[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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