[Federal Register Volume 63, Number 166 (Thursday, August 27, 1998)]
[Rules and Regulations]
[Pages 45717-45719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22856]


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DEPARTMENT OF DEFENSE

DEPARTMENT OF TRANSPORTATION

Coast Guard

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AH88


Election of Education Benefits

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 Department of Veterans Affairs (VA) 
educational assistance and educational benefits regulations relating to 
certain elections between benefits. VA has provided by regulation that 
after a veteran seeks to make an election to have service in the 
Selected Reserve credited toward payment under the Montgomery GI Bill--
Selected Reserve (MGIB-SR) program or under the Montgomery GI Bill--
Active Duty (MGIB-AD) program, the election will take effect when the 
individual has negotiated a check issued under the program she or he 
has elected. In order to adapt the regulations to the new system of 
electronic transfers, these election provisions are changed to make the 
election effective either upon negotiation of a check or electronic 
receipt of education benefits. VA has provided by regulation that an 
election to receive benefits under Survivors' and Dependents' 
Educational Assistance (DEA) for a program of education rather than 
pension, compensation, or Dependency and Indemnity Compensation (DIC) 
will take effect when the individual has commenced a program of 
education and negotiated a check issued under the program she or he has 
elected. In order to adapt the regulations to the new system of 
electronic transfers and to ensure that decisions are made with 
knowledge, these election provisions are changed to require a written 
election to be submitted and to make the election effective either upon 
negotiation of a check or electronic receipt of education benefits. 
Nonsubstantive changes are also made for purposes of clarity and to 
reflect current statutory codification and authority. This final rule 
also involves collections of information.

EFFECTIVE DATE: September 28, 1998.

FOR FURTHER INFORMATION CONTACT: William G. Susling, Jr., Education 
Adviser, Education Service (225C), Veterans Benefits Administration, 
Department of Veterans Affairs, (202) 273-7187.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on November 25, 1997 (62 FR 62736), it was proposed to amend 
the ``SURVIVORS' AND DEPENDENTS' EDUCATIONAL ASSISTANCE UNDER 38 U.S.C. 
CHAPTER 35'' regulations, the ``ALL VOLUNTEER FORCE EDUCATIONAL 
ASSISTANCE PROGRAM (MONTGOMERY GI BILL--ACTIVE DUTY)'' regulations, and 
the ``EDUCATIONAL ASSISTANCE FOR MEMBERS OF THE SELECTED RESERVE'' 
regulations as set forth in the SUMMARY portion of this document. These 
regulations are set forth at 38 CFR Part 21, Subparts C, K, and L.
    Interested persons were given 60 days to submit comments. No 
comments were received. Based on the rationale set forth in the 
proposed rule, we are adopting the provisions of the proposed rule as a 
final rule.
    The Department of Defense (DOD), the Department of Transportation 
(Coast Guard), and VA are jointly issuing this final rule insofar as it 
relates to the MGIB-SR program. This program is funded by DOD and the 
Coast Guard, and is administered by VA. The remainder of this final 
rule is issued solely by VA.

Paperwork Reduction Act of 1995

    Information collection and recordkeeping requirements associated 
with this final rule concerning Sec. 21.3023 have been approved by the 
Office of Management and Budget (OMB) under the provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501-3520) and have been assigned 
OMB control number 2900-0595. The final rule at Sec. 21.3023 requires 
that an election to receive DEA rather than DIC must be made to VA in 
writing.
    Furthermore, information collection and recordkeeping requirements 
associated with this final rule concerning Secs. 21.7042 and 21.7540 
have been approved by OMB under the provisions of the Paperwork 
Reduction Act (44 U.S.C. 3501-3520) and have been assigned OMB control 
number 2900-0594. The final rule at Secs. 21.7042 and 21.7540 requires 
that a veteran must choose to apply certain Selected Reserve service 
either to MGIB--SR or MGIB.
    OMB assigns control numbers to collections 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. The valid OMB control number 
assigned to each collection of information in this final rule is 
displayed at the end of each affected section of the regulations.

Regulatory Flexibility Act

    The signers of this document hereby certify that this final rule 
does not have 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 directly affects only individuals and 
does not directly affect small entities. Pursuant to 5 U.S.C. 605(b), 
the final rule, therefore, is exempt from the initial and final 
regulatory flexibility analyses requirements of Secs. 603 and 604.
    The Catalog of Federal Domestic Assistance numbers for programs 
affected by the final rule are 64.117 and 64.124. The final rule also 
affects the Montgomery GI Bill--Selected Reserve for which there is 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, Conflicts of interests, Defense 
Department, Education, Educational institutions, 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, Veterans, Vocational education, Vocational 
rehabilitation.


[[Page 45718]]


    Approved: May 19, 1998.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
    Approved: July 15, 1998.
Normand G. Lezy,
Lieutenant General, USAF, Deputy Assistant Secretary (Military 
Personnel Policy), Department of Defense.

    Approved: July 28, 1998.
T. J. Barrett,
RADM, USCG, Acting Assistant Commandant for Human Resources.

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

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

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

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

    Authority: 38 U.S.C. 501(a), 512, 3500-3566, unless otherwise 
noted.

    2. In Sec. 21.3023, paragraph (c)(3) is amended by removing 
``educational assistance'' and adding, in its place, ``education under 
DEA''; the section heading, paragraph (c) introductory text, and 
paragraph (c)(1) are revised; a parenthetical is added at the end of 
the section, and an authority citation for the section is added, to 
read as follows:


Sec. 21.3023  Nonduplication; pension, compensation, and dependency and 
indemnity compensation.

* * * * *
    (c) Child; election. An election by a child under this section must 
be submitted to VA in writing.
    (1) Except as provided in paragraph (c)(2) of this section, an 
election to receive Survivors' and Dependents' Educational Assistance 
(DEA) is final when the eligible child commences a program of education 
under DEA (38 U.S.C. chapter 35). Commencement of a program of 
education under DEA will be deemed to have occurred for VA purposes on 
the date the first payment of DEA educational assistance is made, as 
evidenced by negotiation of the first check or receipt of the first 
payment by electronic funds transfer.
* * * * *
(The information collection requirements in this section have been 
approved by the Office of Management and Budget under control number 
2900-0595)

(Authority: 38 U.S.C. 3562)

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

    3. 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.

    4. In Sec. 21.7042, the section heading and paragraphs (d)(2) and 
(d)(3) are revised, paragraph (d)(4) and its authority citation are 
added, and a parenthetical is added at the end of the section, to read 
as follows:


Sec. 21.7042  Eligibility for basic educational assistance.

* * * * *
    (d) * * *
    (2) An individual must elect, in writing, whether he or she wishes 
service in the Selected Reserve to be credited towards establishing 
eligibility under 38 U.S.C. chapter 30 or under 10 U.S.C. chapter 1606 
when:
    (i) The individual:
    (A) Is a veteran who has established eligibility for basic 
educational assistance through meeting the provisions of paragraph (b) 
of this section; and
    (B) Also is a reservist who has established eligibility for 
benefits under 10 U.S.C. chapter 1606 through meeting the requirements 
of Sec. 21.7540; or
    (ii) The individual is a member of the National Guard or Air 
National Guard who has established eligibility for basic educational 
assistance under 38 U.S.C. chapter 30 through activation under a 
provision of law other than 32 U.S.C. 316, 502, 503, 504, or 505.
    (3) An election under this paragraph (d) to have Selected Reserve 
service credited towards eligibility for payment of educational 
assistance under 38 U.S.C. chapter 30 or under 10 U.S.C. chapter 1606 
is irrevocable when the veteran either negotiates the first check or 
receives the first payment by electronic funds transfer of the 
educational assistance elected.
    (4) If a veteran is eligible to receive educational assistance 
under both 38 U.S.C. chapter 30 and 10 U.S.C. chapter 1606, he or she 
may receive educational assistance alternately or consecutively under 
each of these chapters to the extent that the educational assistance is 
based on service not irrevocably credited to one or the other chapter 
as provided in paragraphs (d)(1) through (d)(3) of this section.

(Authority: 10 U.S.C. 16132, 38 U.S.C. 3033(c))
* * * * *
(The information requirements in this section have been approved by 
the Office of Management and Budget under control number 2900-0594)

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

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

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

    6. In Sec. 21.7540, paragraph (c) and the authority citation for 
paragraph (d) are revised, and a parenthetical is added at the end of 
the section, to read as follows:


Sec. 21.7540  Eligibility for educational assistance.

* * * * *
    (c) Limitations on establishing eligibility. (1) An individual must 
elect in writing whether he or she wishes service in the Selected 
Reserve to be credited towards establishing eligibility under 38 U.S.C. 
chapter 30 or under 10 U.S.C. chapter 1606 when:
    (i) The individual is a reservist who is eligible for basic 
educational assistance provided under 38 U.S.C. 3012, and has 
established eligibility to that assistance partially through service in 
the Selected Reserve; or
    (ii) The individual is a member of the National Guard or Air 
National Guard who has established eligibility for basic educational 
assistance provided under 38 U.S.C. 3012 through activation under a 
provision of law other than 32 U.S.C. 316, 502, 503, 504, or 505 
followed by service in the Selected Reserve.
    (2) An election under this paragraph (c) to have Selected Reserve 
service credited towards eligibility for payment of educational 
assistance under 38 U.S.C. chapter 30 or under 10 U.S.C. chapter 1606 
is irrevocable when the reservist either negotiates the first check or 
receives the first payment by electronic funds transfer of the 
educational assistance elected.
    (3) If a reservist is eligible to receive educational assistance 
under both 38 U.S.C. chapter 30 and 10 U.S.C. chapter 1606, he or she 
may receive educational assistance alternately or consecutively under 
each of these chapters to the extent that the educational assistance is 
based on service not irrevocably credited to one or the other chapter 
as provided in paragraphs (c)(1) and (c)(2) of this section.

(Authority: 10 U.S.C. 16132; 38 U.S.C. 3033(c))
* * * * *
    (d) * * *

(Authority: 10 U.S.C. 16132(d), 16134)

(The information collection requirements in this section have been 
approved by the Office

[[Page 45719]]

of Management and Budget under control number 2900-0594)
[FR Doc. 98-22856 Filed 8-26-98; 8:45 am]
BILLING CODE 8320-01-P