[Federal Register Volume 65, Number 25 (Monday, February 7, 2000)]
[Rules and Regulations]
[Pages 5785-5788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2637]


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DEPARTMENT OF DEFENSE
DEPARTMENT OF TRANSPORTATION

Coast Guard

DEPARTMENT OF VETERANS AFFAIRS

38 CFR PART 21

RIN 2900-AI63


Eligibility Criteria for the Montgomery GI Bill--Active Duty and 
Other Miscellaneous Issues

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 benefit regulations of the Department of Veterans Affairs 
(VA). The amendments reflect statutory changes which set forth new 
eligibility criteria that will allow additional individuals to 
establish eligibility for educational assistance under the Montgomery 
GI Bill--Active Duty (MGIB); and also reflect statutory provisions 
concerning the approval of courses leading to alternative teacher 
certification. This document also makes changes for the purpose of 
clarification.

DATES:  Effective date: February 7, 2000.

Dates of application:
    October 1, 1996: 38 CFR 21.7020(b)(1); new Sec. 21.7042(f)(3); and 
newly redesignated Sec. 21.7042(f)(4).
    October 9, 1996: Secs. 21.4135(b); 21.5021(d)(3); 21.5058(b); 
21.5130(d); 21.7020(b)(29); all changes to Sec. 21.7042 except new 
Sec. 21.7042(f)(3) and newly redesignated Sec. 21.7042(f)(4); 
Secs. 21.7045; 21.7050; 21.7131; 21.7520(b); and 21.7635.

FOR FURTHER INFORMATION CONTACT:  William G. Susling, Jr., Education 
Advisor, Education Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 202-273-7187.

SUPPLEMENTARY INFORMATION:  In the Federal Register of November 12, 
1998 (63 FR 63253), the Department of Defense (DOD), the Department of 
Transportation (Coast Guard), and the Department of Veterans Affairs 
(VA) proposed amending subparts D, G, K, and L of 38 CFR part 21, as 
set forth in the SUMMARY portion of this document.
    DOD, the Department of Transportation (Coast Guard), and VA gave 
interested persons 60 days to submit comments. VA received one letter 
from a service organization. The organization noted that the amendments 
would be beneficial for veterans and concurred in them.
    Based on the rationale stated in this document and the proposed 
rule, we are adopting the provisions of the proposed rule as a final 
rule without change except to the authority citations for subparts D, 
G, and L.
    DOD is issuing this final rule jointly with VA insofar as it 
relates to VEAP. DOD funds this program and VA administers it. DOD, the 
Department of Transportation (Coast Guard), and VA are jointly issuing 
this final rule insofar as it relates to the Montgomery GI Bill--
Selected Reserve. DOD and the Coast Guard fund this program, and VA 
administers it. The remainder of this final rule is issued solely by 
VA.

Administrative Procedure Act

    Under 5 U.S.C. 553, there is a basis for dispensing with a 30-day 
delay of the effective date since the changes made by this final rule 
are restatements of statute, interpretive rules, and nonsubstantive 
changes for the purpose of clarity.

Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection and recordkeeping requirements associated with 
this final rule concerning 38 CFR 21.7131(l) and (m) under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3520). The 
proposed rule provided an opportunity to comment to OMB and VA on those 
requirements, but no comments were received on them. OMB has assigned 
OMB control number 2900-0607 to those information collection and 
recordkeeping requirements. Under the collection of information 
provisions in Sec. 21.7131(l) and (m), a veteran may be required to 
submit evidence to show that the veteran's election to receive 
educational assistance under the MGIB was a valid one, and the date of 
VA's receipt of the evidence may have an effect on the effective date 
of an award of educational assistance.
    OMB assigns a control number to 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. We are displaying the OMB control 
number assigned to the collection of information in this final rule at 
the end of Sec. 21.7131.

Executive Order 12866

    This final rule has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary of Defense, 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 will not cause educational institutions 
to make changes in their activities and has minuscule monetary effects, 
if any. 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 numbers for programs 
that this final rule affects are 64.117, 64.120, and 64.124. 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, Loan programs-education, Loan programs-veterans, 
Manpower training programs, Reporting and recordkeeping requirements, 
Schools, Travel and transportation expenses, Veterans, Vocational 
education, Vocational rehabilitation.


[[Page 5786]]


    Approved: May 28, 1999.
Togo D. West, Jr.,
Secretary of Veterans Affairs.

    Approved: July 13, 1999.
P.A., Tracey,
Vice Admiral, USN Deputy Assistant Secretary (Military Personnel 
Policy) Department of Defense.

    Approved: October 18, 1999.
F.L. Ames,
Rear Admiral, U.S. Coast Guard, Assistant Commander for Human 
Resources.


    For the reasons set forth above, 38 CFR part 21 (subparts D, G, K, 
and L) is amended as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart D--Administration of Educational Assistance Programs

    1. 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, 34, 35, 36, unless otherwise noted.

    2. In Sec. 21.4135, paragraph (b) is added to read as follows:


Sec. 21.4135  Discontinuance dates.

* * * * *
    (b) Election to receive educational assistance under the Montgomery 
GI Bill--Active Duty. If a veteran makes a valid election, as provided 
in Sec. 21.7045(d), to receive educational assistance under the 
Montgomery GI Bill--Active Duty in lieu of educational assistance under 
the Post-Vietnam Era Veterans' Educational Assistance Program, the 
discontinuance date of educational assistance under the Post-Vietnam 
Era Veterans' Educational Assistance Program shall be the date on which 
the election was made pursuant to procedures described in 
Sec. 21.7045(d)(2).

(Authority: 38 U.S.C. 3018C(c)(1))
* * * * *

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

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

    Authority: 38 U.S.C. 501(a), chs. 32, 36, unless otherwise 
noted.


Sec. 21.5021  [Amended]

    4. In Sec. 21.5021, paragraph (d)(3) is amended by removing 
``during the period beginning on November 2, 1994, and ending on 
September 30, 1996,''.

    5. In Sec. 21.5058, the authority citation for paragraph (b) is 
revised to read as follows:


Sec. 21.5058  Resumption of participation.

* * * * *
    (b) * * *

(Authority: 38 U.S.C. 3018A, 3018B, 3018C, 3202(l), 3222)


Sec. 21.5130  [Amended]

    6. In Sec. 21.5130, paragraph (b) is amended by removing ``(except 
paragraph (b))''.

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

    7. 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.

    8. In Sec. 21.7020, paragraph (b)(29)(iii) is amended by removing 
``during the period beginning on November 2, 1994, and ending on 
September 30, 1996,''; the authority citation for paragraph (b)(29) is 
revised; paragraph (b)(1)(iv) is added immediately after the authority 
citation for paragraph (b)(1)(iii); and paragraph (b)(44) is added 
immediately after the authority citation for paragraph (b)(43), to read 
as follows:


Sec. 21.7020  Definitions.

* * * * *
    (b) * * *
    (1) * * *
    (iv) When referring to individuals who, before June 30, 1985, had 
never served on active duty (as that term is defined by Sec. 3.6(b) of 
this chapter) and who made the election described in Sec. 21.7042(a)(7) 
or (b)(10), the term active duty when used in this subpart includes 
full-time National Guard duty under title 32, U.S. Code first performed 
after June 30, 1985, by a member of the Army National Guard of the 
United States or the Air National Guard of the United States for the 
purpose of organizing, administering, recruiting, instructing, or 
training the National Guard.

(Authority: 38 U.S.C. 3002(7); sec. 107, Pub. L. 104-275, 110 Stat. 
3329-3330)
* * * * *
    (29) * * *

(Authority: 38 U.S.C. 3002(8), 3452(c))
* * * * *
    (44) Date of election. The term date of election means:
    (i) For an election that must be made in the form and manner 
determined by the Secretary of Defense, the date determined by the 
Secretary of Defense; and
    (ii) For an election that must be submitted to VA, the date VA 
receives the written election.

(Authority: 38 U.S.C. 3018C(a)(5); sec. 107(b), Pub. L. 104-275, 110 
Stat. 3329-3330)

    9. In Sec. 21.7042, paragraph (f)(3) is redesignated as paragraph 
(f)(4); newly redesignated paragraph (f)(4) is amended by removing 
``Paragraph (f)(2) of this section does'' and adding, in its place, 
``Paragraphs (f)(2) and (f)(3) of this section do'', by removing 
``Coast'' and adding, in its place, ``United States Coast'', and by 
removing ``Reserve'' and adding, in its place, ``Senior Reserve''; 
paragraph (a)(7) is added immediately after the authority citation for 
paragraph (a)(6); paragraph (b)(10) is added immediately after the 
authority citation for paragraph (b)(9); new paragraph (f)(3) and 
paragraph (g)(5) are added; and paragraphs (f)(2), (g)(1), and (g)(4) 
are revised to read as follows:


Sec. 21.7042  Basic eligibility requirements.

* * * * *
    (a) * * *
    (7) An individual whose active duty meets the definition of that 
term found in Sec. 21.7020(b)(1)(iv), and who wishes to become entitled 
to basic educational assistance, must have elected to do so before July 
9, 1997. For an individual electing while on active duty, this election 
must have been made in the manner prescribed by the Secretary of 
Defense. For individuals not on active duty, this election must have 
been submitted in writing to VA.

(Authority: Sec. 107(b), Pub. L. 104-275, 110 Stat. 3329-3330)
* * * * *
    (b) * * *
    (10) An individual whose active duty meets the definition of that 
term found in Sec. 21.7020(b)(1)(iv), and who wishes to become entitled 
to basic educational assistance, must have elected to do so before July 
9, 1997. For an individual electing while on active duty, this election 
must have been made in the manner prescribed by the Secretary of 
Defense. For individuals not on active duty, this election must have 
been submitted in writing to VA.

(Authority: Sec. 107(b), Pub. L. 104-275, 110 Stat. 3329-3330)
* * * * *
    (f) * * *
    (2) Except as provided in paragraph (f)(4) of this section, an 
individual is not eligible for educational assistance under 38 U.S.C. 
chapter 30 if after December 31, 1976, he or she receives a commission 
as an officer in the Armed Forces upon graduation from:
    (i) The United States Military Academy;
    (ii) The United States Naval Academy;
    (iii) The United States Air Force Academy; or
    (iv) The United States Coast Guard Academy.

[[Page 5787]]

    (3) Except as provided in paragraph (f)(4) of this section, an 
individual who after December 31, 1976, receives a commission as an 
officer in the Armed Forces upon completion of a program of educational 
assistance under 10 U.S.C. 2107 is not eligible for educational 
assistance under 38 U.S.C. chapter 30, if the individual enters on 
active duty--
    (i) Before October 1, 1996; or
    (ii) After September 30, 1996, and while participating in that 
program received more than $2,000 for each year of participation.

(Authority: 38 U.S.C. 3011(c), 3012(d))
* * * * *
    (g) Reduction in basic pay. (1) Except as elsewhere provided in 
this paragraph, the basic pay of any individual described in paragraph 
(a), (b), or (c) of this section shall be reduced by $100 for each of 
the first 12 months that the individual is entitled to basic pay. If 
the individual does not serve 12 months, it shall be reduced by $100 
for each month that the individual is entitled to basic pay.
* * * * *
    (4) The individual who makes the election described in either 
paragraph (a)(7) or (b)(10) of this section shall have his or her basic 
pay reduced by $1,200 in a manner prescribed by the Secretary of 
Defense. To the extent that basic pay is not so reduced before the 
individual's discharge or release from active duty, VA will collect 
from the individual an amount equal to the difference between $1,200 
and the total amount of the reductions described in this paragraph. If 
the basic pay of an individual is not reduced and/or VA does not 
collect from the individual an amount equal to the difference between 
$1,200 and the total amount of the pay reductions, that individual is 
ineligible for educational assistance.

(Authority: Sec. 107(b)(3), Pub. L. 104-275, 110 Stat. 3329-3330)

    (5) If through administrative error, or other reason--
    (i) The basic pay of an individual described in paragraph (a)(1) 
through (a)(6), (b)(1) through (b)(9), (c), or (d) of this section is 
not reduced as provided in paragraph (g)(1) or (g)(2) of this section, 
the failure to make the reduction will have no effect on his or her 
eligibility, but will negate or reduce the individual's entitlement to 
educational assistance under 38 U.S.C. chapter 30 determined as 
provided in Sec. 21.7073 for an individual described in paragraph (c) 
of this section;
    (ii) The basic pay of an individual, described in paragraph (a)(7) 
or (b)(10) of this section, is not reduced as described in paragraph 
(g)(4) of this section and/or VA does not collect from the individual 
an amount equal to the difference between $1,200 and the total amount 
of the pay reductions described in paragraph (g)(4) of this section, 
that individual is ineligible for educational assistance. If the 
failure to reduce the individual's basic pay and/or the failure to 
collect from the individual was due to administrative error on the part 
of the Federal government or any of its employees, the individual may 
be considered for equitable relief depending on the facts and 
circumstances of the case. See Sec. 2.7 of this chapter.

(Authority: 38 U.S.C. 3002, 3011, 3012, 3018)

    10. In Sec. 21.7045, the heading and introductory text are revised; 
and paragraph (d) is added, to read as follows:


Sec. 21.7045  Eligibility based on involuntary separation, voluntary 
separation, or participation in the Post-Vietnam Era Veterans' 
Educational Assistance Program.

    An individual who fails to meet the eligibility requirements found 
in Sec. 21.7042 or Sec. 21.7044 nevertheless will be eligible for 
educational assistance as provided in this subpart if he or she meets 
the requirements of paragraphs (a) and (b) of this section; paragraphs 
(a) and (c) of this section; or paragraph (d) of this section.
* * * * *
    (d) Alternate eligibility requirements for participants in the 
Post-Vietnam Era Veterans' Educational Assistance Program.--(1) Making 
an election. To receive educational assistance under the authority of 
paragraph (d) of this section, a veteran or servicemember must--
    (i) Have elected to do so before October 9, 1997;
    (ii) Have been a participant (as that term is defined in 
Sec. 21.5021(e)) in the Post-Vietnam Era Veterans' Educational 
Assistance Program on October 9, 1996;
    (iii) Have been on active duty on October 9, 1996; and
    (iv) Receive an honorable discharge.
    (2) Election. The election to receive educational assistance 
payable under this subpart in lieu of educational assistance payable 
under the Post-Vietnam Era Veterans' Educational Assistance Program is 
irrevocable. The election must have been made before October 9, 1997, 
pursuant to procedures provided by the Secretary of the military 
department concerned in accordance with regulations prescribed by the 
Secretary of Defense or provided by the Secretary of Transportation 
with respect to the Coast Guard when it is not operating as a service 
in the Navy.
    (3) $1,200 collection. An individual who has made the election 
described in paragraph (d)(2) of this section shall have his or her 
basic pay reduced by $1,200 in a manner prescribed by the Secretary of 
Defense. To the extent that basic pay is not so reduced before the 
individual's discharge or release from active duty, VA will collect 
from the individual an amount equal to the difference between $1,200 
and the total amount of the reductions. Reduction in basic pay by 
$1,200 or collection of $1,200 is a precondition to establishing 
eligibility.
    (4) Educational requirement. Before applying for benefits that may 
be payable as the result of making a valid election, an individual must 
have--
    (i) Completed the requirements of a secondary school diploma (or 
equivalency certificate); or
    (ii) Successfully completed the equivalent of 12 semester hours in 
a program of education leading to a standard college degree.

(Authority: 38 U.S.C. 3018C)

    11. In Sec. 21.7050, paragraph (a)(1) is amended by removing 
``paragraph (b)'' and adding, in its place, ``paragraphs (b) and (c)'', 
and by removing ``of this part''; paragraphs (c) and (d) are 
redesignated as paragraphs (d) and (e), respectively; the authority 
citation for paragraph (b) is revised; and a new paragraph (c) is added 
to read as follows:


Sec. 21.7050  Ending dates of eligibility.

* * * * *
    (b) * * *

(Authority: 38 U.S.C. 3031(e))

    (c) Time limit for some members of the Army and Air National Guard. 
(1) If a veteran or servicemember establishes eligibility for the 
educational assistance payable under this subpart by making the 
election described in Sec. 21.7042(a)(7) or (b)(10), VA will not 
provide basic educational assistance or supplemental educational 
assistance to that veteran or servicemember beyond 10 years from the 
later of:
    (i) The date determined by paragraph (a) or (b) of this section, as 
appropriate; or
    (ii) The effective date of the election described in 
Sec. 21.7042(a)(7) or (b)(10), as appropriate.
    (2) The effective date of election is the date on which the 
election is made pursuant to the procedures described in 
Sec. 21.7045(d)(2).

(Authority: Sec. 107(b)(3), Pub. L. 104-275, 110 Stat. 3329-3330)
* * * * *

    12. In Sec. 21.7131, paragraphs (l) and (m) are added to read as 
follows:

[[Page 5788]]

Sec. 21.7131  Commencing dates.

* * * * *
    (l) Eligibility established under Sec. 21.7042 (a)(7) or (b)(10). 
This paragraph must be used to establish the effective date of an award 
of educational assistance when the veteran or servicemember has 
established eligibility under either Sec. 21.7042 (a)(7) or (b)(10). 
The commencing date of an award of educational assistance for such a 
veteran or servicemember is the latest of the following:
    (1) The commencing date as determined by paragraphs (a) through (c) 
and (f) through (j) of this section;
    (2) The date of election provided that--
    (i) The servicemember initiated the $1,200 reduction in basic pay 
required by Sec. 21.7042(g)(4) and the full $1,200 was collected 
through that pay reduction;
    (ii) Within one year of the date of election VA both collected from 
the veteran $1,200 or the difference between $1,200 and the amount 
collected through a reduction in the veteran's military pay, as 
provided in Sec. 21.7042(g)(4), and received from the veteran any other 
evidence necessary to establish a valid election; or
    (iii) VA received from the veteran $1,200 or the difference between 
$1,200 and the amount collected through a reduction in the veteran's 
military pay and any other evidence necessary to establish a valid 
election within one year of the date VA requested the money and/or the 
evidence.
    (3) If applicable, the date VA collected the difference between 
$1,200 and the amount by which the servicemember's military pay was 
reduced, if the provisions of paragraph (l)(2)(ii) or (l)(2)(iii) of 
this section are not met; or
    (4) If applicable, the date VA collected $1,200, if the provisions 
of paragraph (l)(2)(ii) or (l)(2)(iii) of this section are not met.

(Authority: 38 U.S.C. 5113; sec. 107, Pub. L. 104-275, 110 Stat. 
3329-3330)

    (m) Eligibility established under

21.7045(d). This paragraph must be used to establish the effective date 
of an award of educational assistance when the veteran or servicemember 
has established eligibility under Sec. 21.7045(d). The commencing date 
of an award of educational assistance for such a veteran or 
servicemember is the latest of the following:
    (1) The commencing date as determined by paragraphs (a) through (c) 
and (f) through (j) of this section;
    (2) The date of election provided that--
    (i) The servicemember initiated the $1,200 reduction in basic pay 
required by Sec. 21.7045(d)(3) and the full $1,200 was collected 
through that pay reduction;
    (ii) Within one year of the date of election VA both collected from 
the veteran $1,200 or the difference between $1,200 and the amount 
collected through a reduction in the veteran's military pay, as 
provided in Sec. 21.7045(d)(3), and received from the veteran any other 
evidence necessary to establish a valid election; or
    (iii) VA received from the veteran $1,200 or the difference between 
$1,200 and the amount collected through a reduction in the veteran's 
military pay and any other evidence necessary to establish a valid 
election within one year of the date VA requested the money and/or the 
evidence.
    (3) If applicable, the date VA collected the difference between 
$1,200 and the amount by which the servicemember's military pay was 
reduced, if the provisions of paragraph (m)(2)(ii) or (m)(2)(iii) of 
this section are not met; or
    (4) If applicable, the date VA collected $1,200, if the provisions 
of paragraph (m)(2)(ii) or (m)(2)(iii) of this section are not met.

(Authority: 38 U.S.C. 3018C(a), (b), 5113)
(The Office of Management and Budget has approved information 
collection requirements in this section under control number 2900-
0607.)

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

    13. 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(a), 512, ch. 36, 
unless otherwise noted.

    14. In Sec. 21.7520, paragraph (b)(23)(iv) is amended by removing 
``during the period beginning on November 2, 1994, and ending on 
September 30, 1996,''; and the authority citation for paragraph (b)(23) 
is revised to read as follows:


Sec. 21.7520  Definitions.

* * * * *
    (b) * * *
    (23) * * *

(Authority: 10 U.S.C. 16131(a), (c); 38 U.S.C. 3002, 3452)
* * * * *

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


Sec. 21.7635  Discontinuance dates.

* * * * *
    (y) Election to receive educational assistance under 38 U.S.C. 
chapter 30. VA shall terminate educational assistance effective the 
first date for which the reservist received educational assistance 
when--
    (1) The service that formed a basis for establishing eligibility 
for educational assistance under 10 U.S.C. chapter 1606 included a 
period of active duty as described in Sec. 21.7020(b)(1)(iv); and
    (2) The reservist subsequently made an election, as described in 
Sec. 21.7042(a)(7) or (b)(10), to become entitled to basic educational 
assistance under 38 U.S.C. chapter 30.

(Authority: Sec. 107, Pub. L. 104-275, 110 Stat. 3329-3330)
* * * * *
[FR Doc. 00-2637 Filed 2-4-00; 8:45 am]
BILLING CODE 8320-01-P