2900-0154—Application for VA Education Benefits

• 2900-0171—Tutorial Assistance

• 2900-0576—Correspondence Affirmation

• 2900-0657—Conflicting Interests Certification for Proprietary Schools

• 2900-0073—VA Enrollment Certification

• 2900-0074—Request for Change of Program or Place of Training

• 2900-0156—Notice of Change in Student Status

• 2900-0209—Work-Study

• 2900-0353—Certificate of Lessons Completed

• 2900-0695—Application for Reimbursement of Licensing or Certification Test Fees

Additionally, VA determined that this rule will require a new information collection to implement the provisions of 38 U.S.C. 3319 regarding the Yellow Ribbon Program. Section 3319 of title 38, U.S.C., and 38 CFR 21.9700 require VA to enter into an agreement with an institution of higher learning that wishes to participate in the Yellow Ribbon Program. The institution of higher learning must report the means by which contributions are made, the maximum amount of contributions that will be provided to any individual during the academic year, and the maximum number of individuals for which the institution of higher learning will provide contributions during the academic year. On November 3, 2008, VA notified the public that an emergency request for approval was submitted to OMB for collection of information under the Yellow Ribbon Program. VA did not receive any comments regarding the information collection during the comment period. OMB approved the use of the Yellow Ribbon Program Agreement on January 8, 2009, under control number 2900-0718.

In the preamble of the proposed rule, we also stated that the provisions in 38 CFR 21.9680(c) requiring individuals to submit a request for the rural relocation benefit in writing does not constitute a collection of information under the Act because VA anticipates that information will be collected from fewer than 10 persons annually.

OMB assigns a control number for each collection of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Executive Order 12866 and Congressional Review Act

This is an economically significant regulatory action under Executive Order 12866 and constitutes a major rule under the Congressional Review Act.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 12866 classifies a “significant regulatory action” requiring review by OMB as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of entitlement recipients; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

VA has examined the economic, interagency, budgetary, legal, and policy implications of this final rule and has concluded that it is a significant regulatory action under Executive Order 12866 because it is likely to result in a rule that may have an annual effect on the economy of $100 million or more and may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This final rule is also a major rule under the Congressional Review Act because it is likely to result in an annual effect on the economy of $100 million or more.

VA has attempted to follow OMB circular A-4 to the extent feasible in this analysis. The circular first calls for a discussion of the need for the regulation. The Post-9/11 GI Bill was established to provide educational assistance to members of the Armed Forces who serve on active duty after September 10, 2001. The preamble above discusses the need for the regulation in more detail.

The impact of this regulation is primarily to the federal budget. Eligible individuals may receive an educational assistance allowance for established charges not to exceed the highest amount charged full-time in-State undergraduate students by the most expensive public institution in the State where the student is enrolled (or the national average of the most expensive in-State public institutions for individuals training at a foreign institution not associated with an institution located inside the United States), a monthly housing allowance up to the monthly amount payable under section 403 of title 37, U.S.C., for a member with dependents in pay grade E-5 residing in the military housing area that encompasses all or the majority portion of the ZIP code area in which the institution is located, and a book stipend of up to $1,000 each academic year. Individuals may also qualify for a work-study allowance, tutorial assistance, reimbursement of a licensing or certification test, and a rural relocation benefit. Individuals eligible for 100 percent of the benefit may also receive additional funds under the Yellow Ribbon Program to cover established charges not otherwise covered under chapter 33.

The effective date of the chapter 33 program is August 1, 2009; therefore, full year benefit costs begin in FY 2010. VA estimates the benefit cost of the program will be $1.2 billion in FY 2009, approximately $28.1 billion through FY 2013, and $78.1 billion through FY 2018.

Due to the short length of time provided to implement this new benefit program and the lack of an existing payment system that will support the types of payments authorized under the new program, VA will utilize manual processing of claims in a preexisting system with limited functionality until an in-house Information Technology Systems (IT) solution can be developed. As a result, VA estimates discretionary costs of $78.8 million in FY 2009 and $452.6 million over 10 years for IT and minor construction needs, supplies,

equipment (including computers); increased rent; and salaries to support additional personnel. FY 2009 costs are offset by additional funding in the amount of $100 million dollars made available to VA in chapter 3 of title I of the Supplemental Appropriations Act, 2008.

Regulatory Flexibility Act

The Secretary of Veterans Affairs hereby certifies that this final rule 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. Although this final rule will affect some small entities that are testing organizations or educational institutions, any economic impact on them will be minor because these functions are currently being carried out for other educational assistance programs. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this final rule are 64.117, Survivors and Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance; 64.125, Vocational and Educational Counseling for Servicemembers and Veterans; 64.130, Post-9/11 Veterans Educational Assistance. The final rule also affects the Montgomery GI Bill—Selected Reserve (MGIB-SR) program and the Reserve Educational Assistance Program (REAP), for which there are no Catalog of Federal Domestic Assistance numbers.

List of Subjects in 38 CFR Part 21

Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs—education, Grant programs—veterans, Health care, Loan programs—education, Loan programs—veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation.

Approved: February 25, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.

For the reasons set out in the preamble, VA amends 38 CFR part 21 as follows:

PART 21—VOCATIONAL REHABILITATION AND EDUCATION

Subpart B—Claims and Applications for Educational Assistance

1. The authority citation for part 21, subpart B continues to read as follows:

Authority:

38 U.S.C. 501(a), ch. 51, and as noted in specific sections.

2. Amend § 21.1029 by:

a. In the introductory text, removing “and L,” and adding, in its place, “L, and P,”;

b. Revising the authority citation at the end of paragraph (e).

The revision reads as follows:

§ 21.1029

Definitions.

(e) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C 501(a), 3034(a), 3241(a), 3323(a), 3471, 3513, 5101(a))

3. Amend § 21.1030 by revising the authority citation at the end of paragraphs (a), (b) and (c) to read as follows:

§ 21.1030

Claims.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 501(a), 3034(a), 3241(a), 3323(a), 3471, 3513, 5101(a))

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 501(a), 3034(a), 3241(a), 3323(a), 3471, 3513, 5101(a))

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 501(a), 3034(a), 3241(a), 3323(a), 3471, 3513, 5101(a))

§ 21.1031

[Amended]

4. Amend § 21.1031(b)(1) introductory text by removing “or L” and adding, in its place, “L, or P”.

§ 21.1032

[Amended]

5. Amend § 21.1032(a)(1) introductory text by removing “or L” and adding, in its place, “L, or P”.

6. Revise § 21.1033(c) to read as follows:

§ 21.1033

Time limits.

(c)

Time limit for filing a claim for an extended period of eligibility under 10 U.S.C. chapter 1606, or 38 U.S.C. chapter 30, 32, 33, or 35.

VA must receive a claim for an extended period of eligibility provided by § 21.3047, § 21.5042, § 21.7051, § 21.7551, or § 21.9535 by the later of the following dates:

(1) One year from the date on which the spouse's, surviving spouse's, veteran's, reservist's, or other eligible individual's original period of eligibility ended; or

(2) One year from the date on which the spouse's, surviving spouse's, veteran's, reservist's, or other eligible individual's physical or mental disability no longer prevented him or her from beginning or resuming a chosen program of education.

(Authority: 10 U.S.C. 16133(b); 38 U.S.C. 3031(d), 3232(a), 3321, 3512)

7. Add § 21.1034 to subpart B to read as follows:

§ 21.1034

Appeals.

A claimant may appeal a decision of eligibility or entitlement to educational assistance under title 38, U.S.C., to the Board of Veterans Appeals in accordance with the provisions of 38 CFR Part 20. A claimant may appeal a decision of entitlement to educational assistance under 10 U.S.C. 510 and 10 U.S.C. chapters 106a, 1606, and 1607 to the Board of Veterans Appeals in accordance with the provisions of 38 CFR Part 20. A claimant may not appeal a decision of eligibility under 10 U.S.C. 510 or 10 U.S.C. chapters 106a, 1606, or 1607 or for supplemental or increased educational assistance under 10 U.S.C. 16131(i) or 38 U.S.C. 3015(d), 3021, or 3316 to VA as the Department of Defense solely determines eligibility to supplemental and increased educational assistance under those sections.

(Authority: 38 U.S.C. 501(a), 7105, 7105A)

Subpart C—Survivors' and Dependents' Educational Assistance Under 38 U.S.C. Chapter 35

8. The authority citation for part 21, subpart C continues to read as follows:

Authority:

38 U.S.C. 501(a), 512, 3500-3566, and as noted in specific sections.

9. Amend § 21.3022 to read as follows:

§ 21.3022

Nonduplication—programs administered by VA.

A person who is eligible for educational assistance under 38 U.S.C. chapter 35 and is also eligible for assistance under any of the provisions of law listed in this paragraph cannot receive such assistance concurrently. The eligible person must choose which

benefit he or she will receive for the particular period(s) of training 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. chapter 30 (Montgomery GI Bill—Active Duty);

(b) 38 U.S.C. chapter 31 (Vocational Rehabilitation and Employment);

(c) 38 U.S.C. chapter 32 (Post-Vietnam Era Veterans' Educational Assistance);

(d) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);

(e) 10 U.S.C. chapter 1606 (Montgomery GI Bill—Selected Reserve);

(f) 10 U.S.C. chapter 1607 (Reserve Educational Assistance Program);

(g) 10 U.S.C. chapter 106a (Educational Assistance Test Program);

(h) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note.);

(i) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561 note.); and

(j) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399).

(Authority: 10 U.S.C. 16136(b), 16166(b); 38 U.S.C. 3322, 3681)

Subpart D—Administration of Educational Assistance Programs

10. The authority citation for part 21, subpart D is revised to read as follows:

Authority:

10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs. 30, 32, 33, 34, 35, 36, and as noted in specific sections.

11. Amend § 21.4005 by:

a. Removing “chapter 30, 32, 34, 35, or 36” each place it appears and adding, in each place, “chapter 30, 32, 33, 35, or 36”; removing “chapters 30, 32, 34, 35, or 36” each place it appears and adding, in each place, “chapters 30, 32, 33, 35, or 36”; removing “chapter 30, 32, or 35” and adding, in each place, “chapter 30, 32, 33, or 35”.

b. Revising paragraph (a)(1)(ii) and (a)(2)(ii).

c. Revising the authority citation at the end of paragraphs (a) and (b).

d. Revising paragraph (e) heading.

The revisions read as follows:

§ 21.4005

Conflicting interests.

(a) * * *

(1) * * *

(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) * * *

(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.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3683, 3689)

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3683, 3689)

(e)

Notice to veterans, reservists, and eligible individuals.

12. Amend § 21.4006 by revising the authority citation at the end of paragraphs (a) introductory text, (a)(2), and (b) to read as follows:

§ 21.4006

False or misleading statements.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3690)

(2) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3690)

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3690)

13. Amend § 21.4008 by revising the authority citation at the end of paragraphs (a) and (b) to read as follows:

§ 21.4008

Prevention of overpayments.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3690(b))

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3690(b))

14. Amend § 21.4009 by revising the authority citation at the end of paragraphs (b) through (j) to read as follows:

§ 21.4009

Waiver or recovery of overpayments.

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685)

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685, 3689(d))

(d) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685, 3689(d))

(e) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685, 3689(d))

(f) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685, 3689(d))

(g) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685, 3689(d))

(h) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685, 3689(d))

(i) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685, 3689(d))

(j) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3685, 3689(d))

15. Amend § 21.4020 by:

a. Revising paragraph (a)(4) and (5); and

b. Revising the authority citation at the end of paragraphs (a) and (b).

The revisions read as follows:

§ 21.4020

Two or more programs.

(a) * * *

(4) 38 U.S.C. chapters 30, 32, 33, 34, 35, and 36;

(5) 10 U.S.C. chapters 106a, 1606, and 1607;

(Authority: 10 U.S.C. 16136(b), 16166(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3695(a))

(b) * * *

(Authority: 10 U.S.C. 16136(b), 16166(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3695(b))

16. Revise § 21.4022 to read as follows:

§ 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 (Vocational Rehabilitation and Employment 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).

(Authority: 10 U.S.C. 16136(b), 16166(b); 38 U.S.C. 3322, 3681)

17. Amend § 21.4145 by:

a. In paragraph (a)(1), removing “chapter 30 or 32” and adding, in its place, “chapter 30, 32 or 33”.

b. Revising the authority citation at the end of paragraphs (a), (c), (d), (e), (f), and (h).

c. Adding an authority citation at the end of paragraph (b).

d. Adding an authority citation at the end of paragraph (g).

The revisions and additions read as follows:

§ 21.4145

Work study allowance.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4), 3241(a), 3323(a), 3485, 3537)

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4), 3241(a), 3323(a), 3485, 3537, 5101(a))

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4), 3241(a), 3323(a), 3485, 3537)

(d) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4), 3241(a), 3323(a), 3485, 3537)

(e) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4), 3241(a), 3323(a), 3485, 3537)

(f) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4), 3241(a), 3323(a), 3485, 3537)

(g) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4), 3241(a), 3323(a), 3485, 3537)

(h) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3104(a)(4), 3241(a), 3323(a), 3485, 3537)

§ 21.4146

[Amended]

18. Amend § 21.4146, paragraph (a), by removing “chapters 30, 32, 35, or 36” and adding, in its place, “chapters 30, 32, 33, 35, or 36”.

19. Amend § 21.4153 by revising paragraph (c)(4)(i) and the authority citation following paragraph (c)(4)(i) to read as follows:

§ 21.4153

Reimbursement of expenses.

(c) * * *

(4) * * *

(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

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3674)

§ 21.4200

[Amended]

20. Amend § 21.4200 introductory text, by removing “subparts C, F, G, H, K, and L” and adding, in its place, “subparts C, G, H, K, L, and P”.

21. Amend § 21.4201 by:

a. In paragraph (a), removing “the Department of Veterans Affairs pursuant to Title 38 U.S.C.” and adding, in its place, “VA under title 38, U.S.C., or under title10, U.S.C.”.

b. In paragraph (c)(4), removing “chapters 30, 31, 32, 34, 35 and 36, title 38, United States Code, and chapter 1606, title 10, United States Code” and adding, in its place, “38 U.S.C. chapters 30, 31, 32, 33, 35 and 36, and 10 U.S.C. chapter 1606”.

c. In paragraph (e)(2) introductory text, removing “United States Code or under chapter 1606, title 10, United States Code” and adding, in its place, “U.S.C., or under title 10, U.S.C.”.

d. In paragraph (f)(1)(ii), removing “chapters 30, 31, 32, 34, 35, or 36, title 38, U.S.C., or chapter 1606, title 10 U.S.C.” and by adding, in its place, “38 U.S.C. chapters 30, 31, 32, 33, 35 and 36, and 10 U.S.C. chapter 1606”.

e. In paragraph (g)(2) introductory text, removing “either under Chapter 1606, Title 10, U.S.C., or under Chapters 30, 32, 34, or 36, Title 38 U.S.C.” and adding, in its place, “under 10 U.S.C. chapter 1606 or under 38 U.S.C. chapter 30, 32, 33, or 36”.

f. Revising the authority citation at the end of paragraphs (a), (c)(4) introductory text, (c)(4)(ii), (d), (e)(2)(i), (e)(2)(iv), (e)(3), (f)(1) introductory text, (f)(1)(ii), (f)(2), (g)(2) introductory text, (g)(2)(ii), (g)(5), and (h).

The revisions read as follows:

§ 21.4201

Restrictions on enrollment; percentage of students receiving financial support.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(c) * * *

(4) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(ii) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(d) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(e) * * *

(2) * * *

(i) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(iv) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(3) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(f) * * *

(1) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(ii) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(2) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(g) * * *

(2) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(ii) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(5) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

(h) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3680A(d))

22. Amend § 21.4206 by:

a. In the introductory text and in paragraph (a), removing “chapter 30, 32, 34, 35 or 36” and adding, in its place, “chapter 30, 32, 33, 35 or 36”.

b. In paragraph (e)(1), removing “chapters 30, 32, 34, 35 and 36 of title 38 U.S.C.” and adding, in its place, “chapters 30, 32, 33, 35 and 36 of title 38, U.S.C.”.

c. Revising the authority citation at the end of paragraphs (a) through (d).

d. Removing the authority citation at the end of paragraph (e)(1) and by revising the authority citation at the end of the paragraph (e).

e. Adding an information collection approval parenthetical at the end of the section.

The revisions and addition read as follows:

§ 21.4206

Reporting fee.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c))

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c))

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c))

(d) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c))

(e) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3684(c))

(The Office of Management and Budget has approved the information collection provisions in this section under control number 2900-0073)

23. Amend § 21.4209 by:

a. In paragraph (a)(1), removing “chapter 30, 32, 34, 35, or 36” and adding, in its place, “chapter 30, 32, 33, 35, or 36”.

b. In paragraph (c), removing “veterans under 38 U.S.C. chapter 30 or 32,” and adding, in its place, “veterans under 38 U.S.C. chapter 30, 32, or 33,”.

c. Revising the authority citation at the end of paragraphs (a) through (c), and (f).

The revisions read as follows:

§ 21.4209

Examination of records.

(a) * * *

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3323(a), 3689, 3690)

(b) * * *

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3323(a), 3689, 3690)

(c) * * *

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3323(a), 3690)

(f) * * *

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3323(a), 3689, 3690)

24. Amend § 21.4210 by:

a. Revising the section heading and paragraph (a)(1).

b. In paragraph (b)(1)(i), removing “chapter 30, 32, 34, 35, or, 36” and adding, in its place, “chapter 30, 32, 33, 35, or 36”.

c. In paragraph (d)(2)(ii), removing “chapters 30, 32, 34, 35, and 36” and adding, in its place, “chapters 30, 32, 33, 35, and 36”.

d. Revising paragraph (d)(4)(ii).

e. Revising the authority citation at the end of paragraphs (a), (b)(1)(ii), (c), (d), (e)(2), and (f) through (i).

The revisions read as follows:

§ 21.4210

Suspension and discontinuance of educational assistance payments, and of enrollments or reenrollments for pursuit of approved courses.

(a)

Overview; explanation of terms used in §§ 21.4210 through 21.4216.

(1) VA may pay educational assistance to a reservist under 10 U.S.C. chapter 1606 for the reservist's pursuit of a course approved in accordance with the provisions of 38 U.S.C. chapter 36. VA may pay educational assistance under 38 U.S.C. chapter 32 or 35 to a veteran or eligible person for the individual's pursuit of a course approved in accordance with the provisions of 38 U.S.C. chapter 36; or if the individual has taken a licensing or certification test approved in accordance with the provisions of 38 U.S.C. chapter 36. VA may pay educational assistance under 38 U.S.C. chapter 30 to a veteran or servicemember for the individual's pursuit of a course approved in accordance with the provisions of 38 U.S.C. chapter 36; if the individual has taken a licensing or certification test approved in accordance with the provisions of 38 U.S.C. chapter 36 or if the individual is entitled to be paid benefits (tuition assistance top-up) to meet all or a portion of an educational institution's charges for education or training that the military department concerned has not covered under tuition assistance. VA may pay educational assistance under 38 U.S.C. chapter 33 to an eligible individual or, as appropriate, to the individual's institution of higher learning on his or her behalf, for the individual's pursuit of a course or program of education if the course or program of education is offered by an institution of higher learning and approved under 38 U.S.C. chapter 30 in accordance with the provisions of 38 U.S.C. chapter 36; if the individual has taken a licensing or certification test approved in accordance with the provisions of 38 U.S.C. chapter 36, or if an individual is entitled to be paid educational assistance to meet all or a portion of the institution of higher learning's established charges that the military department concerned has not covered by tuition assistance under 10 U.S.C. 2007(a) or (c). Except for tuition assistance top-up, where courses do not need to be approved, a State approving agency designated by VA, or in some instances VA, approves the course or test for payment purposes. Notwithstanding such approval, VA, as provided in paragraphs (b), (c), and (d) of this section, may suspend, discontinue, or deny payment of benefits to any or all otherwise eligible individuals for pursuit of a course or training approved under 38 U.S.C. chapter 36, and for taking a licensing or certification test approved under 38 U.S.C. chapter 36.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3452, 3471, 3690)

(b) * * *

(1) * * *

(ii) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689, 3690)

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3690)

(d) * * *

(4) * * *

(ii) Has instituted a policy or practice with respect to the payment of tuition, fees, or other established charges that substantially denies to veterans, servicemembers, reservists, or other eligible persons the benefits of advance payment of educational assistance

authorized to such individuals under §§ 21.4138(a), 21.7140(a), 21.7640(d), or 21.9680; or

(Authority: 16136(b); 38 U.S.C. 512(a), 3034(a), 3241(a), 3323(a), 3680A(d), 3684, 3685, 3689, 3690, 3696, 5301)

(e) * * *

(2) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3690)

(f) * * *

(Authority: 10 U.S.C. 16136(b); 31 U.S.C. 3801-3812; 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689, 3690)

(g) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689, 3690)

(h) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3690)

(i) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S. C. 3034(a), 3241, 3323(a), 3683(b))

25. Amend § 21.4211 by:

a. Removing “chapter 30, 32, 34, 35, or 36” each place it appears and adding, in each place, “chapter 30, 32, 33, 35, or 36”.

b. Revising the authority citation at the end of paragraphs (a) through (e).

The revisions read as follows:

§ 21.4211

Composition, jurisdiction, and duties of the Committee on Educational Allowances.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 512(a), 3034(a), 3323(a), 3241(a), 3689(d), 3690)

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3323(a), 3241(a), 3689(d), 3690)

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3323(a), 3241(a), 3689(d), 3690)

(d) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3323(a), 3241(a), 3689(d), 3690)

(e) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3323(a), 3241(a), 3689(d), 3690)

26. Amend § 21.4212 by revising the authority citation at the end of the section to read as follows:

§ 21.4212

Referral to Committee on Educational Allowances.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

27. Amend § 21.4213 by revising the authority citation at the end of the section to read as follows:

§ 21.4213

Notices of hearing by Committee on Educational Allowances.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

28. Amend § 21.4214 by revising the authority citation for paragraphs (a) through (p) to read as follows:

§ 21.4214

Hearing rules and procedures for Committee on Educational Allowances.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(d) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(e) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(f) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(g) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(h) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(i) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(j) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(k) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(l) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(m) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(n) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(o) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(p) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

29. Amend § 21.4215 by revising the authority citation for paragraphs (a) through (e) to read as follows:

§ 21.4215

Decision of Director of VA Regional Processing Office of jurisdiction.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(d) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

(e) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), 3690)

30. Amend § 21.4216 by revising the authority citation for paragraphs (a) and (c) to read as follows:

§ 21.4216

Review of decision of Director of VA Regional Processing Office of jurisdiction.

(a) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3323(a), 3689(d), (e), 3690; Pub. L. 122 Stat. 2375)

(c) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C 3034(a), 3241(a), 3323(a), 3689(d), 3690)

31. Amend § 21.4233 by revising the authority citation at the end of paragraph (e) to read as follows:

§ 21.4233

Combination.

(e) * * *

(Authority: 10 U.S.C. 16136(c); 38 U.S.C. 3002(8), 3034(d), 3241(b), 3323(a), 3452(c), 3501(a)(6), 3675, 3676)

32. Amend § 21.4234 by:

a. Removing “veteran or eligible person” each time it appears, and adding, in its place, “veteran, reservist, or eligible person”.

b. Revising paragraph (c).

c. In paragraph (d)(1)(i), removing “veteran or eligible spouse or surviving spouse” and adding, in its place, “veteran or eligible person other than a child receiving educational assistance under 38 U.S.C. chapter 35”.

d. In paragraph (d)(1)(iii) and (d)(2)(iii), removing “child”, and adding, in each place, “child receiving

educational assistance under 38 U.S.C. chapter 35”.

e. Revising the authority citation at the end of paragraphs (a)(2)(iv), (a)(2)(v), (b), (c), (d)(3), (d)(4), and (e).

The revisions read as follows:

§ 21.4234

Change of program.

(a) * * *

(2) * * *

(iv) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3691)

(v) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3691)

(b) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3691)

(c) Optional change of program. A spouse or surviving spouse eligible to receive educational assistance under 38 U.S.C. chapter 35 may make one optional change of program if his or her previous course was not interrupted due to his or her own misconduct, neglect, or lack of application.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3691)

(d) * * *

(3) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3691)

(4) * * *

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3691)

(e) * * *

(Authority: 10 U.S.C. 510(h), 16136(b), 16166(b); 38 U.S.C. 3034(a), 3241, 3323(a), 3691)

33. Amend § 21.4236 by revising the authority citation at the end of paragraphs (b), (c), and (d) to read as follows:

§ 21.4236

Tutorial assistance.

(b) * * *

(Authority: 10 U.S.C. 16131(h); 38 U.S.C. 3019, 3234, 3314, 3492, 3533(b))

(c) * * *

(Authority: 10 U.S.C. 16131(h); 38 U.S.C. 3019, 3314, 3492, 3533(b))

(d) * * *

(Authority: 10 U.S.C. 16131(h); 38 U.S.C. 3019, 3314, 3492, 3533(b))

34. Amend § 21.4250 by:

a. In paragraph (c)(2)(ii), removing “Chapter 1606 or 38 U.S.C. Chapters 30, 32, 35, or 36” and adding, in its place, “chapter 1606 or 38 U.S.C. chapter 30, 32, 33, 35, or 36”.

b. In paragraph (c)(2)(iii), removing “chapter 30, 32, or 35” and adding, in its place, “chapter 30, 32, 33, or 35”.

c. Revising the authority citation at the end of paragraphs (a) and (c).

The revisions read as follows:

§ 21.4250

Course and licensing and certification test approval; jurisdiction and notices.

(a) * * *

(Authority: 38 U.S.C. 3014(b), 3313(e), 3315, 3670, 3672(a))

(c) * * *

(Authority: 10 U.S.C. 16136; 38 U.S.C. 3034, 3241, 3314, 3323(a), 3476, 3523, 3672, 3673, 3689)

35. Amend § 21.4252 by revising the authority citation at the end of paragraph (c) to read as follows:

§ 21.4252

Courses precluded; erroneous, deceptive, or misleading practices.

(c) * * *

(Authority: 10 U.S.C. 16131(f); 38 U.S.C. 3034, 3241(b), 3323(a), 3523(b), 3680A(b))

Subpart G—Post-Vietnam Era Veterans' Educational Assistance Under 38 U.S.C. Chapter 32

36. The authority citation for part 21, subpart G continues to read as follows:

Authority:

38 U.S.C. 501(a), chs. 32, 36, and as noted in specific sections.

37. Amend § 21.5022 by revising paragraphs (a) and (b)(1)(i) through (b)(1)(vii), adding paragraphs (b)(1)(viii) and (b)(1)(ix), and revising the authority citation at the end of the section to read as follows:

§ 21.5022

Eligibility under more than one program.

(a)

Concurrent benefits under more than one program

. (1) An individual cannot receive educational assistance under 38 U.S.C. chapter 32 concurrently with benefits under—

(i) 38 U.S.C. chapter 30 (Montgomery GI Bill—Active Duty);

(ii) 38 U.S.C. chapter 31 (Vocational Rehabilitation and Employment);

(iii) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);

(iv) 38 U.S.C. chapter 35 (Survivors' and Dependents' Educational Assistance);

(v) 10 U.S.C. chapter 1606 (Montgomery GI Bill—Selected Reserve);

(vi) 10 U.S.C. chapter 1607 (Reserve Educational Assistance Program);

(vii) 10 U.S.C. chapter 106a (Educational Assistance Test Program);

(viii) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);

(ix) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561 note); or

(x) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399).

(Authority: 38 U.S.C. 3322(a), 3681(b), 3695)

(2) If an individual is eligible for benefits under 38 U.S.C. chapter 32 and one or more of the programs listed in (a)(1)(i) through (a)(1)(x) of this section, he or she must specify under which program he or she is claiming benefits. 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.

(Authority: 38 U.S.C. 3033(a), 3322(a))

(b) * * *

(1) * * *

(i) 38 U.S.C. chapter 30 (Montgomery GI Bill—Active Duty);

(ii) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);

(iii) 38 U.S.C. chapter 35 (Survivors' and Dependents' Educational Assistance);

(iv) 10 U.S.C. chapter 1606 (Montgomery GI Bill-Selected Reserve);

(v) 10 U.S.C. chapter 1607 (Reserve Educational Assistance Program);

(vi) 10 U.S.C. chapter 106a (Educational Assistance Test Program);

(vii) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);

(viii) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561 note); or

(ix) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399).

(Authority: 38 U.S.C. 3034(a), 3231, 3323(a))

Subpart K—All Volunteer Force Educational Assistance Program (Montgomery GI Bill—Active Duty)

38. The authority citation for part 21, subpart K continues to read as follows:

Authority:

38 U.S.C. 501(a), chs. 30, 36, and as noted in specific sections.

39. Amend § 21.7143 by revising paragraphs (a) and (b) to read as follows:

§ 21.7143

Nonduplication of educational assistance.

(a)

Payments of educational assistance shall not be duplicated.

(1) Except for receipt of a Montgomery GI

Bill—Selected Reserve kicker provided under 10 U.S.C. 16131(i), a veteran is barred from concurrently receiving educational assistance under 38 U.S.C. chapter 30 and—

(i) 38 U.S.C. chapter 31 (Vocational Rehabilitation and Employment);

(ii) 38 U.S.C. chapter 32 (Post-Vietnam Era Veterans' Educational Assistance);

(iii) 38 U.S.C. chapter 33 (Post-9/11 GI Bill);

(iv) 38 U.S.C. chapter 35 (Survivors' and Dependents' Educational Assistance);

(v) 10 U.S.C. chapter 1606 (Montgomery GI Bill—Selected Reserve);

(vi) 10 U.S.C. chapter 1607 (Reserve Educational Assistance Program);

(vii) 10 U.S.C. chapter 106a (Educational Assistance Test Program);

(viii) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);

(ix) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561 note); or

(x) The Omnibus Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399).

(b) If an individual is eligible for benefits under 38 U.S.C. chapter 30 and one or more of the programs listed in paragraphs (a)(1)(i) through (a)(1)(x) of this section, he or she must specify under which program he or she is claiming benefits. 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.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3033(a), 3681(b))

Subpart L—Educational Assistance for Members of the Selected Reserve

40. The authority citation for part 21, subpart L is amended to read as follows:

Authority:

10 U.S.C. ch. 1606; 38 U.S.C. 501(a), 512, ch. 36, and as noted in specific sections.

41. Amend § 21.7642 by revising paragraphs (a) and (b) to read as follows:

§ 21.7642

Nonduplication of educational assistance.

(a)

Payments of educational assistance shall not be duplicated.

A reservist is barred from receiving educational assistance concurrently under 10 U.S.C. chapter 1606 and any of the following provisions of law—

(1) 38 U.S.C. 30 (Montgomery GI Bill—Active Duty);

(2) 38 U.S.C. 31 (Vocational Rehabilitation and Employment);

(3) 38 U.S.C. 32 (Post-Vietnam Era Veterans' Educational Assistance);

(4) 38 U.S.C. 33 (Post-9/11 GI Bill);

(5) 38 U.S.C. 35 (Survivors' and Dependents' Educational Assistance);

(6) 10 U.S.C. 1607 (Reserve Educational Assistance Program);

(7) 10 U.S.C. 106a (Educational Assistance Test Program);

(8) Section 903 of the Department of Defense Authorization Act, 1981 (Pub. L. 96-342, 10 U.S.C. 2141 note);

(9) The Hostage Relief Act of 1980 (Pub. L. 96-449, 5 U.S.C. 5561 note); or

(10) The Omnibus Diplomatic Security Act of 1986 (Pub. L. 99-399).

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3033(a), 3241(a), 3322(a), 3681)

(b) When paragraph (a) of this section applies, the reservist must choose which benefit he or she wishes to receive. The reservist 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 reservist 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.

42. Add and reserve subparts N and O.

43. Add new subpart P to read as follows:

Subpart P—Post-9/11 GI Bill

Sec.

21.9500

Introduction.

Definitions

21.9505

Definitions.

Claims and Applications

21.9510

Claims, VA's duty to assist, and time limits.

Eligibility

21.9520

Basic eligibility.

21.9525

Eligibility for increased and supplemental educational assistance.

21.9530

Eligibility time limit.

21.9535

Extended period of eligibility.

Entitlement

21.9550

Entitlement.

21.9555

Entitlement to supplemental educational assistance.

21.9560

Entitlement charges.

Transfer of Entitlement to Basic Educational Assistance to Dependents

21.9570

Transfer of entitlement.

Counseling

21.9580

Counseling

21.9585

Travel Expenses.

Approved Programs of Education and Courses

21.9590

Approved programs of education and courses.

21.9600

Overcharges.

Payments—Educational Assistance

21.9620

Educational assistance.

21.9625

Beginning dates.

21.9630

Suspension or discontinuance of payments.

21.9635

Discontinuance dates.

21.9640

Rates of payment of educational assistance.

21.9645

Refund of basic contribution to chapter 30.

21.9650

Increase in educational assistance.

21.9655

Rates of supplemental educational assistance.

21.9660

Rural relocation benefit.

21.9665

Reimbursement for licensing or certification tests.

21.9670

Work-study allowance.

21.9675

Conditions that result in reduced rates or no payment.

21.9680

Certifications and release of payments.

21.9685

Tutorial Assistance.

21.9690

Nonduplication of educational assistance.

21.9695

Overpayments.

21.9700

Yellow Ribbon Program.

Pursuit of Courses

21.9710

Pursuit.

21.9715

Advance payment certification.

21.9720

Certification of enrollment.

21.9725

Progress and conduct.

21.9735

Other required reports.

21.9740

False, late, or missing reports.

21.9745

Reporting fee.

Course Assessment

21.9750

Course measurement.

Approval of Programs of Education

21.9765

Program of education approval.

Administrative

21.9770

Administrative.

Authority:

38 U.S.C. 501(a), 512, chs. 33, 36 and as noted in specific sections.

Subpart P—Post-9/11 GI Bill

§ 21.9500

Introduction.

An educational assistance program is established for individuals who served on active duty after September 10, 2001. This educational assistance program is effective August 1, 2009.

(Authority: Pub. L. 110-252, 122 Stat. 2357, 2378)

Definitions

§ 21.9505

Definitions.

For the purposes of this subpart (governing the administration and payment of educational assistance under 38 U.S.C. chapter 33) the following definitions apply. (See also additional definitions in §§ 21.1029 and 21.4200).

Academic year

means the period of time beginning August 1st of each calendar year and ending July 31st of the subsequent calendar year.

(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a))

Active duty

means full-time duty in the regular components of the Armed Forces or under a call or order to active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304. Active duty does not include—

(1) Full-time National Guard Duty performed under 32 U.S.C. orders;

(2) Any period during which the individual—

(i) Was assigned full-time by the Armed Forces to a civilian institution to pursue a program of education that was substantially the same as programs of education offered to civilians;

(ii) Served as a cadet or midshipmen at one of the service academies; or

(iii) Served under the provisions of 10 U.S.C. 12103(d) pursuant to an enlistment in the Army National Guard, Air National Guard, Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve;

(3) A period of service—

(i) Required by an officer pursuant to an agreement under 10 U.S.C. 2107(b);

(ii) Required by an officer pursuant to an agreement under 10 U.S.C. 4348, 6959, or 9348;

(iii) That was terminated because the individual is considered a minor by the Armed Forces, was erroneously enlisted, or received a defective enlistment agreement; or

(iv) Counted for purposes of repayment of an education loan under 10 U.S.C. chapter 109; or

(4) A period of Selected Reserve service used to establish eligibility under 38 U.S.C. chapter 30 or 10 U.S.C. chapter 1606 or 1607.

(Authority: 38 U.S.C. 101(21)(A), 3301(1), 3311(d), 3322(b) and (c))

Advance payment

means an amount of educational assistance payable under § 21.9640(b)(1)(ii) or (b)(2)(ii) for the month or fraction of the month in which the individual's quarter, semester, or term will begin plus the amount for the following month.

(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(d))

Course

means a unit of instruction required for an approved program of education that provides an individual with the knowledge and skills necessary to meet the requirements of the selected educational, professional, or vocational objective.

(Authority: 38 U.S.C. 3323(c))

Distance learning

means the pursuit of a program of education via distance education as defined in 20 U.S.C. 1003(7).

(Authority: 20 U.S.C. 1003(7); 38 U.S.C. 3323(c))

Educational assistance

means the monetary benefit payable under 38 U.S.C. chapter 33 to, or on behalf of, individuals who meet the eligibility requirements for pursuit of an approved program of education under 38 U.S.C. chapter 33.

(Authority: 38 U.S.C. 3313)

Enrollment period

means a term, quarter, or semester during which the institution of higher learning offers instruction.

(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(g))

Entry level and skill training

means—

(1) Basic Combat Training and Advanced Individual Training for members of the Army;

(2) Recruit Training (Boot Camp) and Skill Training (“A” School) for members of the Navy;

(3) Basic Military Training and Technical Training for members of the Air Force;

(4) Recruit Training and Marine Corps Training (School of Infantry Training) for members of the Marine Corps; and

(5) Basic Training for members of the Coast Guard.

(Authority: 38 U.S.C. 3301(2))

Established charges

means the actual charge for tuition and fees that similarly circumstanced nonveterans enrolled in the program of education are required to pay.

(Authority: 38 U.S.C. 3313(h))

Fees

means any mandatory charges (other than tuition, room, and board) that are applied by the institution of higher learning for pursuit of an approved program of education. Fees include, but are not limited to, health premiums, freshman fees, graduation fees, and lab fees. Fees do not include those charged for a study abroad course(s) unless the course(s) is a mandatory requirement for completion of the approved program of education.

(Authority: 38 U.S.C. 501(a), 3323(c))

Institution of higher learning

(IHL) means 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. When there is no State law to authorize the granting of such a degree, the school may be recognized as an institution of higher learning if it is accredited for degree programs by a recognized accrediting agency. Such term shall also include a hospital offering educational programs at the postsecondary level without regard to whether the hospital grants a postsecondary degree. Such term shall also include an educational institution that offers courses leading to a standard college degree or its equivalent, and is not located in a State but is recognized as an educational institution by the secretary of education (or comparable official) of the country or other jurisdiction in which the institution is located.

(Authority: 38 U.S.C. 3034(a), 3313(b), 3323(a), 3452(f))

Interval

means a period of time between regularly scheduled individual terms, semesters, or quarters.

(Authority: 38 U.S.C. 3034(a)(1), 3323(a), 3680)

Lump sum payment

means an amount of educational assistance paid for the entire term, quarter, or semester.

(Authority: 38 U.S.C. 3323(c))

Mitigating circumstances

means circumstances beyond the individual's control that prevent him or her from continuously pursuing a program of education. The following circumstances are representative of those that VA considers to be mitigating. This list is not all-inclusive.

(1) An illness or mental illness of the individual;

(2) An illness or death in the individual's family;

(3) An unavoidable change in the individual's conditions of employment;

(4) An unavoidable geographical transfer resulting from the individual's 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 educational institution;

(7) Unanticipated active duty for training; or

(8) Unanticipated difficulties in caring for the individual's child or children.

(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a)(1))

Program of education

means a curriculum or combination of courses pursued at an institution of higher learning that are accepted as necessary to meet the requirements for a predetermined and identified

educational, professional, or vocational objective. Such term also means any curriculum or combination of courses pursued at an institution of higher learning that are accepted as necessary to meet the requirements for more than one predetermined and identified educational, professional, or vocational objective if all the objectives pursued are generally recognized as being reasonably related to a single career field. The curriculum or combination of courses pursued must be listed in the institution of higher learning's catalog and included in the approval notice provided by the State approving agency to VA in accordance with § 21.4258(b)(iv).

(Authority: 38 U.S.C. 3034(a), 3301, 3323(a), 3452(b))

Pursuit

means to work, during a certified enrollment period, towards the objective of a program of education. This work must be in accordance with approved institutional policy and applicable criteria of Title 38, U.S.C., and must be necessary to reach the program's objective.

(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(g))

Rate of pursuit

means the measurement obtained by dividing the number of credit hours (or the equivalent credit hours as determined in § 21.9750) an individual is enrolled in, including credit hours (or the equivalent) applied to refresher, remedial, and deficiency courses, by the number of credit hours (or the equivalent credit hours) considered to be full-time training at the institution of higher learning. The resulting percentage (rounded to the nearest hundredth) will be the individual's rate of pursuit not to exceed 100 percent. For the purpose of this subpart, VA will consider any rate of pursuit higher than 50 percent to be more than one-half time training.

(Authority: 38 U.S.C. 3323, 3680)

Transferor

means an individual who is entitled to educational assistance under the Post-9/11 GI Bill based on his or her own active duty service and who is approved by the military department to transfer all or a portion of his or her entitlement to one or more dependents.

(Authority: 38 U.S.C. 3319)

Claims and Applications

§ 21.9510

Claims, VA's duty to assist, and time limits.

The provisions of subpart B of this part apply to claims filed for educational assistance under 38 U.S.C. chapter 33 with respect to VA's responsibilities upon receipt of claim, VA's duty to assist claimants in obtaining evidence, and time limits.

(Authority: 38 U.S.C. 3323(c), 5101, 5102, 5103, 5103A)

Eligibility

§ 21.9520

Basic eligibility.

An individual may establish eligibility for educational assistance under 38 U.S.C. chapter 33 based on active duty service after September 10, 2001, if he or she—

(a) Serves a minimum of 90 aggregate days excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a)) and, after completion of such service,—

(1) Continues on active duty;

(2) Is discharged from service with an honorable discharge;

(3) Is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve;

(4) Is released from service characterized as honorable for further service in a reserve component; or

(5) Is discharged or released from service for—

(i) A medical condition that preexisted such service and is not determined to be service-connected;

(ii) Hardship, as determined by the Secretary of the military department concerned; or

(iii) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct;

(b) Serves a minimum of 30 continuous days and, after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability; or

(c)(1) After meeting the minimum service requirements in paragraph (a) or (b) of this section—

(i) An individual makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607;

(ii) A member of the Armed Forces who is eligible for educational assistance under 38 U.S.C. chapter 30 and who is making contributions towards such educational assistance under 38 U.S.C. 3011(b) or 3012(c) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33; or

(iii) A member of the Armed Forces who made an election not to receive educational assistance under 38 U.S.C. chapter 30 in accordance with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33.

(2) An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following—

(i) Identification information (including name, social security number, and address);

(ii) If applicable, an election to receive benefits under chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (

e.g.

, “I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill—Active Duty (chapter 30) program.”);

(iii) The date the individual wants the election to be effective (

e.g.

, “I want this election to take effect on August 1, 2009.”). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and

(iv) An acknowledgement that the election is irrevocable (

e.g.

, “I understand that my election is irrevocable and may not be changed.”).

(Authority: 38 U.S.C. 3311; Pub. L. 110-252, Stat. 2375-2376)

(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0154.)

§ 21.9525

Eligibility for increased and supplemental educational assistance.

(a)

Increased assistance for members with critical skills or specialty

. The Secretary of the military department concerned, pursuant to regulations prescribed by the Secretary of Defense, may increase the amount of educational assistance payable under § 21.9640(b)(1)(ii) or (b)(2)(ii) to an individual who has a skill or specialty in which there is a critical shortage of personnel, for which there is difficulty recruiting, or, in the case of critical units, for which there is difficulty in retaining personnel.

(b)

Supplemental assistance for members serving additional service

. The Secretary of the military department concerned, pursuant to regulations prescribed by the Secretary of Defense, may supplement the amount of

educational assistance payable under § 21.9640(b)(1)(ii) or (b)(2)(ii) to an individual who meets the following service requirements.

(1)

Individuals with active duty service only

. Supplemental educational assistance may be offered to an individual who serves 5 or more consecutive years on active duty in the Armed Forces in addition to the years counted to qualify for educational assistance, without a break in such service, and—

(i) Continues on active duty without a break;

(ii) Is discharged from service with an honorable discharge;

(iii) Is placed on the retired list;

(iv) Is transferred to the Fleet Reserve or the Fleet Marine Corps Reserve;

(v) Is placed on the temporary disability retired list; or

(vi) Is released from active duty for further service in a reserve component of the Armed Forces after service on active duty characterized by the Secretary concerned as honorable service.

(2)

Individuals with Selected Reserve service

. (i) Supplemental educational assistance may be offered to an individual who—

(A) Serves 2 or more consecutive years on active duty in the Armed Forces in addition to the years on active duty counted to qualify for educational assistance;

(B) Serves 4 or more consecutive years of duty in the Selected Reserve in addition to the years of duty in the Selected Reserve counted to qualify the individual for educational assistance; and

(C) After completion of such service—

(

1

) Is discharged from service with an honorable discharge;

(

2

) Is placed on the retired list;

(

3

) Is transferred to the Fleet Reserve or Fleet Marine Corps Reserve;

(

4

) Is placed on the temporary disability retired list;

(

5

) Continues on active duty; or

(

6

) Continues in the Selected Reserve.

(ii) The Secretary concerned may, pursuant to regulations prescribed by the Secretary of Defense, determine the maximum period of time during which the individual is considered to have continuous service in the Selected Reserve even though the individual—

(A) Is unable to locate a unit of the Selected Reserve for which he or she is eligible;

(B) Is unable to locate a unit of the Selected Reserve that has a vacancy; or

(C) For any other reason other than those stated in paragraph (b)(2)(ii)(A) and (B) of this section.

(iii) Any decision as to the continuity of an individual's service in the Selected Reserve made by the Secretary of Defense will be binding upon VA.

(Authority: 38 U.S.C. 3021, 3022, 3023, 3316)

§ 21.9530

Eligibility time limit.

(a) Except as provided in paragraphs (b) through (e) of this section, an individual's period of eligibility for educational assistance will terminate effective 15 years from the date of the last discharge or release from active duty of at least—

(1) 90 continuous days; or

(2) 30 continuous days if the individual is released for a service-connected disability.

(b) In the case of an individual who establishes eligibility and does not meet one of the service requirements specified in paragraph (a) of this section, the individual's period of eligibility for educational assistance will terminate effective 15 years from the date of discharge for the last period of service used to meet the minimum service requirements for eligibility as stated in § 21.9520.

(c)

Amendment of military records

. If an individual's eligibility for educational assistance is established as a result of a correction of military records under 10 U.S.C. 1552, a change, correction, or modification of a discharge or dismissal under 10 U.S.C. 1553, or other corrective action by a competent military authority, the individual's period of eligibility will terminate effective 15 years from the date of the change, correction, modification, or other corrective action.

(Authority: 38 U.S.C. 3311(c), 3321)

(d)

Time limit for spouse using transferred entitlement

. (1) Unless the transferor dies while on active duty, the ending date of the spouse's period of eligibility for entitlement transferred under § 21.9570 is the earliest of the following—

(i) The transferor's ending date as determined under this section;

(ii) The ending date specified by the transferor, if the transferor specified the period for which the transfer was effective; or

(iii) The effective date of the transferor's revocation of transferred entitlement as determined under § 21.9570(f).

(2) If the transferor dies while on active duty, the ending date of the spouse's period of eligibility is the earliest of the following—

(i) The date 15 years from the transferor's date of death;

(ii) The ending date specified by the transferor, if the transferor specified the period for which the transfer was effective; or

(iii) The effective date of the transferor's revocation of transferred entitlement as determined under § 21.9570(f).

(Authority: 38 U.S.C. 3319)

(e)

Time limit for child using transferred entitlement

. (1) The ending date of the child's period of eligibility for entitlement transferred under § 21.9570 is the earliest of the following—

(i) The ending date specified by the transferor, if the transferor specified the period for which the transfer was effective;

(ii) The effective date of the transferor's revocation of transferred entitlement as determined under § 21.9570(f); or

(iii) The day the child turns 26.

(2) [Reserved]

(Authority: 38 U.S.C. 3319)

§ 21.9535

Extended period of eligibility.

VA will extend an individual's period of eligibility in accordance with the following provisions.

(a)

Disability extension

. (1) VA will grant an extension of the period of eligibility, as determined in § 21.9530 (except for paragraphs (d) and (e)) provided—

(i) The individual applies for the extension within the time specified in § 21.1033(c); and

(ii) The medical evidence clearly establishes that the individual was prevented from initiating or completing the chosen program of education within the original period of eligibility because of a physical or mental disability that did not result from the individual's willful misconduct. VA will not consider the disabling effects of chronic alcoholism to be the result of willful misconduct. VA will not consider an individual's disability for a period of 30 days or less as having prevented the individual from initiating or completing a chosen program, unless the evidence establishes that the individual was prevented from enrolling or reenrolling in the chosen program or was forced to discontinue attendance due to the short-term disability.

(2)

Length of extension

. An individual'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 will be determined as follows—

(i) If the individual is pursuing a program of education 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 the

individual was prevented from initiating or completing training during his or her original period of eligibility to the earliest of—

(A) The beginning date of the ordinary term, quarter, or semester following the day the individual's training became medically feasible;

(B) The last date of the individual's original period of eligibility as determined in § 21.9530; or

(C) The date the individual resumed training.

(ii) If the individual is pursuing a program of education that is not organized on a term, quarter, or semester basis, his or her extended period of eligibility will contain the same number of days as the number of days from the date the individual was prevented from initiating or completing training during his or her original period of eligibility to the earliest of—

(A) The date the individual's training became medically feasible; or

(B) The last date of the individual's original period of eligibility as determined in § 21.9530.

(b)

Forcibly detained extension

. (1) VA will grant an extension of the period of eligibility, as determined in § 21.9530, equal to the period of time the individual—

(i) Was captured and forcibly detained by a foreign government or power, and

(ii) Was hospitalized at a military, civilian, or medical facility immediately following release from the foreign government or power.

(2) [Reserved]

(Authority: 38 U.S.C. 3321)

Entitlement

§ 21.9550

Entitlement.

(a) Subject to the provisions of § 21.4020 and this section, an eligible individual is entitled to a maximum of 36 months of educational assistance (or its equivalent in part-time educational assistance) under 38 U.S.C. chapter 33.

(b)(1) An individual who, as of August 1, 2009, has used entitlement under 38 U.S.C. chapter 30, but retains unused entitlement under that chapter, makes an irrevocable election to receive educational assistance under the provisions of 38 U.S.C. chapter 33 instead of educational assistance under the provisions of chapter 30, will be limited to one month (or partial month) of entitlement under chapter 33 for each month (or partial month) of unused entitlement under chapter 30 (including any months of chapter 30 entitlement previously transferred to a dependent that the individual has revoked).

(2) An individual, who as of August 1, 2009, was eligible under 38 U.S.C. chapter 30, had not used any entitlement under that program, was making contributions towards chapter 30, or was a servicemember who would have been eligible for chapter 30 if he or she had not declined participation, will receive 36 months of entitlement under chapter 33.

(c) Except as provided in §§ 21.9560(d), 21.9570(m), and 21.9635(o), no individual is entitled to more than 36 months of full-time educational assistance under 38 U.S.C. chapter 33.

(Authority: 38 U.S.C. 3034(a), 3312(a), 3323(a), 3695; Pub. L. 110-252, 122 Stat. 2377)

§ 21.9555

Entitlement to supplemental educational assistance.

In determining the entitlement of an individual who is eligible for supplemental educational assistance, VA will—

(a) Calculate the individual's entitlement to 38 U.S.C. chapter 33 educational assistance on the day he or she establishes eligibility for supplemental educational assistance; and

(b) Credit the individual with the same number of months and days of entitlement to supplemental educational assistance as the number calculated in paragraph (a) of this section.

(Authority: 38 U.S.C. 3023, 3316)

§ 21.9560

Entitlement charges.

(a)

Overview

. Except as provided in paragraphs (c) through (f) of this section, VA will base entitlement charges on the principle that an eligible individual who is paid educational assistance for one day of full-time pursuit should be charged one day of entitlement.

(b)

Determining entitlement charge

. (1) VA will make a charge against entitlement as follows:

(i)

Full-time pursuit

. If the individual is pursuing a program of education on a full-time basis, the entitlement charge will be one of the following—

(A) During any period for which VA pays established charges to the institution of higher learning on the individual's behalf, the entitlement charge will be one day for each day of the certified enrollment period;

(B) During any period for which VA does not pay established charges to the institution of higher learning on the individual's behalf but pays a monthly housing allowance to the individual, the entitlement charge will be one day for each day of the certified enrollment period and/or interval period for which the individual receives the monthly housing allowance; or

(C) During any period for which VA does not pay established charges to the institution of higher learning on the individual's behalf or a monthly housing allowance to the individual but makes a lump sum payment to the individual for books, supplies, equipment, and other educational costs, VA will make an entitlement charge of 1 day for every $41.67 paid, with any remaining amount rounded to the nearest amount evenly divisible by $41.67.

(ii)

Less than full-time pursuit

. If the individual is pursuing a program of education on a less than a full-time basis, the entitlement charge will be one of the following—

(A) During any period for which VA pays established charges to the institution of higher learning on the individual's behalf, the individual will be charged a percentage of a day for each day of the certified enrollment period determined by dividing the number of course hours the individual is pursuing by the number of course hours required for full-time pursuit (rounded to the nearest hundredth);

(B) During any period for which VA does not pay established charges to the institution of higher learning on the individual's behalf but pays a monthly housing allowance to the individual, the individual will be charged a percentage of a day for each day of the certified enrollment period and/or interval period for which the individual receives the monthly housing allowance determined by dividing the number of course hours the individual is pursuing by the number of course hours required for full-time pursuit (rounded to the nearest hundredth); or

(C) During any period for which VA does not pay established charges to the institution of higher learning on the individual's behalf or a monthly housing allowance to the individual but makes a lump sum payment to the individual for books, supplies, equipment, and other educational costs, VA will make an entitlement charge of 1 day for every $41.67 paid, with any remaining amount rounded to the nearest amount evenly divisible by $41.67.

(Authority: 38 U.S.C. 3313)

(2) If the individual changes his or her rate of pursuit after the beginning date of the award, VA will—

(i) Divide the certified enrollment period into separate periods of time so that the individual's rate of pursuit is constant within each period; and

(ii) Compute the rate of pursuit separately for each time period.

(c)

Individuals eligible for, or in receipt of, educational assistance other than that authorized under chapter 33

. If an individual elected 38 U.S.C. chapter 33 by relinquishing educational assistance under another program but receives educational assistance for a program of education that is approved under the relinquished chapter but not approved under 38 U.S.C. chapter 33, VA will make a charge against entitlement equivalent to the entitlement charge—

(1) That would be made under the provisions of § 21.7076, if the individual relinquished eligibility under 38 U.S.C. chapter 30;

(2) That would be made under the provisions of § 21.7576 if the individual relinquished eligibility under 10 U.S.C. chapter 1606; or

(3) That would be made under 10 U.S.C. chapter 1607 if the individual relinquished eligibility under 10 U.S.C. chapter 1607.

(d)

No entitlement charge

. VA will not make a charge against an individual's entitlement—

(1) For an approved licensing or certification test as provided under § 21.9665; or

(Authority: 38 U.S.C. 3315)

(2) For tutorial assistance as provided under § 21.9685; or

(Authority: 38 U.S.C. 3314)

(3) For the rural relocation benefit as provided under § 21.9660; or

(Authority: 38 U.S.C. 3318)

(4) For pursuit of a course or courses when the individual—

(i) Had to discontinue the course or courses as a result of being ordered to—

(A) Active duty service under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304; or

(B) A new duty location or assignment or to perform an increased amount of work; and

(ii) Did not receive credit or lost training time for any portion of the period of enrollment in the course or courses for which the eligible individual was pursuing to complete his or her approved educational, professional, or vocational objective as a result of having to discontinue pursuit.

(Authority: 38 U.S.C. 3312(c))

(e)

Interruption to conserve entitlement.

An individual may not interrupt a certified period of enrollment for the purpose of conserving entitlement. An institution of higher learning may not certify a period of enrollment for a fractional part of the normal term, quarter, or semester if the individual is enrolled for the entire term, quarter, or semester. VA will make a charge against entitlement for the entire period of certified enrollment, if the individual is otherwise eligible for educational assistance, except when educational assistance is interrupted for any of the following conditions:

(1) Enrollment is terminated;

(2) The individual cancels his or her enrollment and does not negotiate a check or receive a direct deposit for educational assistance provided under this chapter for any part of the certified period of enrollment;

(3) The individual interrupts his or her enrollment at the end of any term, quarter, or semester within a certified period of enrollment and does not negotiate a check or receive a direct deposit for educational assistance provided under this chapter for the succeeding term, quarter, or semester; or

(4) The individual requests interruption or cancellation for any break when a school was closed during a certified period of enrollment, and VA continued payments under an established policy based upon an Executive Order of the President or an emergency situation regardless of whether or not the individual negotiated a check or received a direct deposit for educational assistance provided under this chapter for any part of the certified enrollment period.

(Authority: 38 U.S.C. 3323(c))

(f)

Overpayment cases.

VA will make a charge against entitlement for an overpayment only if the overpayment is discharged in bankruptcy, is waived and not recovered, or is compromised.

(1) If the overpayment is discharged in bankruptcy or is waived and not recovered, the charge against entitlement will be the appropriate rate for the elapsed period covered by the overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees).

(2) If the overpayment is compromised and the compromise offer is less than the amount of interest, administrative costs of collection, court costs and marshal fees, the charge against entitlement will be at the appropriate rate for the elapsed period covered by the overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees).

(3) If the overpayment is compromised and the compromise offer is equal to or greater than the amount of interest, administrative costs of collection, court costs and marshal fees, the charge against entitlement will be determined by—

(i) Subtracting from the sum paid in the compromise offer the amount attributable to interest, administrative costs of collection, court costs and marshal fees;

(ii) Subtracting the remaining amount of the overpayment balances as determined in paragraph (f)(3)(i) of this section from the amount of the original overpayment (exclusive of interest, administrative costs of collection, course costs and marshal fees);

(iii) Dividing the result obtained in paragraph (f)(3)(ii) of this section from the amount of the original overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees); and

(iv) Multiplying the percentage obtained in paragraph (f)(3)(iii) of this section by the amount of entitlement otherwise chargeable for the period of the original overpayment.

(Authority: 38 U.S.C. 3034(a), 38 U.S.C. 3323(a), 3685)

Transfer of Entitlement to Basic Educational Assistance to Dependents

§ 21.9570

Transfer of entitlement.

An individual entitled to educational assistance under 38 U.S.C. chapter 33 based on his or her own active duty service, and who is approved by a service department to transfer entitlement, may transfer up to a total of 36 months of his or her entitlement to a dependent (or among dependents). A transferor may not transfer an amount of entitlement that is greater than the entitlement he or she has available at the time of transfer.

(a)

Application of sections in subpart P to individuals in receipt of transferred entitlement.

In addition to the rules in this section, the following sections apply to a dependent in the same manner as they apply to the individual from whom entitlement was transferred.

(1)

Definitions.

Section 21.9505—Definitions.

(Authority: 38 U.S.C. 3319)

(2)

Claims and applications.

Section 21.9510—Claims, VA's duty to assist, and time limits.

(Authority: 38 U.S.C. 3319)

(3)

Eligibility.

(i) Section 21.9530—Eligibility time limit, paragraphs (d) and (e) only; and

(ii) Section 21.9535—Extended period of eligibility, except that extensions to dependents are subject to the transferor's right to revoke or modify transfer at any time and that VA may only extend a child's ending date to the date the child attains age 26.

(Authority: 38 U.S.C. 3319)

(4)

Entitlement.

(i) Section 21.9550—Entitlement;

(ii) Section 21.9555—Entitlement to supplemental educational assistance;

(iii) Section 21.9560—Entitlement charges.

(Authority: 38 U.S.C. 3319)

(5)

Counseling.

(i) Section 21.9580—Counseling;

(ii) Section 21.9585—Travel expenses.

(Authority: 38 U.S.C. 3319)

(6)

Approved programs of education and courses.

(i) Section 21.9590—Approved programs of education and courses;

(ii) Section 21.9600—Overcharges.

(Authority: 38 U.S.C. 3319)

(7)

Payments—Educational assistance

.

(i) Section 21.9620—Educational assistance;

(ii) Section 21.9625—Beginning dates, except for paragraphs (e) and (h);

(iii) Section 21.9630—Suspension or discontinuance of payments;

(iv) Section 21.9635—Discontinuance dates, except for paragraphs (n) and (o);

(v) Section 21.9640—Rates of payment of educational assistance;

(vi) Section 21.9650—Increase in educational assistance;

(vii) Section 21.9655—Rates of supplemental educational assistance;

(viii) Section 21.9660—Rural relocation benefit;

(ix) Section 21.9665—Reimbursement for licensing or certification tests;

(x) Section 21.9670—Work-study allowance;

(xi) Section 21.9675—Conditions that result in reduced rates or no payment;

(xii) Section 21.9680—Certifications and release of payments;

(xiii) Section 21.9685—Tutorial assistance;

(xiv) Section 21.9690—Nonduplication of educational assistance;

(xv) Section 21.9695—Overpayments, except that the dependent and transferor are jointly and se

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