[Federal Register Volume 60, Number 219 (Tuesday, November 14, 1995)]
[Rules and Regulations]
[Pages 57178-57179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27995]



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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AH70


Duty Periods

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
adjudication regulations to clarify the status of individuals attending 
the preparatory schools of the United States Air Force Academy, the 
United States Military Academy, and the United States Naval Academy for 
purposes of compensation and pension eligibility. This amendment is 
necessary to reflect opinions of VA's General Counsel setting out the 
circumstances under which preparatory school attendance will constitute 
active duty or active duty for training for VA purposes.

EFFECTIVE DATE: This amendment is effective October 3, 1994, the date 
of the initial General Counsel opinion upon which it is based.

FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant, 
Regulations Staff (211B), Compensation and Pension Service, Veterans 
Benefits Administration, 810 Vermont Avenue, NW., Washington, DC 20420, 
telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION: In most instances, an individual qualifies 
for VA compensation or pension by meeting the statutory definition of a 
``veteran'' or by being the survivor of a ``veteran.'' 38 U.S.C. 101(2) 
and 38 CFR 3.1(d) state that a ``veteran'' is a person who served in 
the ``active military, naval, or air service,'' and who was discharged 
or released therefrom under conditions other than dishonorable.
    The phrase ``active military, naval, or air service'' is defined in 
38 CFR 3.6(a) as including ``active duty'' as well as certain periods 
of active- or inactive-duty training during which the individual was 
disabled or died. If the individual upon whose service the claim is 
based had ``active military, naval, or air service'' and was discharged 
under other than dishonorable conditions, that individual qualifies as 
a ``veteran.''
    Under 38 U.S.C. 101(21)(D), service as a cadet at the United States 
Military, Air Force, or Coast Guard Academy, or as a midshipman at the 
United States Naval Academy is considered ``active duty.'' A precedent 
opinion of the VA General Counsel (VAOPGCPREC 18-94) dated October 3, 
1994, addressed the question of whether attendance at the United States 
Air Force Academy Preparatory School constituted ``active duty.'' (Such 
precedent opinions are binding in VA benefit decisions; see 38 CFR 
3.101, 14.507(b), and 19.5.) The General Counsel noted that attendance 
at a service academy preparatory school does not constitute service as 
a cadet or midshipman at a service academy.
    In VAOPGCPREC 18-94 the General Counsel held that an enlisted 
servicemember who is reassigned to the United States Air Force Academy 
Preparatory School without a release from active duty continues on 
``active duty'' but that persons who enlisted directly from civilian 
life, a reserve component, or the Air National Guard for the sole 
purpose of attending the Air Force Academy Preparatory School are on 
``active duty for training.'' The General Counsel found it significant 
that an enlisted servicemember who is disenrolled from a preparatory 
school prior to completion of the school program still has a military 
obligation to complete while an individual attending a preparatory 
school from the Reserves, National Guard, or civilian life is generally 
discharged from the service in the event of premature disenrollment.
    In VAOPGCPREC 6-95 dated February 10, 1995, the VA General Counsel 
held that the analysis in VAOPGCPREC 18-94 for determining whether 
service at the United States Air Force Academy Preparatory School 
constitutes ``active duty'' is generally applicable to service 
consisting of attendance at the United States Military Academy 
Preparatory School and the United States Naval Academy Preparatory 
School.
    However, the opinion stated that in individual cases it would be 
advisable to determine whether a student had made a commitment to 
active-duty service which would be binding upon disenrollment because 
such a student, even though not transferring directly from enlisted 
active-duty status, would be considered to be on active duty while 
attending a preparatory school. Paragraphs (b) and (c) of 38 CFR 3.6 
are amended by this document to reflect the holdings in VAOPGCPREC 18-
94 and VAOPGCPREC 6-95.
    In the second sentence of Sec. 3.6(a) the phrase ``any period of 
active duty for training'' is substituted for ``and period of active 
duty for training.'' This corrects a typographical error. No 
substantive rule change is involved.
    Under 5 U.S.C. 553, there is a basis for dispensing with prior 
notice and comment and for dispensing with a 30-day delay of the 
effective date since the final rule constitutes an interpretive rule 

[[Page 57179]]
regarding 38 U.S.C. 101, paragraphs 21 (definition of active duty) and 
22 (definition of active duty for training).
    The Secretary certifies that this regulatory amendment will not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. This amendment, which constitutes an interpretive rule, 
will affect only individuals and will not directly affect any small 
entities. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is 
exempt from the initial and final regulatory flexibility analyses 
requirements of sections 603 and 604.

    The Catalog of Federal Domestic Assistance program numbers are 
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Health care, 
Individuals with disabilities, Pensions, Veterans.

    Approved: November 3, 1995.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 3 is amended 
as set forth below:

PART 3--ADJUDICATION

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

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

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

    2. In Sec. 3.6, paragraph (a) is amended by removing ``active duty, 
and'' and adding in its place ``active duty, any''; paragraphs (b)(5) 
and (b)(6) are redesignated as paragraphs (b)(6) and (b)(7), 
respectively; paragraph (c)(5) is redesignated as paragraph (c)(6); and 
new paragraphs (b)(5) and (c)(5) are added to read as follows:


Sec. 3.6  Duty periods.

* * * * *
    (b) * * *
    (5) Attendance at the preparatory schools of the United States Air 
Force Academy, the United States Military Academy, or the United States 
Naval Academy for enlisted active-duty members who are reassigned to a 
preparatory school without a release from active duty, and for other 
individuals who have a commitment to active duty in the Armed Forces 
that would be binding upon disenrollment from the preparatory school;
* * * * *
    (c) * * *
    (5) Attendance at the preparatory schools of the United States Air 
Force Academy, the United States Military Academy, or the United States 
Naval Academy by an individual who enters the preparatory school 
directly from the Reserves, National Guard or civilian life, unless the 
individual has a commitment to service on active duty which would be 
binding upon disenrollment from the preparatory school.
* * * * *
[FR Doc. 95-27995 Filed 11-13-95; 8:45 am]
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