(2) If VA places the veteran in "discontinued" status following a term in which the grades the veteran receives include both those that count in the grade point average and nonpunitive grades, and the case manager does not find mitigating circumstances:

(1) VA will terminate subsistence allowance for courses in which the veteran receives nonpunitive grades effective the first day of the term or December 1, 1976, whichever is later.

(ii) VA will terminate subsistence allowance for courses in which the veteran receives grades that will count in the grade point average effective the veteran's last day of attendance or approved leave status, whichever is applicable.

(Authority: 38 U.S.C. 3680(a))

(h) Wages or salary received in apprentice or on-job training. (1) If the sum of the training wage plus the scheduled subsistence allowance is more than the journeyman wage when the training commences, the subsistence allowance will be decreased by VA effective the first day of the second month following the month in which the veteran enters on-job training.

(2) Subsequent adjustments will be effective the first day of the second month following the month in which wages or salary changes are made which justify the adjustment under provisions of § 21.266(e).

Authority: 38 U.S.C. 3108)

(1) Reduction in rate of pursuit of the program. End of month in which reduction occurs, except that if the rate of pursuit is reduced as a result of the veteran's withdrawal from a unit course or courses with nonpunitive grade(s) or as a result of the veteran's completion of a unit course or courses with nonpunitive grade(s) (§ 21.4200(j)), VA will reduce subsistence allowance as follows:

(1) If it is determined that there are mitigating circumstances:

(1) Withdrawal

with nonpunitive grades: The end of the month or the end of the term in which the veteran withdraws, whichever is earlier; if the reduction occurs at the beginning of the term benefits will be reduced the

first day of the term in which the veteran withdraws.

(ii)

Completion

with nonpunitive grades. No reduction required.

(2) If it is determined there are no mitigating circumstances VA will reduce the veteran's subsistence allowance effective the first day of the term in which the veteran withdraws or which the veteran completes with nonpunitive grades. The term mitigating circumstances means circumstances beyond the veteran's or service person's control which prevent him or her from continuously pursuing a rehabilitation program. The following circumstances are representative of those which are considered mitigating.

(i) An illness of the program participant;

(ii) An illness or death in the program participant's family;

(iii) An unavoidable change in the veteran's conditions of employment;

(iv) An unavoidable geographical transfer resulting from the veteran's employment;

(v) Immediate family or financial obligations beyond the control of the veteran which are found by VA to require the veteran to suspend pursuit of the rehabilitation program;

(vi) Discontinuance of the course by the educational institution;

(vii) In the first instance of withdrawal on or after June 1, 1989 by a program participant from a course or courses with respect to which such veteran has been paid subsistence allowance under the provisions of § 21.260(b), mitigating circumstances shall be considered to exist with respect to courses totaling not more than six semester hours or the equivalent thereof;

(viii) Difficulties in obtaining child care or changes in such arrangements which are beyond the control of the program participant and which require interruption of the rehabilitation program is order for the participant to provide or arrange for such care.

(Authority: 38 U.S.C. 3680(a))

(j) Severance of service-connection. Last day of the month in which the severance becomes final.

(Authority: 38 U.S.C. 5113)

(k) Fraud. The later of the following dates:

(1) The beginning date of the award of subsistence allowance, or

(2) The day preceding the date of the fraudulent act.

(Authority: 38 U.S.C. 6103(a))

(1) Error (1) Payee error. Effective date of the award of subsistence allowance or day preceding the act, whichever is later, but not prior to the date the veteran's entitlement ceases, on an erroneous award based on an act of commission or omission by a payee with his or her knowledge.

(2) Administrative error. Except as provided in paragraph (j) of this section, date of last payment on an erroneous award based solely on administrative error or an error in judgment by a VA employee.

(m) Treasonable acts, subversive activities. The later of the following dates:

(1) Beginning date of the award of subsistence allowance, or

(2) Day preceding the date of commission of the treasonable act or subversive activities for which the veteran is convicted.

(Authority: 38 U.S.C. 5113)

(n) Incarceration in prison or jail—(1) Felony conviction. If a veteran's subsistence allowance must be reduced because of incarceration for a felony conviction under provisions of §21.276, his or her rate of payment will be reduced the later of:

(i) The date of his or her incarceration in a prison or jail; or

(ii) The commencing date of his or her award as determined by §21.322.

(2) Halfway house or work-release program. The subsistence allowance of a veteran in a halfway house or work release program as a result of conviction of a felony will not be reduced under the provisions of $21.276 the date on which the Federal Government or a State or local government pays all of the veteran's living expenses.

(Authority: 38 U.S.C. 3108(g))

(0) Specialized rehabilitation facility. Date payment for room and board by

VA begins, reduce the rate paid to amount payable for dependents.

(Authority: 38 U.S.C. 3108(i))

(p) Termination of subsistence al ance while hospitalized at VA erpe Date before the beginning date of increased disability compensa award, which results in a reduced : sistence allowance under the provis of § 21.266.

(Authority: 38 U.S.C. 3108(h))

[49 FR 40814, Oct. 18, 1984, as amended & FR 22808, June 23, 1986; 51 FR 25525, Jul; 1986; 55 FR 48843, Nov. 23, 1990]

§ 21.326 Authorization of employn services.

(a) General. Authorization of emp ment services shall be based upon services identified and goals est lished in an IEAP (Individualized ] ployment Assistance Plan) under pr sions of §21.88. The effective dates the commencement, or termination such services will be determined ur this section.

(Authority: 38 U.S.C. 3117(a))

(b) Commencing date. The c mencing date authorizing a period employment services will be the la

of:

(1) The date following completion the period of rehabilitation to point of employability; or

(2) The date of the original IEAP. (Authority: 38 U.S.C. 3107, 3117(a))

(c) Termination of the authorization employment services. Authorization employment services will be ter nated the earliest of:

(1) The last day employment servic are provided under the terms of IEAP when employment services a interrupted, discontinued, or the v eran is rehabilitated;

(2) The date the authorization found to be erroneous because of an a of omission or commission by the v eran, or with his or her knowledge;

(3) The last day of the month which severance of service connecti becomes final;

(4) The day proceding the date of fraudulent act;

Authority: 38 U.S.C. 5307(c))

(c) Child adopted out of family. Where evidence establishes that a veteran is the natural parent of a child or children legally adopted outside of the veteran's family, VA will apportion in favor of the child or children only that additional amount of subsistence allowance payable on account of the existence of the child or children. The veteran is not entitled in his or her Own right to the additional amount of subsistence allowance payable for the child because of the existence of the child unless the veteran is contributing to the child's support.

:Authority: 38 U.S.C. 5307(c))

(d) Veteran convicted of a felony. The subsistence allowance of a veteran in a rehabilitation program after October 17, 1980, may not be apportioned if the

veteran is incarcerated because of conviction for a felony.

(Authority: 38 U.S.C. 3108(g))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992]

§ 21.332 Payments of subsistence allowance.

(a) Eligibility. At the end of the month, VA shall pay to an eligible veteran enrolled in a rehabilitation program, subsistence allowance at the rates specified in §21.260 for the type of program pursued during the month, unless advance payment is approved. VA will continue payments during those intervals described in § 21.270.

(Authority: 38 U.S.C. 3108)

(b) Advance payment criteria. VA will make an advance payment of subsistence allowance only when:

(1) The veteran specifically requests an advance payment; and

(2) The educational institution at which the veteran is accepted or enrolled has agreed to, and can carry out, satisfactorily, the provisions of 38 U.S.C. 3680(d) (4) and (5) pertaining to: (i) Receipt, delivery or return of advance checks; and

(ii) Certifications of delivery and enrollment.

(c) Advance payment. (1) The amount of advance payment is not to exceed:

(i) The veteran's subsistence allowance for the month or part of a month in which his or her course will begin; plus

(ii) The veteran's subsistence allowance for the following month.

(2) Upon application and completion of arrangements for enrollment of a veteran who meets the criteria for an advance payment, VA shall mail a check payable to the veteran to the institution for delivery to the veteran upon registration.

(3) An institution shall not deliver an advance payment check to a veteran more than 30 days in advance of commencement of his or her program.

(d) Certification for advance payment. VA will authorize advance payment upon receipt of the institution's certification of the following information:

(1) The veteran is eligible for benefits;

(2) The institution has accepted the veteran or he or she is eligible to continue his or her training;

(3) The veteran has notified the institution of his or her intention to attend or to reenroll;

(4) The number of semester or clock hours the veteran will pursue; and

(5) The beginning and ending dates of the enrollment period.

(e) Time of advance payment. VA will authorize advance payment only:

(1) At the beginning of an ordinary school year; or

(2) At the beginning of any other enrollment period which begins after a break in enrollment of one full calendar month or longer.

(Authority: 38 U.S.C. 3680(d))

(f) Other payments. (1) VA will make all payments other than advance payments at the end of the month for the veteran's training during that month.

(2) VA may withhold final payment until:

(i) VA receives certification that the veteran has completed his or her course; and

(ii) VA makes all necessary adjustments in the veteran's award resulting from that certification.

(Authority: 38 U.S.C. 3680(g))

(g) Payments for courses which are repeated. VA may pay subsistence allowance to a veteran who repeats a course under conditions described in § 21.132.

(Authority: 38 U.S.C. 3680(a))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]

§ 21.334 Election of payment at the Chapter 30 rate.

(a) Election. When the veteran elects payment of an allowance at the chapter 30 rate, the effective dates for commencement, reduction and termination of the allowance shall be in accordance with §§ 21.7130 through 21.7135 and § 21.7050 under chapter 30.

(Authority: 38 U.S.C. 1808(f), 1780)

(b) Election of payment at the Chapter 30 rate subsequent to induction into a re

habilitation program. Election of payment at the Chapter 30 rate subsequent to induction into training is permissible under provisions of § 21.264 (a) and (b). The effective date of the election is the latest of the following dates:

(1) The commencing date determined under $21.7131 in the case of a veteran who has elected payment at the chap ter 30 rate; or

(2) The day following the end of the period for which VA paid tuition, fees. or other program charges under this Chapter.

(Authority: 38 U.S.C. 3108(f))

(c) Reelection of subsistence allowance subsequent to induction. If a veteran reelects subsistence allowance under provisions of § 21.264(b) of this part, the effective date of change is earliest of the following:

(1) The date following completion of the term, semester, quarter, or other period of instruction in which the vet eran is currently enrolled;

(2) The veteran's Chapter 30 delim iting date;

(3) The day after exhaustion of Chap ter 30 entitlement; or

(4) The day following the date of a VA determination that failure to ap prove reelection would prevent the vet eran from continuing the rehabilita tion program.

(Authority: 38 U.S.C. 3108(f))

(d) Election or reelection during leave o between periods of instruction—(1) Pay ment at the Chapter 30 rate. If an other wise eligible veteran elects payment a the Chapter 30 rate during a period be tween periods of instruction, the effe tive date of the election shall be th first day of the next period of instru tion.

(2) Subsistence allowance. If an othe wise eligible veteran reelects subsis ence allowance during leave or betwee periods of instruction following ele tion of payment at the Chapter 30 rat the effective date of the change will the date of the reelection or the begi ning of the next period of trainin whichever is to the veteran's benefit.

(Authority: 38 U.S.C. 3108(f))

(e) Effect of Chapter 34 program termination. (1) Since Chapter 34 benefits are not payable beyond December 31, 1989, any previous election of benefits at that rate is terminated as of that date;

(2) A veteran entitled to chapter 30 benefits based on his or her chapter 34 eligibility as of December 31, 1989, and whose election of chapter 34 rates terminated as of the date under paragraph (e)(1) of this section must, if the individual desires payment at the chapter 30 rate, elect such payment.

(Authority: 38 U.S.C. 1411(a))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284. Jan. 30. 1989, 54 FR 13522, Apr. 4, 1989:57 FR 57108, Dec. 3, 1992]

LEAVES OF ABSENCE

$21.340 Introduction.

(a) General. VA may approve leaves of absence under certain conditions. During approved leaves of absence, a veteran in receipt of subsistence allowance shall be considered to be pursuing a rehabilitation program. Leave may be authorized for a veteran during a period of:

(1) Rehabilitation to the point of employability;

(2) Extended evaluation; or
(3) Independent living services.

(b) Election of subsistence allowance. If a veteran elects to receive subsistence allowance and payment of rehabilitation services by VA, he or she may be authorized leave of absence under $21.342 through 21.350.

(c) Election of benefits at the chapter 30 rate. If a veteran elects to receive a subsistence allowance paid at the chapter 30 rate, the effect of absences is determined under §§ 21.7139 and 21.7154. Authority: 38 U.S.C. 1508(f) and 1510)

49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4285, Jan. 30, 1989; 57 FR 57109, Dec. 3, 1992]

$21.342 Leave accounting policy.

(a) Amount of leave. A veteran pursuing one of the programs listed in $21.340(a) may be authorized up to 30 days of leave by the case manager during a twelve-month period. The beginning date of the first twelve-month period is the commencing date of the original award, and the ending date is

twelve months from the beginning date, with subsequent twelve-month periods running consecutively thereafter.

(b) Additional leave under exceptional circumstances. A veteran in a program may be authorized up to 15 additional days of leave during the twelve-month period by the case manager under exceptional circumstances, such as extended illness or family problems.

(c) Absence. For the purpose of determining when a leave of absence may be authorized, a veteran who elects subsistence allowance shall be considered absent during any period in which he or she is:

(1) Not in attendance under the rules and regulations of the educational institution, rehabilitation center, or sheltered workshop;

(2) Not considered at work under the rules of the training establishment; or (3) Not present at a scheduled period of individual instruction.

(d) System of records. An educational institution, training establishment, rehabilitation center, or other facility or individual providing training and rehabilitation services under Chapter 31 may utilize the same system of records to determine absence as the one used for similarly circumstanced non

veterans.

(e) Change in rate of pursuit. The amount of approved leave is not affected by the veteran's rate of pursuit of a rehabilitation program.

(f) Charging leave. VA shall charge 1 day of leave for each day or part of a day of absence from pursuit of a rehabilitation program.

(g) Limitation on carrying leave over to another period. The veteran may not carry over unused days of leave from one twelve-month period to another. (Authority: 38 U.S.C. 3110)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended by 56 FR 14649, Apr. 11, 1991]

§ 21.344 Facility offering training or rehabilitation services.

(a) Approval of leaves of absence required. Leaves of absence normally must be approved in advance by the case manager when the facility offering training or rehabilitation services arranges for the leave. The approval of the case manager is required: