[Federal Register Volume 62, Number 207 (Monday, October 27, 1997)]
[Rules and Regulations]
[Pages 55518-55521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28364]


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DEPARTMENT OF DEFENSE

DEPARTMENT OF TRANSPORTATION
Coast Guard

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AI79


Veterans and Reservists Education: Additional Educational 
Assistance While Serving in the Selected Reserve

AGENCIES: Department of Defense, Department of Transportation (Coast 
Guard), and Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the educational assistance and 
educational benefits regulations of the Department of Veterans Affairs 
(VA). It makes changes concerning the amount of monthly educational 
assistance available to certain veterans and reservists training under 
the Montgomery GI Bill. These changes restate statutory requirements 
and set forth VA's statutory interpretations of a provision of the 
National Defense Authorization Act for Fiscal Year 1996. It also makes 
nonsubstantive changes by removing provisions that no longer apply and 
by clarifying provisions.

DATES: Effective Date: This final rule is effective October 27, 1997.
    However, the changes in restatements of statute and in statutory 
interpretations will be applied retroactively from the effective dates 
of the statutory provisions. For more information concerning the dates 
of application, see the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: June C. Schaeffer, Assistant Director 
for Policy and Program Administration, Education Service, Veterans 
Benefits Administration, 202-273-7187.

SUPPLEMENTARY INFORMATION: This document amends regulations concerning 
VA-administered educational assistance and educational benefits under 
the Montgomery GI Bill--Active Duty program (38 CFR part 21, subpart K) 
and the Montgomery GI Bill--Selected Reserve program (38 CFR part 21, 
subpart L).
    The National Defense Authorization Act for Fiscal Year 1996 (Public 
Law 104-106) provides that the rate of the educational assistance 
allowance may be increased by an amount not exceeding $350 per month 
for certain persons. To be eligible a person must qualify for 
educational assistance payable under the Montgomery GI Bill--Active 
Duty through at least three years active duty service and must also 
agree to serve at least 6 years in the Selected Reserve, or the person 
must qualify for educational assistance payable under the Montgomery GI 
Bill--Selected Reserve. Also, to be eligible the person must have a 
skill or specialty designated by the Secretary of the appropriate 
Department of the military as a skill or specialty in which there is a 
critical shortage of personnel or for which it is difficult to recruit 
or, in the case of critical units, to retain personnel. Public Law 104-
106 further provides that the actual amounts of increase shall be 
determined by the Secretary of Defense. This document amends 
Secs. 21.7136 and 21.7137 for the Montgomery GI Bill--Active Duty and 
Sec. 21.7636 for the Montgomery GI Bill--Selected Reserve to reflect 
these statutory amendments.
    This document also amends Secs. 21.7131 and 21.7631 concerning 
commencing dates to provide that the effective date for an increase 
will be the latest of: the date that would otherwise be used for such 
educational assistance; the first date on which the veteran or 
reservist is entitled to the increase as determined by the Secretary of 
the military department concerned; or February 10, 1996, the effective 
date of Public Law 104-106. This document further amends Secs. 21.7135 
and 21.7635 concerning discontinuance dates to add a provision stating 
that if the veteran or reservist loses entitlement to the increase, the 
effective date for the reduction in the monthly rate payable is the 
date, as determined by the Secretary of the military department 
concerned, that the veteran or reservist is no longer entitled to the 
increase. In addition, this document makes amendments to Secs. 21.7139 
and 21.7639 to clarify that adjustments made for certain incarcerated 
persons and for failure to work sufficient hours of apprenticeship and 
other on-job training are applicable to such increases in payments, in 
the same manner as they are to other payments under the Montgomery GI 
Bill--Active Duty or the Montgomery GI Bill--Selected Reserve. These 
amendments, in our view, are required by statute.

[[Page 55519]]

    The restatements of statute and statutory interpretations contained 
in this final rule will be applied retroactively from February 10, 
1996, which is the effective date of the statutory provision.
    Nonsubstantive changes also are made by removing provisions that no 
longer apply and by clarifying provisions.
    The Department of Defense (DOD), the Department of Transportation 
(Coast Guard), and VA are jointly issuing this final rule. The 
additional amount available to veterans and reservists is funded by DOD 
and the Coast Guard, but is administered by VA.
    This final rule merely restates statutory provisions, sets forth 
statutory interpretations, and makes nonsubstantive changes by removing 
provisions that no longer apply and by clarifying provisions. 
Accordingly, there is a basis for dispensing with prior notice and 
comment and delayed effective date provisions of 5 U.S.C. 552 and 553.
    The Secretary of Defense, the Commandant of the Coast Guard, and 
the Secretary of Veterans Affairs hereby certify 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. This final rule affects individuals and does not affect 
small entities. Further, it merely restates statutory changes, sets 
forth statutory interpretations, and makes nonsubstantive changes. 
Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt from 
the initial and final regulatory flexibility analyses requirements of 
sections 603 and 604.
    The Catalog of Federal Domestic Assistance number for one of the 
two programs affected by this final rule is 64.120. This final rule 
also affects the Montgomery GI Bill--Selected Reserve program, which 
has no Catalog of Federal Domestic Assistance number.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Defense 
Department, 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: July 22, 1997.
Hershel W. Gober,
Acting Secretary of Veterans Affairs.

    Approved: August 13, 1997.
Al H. Bemis,
Deputy Assistant Secretary of Defense for Reserve Affairs (Manpower and 
Personnel).

    Approved: October 9, 1997.
G.F. Woolever,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Human 
Resources.

    For the reasons set out in the preamble, 38 CFR part 21, subparts K 
and L, is amended as set forth below.

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

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

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

    Authority: 38 U.S.C. 501(a), chs. 30, 36, unless otherwise 
noted.

    2. In Sec. 21.7131, paragraph (k) is added after the authority 
citation following paragraph (j), to read as follows:


Sec. 21.7131  Commencing dates.

* * * * *
    (k) Increase (``kicker'') due to service in the Selected Reserve. 
If a veteran is entitled to an increase (``kicker'') in the monthly 
rate of basic educational assistance because he or she has met the 
requirements of Sec. 21.7136(g) or Sec. 21.7137(e), the effective date 
of that increase (``kicker'') will be the latest of the following 
dates:
    (1) The commencing date of the veteran's award as determined by 
paragraphs (a) through (j) of this section;
    (2) The first date on which the veteran is entitled to the increase 
(``kicker'') as determined by the Secretary of the military department 
concerned; or
    (3) February 10, 1996.

(Authority: 10 U.S.C. 16131)

    3. In Sec. 21.7135, paragraph (bb) is redesignated as paragraph 
(cc), and a new paragraph (bb) is added, to read as follows:


Sec. 21.7135  Discontinuance dates.

* * * * *
    (bb) Reduction following loss of increase (``kicker'') for Selected 
Reserve service. If a veteran is entitled to an increase (``kicker'') 
in the monthly rate of basic educational assistance as provided in 
Sec. 21.7136(g) or Sec. 21.7137(e), due to service in the Selected 
Reserve, and loses that entitlement, the effective date for the 
reduction in the monthly rate payable is the date, as determined by the 
Secretary of the military department concerned, that the veteran is no 
longer entitled to the increase (``kicker'').

(Authority: 10 U.S.C. 16131)
    4. In Sec. 21.7136, paragraph (d) introductory text is amended by 
removing ``paragraph (e)'', and adding, in its place, ``paragraphs (f) 
and (g)''; paragraph (e)(1) is amended by removing ``(c)'' and adding, 
in its place, ``(d)'' and by removing ``(a) or (b)'' and adding, in its 
place, ``(b) or (c)''; and paragraph (e) introductory text is revised, 
and paragraph (g) is added after the authority citation following 
paragraph (f), to read as follows:


Sec. 21.7136  Rates for payment of basic educational assistance.

* * * * *
    (e) Less than one-half-time training and rates for servicemembers. 
Except as provided in paragraph (g) of this section, the monthly rate 
for a veteran who is pursuing a course on a less than one-half-time 
basis or the monthly rate for a servicemember who is pursuing a program 
of education is the lesser of:
* * * * *
    (g) Increase (``kicker'') in basic educational assistance rates 
payable for service in the Selected Reserve. (1) The Secretary of the 
military department concerned may increase the amount of basic 
educational assistance payable under paragraph (b), (c), (d), (e), or 
(f) of this section, as appropriate. The increase (``kicker'') is 
payable to a veteran who has a skill or specialty in which there is a 
critical shortage of personnel or for which it is difficult to recruit, 
or, in the case of critical units, retain personnel, if the veteran:
    (i) Establishes eligibility for educational assistance under 
Sec. 21.7042(a) or Sec. 21.7045; and
    (ii) Meets the criteria of Sec. 21.7540(a)(1) with respect to 
service in the Selected Reserve.
    (2) The Secretary of the military department concerned--
    (i) Will, for such an increase (``kicker''), set an amount of the 
increase (``kicker'') for full-time training, but the increase 
(``kicker'') may not exceed $350 per month; and
    (ii) May set the amount of the increase (``kicker'') payable, for a 
veteran pursuing a program of education less than full time or pursuing 
a program of apprenticeship or other on-job training, at an amount less 
than the amount described in paragraph (g)(2)(i) of this section.

(Authority: 10 U.S.C. 16131(i)(2))

    5. In Sec. 21.7137, paragraphs (e) and (f) are redesignated as 
paragraphs (f) and

[[Page 55520]]

(g), respectively; paragraph (b) introductory text is revised; and a 
new paragraph (e) is added, to read as follows:


Sec. 21.7137  Rates of payment of basic educational assistance for 
individuals with remaining entitlement under 38 U.S.C. ch. 34.

* * * * *
    (b) Less than one-half-time training. Except as provided in 
paragraphs (d) and (e) of this section, the monthly rate for a veteran 
who is pursuing a course on a less than one-half-time basis is the 
lesser of:
* * * * *
    (e) Increase (``kicker'') in basic educational assistance rates for 
service in the Selected Reserve. (1) The Secretary of the military 
department concerned may increase the amount of basic educational 
assistance payable under paragraph (a), (b), or (d) of this section, as 
appropriate. The increase (``kicker'') is payable to a veteran who has 
a skill or specialty in which there is a critical shortage of personnel 
or for which it is difficult to recruit, or, in the case of critical 
units, retain personnel, if the veteran:
    (i) Establishes eligibility for educational assistance under 
Sec. 21.7044(a); and
    (ii) Meets the criteria of Sec. 21.7540(a)(1) with respect to 
service in the Selected Reserve.
    (2) The Secretary of the military department concerned--
    (i) Will, for such an increase, set the amount of the increase 
(``kicker'') payable for full-time training, but the increase 
(``kicker'') may not exceed $350 per month;
    (ii) May set the amount of the ``kicker'' payable, for a veteran 
pursuing a program of education less than full time or pursuing an 
apprenticeship or other on-job training, at an amount less than the 
amount described in paragraph (e)(2)(i) of this section.

(Authority: 10 U.S.C. 16131(i)(2))
* * * * *
    6. In Sec. 21.7139, the introductory text is amended by removing 
``of this part''; paragraphs (a), (g), and (h) are removed; paragraphs 
(b), (c), (d), (e), (f), (i), and (j) are redesignated as paragraphs 
(a), (b), (c), (d), (e), (f), and (g), respectively; newly redesingated 
(g)(2) is redesingated as (g)(3); the authority citation for newly 
redesignated paragraph (b) is amended by removing ``; Pub. L. 98-525''; 
the authority citation for newly redesignated paragraph (c) is amended 
by removing ``; Pub. L. 98-525''; newly redesignated paragraph 
(d)(2)(iii) is amended by removing ``of this part''; the authority 
citation for newly redesignated paragraph (d) is amended by removing 
``; Pub. L. 98-525''; newly redesignated paragraph (e)(2)(ii) is 
amended by removing ``of this part'' each time it appears and by 
removing ``Sec. 21.7137(d)'', and adding, in its place, 
``Sec. 21.7137(d) or (e)'', newly redesignated paragraph (e)(2)(iii) is 
amended by removing ``Sec. 21.7136(c)'', and adding, in its place 
``Sec. 21.7136(d), (f), or (g)''; newly redesignated paragraph 
(e)(2)(iii) is amended by removing ``of this part'' each time it 
appears; newly redesignated paragraph (e)(3)(iii) is amended by 
removing ``of this part'' both times it appears; the authority citation 
for newly redesignated paragraph (e) is amended by removing ``; Pub. L. 
98-525''; newly redesignated paragraph (g)(3)(ii) is amended by 
removing ``Sec. 21.4270(b)'' and adding, in its place, 
``Sec. 21.4270(c)''; the section heading and newly redesignated 
paragraph (g)(1) are revised, and a new paragraph (g)(2) is added, to 
read as follows:


Sec. 21.7139  Conditions which result in reduced rates or no payment.

* * * * *
    (g) Failure to work sufficient hours of apprenticeship and other 
on-job training. (1) For any month in which an eligible veteran 
pursuing an apprenticeship or other on-job training program fails to 
complete 120 hours of training, VA will reduce proportionally--
    (i) The rates specified in Secs. 21.7136(b)(2), (c)(2), (d)(3), and 
(d)(4), and 21.7137(a)(2) and (d)(2); and
    (ii) Any increase (``kicker'') set by the Secretary of the military 
department concerned as described in Secs. 21.7136(g) and 21.7137(e).
    (2) In making the computations required by paragraph (g)(1) of this 
section, VA will round the number of hours worked to the nearest 
multiple of eight.
* * * * *

Subpart L--Educational Assistance for Members of the Selected 
Reserve

    7. The authority citation for part 21, subpart L, continues to read 
as follows.

    Authority: 10 U.S.C. ch. 1606; 38 U.S.C. 501(a), ch. 36, unless 
otherwise noted.

    8. In Sec. 21.7631, paragraph (h) is added after the authority 
citation following paragraph (g), to read as follows:


Sec. 21.7631  Commencing dates.

* * * * *
    (h) Increase (``kicker'') in amount payable. If a reservist is 
entitled to an increase (``kicker'') in the monthly rate of educational 
assistance because he or she has met the requirements of 
Sec. 21.7636(b), the effective date of that increase (``kicker'') will 
be the latest of the following dates:
    (1) The commencing date of the reservist's award as determined by 
paragraphs (a) through (g) of this section; or
    (2) The first date on which the reservist is entitled to the 
increase (``kicker'') as determined by the Secretary of the military 
department concerned; or
    (3) February 10, 1996.

(Authority: 10 U.S.C. 16131)

    9. In Sec. 21.7635, paragraph (x) is redesignated as paragraph (y); 
and a new paragraph (x) is added, to read as follows:


Sec. 21.7635  Discontinuance dates.

* * * * *
    (x) Reduction following loss of increase (``kicker''). If a 
reservist is entitled to an increase (``kicker'') in the monthly rate 
of basic educational assistance as provided in Sec. 21.7636(b) and 
loses that entitlement, the effective date for the reduction in the 
monthly rate payable is the date, as determined by the Secretary of the 
military department concerned, that the reservist is no longer entitled 
to the increase (``kicker'').

(Authority: 10 U.S.C. 16131)
* * * * *
    10. In Sec. 21.7636, paragraph (b) is redesignated as paragraph 
(c); and a new paragraph (b) is added, to read as follows:


Sec. 21.7636  Rates of payment.

* * * * *
    (b) Increase (``kicker'') in educational assistance rates. (1) The 
Secretary of the military department concerned may increase the amount 
of educational assistance stated in paragraph (a) of this section that 
is payable to a reservist who has a skill or specialty in which there 
is a critical shortage of personnel or for which it is difficult to 
recruit, or, in the case of critical units, retain personnel.
    (2) The Secretary of the military department concerned--
    (i) Will set the amount of the increase (``kicker'') for full-time 
training, but the increase (``kicker'') may not exceed $350 per month; 
and
    (ii) May set the amount of the increase (``kicker'') payable, for a 
reservist pursuing a program of education less than full time or 
pursuing an apprenticeship or other on-job training, at an amount less 
than the amount

[[Page 55521]]

described in paragraph (b)(2)(i) of this section.

(Authority: 10 U.S.C. 16131(i)(1))
* * * * *
    11. In Sec. 21.7639, paragraph (f)(2) is redesignated as paragraph 
(f)(3); paragraph (c)(2)(ii), the authority citation for paragraph (c), 
paragraph (f)(1), and the authority citation for paragraph (f) are 
revised; and a new paragraph (f)(2) is added, to read as follows:


Sec. 21.7639  Conditions which result in reduced rates or no payment.

* * * * *
    (c) * * *
    (2) * * *
    (ii) The monthly rate as stated in Sec. 21.7636(a) and any increase 
payable under Sec. 21.7636(b).
* * * * *
(Authority: 10 U.S.C. 16131(i)(1), 16136(b); 38 U.S.C. 3482(g))
* * * * *
    (f) Failure to work sufficient hours of apprenticeship and other 
on-job training. (1) For any calendar month in which a reservist 
pursuing an apprenticeship or other on-job training program fails to 
complete 120 hours of training, VA will reduce proportionally--
    (i) The rates specified in Sec. 21.7636(a)(2); and
    (ii) Any increase set by the Secretary of the military department 
concerned as described in Sec. 21.7636(b).
    (2) In making the computations required by paragraph (f)(1) of this 
section, VA will round the number of hours worked to the nearest 
multiple of eight.

(Authority: 10 U.S.C. 2131(d)(2), 16131(i)(1); sec. 642 (b), (d), 
Pub. L. 101-189, 103 Stat. 1456-1458)
* * * * *
[FR Doc. 97-28364 Filed 10-24-97; 8:45 am]
BILLING CODE 8320-01-P