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(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:

(i) 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 821.266(e).

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 serviceperson'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. 3108)

!) 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) (821.4200(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

(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)

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

(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. 3108(i))

(p) Termination of subsistence ance while hospitalized at VA en Date before the beginning date increased disability compens award, which results in a reduced sistence allowance under the provi 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, Ju 1986; 55 FR 48843, Nov. 23, 1990)

(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.

$21.326 Authorization of employ

services. (a) General. Authorization of em ment services shall be based upon services identified and goals e lished in an IEAP (Individualized ployment Assistance Plan) under p sions of $21.88. The effective date the commencement, or terminatio such services will be determined u this section.

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

(b) Commencing date. The mencing date authorizing a perio employment services will be the i of:

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

(2) The date of the original IEAP.

(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. 3107, 3117(a))

(c) Termination of the authorizatio employment services. Authorization employment services will be ten nated the earliest of:

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

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

(3) The last day of the montlı which severance of service connect becomes final;

(4) The day proceding the date fraudulent act;

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

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

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$21.330 Apportionment.

(a) General. Where in order, VA will apportion subsistence allowance in accordance with $3.451 of this title, subject to the limitations of $3.458 of this title. If the veteran is in receipt of benefits at the Chapter 30 rate, VA will not apportion these benefits.

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

(b) Effective date. The effective date of apportionment will be as prescribed in $3.400(e) of this title.

(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 vet eran'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. 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:

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 1, 1980, may not be apportioned if the

(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.

habilitation program. Election o ment at the Chapter 30 rate subs to induction into training is p sible under provisions of $21.264 ( (b). The effective date of the elec the latest of the following dates:

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

(2) The day following the end period for which VA paid tuition or other program charges unde Chapter.

(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. 3108(f))

(c) Reelection of subsistence allo subsequent to induction. If a veter elects subsistence allowance unde visions of $21.264(b) of this part, fective date of change is earliest following:

(1) The date following complet: the term, semester, quarter, or period of instruction in which th eran is currently enrolled;

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

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

(4) The day following the date VA determination that failure t prove reelection would prevent th eran from continuing the rehab tion program.

(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 821.132.

(Authority: 38 U.S.C. 3680(a)) [49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]

821.334 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. 3108(1))

(d) Election or reelection during let between periods of instruction1) ment at the Chapter 30 rate. If ano wise eligible veteran elects payme the Chapter 30 rate during a perio tween periods of instruction, the tive date of the election shall bi first day of the next period of ins tion.

(2) Subsistence allowance. If an o wise eligible veteran reelects sul ence allowance during leave or bet periods of instruction following tion of payment at the Chapter 30 the effective date of the change w the date of the reelection or the b ning of the next period of trai whichever is to the veteran's benef

(Authority: 38 U.S.C. 1808(1), 1780)

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

(Authority: 38 U.S.C. 3108(1))

(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 (ex(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 à 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 $821.7139 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)

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 nonveterans.

(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)

$21.342 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

$ 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:

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