Veterans Education: Incorporation of Miscellaneous Statutory Provisions, 2421-2428 [E8-330]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 73, Number 10 (Tuesday, January 15, 2008)]
[Rules and Regulations]
[Pages 2421-2428]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-330]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AL28


Veterans Education: Incorporation of Miscellaneous Statutory 
Provisions

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends regulations governing various aspects of 
the education programs administered by the Department of Veterans 
Affairs. These amendments reflect some of the provisions of the 
Veterans Education and Benefits Expansion Act of 2001, the Veterans 
Benefits Act of 2003, and the Veterans Benefits, Health Care, and 
Information Technology Act of 2006. The changes include: Restoration of 
certain education benefits for individuals being ordered to active 
duty; restoration of Survivors' and Dependents' Educational Assistance 
to certain full-time National Guard members; an opportunity for certain 
Vietnam-era veterans to qualify for Montgomery GI Bill education 
benefits; an increase in the maximum amount an individual can receive 
under the Senior Reserve Officer Training Corps educational assistance 
program and still qualify for the Montgomery GI Bill--Active Duty 
program; establishment of an ending date of the eligibility period for 
spouses under the Survivors' and Dependents' Educational Assistance 
program; expansion of special restorative training benefits to certain 
disabled spouses or disabled surviving spouses; and providing 
educational benefits for an independent study course that leads to a 
certificate reflecting educational attainment offered by an institution 
of higher learning. The document also amends the education regulations 
by making changes to reflect current agency organization and 
nonsubstantive changes for the purpose of readability or clarity.

DATES: Effective Date: This final rule is effective January 15, 2008.
    Applicability Dates. Amendments in this final rule are applied 
retroactively to conform to the effective date of statutory provisions. 
For more information concerning the dates of applicability, see the 
SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Lynn M. Nelson, Assistant Director, 
Policy and Program Administration (225), Education Service, Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Avenue, NW., Washington, DC 20420, (202) 461-9827.

SUPPLEMENTARY INFORMATION: The Veterans Education and Benefits 
Expansion Act of 2001 (Pub. L. 107-103) (``Act'') provides eligibility 
under the Montgomery GI Bill--Active Duty (MGIB) program to some 
additional Vietnam-era veterans. Previously, only

[[Page 2422]]

certain Vietnam-era veterans who were eligible for benefits under the 
Vietnam-era GI Bill (38 U.S.C. chapter 34) on December 31, 1989, and 
who met specific active-duty requirements were eligible to convert to 
the MGIB program. The Act extends an opportunity to gain MGIB 
eligibility to additional veterans by modifying certain active-duty 
requirements. The eligibility period for veterans who became eligible 
under Public Law 107-103 began December 27, 2001. We are amending the 
regulations to reflect the changes in eligibility requirements.
    The Act raised the maximum amount individuals entitled to 
educational assistance under the Senior Reserve Officer Training Corps 
(SROTC) program may receive and still remain eligible to elect the MGIB 
program. Before January 1, 2002, officers commissioned directly from a 
SROTC program who entered on active duty after September 30, 1996, and 
who received more than $2,000 in SROTC scholarship funds for each year 
of the program, were not eligible for the MGIB program. Under the Act, 
individuals who entered active duty after September 30, 1996, may 
become eligible for the MGIB program beginning January 1, 2002, if they 
received $3,400 or less in any year they participated in the SROTC 
scholarship program. We are amending the pertinent regulation to 
reflect the statutory change.
    Section 103 of Public Law 107-103 restored education benefits under 
38 U.S.C. chapters 30, 32, and 35 to certain individuals ordered to 
active duty. This provision applies to individuals ordered, by orders 
dated on or after September 11, 2001, to active duty under 10 U.S.C. 
688, 12301(a), 12301(d), 12301(g), 12302, or 12304. In addition, the 
Veterans Benefits, Health Care, and Information Technology Act of 2006 
(Pub. L. 109-461) permitted restoration of Survivors' and Dependents' 
Educational Assistance (DEA) entitlement under 38 U.S.C. chapter 35 to 
certain full-time National Guard members who were involuntarily ordered 
to full-time duty on or after September 11, 2001. Generally, most 
individuals are eligible for 36 months of full-time benefits (45 months 
under the DEA program). We refer to the 36 months of benefits as 36 
months of ``entitlement''. For each day of full-time benefits that we 
pay, we deduct 1 day of entitlement. If an individual is ordered to 
duty as indicated above, and has to withdraw from his or her course(s), 
VA will pay benefits up to the date of withdrawal. Although under these 
circumstances we pay benefits, the individual's entitlement will not 
reflect this, provided the veteran received no credit for the course-
work completed up to the point of withdrawal. For example, if someone 
started a course with 36 months of benefits available, and we paid for 
2 months of benefits before he or she dropped the course, we would 
charge 2 months of entitlement. That individual would have 34 months of 
benefits remaining. Under the restoration-of-entitlement provisions, we 
will restore the 2 months of entitlement. So, although an individual 
received benefits for 2 months, his or her entitlement will not be 
reduced. We are amending the pertinent regulations to reflect these 
provisions of Public Law 107-103 and Public Law 109-461.
    Section 103 of Public Law 107-103 permits VA to extend the DEA 
eligibility period for an eligible person who is ordered, by orders 
dated on or after September 11, 2001, to active duty under 10 U.S.C. 
688, 12301(a), 12301(d), 12301(g), 12302, or 12304. The extension is 
equal to the time served on active duty, plus an additional four 
months. In addition, section 303 of the Veterans Benefits Act of 2003 
(Pub. L. 108-183) permitted a similar extension for eligible persons 
who are National Guard members and who were involuntarily ordered to 
full-time duty on or after September 11, 2001.
    Before enactment of Public Law 107-103, the U.S. Court of Appeals 
for Veterans Claims, in Ozer v. Principi, 14 Vet. App. 257, 262-264 
(2001), decided that 38 U.S.C. 3512 did not contain or authorize a 
fixed or limited eligibility period for spouses who are entitled to DEA 
benefits. Section 108 of Public Law 107-103 amended section 3512 to 
provide that spouses who are entitled to DEA have a 10-year eligibility 
period to use DEA benefits. Beginning with eligibility determinations 
(whether administrative or judicial) made on or after December 27, 
2001, spouses found eligible for DEA benefits will have 10 years to use 
those benefits. Under section 108 of Public Law 107-103, spouses whose 
eligibility determinations were made before December 27, 2001, are 
subject to this 10-year eligibility period if they are required to 
reapply for benefits, resulting in a determination on or after December 
27, 2001. (Spouses are required to reapply for DEA benefits when they 
change their educational objective.) We are amending the rules to 
conform to these provisions of Public Law 107-103.
    Section 109 of Public Law 107-103 permits payment of special 
restorative training (SRT) benefits to disabled spouses and disabled 
surviving spouses beginning December 27, 2001. The spouses and 
surviving spouses must be eligible for DEA benefits in order to qualify 
for SRT. Prior to the enactment of section 109, only disabled children 
eligible for DEA were eligible for this benefit. SRT is training that 
helps to overcome or lessen the effects of a physical or mental 
disability for the purposes of enabling an eligible person to pursue a 
program of education, special vocational program, or other appropriate 
goal. We are amending the pertinent regulations to make them conform to 
this statutory provision.
    The Act also allows VA to pay veterans, servicemembers, and 
reservists educational assistance benefits for an independent study 
course that leads to a certificate that reflects educational attainment 
offered by an institution of higher learning. The independent study 
provisions in the Act amended 38 U.S.C. 3680A(a)(4). The provision 
applies to enrollment in courses on or after December 27, 2001. Prior 
to enactment, VA could provide education benefits only for independent 
study courses that were part of a standard college degree program. We 
are amending the pertinent regulations to reflect this change and to 
show that the new provision does not apply to DEA benefits for 
survivors and dependents. (Provisions concerning payment and non-
payment of DEA for courses taken by independent study are in 38 U.S.C. 
3523(a)(4), which was not amended by Pub. L. 107-103.)
    In addition, we are amending provisions in the DEA regulations 
relating to definitions, SRT, and enrollment at the secondary school 
level for special assistance for the educationally disadvantaged, to 
reflect current agency organization, including by making changes in the 
designations of staff handling various functions.
    Nonsubstantive changes are also made for the purpose of readability 
or clarity.

Administrative Procedure Act

    Substantive changes made by this final rule merely reflect 
statutory requirements. Accordingly, there is a basis for dispensing 
with prior notice and comment and a delayed effective date under the 
provisions of 5 U.S.C. 553. Use of those procedures would be 
impracticable, unnecessary, and contrary to the public interest.

Paperwork Reduction Act of 1995

    This document contains no provisions constituting a new collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).
    The Office of Management and Budget (OMB) assigns a control number 
for

[[Page 2423]]

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.
    In Sec.  21.3302 (concerning special restorative training), this 
final rule amends provisions concerning information collection 
requirements that are currently approved by OMB. The amended provisions 
remain within the scope of the approved collections of information. We 
are adding at the end of Sec.  21.3302 an information collection 
approval parenthetical containing the OMB control numbers for the 
collections of information in that section, OMB control numbers 2900-
0014 (Authorization and Certification of Entrance or Reentrance into 
Rehabilitation and Certification of Status), 2900-0073 (Enrollment 
Certification), and 2900-0156 (Notice of Change in Student Status).

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any given year. This final rule will have no such effect 
on State, local, and tribal governments, or on the private sector.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this rule have been examined, and it has been 
determined to be a significant regulatory action under the Executive 
Order because it may raise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the Executive Order.

Regulatory Flexibility Act

    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 primarily affects 
only individuals. This rule reflects the statutory expansion to add 
certain disabled spouses and disabled surviving spouses to the 
categories of persons who may be eligible for training from small 
entities that choose to provide it. Although some small entities may 
provide special restorative training, any direct effect of this rule on 
such entities would be minuscule. This statutory change resulted in 
only 24 additional individuals receiving such training in the most 
recent year with available data. 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. Pursuant to 
5 U.S.C. 603 and 604, an additional reason that those regulatory 
flexibility analyses requirements are not applicable to this final rule 
is that no notice of proposed rulemaking was required by law for this 
rulemaking.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this final rule are 64.117, Survivors and 
Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans' 
Educational Assistance; and 64.124, All-Volunteer Force Educational 
Assistance. This final rule also affects the Montgomery GI Bill--
Selected Reserve program, 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, 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: October 5, 2007.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 21 (subparts C, D, G, and K) as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

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

0
1. Revise the authority citation for part 21, subpart C to read as 
follows:

    Authority: 38 U.S.C. 501(a), 512, 3500-3566, and as noted in 
specific sections.


0
2. Amend Sec.  21.3021 by redesignating paragraph (m) as paragraph (v), 
adding and reserving paragraphs (m) through (s), and adding paragraphs 
(t) and (u).
    The additions read as follows:


Sec.  21.3021  Definitions.

* * * * *
    (t) Counseling psychologist means the same as provided in Sec.  
21.35(k)(1).

(Authority: 38 U.S.C. 501, 3118(c), 3541, 3543)


    (u) Vocational rehabilitation counselor means the same as provided 
in Sec.  21.35(k)(7).

(Authority: 38 U.S.C. 501, 3118(c), 3541, 3543)

* * * * *


0
3. Amend Sec.  21.3045 by:
0
a. In paragraph (d)(1) introductory text, removing ``VA finds'' and 
adding, in its place, ``the requirements of paragraphs (d)(1)(i) and 
(ii) of this section are met, by VA finding''.
0
b. Revising paragraph (d)(1)(i) and the authority citation after 
paragraph (d).
0
c. In paragraph (d)(1)(ii), removing ``as described'' and adding, in 
its place, ``for a reason described''.
    The revisions read as follows:


Sec.  21.3045  Entitlement charges.

* * * * *
    (d) * * *
    (1) * * *
    (i) Had to discontinue pursuit of the course or courses as a result 
of being--
    (A) Ordered, in connection with the Persian Gulf War by orders 
dated before September 11, 2001, to serve on active

[[Page 2424]]

duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 
12304, or under former 10 U.S.C. 672(a), 672(d), 672(g), 673, or 673(b) 
(redesignated effective December 1, 1994, as 10 U.S.C. 12301(a), 
12301(d), 12301(g), 12302, and 12304, respectively);
    (B) Ordered, by orders dated after September 10, 2001, to serve on 
active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, 
or 12304; or
    (C) Involuntarily ordered, by orders dated after September 10, 
2001, to full-time National Guard duty under 32 U.S.C. 502(f).
* * * * *

(Authority: 38 U.S.C. 3511(a)(2); sec. 103(e), Pub. L. 107-103, 115 
Stat. 980)


* * * * *

0
4. Amend Sec.  21.3046 by revising paragraph (c) to read as follows:


Sec.  21.3046  Periods of eligibility; spouses and surviving spouses.

* * * * *
    (c) Ending date of eligibility period--(1) Spouses. (i) If on or 
after December 27, 2001, VA makes a determination of eligibility for a 
spouse, the period of eligibility cannot exceed 10 years. The 
eligibility period can be extended only as provided in paragraph (c)(3) 
of this section and Sec.  21.3047.
    (ii) If before December 27, 2001, VA made a determination of 
eligibility for a spouse, the eligibility period has no ending date 
unless the spouse changes his or her program of education. If on or 
after December 27, 2001, the spouse changes his or her program of 
education, the eligibility period cannot exceed 10 years. The beginning 
date of the eligibility period is determined as provided in paragraph 
(a) of this section. The 10-year eligibility period can be extended 
only as provided in paragraph (c)(3) of this section and Sec.  21.3047.
    (iii) Notwithstanding the provisions of paragraph (c)(1)(i) of this 
section, if eligibility arises before October 24, 1972, educational 
assistance will not be afforded later than October 23, 1982, based on a 
course or program of correspondence, apprentice, or other on-the-job 
training, approved under the provisions of Sec.  21.4256, Sec.  
21.4261, or Sec.  21.4262, except that VA may award educational 
assistance beyond October 23, 1982, if the eligible spouse qualifies 
for the extended period of eligibility as provided in paragraph (c)(3) 
of this section and Sec.  21.3047.
    (2) Surviving spouses. (i) For surviving spouses, the period of 
eligibility cannot exceed 10 years and can be extended only as provided 
in paragraph (c)(3) of this section and Sec.  21.3047.
    (ii) If eligibility arises before October 24, 1972, educational 
assistance will not be afforded later than October 23, 1982, based on a 
course or program of correspondence, apprentice, or other on-the-job 
training approved under the provisions of Sec.  21.4256, Sec.  21.4261, 
or Sec.  21.4262, except that VA may award educational assistance 
beyond October 23, 1982, if the eligible surviving spouse qualifies for 
an extended period of eligibility as provided in paragraph (c)(3) of 
this section and Sec.  21.3047.
    (iii) The eligibility period for a surviving spouse is not reduced 
by any earlier period during which the surviving spouse was eligible 
for educational assistance under this chapter as a spouse.

(Authority: 38 U.S.C. 3512; sec. 108(c)(4), Pub. L. 107-103, 115 
Stat. 985)

    (3) Extensions due to certain orders dated after September 10, 
2001. Notwithstanding any other provisions of this section, if a spouse 
or surviving spouse, during the eligibility period otherwise applicable 
to such individual under this section, serves on active duty pursuant 
to an order to active duty dated after September 10, 2001, issued under 
10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, or 12304, or is 
involuntarily ordered by an order dated after September 10, 2001, to 
full-time National Guard duty under 32 U.S.C. 502(f), VA will grant the 
individual an extension of the ending date of his or her eligibility 
period. The extension will equal the length of the period of such 
active duty plus four months.

(Authority: 38 U.S.C. 3512; sec. 303(b), Pub. L. 108-183, 117 Stat. 
2659)


* * * * *

0
5. Amend Sec.  21.3104 by:
0
a. After ``psychologist'' each time that it appears, adding ``or 
vocational rehabilitation counselor''.
0
b. In paragraph (a), removing ``a disabled'' and adding, in its place, 
``an eligible person with a disability who is a'', removing ``the 
child's need for'', removing ``if the disabled'' and adding, in its 
place, ``if the'', and removing ``the disabled child needs''.
0
c. In paragraph (b), removing ``eligible child'' and adding, in its 
place, ``eligible person'' and removing ``the child'' and adding, in 
its place, ``him or her''.


0
6. Amend Sec.  21.3130 by:
0
a. At the end of paragraph (d)(2), removing the word ``or''.
0
b. At the end of paragraph (d)(3), removing the period and adding, in 
its place, ``; or''.
0
c. Adding paragraph (d)(4) prior to the authority citation at the end 
of paragraph (d).
    The addition reads as follows:


Sec.  21.3130  Educational assistance.

* * * * *
    (d) * * *
    (4) For pursuit of a course offered by independent study, unless 
the course is accredited, meets the requirements of Sec.  21.4253, and 
leads to a standard college degree.

* * * * *

0
7. Amend Sec.  21.3300 by:
0
a. In paragraph (a), removing ``child'' and adding, in its place, 
``person'' and adding an authority citation.
0
b. Redesignating paragraphs (b) through (d) as paragraphs (c) through 
(e), respectively.
0
c. Adding a new paragraph (b).
0
d. In newly redesignated paragraph (c), adding ``or vocational 
rehabilitation counselor'' after ``psychologist'' and revising its 
authority citation.
    The additions and revision read as follows:


Sec.  21.3300  Special restorative training.

    (a) * * *

(Authority: 38 U.S.C. 3540 through 3543)

    (b) Eligible persons. VA may prescribe special restorative training 
for an eligible person who is a child, spouse, or surviving spouse 
except for a spouse whose qualification as an eligible person is under 
Sec.  21.3021(a)(3)(ii). The special restorative training must begin 
after December 26, 2001, for a spouse or surviving spouse.

(Authority: 38 U.S.C. 3501, 3540, 3541, 3543; sec. 109, Pub. L. 107-
103, 115 Stat. 986)


    (c) * * *

(Authority: 38 U.S.C. 3540, 3541, 3543)


* * * * *

0
8. Amend Sec.  21.3301 by:
0
a. In paragraph (a) introductory text, removing ``a handicapped child'' 
and adding, in its place, ``an eligible person with a disability who is 
a child, spouse, or surviving spouse'', and adding ``or vocational 
rehabilitation counselor'' after ``psychologist'' both places that it 
appears.
0
b. Redesignating paragraphs (a)(2), (a)(3), (a)(4), and (a)(5) as 
paragraphs (a)(5), (a)(2), (a)(3), and (a)(4), respectively.
0
c. In newly redesignated paragraph (a)(2), in the introductory text 
removing ``eligible child's'' and adding, in its place, ``child's, 
spouse's, or surviving spouse's'' and removing the authority citation 
at the end of the paragraph.

[[Page 2425]]

0
d. In newly redesignated paragraph (a)(3), removing ``and'' from the 
end of the paragraph.
0
e. In newly redesignated paragraph (a)(4), after ``child's'', adding 
``, spouse's, or surviving spouse's''.
0
f. In newly redesignated paragraph (a)(5), removing ``It'' and adding, 
in its place, ``In the case of a child, whether it''; removing 
``interests of an eligible'' and adding, in its place, ``interest of 
the''; and adding ``and'' after the semicolon.
0
g. In paragraph (a)(6)(i), removing ``handicapped children,'' and 
adding, in its place, ``individuals with disabilities;''.
0
h. In paragraph (a)(6)(ii), removing ``child's'' and adding, in its 
place, ``eligible person's'' and removing ``Chapter 35,'' and adding, 
in its place, ``38 U.S.C. chapter 35.'', and revising the authority 
citation at the end of paragraph (a)(6).
0
i. In paragraph (b), adding ``or vocational rehabilitation counselor'' 
after ``psychologist''.
0
j. Revising paragraphs (c) and (d).
0
k. In paragraph (e), removing ``child'' each time that it appears and 
adding, in its place, ``person'', and revising the authority citation 
at the end of the paragraph.
    The revisions read as follows:


Sec.  21.3301  Need.

    (a) * * *
    (6) * * *

(Authority: 38 U.S.C. 3501, 3540, 3541(a), 3543)

* * * * *
    (c) Development and implementation. Following consultation with the 
panel and receipt of the panel's report, the counseling psychologist or 
vocational rehabilitation counselor will determine the need for and 
feasibility of special restorative training. If this determination is 
affirmative, the counseling psychologist or vocational rehabilitation 
counselor will prepare an individualized written plan comparable to a 
plan for an extended evaluation under 38 U.S.C. chapter 31. In the case 
of an eligible person who is a spouse or surviving spouse, or a child 
who has attained majority under laws applicable in his or her State of 
residence, the plan will be developed jointly with the spouse or 
surviving spouse, or the child, respectively. In the case of an 
eligible person who has a guardian or has not attained majority under 
laws applicable in his or her State of residence, the plan will be 
developed jointly with the eligible person and his or her parent or 
guardian (see Sec.  21.3021(d)).

(Authority: 38 U.S.C. 3501, 3541(a))


    (d) Notification of disallowance. When an eligible person, or a 
parent or guardian on behalf of an eligible person, has requested 
special restorative training, and the counseling psychologist or 
vocational rehabilitation counselor finds that this training is not 
needed or will not materially improve the eligible person's condition, 
VA will inform the eligible person, except that VA will inform his or 
her parent or guardian (see Sec.  21.3021(d)) if the eligible person 
has a guardian or has not attained majority under laws applicable in 
his or her State of residence, in writing of the finding and of his or 
her appeal rights.

(Authority: 38 U.S.C. 3501, 3540, 3543, 5104)


    (e) * * *

(Authority: 38 U.S.C. 3501, 3540, 3543)



0
9. Amend Sec.  21.3302 by:
0
a. In paragraph (a), removing ``child'' and adding, in its place, 
``person''.
0
b. In paragraph (b), removing ``which may be charged the parent or 
guardian'' and adding, in its place, ``charged'' and removing ``an 
eligible child'' and adding, in its place, ``to the eligible person''.
0
c. Revising the section heading and paragraph (c).
0
d. Adding, at the end of the section, an information collection 
approval parenthetical.
    The revisions and addition read as follows:


Sec.  21.3302  Special restorative training agreements and reports.

* * * * *
    (c) Reports. Each educational institution or other provider of a 
course of special restorative training must report promptly the 
eligible person's enrollment in, interruption of, or termination of the 
course of special restorative training.

(Authority: 38 U.S.C. 501(a), 3543, 3680, 3684)


(The Office of Management and Budget has approved the information 
collection provisions in this section under control numbers 2900-
0014, 2900-0073, and 2900-0156.)


0
10. Amend Sec.  21.3303 by:
0
a. In paragraph (a), adding ``or vocational rehabilitation counselor'' 
after ``psychologist''.
0
b. Revising paragraph (b).
0
c. In paragraph (c) introductory text, removing ``child'' and adding, 
in its place, ``person''.
0
d. In paragraph (c)(1)(i), removing ``child's'' and adding, in its 
place, ``person's''.
0
e. In paragraph (c)(1)(ii), removing ``child's'' and adding, in its 
place, ``eligible person's''.
0
f. Revising the authority citation at the end of paragraph (c).
    The revisions read as follows:


Sec.  21.3303  Extent of training.

* * * * *
    (b) Ending dates of eligibility. (1) No child may receive special 
restorative training after reaching the end of his or her eligibility 
period as determined under Sec.  21.3041.
    (2) No spouse or surviving spouse may receive special restorative 
training after reaching the end of his or her eligibility period as 
determined under Sec. Sec.  21.3046 and 21.3047.

(Authority: 38 U.S.C. 3512)


    (c) * * *

(Authority: 38 U.S.C. 3542, 3543)



0
11. Amend Sec.  21.3304 by:
0
a. Removing ``child'' each place that it appears and adding, in its 
place, ``person'' and removing ``vocational rehabilitation specialist'' 
each place that it appears and adding, in its place, ``counseling 
psychologist or vocational rehabilitation counselor''.
0
b. In paragraphs (b) introductory text, (b)(3) introductory text, and 
(b)(3)(ii), removing ``child's'' and adding, in its place, 
``person's''.
0
c. In paragraph (b)(2), removing ``by the counseling psychologist''.
0
d. Revising the authority citation at the end of the section.
    The revision reads as follows:


Sec.  21.3304  Assistance during training.

* * * * *

(Authority: 38 U.S.C. 3520, 3541, 3543, 3561)



0
12. Amend Sec.  21.3305 by:
0
a. Removing ``child'' each place that it appears and adding, in its 
place, ``person''.
0
b. In paragraph (a), removing ``his or her handicap'' and adding, in 
its place, ``the effects of his or her disability(ies)''.
0
c. In paragraph (b)(6), removing ``child's'' and adding, in its place, 
``person's''.


0
13. Amend Sec.  21.3306 by:
0
a. In the introductory text, removing ``child'' and adding, in its 
place, ``person''.
0
b. In paragraph (a) introductory text, removing ``A vocational 
rehabilitation specialist'' and adding, in its place, ``A counseling 
psychologist or vocational rehabilitation counselor'', and revising the 
paragraph heading.
0
c. Revising the heading of paragraph (b) and paragraph (b)(1) 
introductory text.

[[Page 2426]]

0
d. In paragraph (b)(2), removing the first sentence, and removing ``If 
he or she'' and adding, in its place, ``If the counseling psychologist 
or vocational rehabilitation counselor''.
0
e. In paragraph (b)(3) introductory text, adding ``or vocational 
rehabilitation counselor'' after ``psychologist''.
0
f. In paragraph (b)(3)(ii), removing ``child'' and adding, in its 
place, ``eligible person''.
    The revisions read as follows:


Sec.  21.3306  Reentrance after interruption.

* * * * *
    (a) Reentrance without corrective action. * * *
* * * * *
    (b) Consultation with Vocational Rehabilitation Panel. (1) A 
counseling psychologist or vocational rehabilitation counselor will 
consult with the Vocational Rehabilitation Panel when special 
restorative training was interrupted--

* * * * *

0
14. Amend Sec.  21.3307 by:
0
a. In paragraph (a), removing ``by a counseling psychologist'' and 
removing ``the vocational rehabilitation specialist'' and adding, in 
its place, ``a counseling psychologist or vocational rehabilitation 
counselor''.
0
b. Revising paragraphs (b)(1) and (2).
0
c. In paragraph (c), removing ``child'' and adding, in its place, 
``person'' and adding ``or vocational rehabilitation counselor'' after 
``psychologist''.
    The revisions read as follows:


Sec.  21.3307   ``Discontinued'' status.

* * * * *
    (b) * * *
    (1) Notify the eligible person of the action taken, except that if 
the eligible person has a guardian or has not attained majority under 
laws applicable in his or her State of residence, VA will notify his or 
her parent or guardian (see Sec.  21.3021(d)) of the action taken.
    (2) Inform the eligible person of his or her potential right to a 
program of education, except that if the eligible person has a guardian 
or has not attained majority under laws applicable in his or her State 
of residence, VA will inform his or her parent or guardian (see Sec.  
21.3021(d)) of the eligible person's potential right to a program of 
education.

(Authority: 38 U.S.C. 3501, 3543(b))


* * * * *

0
15. Amend Sec.  21.3330 by:
0
a. In the introductory text of paragraph (b), removing ``child's'' and 
adding, in its place, ``person's'' and removing ``vocational 
rehabilitation specialist'' and adding, in its place, ``counseling 
psychologist or vocational rehabilitation counselor''.
0
b. In paragraph (b)(1), removing ``child'' and adding, in its place, 
``person'' and removing the period and adding, in its place, ``; or''.


0
16. Amend Sec.  21.3331 by removing ``child'' and adding, in its place, 
``person,'', adding ``or vocational rehabilitation counselor'' after 
``psychologist'', and removing ``Sec.  21.3130(c)'' and adding, in its 
place, ``Sec.  21.4131''.
0
17. Amend Sec.  21.3332 by:
0
a. In paragraphs (b) and (e), removing ``vocational rehabilitation 
specialist'' and adding, in its place, ``counseling psychologist or 
vocational rehabilitation counselor''.
0
b. In paragraph (d), removing ``child's'' and adding, in its place, 
``person's''.
0
c. In paragraph (f), removing ``Sec.  21.3130(d).'' and adding, in its 
place, ``Sec.  21.4135.''

0
18. In Sec.  21.3333, amend paragraph (b)(1) introductory text by 
removing ``parent or guardian concurs in having the eligible child's'' 
and adding, in its place, ``eligible person, or his or her parent or 
guardian (see Sec.  21.3021(d)) if the eligible person has a guardian 
or has not attained majority under laws applicable in his or her State 
of residence, concurs in having his or her''.


0
19. In Sec.  21.3344, amend paragraph (e)(1)(i) by adding ``or 
vocational rehabilitation counselor'' after ``psychologist''.

Subpart D--Administration of Educational Assistance Programs


0
20. Revise the authority citation for part 21, subpart D 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, and as noted in specific sections.


0
21. Amend Sec.  21.4267 by:
0
a. In paragraph (a), removing ``21.7120(c)'' and adding, in its place, 
``21.7120(d)''.
0
b. Removing paragraph (b)(2)(i).
0
c. Redesignating paragraphs (b)(2)(ii) through (b)(2)(iv) as paragraphs 
(b)(2)(i) through (b)(2)(iii), respectively.
0
d. Revising paragraph (f).
0
e. Adding paragraph (g) preceding the authority citation at the end of 
the section.
    The revision and addition read as follows:


Sec.  21.4267  Approval of independent study.

* * * * *
    (f) Course approval. A State approving agency may approve a course 
offered by independent study or a combination of independent study and 
resident training only if the course--
    (1) Is accredited;
    (2) Meets the requirements of Sec.  21.4253; and
    (3) Either--
    (i) Leads to a standard college degree; or
    (ii) For courses approved on or after December 27, 2001, leads to a 
certificate that reflects educational attainment offered by an 
institution of higher learning.

(Authority: 38 U.S.C. 3672, 3675, 3680A(a)(4))


    (g) Remedial and deficiency courses. Remedial and deficiency 
courses offered by independent study cannot be approved.
* * * * *

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

0
22. The authority citation for part 21, subpart G, continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), chs. 32, 36, and as noted in 
specific sections.


0
23. Amend Sec.  21.5072 by:
0
a. In paragraph (d)(3) introductory text, removing ``if'' and adding, 
in its place, ``if--''.
0
b. In paragraph (d)(3)(i), removing ``veteran'' and adding, in its 
place, ``veteran's''.
0
c. Revising paragraph (i).
    The revision reads as follows:


Sec.  21.5072  Entitlement charge.

* * * * *
    (i) Entitlement charge may be omitted for course discontinuance due 
to orders to, or changing, active duty in certain instances. VA will 
make no charge against the entitlement of a servicemember or veteran 
for a payment of educational assistance when--
    (1)(i) A veteran not serving on active duty had to discontinue 
course pursuit as a result of being ordered, in connection with the 
Persian Gulf War by orders dated before September 11, 2001, to serve on 
active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 12302, 
or 12304, or former 10 U.S.C. 672(a), 672(d), 672(g), 673, or 673b 
(redesignated effective December 1, 1994, as 10 U.S.C. 12301(a), 
12301(d), 12301(g), 12302, and 12304, respectively); or
    (ii) A veteran not serving on active duty had to discontinue course 
pursuit as a result of being ordered, by orders dated after September 
10, 2001, to serve

[[Page 2427]]

on active duty under 10 U.S.C. 688, 12301(a), 12301(d), 12301(g), 
12302, or 12304; or
    (iii) A servicemember serving on active duty had to discontinue 
course pursuit as a result of being ordered, in connection with the 
Persian Gulf War by orders dated before September 11, 2001, to a new 
duty location or assignment or to perform an increased amount of work; 
or
    (iv) A servicemember serving on active duty had to discontinue 
course pursuit as a result of being ordered, by orders dated after 
September 10, 2001, to a new duty location or assignment or to perform 
an increased amount of work; and
    (2) The veteran or servicemember failed to receive credit or lost 
training time toward completion of his or her educational, 
professional, or vocational objective as a result of having to 
discontinue course pursuit as described in paragraph (i)(1) of this 
section.

(Authority: 38 U.S.C. 3231(a)(5)(B)(i); sec. 2, Pub. L. 102-127, 105 
Stat. 619-620; sec. 103, Pub. L. 107-103, 115 Stat. 979-980)

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

0
24. The authority citation for part 21, subpart K, continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), chs. 30, 36, and as noted in 
specific sections.


0
25. In Sec.  21.7042, revise paragraph (f)(3) to read as follows:


Sec.  21.7042  Basic eligibility requirements.

* * * * *
    (f) * * *
    (3) Except as provided in this paragraph and 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 (the Senior 
Reserve Officers' Training Corps program) is not eligible for 
educational assistance under 38 U.S.C. chapter 30. This bar to 
eligibility under 38 U.S.C. chapter 30 does not apply to an individual 
who entered active duty after September 30, 1996, and received--
    (i) $2,000 or less in educational assistance under 10 U.S.C. 2107 
for at least one year of the individual's participation in that program 
of educational assistance; or
    (ii) $3,400 or less in educational assistance under 10 U.S.C. 2107 
for at least one year of the individual's participation in that program 
of educational assistance. This provision applies to payment of 
educational assistance under 38 U.S.C. chapter 30 for months after 
December 31, 2001.

(Authority: 38 U.S.C. 3011(c), 3012(d))


* * * * *

0
26. Amend Sec.  21.7044 by:
0
a. In paragraph (a)(6), removing the period at the end and adding, in 
its place ``; or''.
0
b. Adding paragraph (a)(7), immediately following the authority 
citation at the end of paragraph (a)(6).
0
c. Revising paragraph (b)(4).
0
d. Removing paragraph (b)(5).
0
e. Redesignating paragraphs (b)(6) through (b)(12) as paragraphs (b)(5) 
through (b)(11), respectively.
0
f. In newly redesignated paragraph (b)(7), removing ``(b)(5)'' each 
place that it appears and adding, in its place, ``(b)(4)''.
0
g. In newly redesignated paragraph (b)(10), removing ``(b)(9) or (10)'' 
and adding, in its place, ``(b)(8) or (9)''.
    The revision and addition read as follows:


Sec.  21.7044  Persons with eligibility under 38 U.S.C. chapter 34.

* * * * *
    (a) * * *
    (7) Effective December 27, 2001, an individual must meet the 
following requirements. He or she--
    (i) Was not on active duty on October 19, 1984;
    (ii) Reenlists or reenters on a period of active duty after October 
19, 1984; and
    (iii) Serves at least three years of continuous active duty in the 
Armed Forces after June 30, 1985. The individual is not required to 
serve three years if he or she is honorably discharged or released from 
active duty for one of the reasons shown in paragraphs (a)(4)(ii)(A) 
through (a)(4)(ii)(F) of this section.

 (Authority: 38 U.S.C. 3011(a)(1))


    (b) * * *
    (4) The individual either--
    (i) Must have been on active duty on October 19, 1984, must have 
served without a break in service from October 19, 1984, through June 
30, 1985, and after June 30, 1985--
    (A) Except as provided in paragraph (b)(5) of this section, must 
serve at least two years of continuous active duty in the Armed Forces 
characterized by the Secretary concerned as honorable service, and
    (B) Except as provided in paragraph (b)(6) of this section, after 
completion of this active duty service, must serve at least four 
continuous years service in the Selected Reserve, during which the 
individual must participate satisfactorily in training as prescribed by 
the Secretary concerned; or
    (ii) Effective December 27, 2001, must not have been on active duty 
on October 19, 1984, must reenlist or reenter on a period of active 
duty after October 19, 1984, and after June 30, 1985--
    (A) Except as provided in paragraph (b)(5) of this section, must 
serve at least two years of continuous active duty in the Armed Forces 
characterized by the Secretary concerned as honorable service, and
    (B) Except as provided in paragraph (b)(6) of this section, after 
completion of this active duty service, must serve at least four 
continuous years service in the Selected Reserve, during which the 
individual must participate satisfactorily in training as prescribed by 
the Secretary concerned.

 (Authority: 38 U.S.C. 3012(a)(1))


* * * * *

0
27. Amend Sec.  21.7050 by:
0
a. In paragraph (a)(1) introductory text, removing ``service member'' 
and adding, in its place, ``servicemember''.
0
b. In paragraph (a)(1)(ii)(D), at the end, removing ``or''.
0
c. In paragraph (a)(1)(iii), removing ``Sec.  21.7042(b) and Sec.  
21.7044(b).'' and adding, in its place, ``Sec. Sec.  21.7042(b) and 
21.7044(b); or''.
0
d. Adding paragraph (a)(1)(iv).
    The addition reads as follows:


Sec.  21.7050  Ending dates of eligibility.

* * * * *
    (a) * * *
    (1) * * *
    (iv) December 27, 2001, for individuals who become eligible for 
educational assistance under Sec.  21.7044(a)(7) or (b)(4)(ii).

 (Authority: 38 U.S.C. 3031(a), (e), (g))


* * * * *

0
28. Amend Sec.  21.7222 by revising paragraph (e) to read as follows:


Sec.  21.7222  Courses and enrollments which may not be approved.

* * * * *
    (e) Any independent study program except--
    (1) An accredited independent study program (including open circuit 
television) leading to a standard college degree;
    (2) Enrollments in an independent study course after December 26, 
2001, in a program leading to a certificate that reflects educational 
attainment offered by an institution of higher learning; or
    (3) As provided for in Sec.  21.7120(d).

[[Page 2428]]


 (Authority: 38 U.S.C. 3676, 3680A)


 [FR Doc. E8-330 Filed 1-14-08; 8:45 am]
BILLING CODE 8320-01-P