00-28702. Miscellaneous Montgomery GI Bill Eligibility and Entitlement Issues

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends regulations concerning eligibility for and entitlement to educational assistance under the Montgomery GI Bill—Active Duty (MGIB). The regulations are amended to correctly restate statutory provisions.

DATES:

Effective Date: This final rule is effective November 9, 2000.

FOR FURTHER INFORMATION CONTACT:

William G. Susling, Jr., Education Assistant Director for Policy and Program Development (225), Veterans Benefits Administration, Department of Veterans Affairs, [phone].

SUPPLEMENTARY INFORMATION:

This document makes changes to correctly restate statutory provisions as discussed below.

• Section 21.7020 is corrected to show that VA will consider an initial period of active duty of not more than 12 months that results in a hardship discharge to be continuous with a subsequent period of active duty.
• Section 21.7042 is revised to correct the eligibility criteria an individual must meet if that individual is attempting to establish eligibility for MGIB by serving two years on active duty followed by four years in the Selected Reserve. Such an individual is exempt from serving those four years if he or she was discharged from the Selected Reserve for a condition that interfered with the performance of duty and which was not the result of his or her own willful misconduct. That individual does not have to meet the otherwise applicable deadline for obtaining a high school diploma if he or she was on active duty on August 2, 1990, and completed the requirements for the diploma or the equivalent before October 29, 1994.
• Section 21.7044 is revised to correct the eligibility criteria an individual must meet if he or she was formerly eligible for educational assistance under the Vietnam Era GI Bill. That individual does not have to meet the otherwise applicable deadline for obtaining a high school diploma if he or she was on active duty on August 2, 1990, and completed the requirements for the diploma or the equivalent before October 29, 1994.
• Section 21.7073 is revised to expand the categories of individuals to whom the provisions of the section for deciding on the amount of an individual's entitlement apply. The provisions apply to individuals who between December 1, 1988, and June 30, 1989, withdrew an election not to enroll in MGIB and were discharged from the period of service they were obligated to serve on December 1, 1988, for a condition that interfered with the performance of duty and which was not the result of his or her own willful misconduct.

Nonsubstantive changes also are made for the purpose of clarity.

Changes made by this final rule merely restate statutory language. 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 Veterans Affairs hereby certifies 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 directly affects only individuals and does not directly affect small entities. 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 the program affected by this final rule is 64.124.

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: February 29, 2000.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

Editorial Note:

This document was received in the Office of the Federal Register on November 3, 2000.

For the reasons set out in the preamble, 38 CFR part 21, subpart K, is amended as follows:

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. Section 21.7020 is amended by:

A. In paragraph (b)(6)(iv)(A), removing the comma at the end of the paragraph and adding, in its place, a semi-colon.

B. Redesignating paragraphs (b)(6)(iv)(B), (b)(6)(iv)(C), and (b)(6)(iv)(D) as paragraphs (b)(6)(iv)(C), (b)(6)(iv)(D), and (b)(6)(iv)(E), respectively.

C. Adding a new paragraph (b)(6)(iv)(B).

D. In newly redesignated paragraph (b)(6)(iv)(C), removing the comma at the end of the paragraph and adding, in its place, a semi-colon.

E. In newly redesignated paragraph (b)(6)(iv)(D), removing the comma immediately after the word concerned and adding, in its place, a semi-colon.

The addition reads as follows:

§ 21.7020

Definitions.

* * * * *

(b) * * *

(6) * * *

(iv) * * *

(B) For hardship;

* * * * *

3. Section § 21.7042 is amended by:

A. Revising paragraph (b)(2) introductory text.

B. In paragraph (b)(7)(ii)(A), removing “disability, or” and adding, in its place, “disability;”.

C. In paragraph (b)(7)(ii)(B), removing “connected.” and adding, in its place, “connected; or”.

D. Adding paragraph (b)(7)(ii)(C) immediately after paragraph (b)(7)(ii)(B).

E. Adding a new paragraph (b)(10) immediately after the authority citation at the end of paragraph (b)(9).

The revision and additions read as follows:

§ 21.7042

Basic eligibility requirements.

* * * * *

(b) * * *

(2) Except as provided in paragraph (b)(10) of this section, the individual before completing the service requirements of this paragraph must either—

* * * * *

(7) * * *

(ii) * * *

(C) For a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as determined by the Secretary of each military department in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy.

(Authority: 38 U.S.C. 3012(b)(1)(B)(i))

* * * * *

(10) An individual who does not meet the requirements of paragraph (b)(2) of this section nevertheless is eligible for basic educational assistance if he or she—

(i) Was on active duty on August 2, 1990; and

(ii) Completed the requirements of a secondary school diploma (or an equivalency certificate) before October 29, 1994.

(Authority: 38 U.S.C. 3012)

* * * * *

4. Section § 21.7044 is amended by:

A. Revising paragraph (b)(3) introductory text.

B. Adding paragraph (b)(13) immediately after the authority citation at the end of paragraph (b)(12).

C. In paragraph (c), removing “paragraph (e)” and adding, in its place, “paragraph (d)”.

D. In paragraph (d), removing “paragraph (d)” and adding, in its place “paragraph (c)”.

The revision and addition read as follows:

§ 21.7044

Persons with eligibility under 38 U.S.C. chapter 34.

* * * * *

(b) * * *

(3) Except as provided in paragraph (b)(13) of this section, the individual must either—

* * * * *

(13) An individual who does not meet the requirements of paragraph (b)(3) of this section nevertheless is eligible for basic educational assistance if he or she—

(i) Was on active duty on August 2, 1990; and

(ii) Completed the requirements of a secondary school diploma (or an equivalency certificate) before October 29, 1994.

(Authority: 38 U.S.C. 3012)

* * * * *

5. Section § 21.7073 is amended by:

A. In paragraph (a)(1)(iii), introductory text removing “to service on”, and adding, in its place, “to serve on”.

B. Redesignating paragraphs (a)(1)(iii)(B) and (a)(1)(iii)(C) as paragraphs (a)(1)(iii)(C) and (a)(1)(iii)(D), respectively.

C. Adding a new paragraph (a)(1)(iii)(B).

D. Revising the authority citation following newly redesignated paragraph (a)(1)(iii)(D).

The revision and addition read as follows:

§ 21.7073

Entitlement for some individuals who establish eligibility during the open period or who establish eligibility before involuntary separation.

(a) * * *

(1) * * *

(iii) * * *

(B) For a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as determined by the Secretary of each military department in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy.

* * * * *

(Authority: 38 U.S.C. 3018(b)(3))