[Federal Register Volume 62, Number 227 (Tuesday, November 25, 1997)]
[Proposed Rules]
[Pages 62736-62739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30872]
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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: Proposed rule.
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SUMMARY: This document proposes to amend 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 current rules to
the new system of electronic transfers, it is proposed to change these
election provisions 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 current rule
to the new system of electronic transfers and to ensure that decisions
are made with knowledge, it is proposed to change these election
provisions 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 would also be
made for purposes of clarity and to reflect current statutory
codification and authority. The proposed requirements for individuals
to make elections before receiving certain benefit payments constitute
collections of information.
[[Page 62737]]
Accordingly, this document also requests comments under the Paperwork
Reduction Act on those proposed collections of information.
DATES: Comments must be received on or before January 26, 1998.
ADDRESSES: Mail or hand deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Ave., NW., Washington, DC 20420. Comments should indicate that
they are submitted in response to ``RIN 2900-AH88.'' All written
comments received will be available for public inspection in the Office
of Regulations Management, Room 1158, between the hours of 8:00 a.m.
and 4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: June C. Schaeffer, Assistant Director
for Policy and Program Administration, Education Service (225),
Veterans Benefits Administration, Department of Veterans Affairs, (202)
273-7187.
SUPPLEMENTARY INFORMATION: VA administers a number of benefit programs.
A veteran or other eligible person may be potentially eligible for
benefits under more than one of them. Often the law governing
eligibility requires that the individual elect the program under which
she or he is to receive benefits. This document proposes to amend the
VA educational assistance and educational benefits regulations relating
to certain elections between benefits.
VA is given broad statutory authority to prescribe the manner of
elections when a veteran must elect whether time served in the Selected
Reserve is to be applied toward establishing eligibility for the MGIB-
SR program or toward establishing entitlement to a greater monthly rate
of educational assistance under the MGIB-AD program. VA has provided by
regulation in 38 CFR 21.7042 and 21.7540 that after a veteran seeks to
make an election to have service in the Selected Reserve credited
toward payment under the MGIB-SR program or under the 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 current rules to the new system of electronic transfers, it is
proposed to change these election provisions to make the election
effective either upon negotiation of a check or electronic receipt of
education benefits.
This document also proposes to amend Sec. 21.3023, which concerns
an election to receive DEA for a program of education rather than
pension, compensation, or DIC. That section currently provides that the
commencement of a program of education constitutes an election and,
with limited exceptions, that the election is final when the payee has
negotiated one check for the benefit. This section was issued pursuant
to 38 U.S.C. 3562, which provides that if a child of a veteran is
eligible for both DEA and DIC, commencement of a program of education
under DEA would bar the child from receiving pension, compensation, or
DIC in the future as a child. For the purposes of determining when
there is commencement of a program of education under DEA, it is
proposed that the ``commencement of a program'' will be deemed to have
occurred at the time of negotiation of the first DEA benefit payment
check or upon receipt of the first electronic transfer of a DEA benefit
payment. It also is proposed that such an election occur only after a
written election to receive DEA has been submitted to VA. These
proposed provisions are designed to ensure that elections are made with
knowledge and become effective at the time of commencement of a program
of education under DEA.
These changes are necessary because the Debt Collection Improvement
Act of 1996 (sec. 31001, Pub. L. 104-134) requires that the Federal
government make payments through electronic funds transfer. The
proposed provisions are intended to adapt the current rules to include
the new system of electronic transfer.
This document also proposes to make nonsubstantive amendments for
purposes of clarification and to reflect current statutory authority.
In addition, this document also seeks approval, as explained below, for
certain collections of information in Secs. 21.3023, 21.7042, and
21.7540.
The Department of Defense (DOD), the Department of Transportation
(Coast Guard), and VA are jointly issuing this proposal 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 proposal
is issued solely by VA.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520),
the provisions of the proposed Secs. 21.3023, 21.7042, and 21.7540
include collections of information. Accordingly, as required by the Act
at Sec. 3507(d), VA has submitted a copy of this rulemaking action to
the Office of Management and Budget (OMB) for its review of the
proposed collections of information.
OMB assigns a control number for 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.
Comments on the proposed collections of information should be
submitted to the Office of Management and Budget, Attention: Desk
Officer for the Department of Veterans Affairs, Office of Information
and Regulatory Affairs, Washington, DC 20503, with copies to the
Director, Office of Regulations Management (02D), Department of
Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420. Comments
should indicate that they are submitted in response to ``RIN 2900-
AH88.''
Title: Election to Receive Dependents' Educational Assistance
Instead of Dependency and Indemnity Compensation.
Summary of collection of information: The collection of information
in the proposed amendment to Sec. 21.3023 in this rulemaking proceeding
would implement a statutory provision that prevents an individual with
potential eligibility for DEA and compensation, pension, or DIC from
receiving more than one benefit for pursuing a program of education.
The proposed rule would require such an individual to make an election
if she or he wished to receive DEA.
Description of need for information and proposed use of
information: An eligible child may not receive educational assistance
under DEA and payments under DIC for the same school attendance. In
order for VA to know when the child wishes to receive DEA, it is
necessary for the child to state his or her desire for educational
assistance under DEA.
Description of likely respondents: Individuals with potential
eligibility for DEA.
Estimated number of respondents: 2,900 annually.
Estimated frequency of responses: Once per eligible claimant.
Estimated total annual reporting and recordkeeping burden: 580
hours of reporting burden. VA does not believe that there would be an
additional recordkeeping burden.
Estimated average burden per collection: .2 hour.
Title: Election to Apply Selected Reserve Service to Either the
Montgomery GI Bill--Active Duty or to the Montgomery GI Bill--Selected
Reserve.
Summary of collection of information: The collection of information
in the
[[Page 62738]]
proposed amendments to Secs. 21.7042 and 21.7540 in this rulemaking
proceeding would implement a statutory provision that prevents an
individual with potential eligibility for educational assistance under
both the Montgomery GI Bill--Active Duty or the Montgomery Bill--
Selected Reserve from using the same Selected Reserve service to
establish eligibility for assistance under the Montgomery GI Bill--
Selected Reserve, and to establish entitlement to educational
assistance at an increased monthly rate under the Montgomery GI Bill--
Active Duty.
Description of need for information and proposed use of
information: An individual who participates in the Montgomery GI Bill--
Active Duty and who serves on active duty for two years followed by six
years in the Selected Reserve must choose whether to apply the Selected
Reserve service toward the Montgomery GI Bill--Active Duty or to the
Montgomery GI Bill--Selected Reserve. If she or he decides to apply it
towards the Montgomery GI Bill--Selected Reserve, she or he would be
eligible for 36 months of educational assistance under the Montgomery
GI Bill--Active Duty at the rate of $347.65 per month for full-time
training and 12 months of educational assistance under the Montgomery
GI Bill--Selected Reserve. If she or he chooses to apply that service
towards the Montgomery GI Bill--Active Duty, she or he would be
eligible for 36 months of educational assistance under the Montgomery
GI Bill--Active Duty at the rate of $427.87 per month for full-time
training while remaining ineligible for educational assistance under
the Montgomery GI Bill--Selected Reserve. VA must know which benefit
the individual wants the Selected Reserve service credited to in order
to determine the proper payments to the individual.
Description of likely respondents: Members of the Selected Reserve.
Estimated number of respondents: 35 annually.
Estimated frequency of responses: Once per eligible claimant.
Estimated total annual reporting and recordkeeping burden: 11.67
hours of reporting burden. VA does not believe that there would be an
additional recordkeeping burden.
Estimated average burden per collection: .33 hour.
The Department considers comments by the public on proposed
collections of information in--
Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collections of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the proposed
collections of information contained in this proposed rule between 30
and 60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment on the proposed regulations.
Regulatory Flexibility Act
The signers of this document hereby certify that this proposed
rule, if promulgated, would 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 proposed rule would
directly affect only individuals and would not directly affect small
entities. Pursuant to 5 U.S.C. 605(b), the proposed 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
affected by the proposed rule are 64.117 and 64.124. The proposed 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, 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,
Veterans, Vocational education, Vocational rehabilitation.
Approved: September 5, 1997.
Hershel W. Gober,
Acting Secretary of Veterans Affairs.
Approved: August 6, 1997.
G.R. Woolever,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Human
Resources.
Approved: August 5, 1997.
Normand G. Lezy,
Lieutenant General, USAF, Deputy Assistant Secretary (Military
Personnel Policy).
For the reasons set out in the preamble, 38 CFR part 21, subparts
C, K, and L are proposed to be amended as follows.
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, is revised 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, 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.
* * * * *
(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.
[[Page 62739]]
4. In Sec. 21.7042, the section heading and paragraphs (d)(2), and
(d)(3) are revised, and paragraph (d)(4) is added, 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))
* * * * *
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. 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, 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)
[FR Doc. 97-30872 Filed 11-24-97; 8:45 am]
BILLING CODE 8320-01-P
