Post-9/11 GI Bill, 14654-14694 [E9-7052]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14654-14694]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7052]



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Part III





Department of Veterans Affairs





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38 CFR Part 21



Post-9/11 GI Bill; Final Rule

Federal Register / Vol. 74 , No. 60 / Tuesday, March 31, 2009 / Rules 
and Regulations

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AN10


Post-9/11 GI Bill

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing this final 
rule to establish regulations regarding a new educational assistance 
program for individuals who serve on active duty after September 10, 
2001. The new program, known as the Post-9/11 GI Bill, was authorized 
by title V of the Supplemental Appropriations Act, 2008 (Post-9/11 
Veterans Educational Assistance Act of 2008). This final regulation 
includes the rules necessary to implement the provisions of the Post-9/
11 Veterans Educational Assistance Act of 2008 that govern the Post-9/
11 GI Bill.

DATES: Effective Date: This final rule will become effective on August 
1, 2009.

FOR FURTHER INFORMATION CONTACT: Brandye R. Terrell, Regulation 
Development Team Leader, Education Service, Department of Veterans 
Affairs (225C), 810 Vermont Avenue, NW., Washington, DC 20420. 
Telephone: (202) 461-9822. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on December 23, 2008 (73 FR 78876), VA published a proposal to 
establish VA regulations to implement the provisions of the Post-9/11 
Veterans Educational Assistance Act of 2008 that govern the Post-9/11 
GI Bill. Interested persons were invited to submit written comments on 
or before January 22, 2009. We received comments from 38 organizations 
and 8 individuals. We have made several changes based on these 
comments.

Eligibility

    One commenter stated that the period of eligibility for retirees is 
not specifically addressed and noted that there is no definition of 
``retiree'' in title 38, CFR. We did not define the term ``retiree'' or 
address retirees as a separate category in the regulation because an 
individual's period of eligibility is based on factors unrelated to the 
individual's status as a retiree. The period of eligibility for all 
individuals entitled to Post-9/11 GI Bill benefits is provided in Sec.  
21.9530. If the individual meets the eligibility requirements, the 15-
year period of eligibility begins on the last date of discharge, 
without regard to the reason for separation, even if the individual was 
discharged prior to August 1, 2009, the effective date of the program.
    We received three comments on the eligibility of members of the 
National Guard or Active Guard Reserve (AGR) serving on active duty 
under title 32, U.S.C. One commenter requested that these members be 
allowed to transfer Post-9/11 GI Bill benefits to their dependents. One 
commenter also suggested that any service under orders lasting 30 days 
or more that cite use of Operation Iraqi Freedom, Operation Enduring 
Freedom, or Operation Noble Eagle funds should be considered active 
duty for the purpose of the Post-9/11 GI Bill. Section 3301 of title 
38, U.S.C., defines ``active duty'' as having the same meaning given 
such term in 38 U.S.C. 101(21)(A) for members of the regular components 
of the Armed Forces. This paragraph states that active duty means full-
time duty in the Armed Forces, other than active duty for training. 
Active Duty is further defined in 38 U.S.C. 3301(1) to include a call 
or order to active duty under specific title 10 sections of the U.S. 
Code for members of the reserve components of the Armed Forces. Neither 
of the statutory definitions for active duty under section 3301(1) 
includes members of the National Guard or Active Guard Reserve serving 
under title 32, U.S.C.; therefore, we are unable to authorize 
eligibility for these individuals.
    One commenter requested clarification on why commissioned officers 
of the Public Health Service (PHS) are excluded from eligibility for 
Post-9/11 GI Bill benefits. Another commenter requested a review of 42 
U.S.C. 213(d) to determine if PHS officers qualify for the new benefit 
and suggested National Oceanic and Atmospheric Administration (NOAA) 
officers also be included as eligible. We agree that commissioned 
officers of PHS and NOAA are eligible for benefits under the Post-9/11 
GI Bill. In a digested opinion from 1985, our General Counsel read the 
provisions of 42 U.S.C. 213 regarding PHS and 33 U.S.C. 857-1 and 857-3 
(now in 33 U.S.C. 3002 and 3072, respectively) regarding NOAA as 
expanding the definition of ``Armed Forces'' in 38 U.S.C. 101(10) to 
also include PHS and NOAA for purposes of benefits administered by VA. 
See VADIGOP, 6-26-85 (8-28 Reentry in Active Service). Therefore, 
service as a commissioned officer of PHS or NOAA meets the ``active 
duty in the Armed Forces'' service requirement in section 3311 of title 
38, U.S.C.

Transfer of Entitlement

    Two commenters requested that retirees be allowed to transfer 
benefits to dependents. Two additional commenters wanted individuals to 
be allowed to transfer benefits to dependents even if they were unable 
to reenlist, or without their having to reenlist, if they met the 
minimum service requirements. While VA is responsible for administering 
payment of transferred benefits, the Department of Defense (DoD) is 
responsible for determining eligibility for transfer of entitlement to 
dependents. Specifically, the statute provides that the Secretary of 
Defense may authorize the Secretary of the Army, Secretary of the Navy, 
Secretary of the Air Force, and the Secretary of Homeland Security 
(with respect to the Coast Guard when it is not operating as a service 
in the Navy) to determine if individuals serving in the Armed Forces in 
their respective departments are eligible to transfer entitlement to 
dependents. As VA has no authority to determine eligibility for 
transfer of entitlement of educational assistance under the Post-9/11 
GI Bill, individuals inquiring about eligibility for transfer of 
entitlement should contact DoD for information.
    One commenter requested that VA clarify what happens to entitlement 
that was transferred under the Montgomery GI Bill (MGIB) if the 
transferor does not revoke the transferred entitlement before electing 
to receive benefits under the Post-9/11 GI Bill. Entitlement that was 
transferred under MGIB and not revoked prior to the transferor's 
election of Post-9/11 GI Bill benefits will remain available to the 
dependent to whom it was transferred. Dependents will remain eligible 
for transferred benefits under the provisions of the chapter from which 
benefits were transferred.
    One commenter disagreed with the exclusion of transferred benefits 
as marital property. We made no change to this rule in the final 
regulation because 38 U.S.C. 3319(f)(3) prohibits the treatment of 
transferred entitlement as marital property.
    We received one comment suggesting we specify the time limit for 
which dependents eligible for transferred entitlement may use their 
benefit. We make no change based on this comment as the period of 
eligibility for use of transferred benefits is listed in 38 CFR 
21.9530, in paragraph (d) for spouses and in paragraph (e) for 
children.
    One commenter recommended removing the kicker exclusion from the 
rate of payment for transferred benefits because there is no statutory 
provision limiting its payment to the dependent.

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We agree that there is no statutory reason why kickers should not be 
paid to transferees. The Selected Reserve kicker is excluded under 
MGIB. In trying to be consistent, we excluded kickers from the Post-9/
11 GI Bill also. While we intended to only exclude the Selected Reserve 
kicker, we inadvertently excluded all kickers. However, after reviewing 
the transfer-of-entitlement language used under MGIB and the Post-9/11 
GI Bill, we find that, while the MGIB language is more restrictive and 
specifically pinpoints the section under which payments should be 
determined, the language in the Post-9/11 GI Bill is broader and simply 
says that individuals should receive the amount that the transferor 
would receive. Based on this language, we have changed the rate of 
payment for transferred benefits under the Post-9/11 GI Bill to include 
any kicker to which the transferor is entitled.
    Another commenter suggested we clarify that ``veteran rate'' as 
used in 38 CFR 21.9570(k) means the dependent is eligible for the 
housing allowance. We do not agree that this term needs clarification. 
The term dependent is used to refer to both an eligible child and an 
eligible spouse or surviving spouse. A dependent child and surviving 
spouse will always receive transferred benefits in the same manner as 
an individual off active duty. This means that they will be eligible to 
receive the housing allowance if all other criteria are met. However, a 
dependent spouse will always receive benefits in the same manner as the 
transferor, thus he or she will not be eligible for the monthly housing 
allowance if the transferor is on active duty.
    We received one comment suggesting we add reduction in force (RIF) 
to the list in 38 CFR 21.9570(l) of exceptions to the requirement that 
the transferor complete the service agreement that allowed the 
transferor to participate in the transferability program. We contacted 
DoD for clarification of what constitutes completion of a service 
agreement. DoD considers any individual released due to a disability or 
as a result of RIF to have completed his or her service agreement. 
Therefore, we amended the final rule to clarify that release due to a 
disability or as a result of RIF constitutes completion of the service 
agreement, and therefore does not result in loss of transferred 
entitlement for the transferor's dependents.
    One commenter recommended allowing spouses to use their own Post-9/
11 GI Bill benefits in addition to transferred benefits under the Post-
9/11 GI Bill. We make no changes based on this comment since paragraph 
(m) of Sec.  21.9570 states that all dependents may do this. The 
definition of dependent includes a spouse. Thus, spouses and children 
are both covered under this section. Spouses may use their own Post-9/
11 GI Bill benefits and/or their transferred benefits.
    Another commenter requested that the extension of entitlement 
provided in Sec.  21.9635(o) be applied to a transferee if the 
transferor only transfers entitlement to one person. We do not agree to 
make this change because 38 U.S.C. 3319(d) specifically indicates that 
transferred entitlement may not exceed 36 months. Allowing an extension 
of entitlement for transferees would be a direct violation of the 
statute.
    One commenter disagreed with the definition of ``child'' used in 
the proposed regulation. The commenter indicated that by adopting the 
definition of child as it is defined in Sec.  3.57 (under the age of 18 
or, if they are enrolled in school, under the age of 23), VA is 
defining the term narrower than required by legislation. The commenter 
recommended VA define child without the age requirements and, in 
addition, not make a distinction between a child and a foster child or 
stepchild.
    Based on the definitions of child and spouse in the proposed 
regulation, DoD also expressed concern with regard to the loss of 
transferred entitlement for dependents who were deemed eligible for the 
program at the time of transfer, but who lost this eligibility based on 
their status at a later date. They contend that Post-9/11 GI Bill 
benefits belong to the veteran/servicemember and not the dependent. 
They base this on the provisions in 38 U.S.C. 3319(f) that allow the 
transferor to modify or revoke the transferred entitlement at any time 
within the transferor's 15-year eligibility period. DoD suggested VA 
apply the definitions of ``spouse'' and ``child'' effective the date of 
the transfer and disregard the dependent's status at the point the 
dependent utilizes the benefits.
    We agree, in part, with these concerns and made clarifying changes 
in the final rule. A transferor may elect to transfer his or her 
entitlement to his or her child, but at the time of the designation the 
child must still meet the 38 U.S.C. 101(4) definition of ``child,'' 
i.e., a legitimate child, a legally adopted child, a stepchild, or an 
illegitimate child, as those terms are explained in 38 CFR 3.57, and 
who is unmarried and under age 18, was permanently incapable of self-
support before reaching age 18, or after attaining the age of 18 years 
and until completion of education or training (but not after attaining 
the age of 23 years) is pursuing a course of instruction at an approved 
educational institution. Thereafter, the child's subsequent marriage 
will not affect his or her entitlement. Finally, a child may continue 
to use entitlement so transferred until reaching age 26. If a 
transferor elects to transfer his or her entitlement to a spouse, a 
subsequent divorce will not affect the transferee's entitlement; 
however, the transferor retains the right to revoke or modify the 
transfer at any time.

Enrollment Certification

    We received three comments requesting clarification on whether 
schools will be required to report the cost of dropped courses in order 
for VA to properly judge whether or not there has been an overpayment. 
One of the commenters asked if there will be a time limit for any 
refunds due to VA. We make no changes based on these comments. Schools 
are required to report the established charges associated with an 
individual's enrollment and, in the event an individual reduces the 
number of courses he or she is enrolled in, the established charges for 
the courses in which he or she remains enrolled. This process is the 
same process that is used in other educational assistance programs to 
certify enrollments and reductions of individuals training at less than 
one-half time or who are on active duty.
    Furthermore, similar to existing procedures for other educational 
assistance programs, individuals will still be responsible for 
negotiating repayment of debts with our Debt Management Center or have 
money recouped from future payments. Schools that are required to 
return funds to VA, regardless of the reason, will send the money back 
electronically or send a payment to the Regional Processing Office's 
agent cashier.
    We received two related comments regarding which charges should be 
reported to VA and whether VA will require certification of actual 
tuition and fees or estimated tuition and fees. One commenter stated 
that actual tuition and fees cannot be provided until an individual is 
invoiced and would require that schools certify each term separately. 
One commenter also requested clarification on whether fees should be 
reported regardless of pending aid, scholarships, state grants, etc. We 
make no changes based on these comments. The institution of higher 
learning must certify the eligible individual's enrollment before he or 
she may receive educational assistance and 38 U.S.C. 3313(h)(2) 
requires that VA

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pay based on the actual tuition and fees charged to the student. 
Schools will be required to report actual tuition and fees in 
accordance with the statute.
    One commenter requested that VA clarify the regulation to state 
that term-based institutions operating on a year-round basis should 
report on the same basis as other term-based institutions. We revised 
the language in paragraph (b) of Sec.  21.9720 to clarify that 
institutions of higher learning organized on a year-round basis will 
report on the same basis as term-based institutions unless they do not 
offer courses on a term, quarter, or semester basis, in which case they 
will report enrollment for the length of the course.

Payments

    One commenter indicated there currently is an approved 
apprenticeship program at an institution of higher learning and 
requested clarification on whether this program is payable under the 
Post-9/11 GI Bill. We cannot pay benefits for an apprenticeship or on-
the-job training program at an institution of higher learning acting in 
the capacity of an employer. In order to be approved for Post-9/11 GI 
Bill benefits, individuals must be pursuing an approved program of 
education offered at an institution of higher learning. Section 
21.4258(b)(iv), 38 CFR requires that institutions of higher learning 
list all approved programs of education in their catalog. If the 
program of education is offered by the institution of higher learning 
and is approved for the purposes of 38 U.S.C. chapter 30, VA will make 
the appropriate payment. Apprenticeship and on-the-job training 
programs are offered by employers and are generally not available to 
the entire student population. We have clarified the definition of 
``program of education'' to state that ``the curriculum or combination 
of courses pursued must be listed in the institution of higher 
learning's catalog and included in the approval notice provided by the 
State approving agency to VA in accordance with Sec.  21.4258(b)(iv).''
    Three commenters recommended expanding the advance payment option 
to include all educational assistance offered under the Post-9/11 GI 
Bill rather than limiting it to just the monthly housing allowance. 
Section 3680(d) of title 38, U.S.C., limits the amount of an advance 
payment to an amount equal to the first month, or fraction thereof, in 
which the individual is pursuing training plus the amount for the 
subsequent month of training. Under the Post-9/11 GI Bill, VA is 
required to pay the tuition and fees, books and supplies stipend, and 
other payments (e.g., rural relocation, licensing or certification test 
reimbursement) in a lump sum. As a result, we are unable to apply the 
advance payment provisions to such lump-sum payments.

Overpayments

    We received three comments asking whether individuals who withdraw 
as a result of being called to active duty will be required to repay 
benefits. One of the commenters also asked whether the school will be 
required to return the funds if an individual is called to active duty. 
We make no changes based on these comments. Individuals who withdraw as 
a result of being called to active duty will not have to repay tuition 
and fees, Yellow Ribbon Program contributions, or the book stipend. If 
they are in receipt of the housing allowance, it will be discontinued 
at the end of the month in which the withdrawal occurred. If the school 
processes a refund for tuition and/or fees, it should be issued to the 
student following the regularly prescribed standards and practices of 
the institution.
    One commenter proposed that the institution of higher learning be 
responsible for making a refund to VA when the student does not 
register for a class certified in advance of the registration period, 
and for which the institution received tuition and fees on behalf of 
the student. We agree with this comment and have clarified in Sec.  
21.9695(b) that an overpayment of educational assistance paid to the 
institution of higher learning on behalf of an eligible individual 
constitutes a liability of the individual unless the individual never 
attended the term, quarter, or semester certified by the institution of 
higher learning. When an individual never attends a term, quarter, or 
semester certified by the institution of higher learning, the 
institution must return to VA all educational assistance received under 
the provisions of 38 U.S.C. chapter 33 on behalf of the individual.
    Two commenters wanted to know why individuals will be held 
accountable for repayment of tuition and fees if the money is sent 
directly to the school, especially since individuals in VA's Vocational 
Rehabilitation and Employment Program are not required to make 
repayment of tuition and fees. We make no changes in the final rule 
based on this comment, but we are providing the following clarification 
concerning this issue. Section 3313(a) of title 38, U.S.C., states that 
the Secretary shall pay to each individual entitled to educational 
assistance the amounts specified in subsection (c) to meet the expenses 
of such individual's subsistence, tuition, fees, and other costs for 
pursuit of such program of education. Paragraph (g) of that section 
subsequently directs that payment of the tuition and fees be made 
directly to the institution of higher learning; however, it is clear 
that the benefit and the associated responsibilities belong to the 
individual.
    Additionally, the authority to establish an overpayment against a 
school is limited by statute, per 38 U.S.C. 3685(b), to instances where 
the Secretary finds that an overpayment has been made to a veteran or 
eligible person as the result of willful or negligent failure to report 
or false certification. Therefore, unless an overpayment results from 
the actions or inactions described in section 3685(b), VA cannot 
collect from the school amounts of tuition and fees that were properly 
paid on behalf of the individual.
    Conversely, if VA makes an erroneous or improper payment not 
resulting from the negligent or willful actions or inactions on the 
part of a school, the erroneous or improper payment may be recovered 
from the receiver. This situation may arise if a school certifies an 
individual for multiple terms but the individual does not attend all of 
the terms certified. Section 21.4203 of title 38, CFR provides that 
schools shall report without delay a change in enrollment. If VA issues 
a tuition and fees payment to the school on behalf of an individual for 
a term that the individual never attends VA will collect the full 
amount of the payment from the school.
    One commenter suggested Sec.  21.9695(b)(3) be revised to clarify 
that if an individual does not complete one or more courses, but does 
complete at least one course, that the individual will not have an 
overpayment equaling the total amount of all educational assistance 
paid, but rather only for the course or courses the individual did not 
complete. Based on this comment, we clarified this section to indicate 
that if a student withdraws from a course or courses, the overpayment 
will only be established for the course or courses from which the 
student withdraws, not the amount of all educational assistance for 
that enrollment period.
    One commenter requested clarification of how an ``incomplete'' 
grade designation, for which the individual is given additional time to 
finish a course, will be treated and whether it will be considered an 
overpayment. We agree this issue should be addressed in the final rule, 
and have added a paragraph to

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Sec.  21.9635(f) clarifying that if the institution of higher learning 
records an incomplete grade for an individual's course (or courses) and 
allows the individual additional time to complete the coursework, VA 
will not create an overpayment for those course(s) unless one of the 
following occurs: The individual fails to complete the course within 
the regularly prescribed standards of the institution or one year from 
the date the incomplete was assigned, whichever is earlier, or the 
individual is permanently assigned a nonpunitive grade.
    One commenter requested that schools be required to refund money to 
VA that would otherwise normally be refunded to the student based on 
the school's refund policy. We make no changes based on this comment. 
Institutions of higher learning have refund policies individualized to 
their institutions and students would not know when or if a refund was 
sent to VA. Additionally, VA will determine the amount of the student's 
overpayment, if any, after processing the change in enrollment. The 
amount the school refunds to the student and the amount the student 
owes to VA will generally not be equal as VA will pay to the end of the 
month for any reduction during the drop add period or for which the 
student provides evidence of mitigating circumstances. To reduce 
confusion on how much is owed and to whom, schools should continue to 
refund money to students based on their regularly established policies.

Tuition and Fees

    Two commenters requested clarification on why, in Sec.  21.9640(a), 
the 70 percent level would apply instead of the 80 percent level if the 
individual met the service requirements at both levels. One of the 
commenters suggested removing the requirement to use the 70 percent 
level instead of the 80 percent level because it is not justified 
legislatively. We do not agree to make this change because 38 U.S.C. 
3311(e) specifically provides that individuals entitled to educational 
assistance under paragraphs (4) and (5) of 38 U.S.C. 3311(b) will be 
entitled to educational assistance using the provisions of paragraph 
(5). Paragraph (4) establishes eligibility for individuals with at 
least 24 months but less than 30 months of service, including entry 
level and skill training. Paragraph (5) establishes eligibility for 
individuals with at least 18 months but less than 24 months of service, 
excluding entry level and skill training. If both levels of service 
requirements are met, the lower percentage level must be used; 
therefore, applying the higher percentage level would be contrary to 
the clear requirement of the statute.
    We received several comments regarding the effectual relationship 
between tuition and fees payments under the Post-9/11 GI Bill and other 
forms of aid, such as State veterans' tuition programs. One of the 
commenters suggested that 1st payer/2nd payer rules be clarified so 
that all parties clearly understand who pays what and when. VA will pay 
based on the amount the student is charged, not the amount the student 
has remaining after State programs have contributed funds. Schools 
should certify the total amount of tuition and the total amount of fees 
that a student is charged. The amount reported to VA should not be 
reduced for pending or subsequent payments to be credited to the 
student's account from State programs, scholarships, grants, or any 
title IV funds (including Pell Grants). If an institution is not able 
to charge a veteran for tuition due to a State waiver or other State 
funded program, the school should not report tuition to VA. However, if 
the State reimburses the institution and/or veteran for tuition and 
fees after the individual has been billed, then the institution should 
report the original amount charged to the student. The amount of 
tuition and fees submitted to VA in these instances should not be 
reduced based on any additional funds received that will reduce the 
student's out-of-pocket expenses. One commenter also asked that we 
clarify whether a student can opt out of State assistance to receive 
educational assistance under the Post-9/11 GI Bill. There is no 
requirement in 38 U.S.C. chapter 33 that requires an individual to opt 
in or out of existing State programs in order to receive benefits under 
the Post-9/11 GI Bill. The statute simply states that VA may pay all or 
a portion of the cost of the actual tuition and fees charged the 
individual. Each State will need to review the laws that govern their 
State programs to determine if individuals may opt in or out of 
receiving assistance under the State funded programs.
    One commenter suggested VA provide a non-exhaustive list of 
approved fees to clarify which fees would be payable under the Post-9/
11 GI Bill and further suggested that health insurance premiums be 
included on the list. Another recommended that VA redefine fees to 
include those charged to all students (unless waived) enrolled in the 
same program of education as the VA benefit recipient. This commenter 
also recommended removing the requirement that the amount of fees that 
can be paid is limited to those charged to undergraduates. Finally, one 
commenter indicated support for the definition as stated in the 
proposed regulation. Based on these comments, we are amending the 
definition of fees in the final rule. Accordingly, ``fees'' will 
include any mandatory charges (other than tuition, room, and board) 
that are applied by the institution of higher learning for pursuit of 
an approved program of education including, but not limited to, health 
insurance premiums, freshman fees, graduation fees, and lab fees. The 
term does not include study abroad fees unless the fees are assessed 
for courses that are required for completion of the program of 
education. The statute requires VA to calculate the highest in-State 
amount payable for tuition and fees using undergraduate tuition and 
fees. However, individuals may receive payment for tuition and fees for 
graduate programs or other approved programs up to the amount of the 
highest in-State amount payable for undergraduate fees.
    One commenter suggested that VA clarify that the amounts payable 
for established charges and the book stipend are adjusted by the 
individual's eligibility percentage. We make no changes based on this 
comment. Section 21.9640(a) indicates that the amounts payable for 
pursuit of an approved program of education under that section are 
subject to the individual's eligibility percentage as determined by his 
or her aggregate length of creditable active duty service after 
September 10, 2001.
    One commenter expressed concern that the tuition and fees payments 
made on behalf of students attending part-time are not lowered based on 
the student's rate of pursuit. The commenter indicated that not 
reducing the maximum amount payable based on rate of pursuit will 
reward students for pursuing education part-time instead of full-time. 
We do not agree that this is an area of concern. Many schools charge 
students proportionately less for part-time enrollment because they 
base charges on a per-credit-hour rate. Furthermore, the statute does 
not require VA to reduce the maximum amounts payable proportionally 
based on rate of pursuit. It only dictates that the maximum payable be 
reduced based on the eligibility percentage. Nonetheless, based on 
several other comments regarding tuition and fees payments, we are 
amending the final rule to clarify that individuals will receive a 
tuition payment not to exceed the amount determined by multiplying the 
number of certified credit hours for the term, quarter, or semester by 
the

[[Page 14658]]

highest in-State amount charged per credit hour. Individuals will 
receive the amount for fees certified for the term, quarter, or 
semester, not to exceed the highest amount of fees that could be 
charged in any term.
    One commenter suggested allowing schools to certify the actual 
amount of tuition and fees charged minus any applicable military 
tuition assistance (TA) without requiring additional paperwork from the 
individual student. We make no changes based on this comment. 
Currently, VA requires that the student submit the TA form to VA prior 
to the issuance of a (top-up) payment. This form is necessary to 
determine the appropriate amount of tuition and fees VA will pay. 
Schools may submit the top-up form for the individual; however, VA 
should have the form on file and use it to make the determination of 
how much payment is due. Requiring certifying officials to make 
determinations on the amount of top-up payment an individual is due 
would add an additional step in the process that already exists and 
create an unnecessary burden on the schools. The TA form already 
provides VA with all of the information needed to determine the 
appropriate payment.
    We received one comment requesting that the maximum rate for 
tuition and fees fluctuate during the academic year whenever the State 
makes changes in the tuition and/or fees rates after the academic year 
begins. We make no changes based on this comment other than clarifying 
that the maximum amounts payable for tuition and fees, as published, 
will be effective for each term, quarter, or semester that begins 
during the academic year. The State approving agency of jurisdiction 
will determine each State's highest in-State amounts payable for 
tuition per credit hour and for fees each term during an academic year. 
VA will publish the maximum amounts payable for tuition and fees on the 
GI Bill Web site at https://www.gibill.va.gov and in the Federal 
Register by August 1st of each year to allow institutions of higher 
learning and students to take this information into consideration when 
making relevant decisions. If VA were to change these figures each time 
an institution of higher learning or a State changed the amount of 
tuition or fees it charged, it could adversely affect the students if 
the amount was decreased and could adversely affect institutions of 
higher learning participating in the Yellow Ribbon Program if the 
amount increased.

Book Stipend

    One commenter recommended VA issue promissory notes for the book 
stipends. We make no changes based on this comment. Book stipends are 
paid directly to the individual. VA sees no benefit in issuing a 
promissory note for books instead of issuing the book stipend payment 
directly to the individual.
    Several commenters expressed concern about the method of payment 
for the book stipend. Four of these commenters asked how the summer 
term or mini-terms would impact the payment, especially since many 
students do not attend the summer sessions. Two commenters suggested 
that VA redefine academic year so that individuals could receive the 
full book stipend and two commenters requested the method of 
calculating the book stipend be clarified. Based on these comments, we 
clarified the method VA will use to determine how the book stipend 
payment is calculated. A book stipend of up to $1,000 is available to 
veterans (and transferees). Section 3313(c)(1)(B)(ii) of title 38, 
U.S.C., provides a formula for determining the amount of the book 
stipend payable each academic year. The formula instructs VA to pay a 
portion of the book stipend equal to the amount determined by 
multiplying $1,000 by the fraction of the academic year that the term, 
quarter, or semester represents. We choose to divide the academic year 
by 24 credit hours (the minimum number of credit hours generally 
considered to be full-time for an undergraduate in an academic year). 
Using this calculation, an individual eligible for 100 percent of the 
amounts payable under the Post-9/11 GI Bill who is pursuing training at 
more than one-half-time will receive $41.67 for each credit hour 
certified up to 24 credit hours in an academic year.

Monthly Housing Allowance

    Several comments were received agreeing with VA's interpretation of 
the statute with regard to how distance learning courses affect 
eligibility for the monthly housing allowance (MHA); however, many 
other commenters expressed concern that the MHA is not available for 
additional categories of individuals. While one commenter supported 
prohibiting individuals from receiving the MHA if they are pursuing 
programs of education entirely by distance learning because of the 
potential for abuse, six commenters requested that the MHA be available 
to individuals pursuing a program of education entirely by distance 
learning. One of the commenters in favor of the MHA for distance 
learners also recommended that it be paid to these students based on 
the ZIP code of the student's address instead of the school's ZIP code 
as is done for students taking in-residence courses. Other commenters 
requested clarification on how partial pursuit of distance learning 
impacts the receipt of the MHA. Section 3313(c) of title 38, U.S.C., 
prohibits an individual from receiving the MHA if the individual is 
pursuing a program of education offered by distance learning. While we 
have interpreted this as broadly as possible to include individuals 
taking even one course in-residence as eligible to receive the MHA (if 
all other requirements are met), VA would be in violation of the 
statute if we allowed individuals pursuing a program of education 
entirely by distance learning to receive the MHA. Additionally, another 
commenter requested that VA define a qualifier for ``a single resident 
course.'' The commenter indicated that distance learning institutions 
may begin creating one-credit courses or one-half credit courses just 
to meet the residency requirement. It was suggested that VA set a 
minimum unit or percentage of courses that must be pursued in residence 
in order for individuals to qualify for the MHA. While VA notes the 
concern of the commenter, we disagree that institutions will create 
frivolous courses solely for the purpose of qualifying their students 
for the MHA. Further, many of the individuals enrolled in distance 
learning courses are unable to attend school in the traditional 
classroom setting due to other life circumstances. However, VA may only 
pay educational assistance under the Post-9/11 GI Bill for an approved 
program of education. Any courses pursued must be necessary for the 
attainment of the individual's identified objective. If the course has 
not been approved for pursuit of an approved program of education by 
the State approving agency or the course is not required for an 
individual's objective, VA will not be able to provide educational 
assistance for such course or include any credit for such course when 
determining eligibility for the MHA.
    One commenter recommended allowing veterans to receive the MHA when 
training at more than one-half time but less than three-quarter time. 
We are retaining the wording contained in the proposed regulation that 
will permit individuals who are training at greater than one-half time 
to receive the MHA if all other criteria are met. Any

[[Page 14659]]

individual who is not on active duty, who is enrolled in at least one 
in-residence course, and who is pursuing a program of education with a 
rate of pursuit greater than 50 percent, will receive the housing 
allowance.
    Two commenters recommended providing a monthly housing allowance to 
individuals attending foreign schools using the DoD's overseas housing 
allowance (OHA) rates for the locale where the individual is residing, 
rather than the average of the monthly housing allowances payable in 
the United States. One commenter also requested that we clarify how the 
``average'' will be determined. We considered these comments, but make 
no substantive changes in the final rule other than to clarify that we 
will use the unweighted arithmetic mean to determine the average 
monthly housing allowance payable. DoD adjusts the basic allowance for 
housing (BAH) rates effective the first of January each year. The OHA 
rates are reviewed, and are subject to change, every 6 months. To 
maintain consistency in applying the MHA rate changes, VA will continue 
to use the national average to determine the maximum MHA payable for 
students attending foreign institutions.
    We received one comment suggesting VA use the rate of pursuit to 
adjust the amount of MHA an individual will receive. The statute does 
not require that we limit the housing allowance based on rate of 
pursuit. We are only directed to limit it based on the individual's 
eligibility percentage level. We have decided not to unnecessarily 
limit the housing allowance and will pay individuals according to the 
direction provided in 38 U.S.C. 3313(c).
    One commenter recommended the determination of eligibility for the 
MHA be established annually based on the individual's program rather 
than basing it on courses taken in a single term. We make no changes 
based on this comment. It would be extremely difficult for VA to 
determine the amount of MHA to pay on an annual basis. To do so would 
require that every school certify every student for all terms during 
the academic year. All institutions do not require students to register 
for every term (Fall, Winter, Spring, Summer) at the start of the 
school year. Having such a requirement would require students to 
register and schools to report actual tuition and fees for an entire 
year. Many schools cannot report actual tuition and fees until 
registration has ended. Determining receipt of MHA annually would 
burden the schools to make major changes in their registration and 
certification processes.

Kickers

    We received four comments regarding payment of Post-9/11 GI Bill 
kickers. One commenter felt strongly that the Post-9/11 GI Bill kicker 
payments should not be denied to active-duty members, students whose 
rate of pursuit is one-half time or less, and students pursuing a 
program of education entirely by distance learning. One commenter 
requested an explanation as to how the MHA and the kicker are related. 
Two commenters requested that the final rule permit the kicker to be 
paid even if the individual is not entitled to receive the MHA. One of 
these commenters suggested increasing a ``zero'' dollar MHA payment by 
the amount of the Post-9/11 GI Bill kicker and the other commenter 
suggested paying the Post-9/11 GI Bill kicker in a lump sum payment in 
the same manner as the MGIB and Selected Reserve kickers are paid. We 
make no changes based on these comments. Section 3316(a)(1) of title 
38, U.S.C., provides that DoD kickers will increase the monthly amount 
otherwise payable under 38 U.S.C. 3313(c)(1)(B). Section 3313(c)(1)(B) 
of title 38, U.S.C., is the section that authorizes the monthly housing 
allowance. Section 3313(a) of that title specifically indicates that 
the amounts specified in subsection (c) will be paid to individuals 
entitled to educational assistance under the Post-9/11 GI Bill who are 
pursuing an approved program of education, other than a program 
discussed in subsections (e) and (f). Subsection (e) details assistance 
payable for individuals on active duty, and subsection (f) details 
assistance payable for individuals pursuing training at one-half time 
or less. Neither subsection (e) nor (f) references nor authorizes a 
monthly housing allowance. VA is unable to increase the amount of an 
assistance payment that the individual is not eligible to receive. 
Additionally, section 3313(c)(1)(B)(i) specifically excludes the 
housing allowance for individuals pursuing a program of education 
offered entirely by distance learning. As a result of these statutory 
provisions, VA is unable to make Post-9/11 GI Bill kicker payments for 
a term, quarter, or semester in which an individual is on active duty, 
for an individual whose rate of pursuit is one-half time or less, or 
for an individual who is pursuing a program of education entirely by 
distance learning.
    Another commenter inquired whether students will be required to 
fill out additional paperwork to receive MGIB kicker payments while 
receiving benefits under the Post-9/11 GI Bill. We make no change based 
on this comment because no additional paperwork is required. DoD will 
continue to notify VA of MGIB kicker eligibility. If an individual is 
eligible, VA will process the MGIB kicker payment without any 
additional paperwork from the individual.

Chapter 30 Refunds

    One commenter requested clarification on how refunds of MGIB 
contributions will be handled, and asked if the refund will be 
automatic or if the individual will have to complete a form to request 
the refund. Another commenter asked when an individual will actually 
receive the refund. A third commenter recommended that a refund of the 
MGIB contributions be made even if the individual is not in receipt of 
the monthly housing allowance. We make no changes based on these 
comments. If the individual is in receipt of the housing allowance, VA 
will automatically refund the appropriate amount of the MGIB 
contributions when the individual exhausts his or her entitlement under 
the Post-9/11 GI Bill. Section 5003(c)(6) of Public Law 110-252 (122 
Stat. 2377-2378) states that an individual may receive a refund of the 
basic contributions paid toward MGIB as an increase to the last monthly 
stipend payable to the individual under 38 U.S.C. 3313(c)(1)(B), i.e., 
the monthly housing allowance. VA has no authority to ignore the 
statute and pay the refund when an individual is not eligible to 
receive the monthly housing allowance.
    Two commenters addressed the additional $600 contribution (buy-up) 
that can be made towards increased educational assistance under MGIB. 
One commenter wanted to know if these contributions will also be 
refunded. The other commenter requested the final rule clearly state 
that the $600 is not refundable, if that is the case. Since the statute 
does not authorize a refund of the $600 contribution, we changed the 
wording in the final rule to clearly reflect that these contributions 
cannot be refunded.

Tutorial Assistance

    One commenter requested clarification regarding whether an 
individual who received tutorial assistance under MGIB could also 
receive up to $1,200 for tutorial assistance under the Post-9/11 GI 
Bill. We make no changes based on this comment. Individuals who 
received tutorial assistance under MGIB may receive up to $1,200 for 
tutorial assistance under the Post-9/11 GI Bill. The $1,200 payable for 
tutorial assistance is the maximum amount that

[[Page 14660]]

can be paid for such assistance under each program.
    Another commenter recommended removing the requirement that the 
individual be pursuing a program of education on a one-half time or 
more basis in order to be eligible for receipt of tutorial assistance. 
We make no changes based on this comment because the requirement is 
statutory. Section 3314(b)(1) of title 38, U.S.C., incorporates the 
provisions of 38 U.S.C. 3492, which requires that individuals be 
pursuing training at one-half time or more to receive tutorial 
assistance.
    We received one comment indicating that there should not be a 
requirement that a student be failing a course before tutorial 
assistance can be authorized. We make no changes based on this comment. 
Section 3314(b)(2) of title 38, U.S.C., requires that the professor or 
teacher certify that tutorial assistance is essential to correct a 
deficiency of the student in a course that is required for satisfactory 
pursuit of the student's program of education. While this requirement 
is statutory, it should not be construed to mean tutorial assistance is 
only available if the individual is already failing the course. If the 
professor or teacher identifies that the individual has a justifiable 
need for tutorial assistance or the individual will not be able to 
continue pursuing his or her approved program of education, either in 
that course or as a prerequisite for other required courses, then VA 
would consider tutorial assistance to be warranted.

Yellow Ribbon Program

    The proposed regulation provided that institutions of higher 
learning agree to the following to participate in the Yellow Ribbon 
Program--
     Provide contributions to eligible individuals who apply 
for such program at that institution (in a manner prescribed by the 
institution) on a first-come-first-served basis, regardless of the rate 
at which the individual is pursuing training (i.e., full-time versus 
less than full-time), in any given academic year;
     Make contributions toward the program on behalf of the 
individual in the form of a waiver;
     State the maximum number of individuals for whom 
contributions will be made in any given academic year;
     Waive the same percentage of unmet established charges for 
all eligible individuals in any given academic year; and
     Commit to provide contributions for eligible individuals 
for the entire academic year specified in the agreement.
    Several commenters requested the ability to set different 
contribution levels for one or more subelements (e.g., School of 
Business, School of Liberal Arts) of the institution of higher 
learning. Another commenter requested the ability to set the 
contribution level by student status (e.g., undergraduate, graduate, 
doctoral). The commenters noted that the subelements within the 
institution of higher learning have their own course schedule, tuition 
and fee structure, funding, and administrative requirements. 
Additionally, it was noted that tuition and fees for graduate students 
are generally higher than that of undergraduate students.
    Five commenters requested that institutions of higher learning have 
the ability to set the maximum amount contributed in dollar amounts. 
The commenters noted that it would be easier for institutions of higher 
learning to budget for the program if the institutions had the ability 
to set a maximum dollar amount per student. They stated that using a 
percentage would require institutions to be more conservative in 
contributions.
    We received several comments regarding the requirement that schools 
provide contributions in the form of a waiver. Some commenters 
requested that the term ``waiver'' be defined while other commenters 
requested that the ``waiver'' requirement be removed altogether. The 
commenters noted that some schools do not ``waive'' tuition and fees as 
a matter of policy. Other commenters asked if fee remission or a 
tuition discount qualified as a waiver.
    We also received comments regarding continuous eligibility under 
the Yellow Ribbon Program. VA's Web site stated that institutions of 
higher learning must agree to continue Yellow Ribbon Program 
contributions for participating students as long as the institution 
continues to participate in the program and the student remains in good 
academic standing in accordance with the regularly prescribed standards 
of the institution. One commenter noted that it would be difficult for 
institutions to commit to provide contributions in subsequent years due 
to the novelty of the program, while two commenters suggested that VA 
state that contributions will continue throughout all subsequent years 
of continuous enrollment.
    We agree, in general, with the above comments and, based on those 
comments, have substantially changed the requirements for participation 
in the Yellow Ribbon Program. VA has amended the Yellow Ribbon Program 
provisions to allow institutions of higher learning to set contribution 
levels by student status or subelement, state the maximum dollar amount 
that may be provided to each participant during the academic year, and 
provide contributions by direct grant, scholarship, or otherwise. We 
also clarified that institutions of higher learning must agree to 
provide Yellow Ribbon Program contributions to participating students 
as long as the institution participates in the program and the student 
remains in good academic standing in accordance with the regularly 
prescribed standards of the institution, and to provide the maximum 
amount of contributions payable for a participating individual each 
term he or she is enrolled as long as the amount paid will not exceed 
the maximum dollar amount payable for the academic year as specified in 
the agreement.
    We received three comments requesting the ability to amend 
agreements during the academic year to increase the maximum number of 
students eligible to participate in the program, and we received one 
comment requesting a formal procedure to amend the agreement and the 
ability to negotiate the terms of the agreement prior to the beginning 
of the academic year. VA will continue to require that the initial 
agreement be binding for the entire academic year. While it is 
commendable that institutions of higher learning want to provide Yellow 
Ribbon Program contributions for additional individuals if money is 
available, the institutions are only required to report a maximum. The 
maximum number of participants listed in the agreement could be set 
high enough to cover all individuals that may apply. Additionally, VA 
will draft an agreement in accordance with statute that will be used in 
the administration of the Yellow Ribbon Program. For equality and 
consistency, VA chooses to reject the idea of allowing schools to 
individually negotiate the terms of the agreement. Having a standard 
agreement for all participating institutions will allow potential 
Yellow Ribbon Program participants to easily compare the program at 
different institutions.
    We also received three comments expressing opposition to the first-
come-first-served rule. Specifically, two commenters noted that 
requiring schools to provide contributions based on a first-come-first-
served basis does not allow the institution to determine who is 
selected to participate and one commenter noted that several 
institutions offer financial aid on a need-basis only. VA included the 
first-come-first-served rule to ensure that there was a fair method of 
determining

[[Page 14661]]

who received Yellow Ribbon Program contributions at each participating 
institution. While VA notes that many schools provide financial aid on 
a need-basis only, the Yellow Ribbon Program is not a need-based 
program and should be available to any individual (and/or dependent of 
the individual) who has met the requirements to qualify for the 
program.

Elections

    The proposed regulations stated that individuals eligible for 
educational assistance under 38 U.S.C. chapter 30 or 10 U.S.C. chapter 
106a, 1606, or 1607 and who have met the service requirements to 
qualify for the Post-9/11 GI Bill must make an irrevocable election to 
receive educational assistance under the Post-9/11 GI Bill in lieu of 
one of the above-mentioned programs. One commenter noted that it is not 
fair for students to make an irrevocable election for a new benefit 
without access to complete and accurate information because it will 
permanently affect the course of their education. Another commenter 
suggested that VA allow individuals at least one opportunity to change 
their mind after making the irrevocable election or provide benefits 
counseling. Section 5003(c)(8) of Public Law 110-252 (122 Stat. 2375-
2378) states that elections to receive educational assistance under the 
Post-9/11 GI Bill in lieu of other specific educational assistance 
programs are irrevocable. Accordingly, VA is unable to regulate 
exceptions to the provision. However, individuals may call VA's 
customer service number for assistance in making an informed decision 
before making an election. Additionally, VA offers vocational and 
educational counseling to eligible individuals upon request.
    We also received comments requesting clarification on how the 
irrevocable eligibility elections would be made. VA is amending 
proposed Sec.  21.9520(c) to specify that elections may be made by 
properly completing VA Form 22-1990, submitting a Post-9/11 GI Bill 
transfer-of-entitlement designation to DoD, or by submitting a written 
statement that includes identification information, the benefit being 
relinquished (if applicable), the effective date of the election, and a 
statement acknowledging that the individual understands that the 
election is irrevocable.
    Three commenters requested that VA amend proposed Sec.  21.9635(w) 
to clarify that an election to receive benefits under an existing 
educational assistance program on or after August 1, 2009, does not 
negate the opportunity to elect or use the Post-9/11 GI Bill at a later 
date. As proposed this provision stated that if an individual was 
eligible under more than one program and the individual elected to 
receive benefits under a previously existing program that VA would 
terminate assistance under the Post-9/11 GI Bill effective the date of 
the election. The elections referred to in Sec.  21.9635(w) are not 
irrevocable eligibility elections. Individuals who are eligible for the 
Post-9/11 GI Bill and another educational assistance program at the 
same time may specify under which program they wish to receive payment. 
VA is amending the language of the section to clarify that individuals 
who are in receipt of benefits under the Post-9/11 GI Bill who choose 
to receive benefits under another program will receive benefits under 
such program effective the first day of the enrollment period during 
which the individual requested to receive benefits under the other 
program.

Academic Year

    Five commenters suggested that VA amend the dates of the academic 
year to coincide with the Department of Education's award year that 
runs from July 1st of each calendar year through June 30th of the 
subsequent calendar year. VA set the beginning date of each academic 
year of August 1st to coincide with the effective date of the Post-9/11 
GI Bill benefit for clarity and ease of administration. In determining 
the maximum amounts payable during each academic year, VA will obtain 
the highest tuition per credit hour and the highest fees that can be 
charged an undergraduate student at a public institution in each State 
from the State approving agency (SAA) of jurisdiction. Based on 
feedback from several SAAs, many institutions of higher learning do not 
set the rates for tuition and fees until June or July of each year. 
Moving the beginning date of the academic year to July would not 
provide VA adequate time to update systems, post the new maximums on 
the Web site, or timely process claims with the newly established 
maximums in July.

Rate of Pursuit

    The proposed regulation states that the rate of pursuit will be the 
percentage determined by dividing the number of course hours an 
individual is enrolled in by the number of course hours considered to 
be full-time at the institution of higher learning. Additionally, in 
proposed Sec.  21.9750, VA defined full-time pursuit to equal 14 credit 
hours unless the institution of higher learning certifies that all 
undergraduate students enrolled for 13 credit hours, or for 12 credit 
hours, are charged full-time tuition and are considered full-time for 
other administrative purposes. We received comments requesting that VA 
define full-time enrollment as a minimum of 12 credit hours. VA is 
unable to consider a minimum of 12 credit hours as full-time training 
for all institutions. Section 3688(a)(4) of title 38, U.S.C., defines 
``full-time'' as a minimum of 14 hours unless the institution certifies 
that all undergraduate students enrolled for at least 12, but less than 
14, hours are considered full-time for other administrative purposes.
    One commenter suggested that VA always consider traumatic brain 
injury (TBI) veterans to be training at full-time (a rate of pursuit of 
100%) even when the training time (or rate of pursuit) does not equal 
full-time. The commenter noted that TBI veterans are sometimes unable 
to pursue a full course load and should not be penalized due to their 
disability. Unfortunately, there are no provisions in the statute that 
will allow VA to pay a different rate to a specific class of veterans.
    Another commenter requested that VA pay educational assistance for 
courses that are not part of an individual's program of education. 
Section 3452 of title 38, U.S.C, defines program of education to 
include any curriculum or combination of unit courses or subjects 
pursued at an educational institution that is generally accepted as 
necessary to fulfill requirements for the attainment of a predetermined 
and identified educational, professional, or vocational objective. VA 
will pay for refresher, remedial, and deficiency courses that are 
required for the attainment of an objective even though those courses 
will not be credited towards the objective. However, VA is unable to 
pay for courses that are not required for pursuit of the individual's 
identified objective.

Mitigating Circumstances

    We received comments requesting clarification of when mitigating 
circumstances will be considered to exist and which mitigating 
circumstances will be accepted by VA. One commenter asked VA to include 
mental illness in the listing of acceptable mitigating circumstances. 
In this final rule, VA added a definition for mitigating circumstances 
that provides examples of situations that VA will consider acceptable. 
Additionally, we modified Sec.  21.9635 to clarify that mitigating 
circumstances will always be considered to exist for the first 
reduction or withdrawal of less than seven hours. We also received a

[[Page 14662]]

comment requesting that we expand the consideration of existing 
mitigating circumstances to more than the first instance of reduction 
or withdrawal and increase the number of hours in the first instance of 
withdrawal from six credit hours to eight credit hours for which 
mitigating circumstances will automatically be considered to exist. 
Section 3680(a)(1) of title 38, U.S.C., limits the automatic 
consideration of existing mitigating circumstances to the first 
reduction or withdrawal of less than seven hours. The statute does not 
provide VA the authority to increase the number of times mitigating 
circumstances will be considered to exist or the number of hours for 
which mitigating circumstances will automatically be considered to 
exist. Nevertheless, there is no statutory limit on the number of times 
that VA may consider evidence of mitigating circumstances submitted by 
the eligible individual. Any time an individual reduces or withdraws 
from training after the drop-add period, or receives a non-punitive 
grade (regardless of the number of credit hours reduced or withdrawn), 
he or she may submit evidence of mitigating circumstances to VA for 
review. If the mitigating circumstances are acceptable, VA will pay 
educational assistance through the end of the month of the reduction or 
through the last date of attendance for withdrawals.

Appeals

    Two commenters requested that we clarify the appeals process for 
eligible individuals in receipt of educational assistance under the 
Post-9/11 GI Bill. Specifically, one commenter requested that VA 
provide a formal process for appealing the denial of the rural 
relocation benefit. Decisions regarding eligibility and entitlement to 
educational assistance under the Post- 9/11 GI Bill are subject to the 
provisions of 38 U.S.C. chapters 71 and 72. Specifically, individuals 
may appeal a decision regarding eligibility or entitlement to 
educational assistance under the Post-9/11 GI Bill to the Board of 
Veterans' Appeals in accordance with the provisions of 38 CFR Part 20. 
To clarify this, VA is adding new Sec.  21.1034 to notify claimants of 
their appeal rights regarding decisions of eligibility and entitlement 
to educational assistance administered by VA. Another commenter 
requested that VA provide a formal process for appealing a decision of 
eligibility to increased educational assistance (``kicker''). VA notes 
in newly added Sec.  21.1034 that eligibility for educational 
assistance under 10 U.S.C. 510 or 10 U.S.C. chapter 106a, 1606, or 
1607, and supplemental or increased assistance under 10 U.S.C. 
16131(i), 38 U.S.C. 3015(d), 3021, and 3316, may not be appealed to VA, 
because the decision of eligibility for educational assistance and 
supplemental or increased educational assistance (``kicker'') under 
those sections rests solely with the DoD. Accordingly, VA will direct 
claimants appealing eligibility to supplemental or increased 
educational assistance (``kicker'') under the Post-9/11 GI Bill to the 
DoD.

General Comments

    One commenter requested that VA explain why a certifying official 
who is eligible for the Post-9/11 GI Bill will be barred from receiving 
benefits at the school for which he or she is authorized to submit 
enrollments. VA included this language in the proposed regulation to 
help reduce the possibility of receiving fraudulent enrollment 
certifications. However, after further review, VA has determined that 
certifying officials eligible for receipt of benefits under the Post-9/
11 GI Bill will be eligible to receive benefits for training pursued at 
the institution of higher learning for which he or she is authorized to 
sign enrollment certifications. However, certifying officials will be 
prohibited from submitting their own enrollment certification to VA.
    Another commenter asked VA to consider exempting programs 
specifically provided for veterans from the 85-15 rule. Section 3680A 
of title 38, U.S.C., instructs VA to disapprove enrollment