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number of months and days vening the date the suspension and the date the reason for suspe ceased to exist. The burden of pr on the eligible person to establis] suspension of a program

was d conditions beyond his or her co The period of suspension shall be sidered to have ended as of the d the person's first available opport to resume training after the con which caused it ceased to exist following circumstances may be sidered as beyond the eligible pe control:

(a) While in active pursuit of: gram of education he or she i pointed by the responsible gove body of an established church, cially charged with the selectioi designation of missionary repres tives, in keeping with its tradit practice, to serve the church in ar cial missionary capacity and is th prevented from pursuit of his o program of studies.

(b) Immediate family or financia ligations beyond his or her contri quire the eligible person to take ployment, or otherwise preclude suit of his or her program.

(c) Unavoidable conditions arisi connection with the eligible per employment which preclude pursu his or her program.

(d) Pursuit of his or her progra precluded because of the eligible son's own illness or illness or deat his or her immediate family.

(e) Active duty, including active for training in the Armed Forces. (41 FR 47929, Nov. 1, 1976)

regard to whether the midpoint of the quarter, semester or term has been reached. See 821.3135(h).

(4) Child is enrolled and eligibility ceases because the member of the Armed Forces upon whose service eligibility is based is no longer listed by the Secretary concerned in any of the categories specified in $21.3021(a)(1)(iv): extended to date specified in paragraph (e)(2) of this section without regard to whether the midpoint of the quarter, semester or term has been reached. See 821.3135(i). [30 FR 15632, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966; 31 FR 13993, Nov. 2, 1966; 32 FR 13402, Sept. 23, 1967; 34 FR 842, Jan. 18, 1969; 39 FR 38228, Oct. 30, 1974; 40 FR 42879, Sept. 17, 1975; 41 FR 47929, Nov. 1, 1976; 43 FR 35290, Aug. 9, 1978; 48 FR 57275, Dec. 29, 1983; 54 FR 31952, Aug. 3, 1989; 54 FR 42501, Oct. 17, 1989; 61 FR 26108, May 24, 1996; 62 FR 55760, Oct. 28, 1997]

821.3042 Service with Armed Forces.

(a) No educational assistance under 38 U.S.C. chapter 35 may be provided an otherwise eligible person during any period he or she is on duty with the Armed Forces. See $21.3021 (e) and (f). This does not apply to brief periods of active duty for training. See $21.3135(f).

(Authority: 38 U.S.C. 3501(d))

(b) If the eligible person served with the Armed Forces, his or her discharge or release from each period of service must have been under conditions other than dishonorable.

(Authority: 38 U.S.C. 3501(d))

(c) The term unconditional discharge, as used in $21.3041 means unconditional discharge or release from duty with the Armed Forces. See $3.13 of this chapter. [30 FR 15633, Dec. 18, 1965, as amended at 34 FR 842, Jan. 18, 1969; 36 FR 2508, Feb. 5, 1971; 41 FR 42929, Nov. 1, 1976; 61 FR 26109, May 24, 1996]

821.3043 Suspension of

program; child. For an eligible person who suspends his program due to conditions determined by the Department of Veterans Affairs to have been beyond his or her control the period of eligibility may, upon his request, be extended by the

$ 21.3044 Entitlement.

(a) Limitations on entitlement. Eac igible person in entitled to educati assistance not in excess of 45 mor or the equivalent thereof in part-1 training. The Department of Vete Affairs will not authorize an exten of entitlement except as providei paragraph (c) of this section. The riod of entitlement when added to cation or training received under or all of the laws cited in $21.4020

not exceed 48 months of full-time educational assistance. The period of entitlement will not be reduced by any period during which employment adjustment allowance was paid after the eligible person completes a period of rehabilitation and reaches a point of employability.

(b) Continuous pursuit is not required. The 45-month period of entitlement is any 45 months within the period of eligibility. The eligible person is not required to pursue his or her program for 45 consecutive months.

(Authority: 38 U.S.C. 3511(a))

(c) Erceeding the 45 months limitation. The 45 months limitation may be exceeded only in the following cases:

(1) Where no charge against the entitlement is made based on a course or courses pursued by a spouse or surviving spouse under the special assistance for the educationally disadvantaged program (See $21.3344(d); or

(2) Where special restorative training authorized under $21.3300 exceeds 45 months.

VA's making no charge against his or her entitlement. These are as follows:

(i) Either the eligible spouse or surviving spouse completed training during the period beginning on October 1, 1980, and ending on August 14, 1989, and remained continuously enrolled from October 1, 1980, through the time the spouse or surviving spouse either completed training or August 14, 1989, whichever is earlier; or

(ii) The eligible spouse or surviving spouse completed training before August 15, 1989, and received educational assistance based upon the tuition and fees charged for the course.

(2) When an eligible spouse or surviving spouse is pursuing a course leading to a secondary school diploma or an equivalency certificate as described in 821.3344, the following circumstances will always result in VA's making a charge against his or her entitlement unless the provisions of paragraph (d) of this section would exempt the spouse or surviving spouse from receiving an entitlement charge.

(i) The spouse or surviving spouse elects to receive dependents' educational assistance at the rate described in 821.3131(a), and

(ii) Either was not pursuing a course leading to a secondary school diploma or equivalency certificate on October 1, 1980, or has not remained continuously enrolled in such a course since October 1, 1980.

(3) When an eligible person pursues refresher, remedial or deficiency training before August 15, 1989, the following provisions govern the charge against the entitlement.

(i) VA will not make a charge against the entitlement of an eligible spouse or surviving spouse.

(ii) VA will make a charge against the entitlement of an eligible child.

(4) The following provisions apply to an eligible person for training received after August 14, 1989. When he or she is pursuing a course leading to a secondary school diploma or equivalency certificate or refresher, remedial or deficiency training,

(i) VA will make no charge against the entitlement of an eligible person for the first five months of full time pursuit (or its equivalent in part-time pursuit).

(Authority: 38 U.S.C. 3541(b), 3533(b)) 199 FR 48692, Dec. 14, 1984, as amended at 61 FR 26109, May 24, 1996)

$21.3045 Entitlement charges.

VA will make charges against an eligible person's entitlement only when required by this section. Charges for institutional training will be based upon the principle that an eligible person who trains full time for 1 day should be charged 1 day of entitlement.

(a) No entitlement charge for eligible persons receiving tutorial assistance. VA will make no charge against the entitlement of an eligible person for tutorial assistance received in accordance with $21.4236.

(Authority: 38 U.S.C. 3492, 3533(b))

(b) Entitlement charges for elementary and secondary education.

(1) When an eligible spouse or surviving spouse is pursuing a course leading to a secondary school diploma or an equivalency certificate as described in $21.3344, there are two sets of circumstances which will always result in

(ii) VA will make a charge against the entitlement of an eligible person for pursuit in excess of the pursuit described in paragraph (b)(4)(i) unless the provisions of paragraph (d) of this section would exempt the eligible person from receiving an entitlement charge.

(Authority: 38 U.S.C. 3511(a), 3533(a); Pub. L. 100-689, Pub. L. 102–127)(Oct. 10, 1991)

(c) Other courses for which entitlement will be charged. Except when the requirements of paragraph (d) of this section are met, VA will make a charge against the period of entitlement

(1) An eligible person for pursuit of a program of apprenticeship or other onjob training;

(2) A spouse or surviving spouse for pursuit of a correspondence course; or

(3) An eligible person for the pursuit of any course not described in paragraph (a) or (b) of this section.

(Authority: 38 U.S.C. 3534)

(d) Exemption from entitlement charge. (1) VA will not make a charge against the entitlement of an eligible person for the pursuit of any course or courses when VA finds that the eligible person

(i) Had to discontinue pursuit of the course or courses as the result of being ordered, in connection with the Persian Gulf War, to serve on active duty under section 672 (a), (d), or (g), 673, 673b, or 688 of title 10, U.S. Code; and

(ii) Failed to receive credit or training time toward completion of the eligible person's approved educational, professional or vocational objective as a result of having to discontinue, as described in paragraph (d)(1)(i) of this section, his or her course pursuit.

(2) The period for which VA will not make a charge against entitlement shall not exceed the portion of the period of enrollment in the course or courses for which the eligible person failed to receive credit or with respect to which the eligible person lost training time,

which VA is not making a d against the eligible person's er ment, apprenticeship or other training, correspondence courses courses offered solely through pendent study.

(1) After making any adjustmen quired by paragraph (e)(3) of thi tion, VA will make a charge af entitlement

(i) On the basis of total elapsed (one day for each day of pursuit) eligible person is pursuing the pro of education on a full-time basis,

(ii) On the basis of a proporti rate of elapsed time, if the eligibl son is pursuing a program of educ on a three-quarter, one-half or than one-half time basis. For the pose of this computation, training which is less that one-half, but than one-quarter time, will be tr as though it were one-quarter training

(2) VA will compute elapsed from the commencing date of el ment to date of discontinuance. 1 eligible person changes his or training time after the comme date of enrollment, VA will

(i) Divide the enrollment period separate periods of time during » the eligible person's training tim mains constant; and

(ii) Compute the elapsed time rately for each time period.

(3) An eligible person may co rently enroll in refresher, remedi deficiency training for which graph (b)(3) or (b)(4)(i) of this se requires no charge against entitlei and in a course or courses for 1 paragraph (b)(2) or (b)(4)(ii) or ( this section requires a charge ag entitlement. When this occurs, VA charge entitlement for the concu enrollment based only on pursuit o courses described in paragraph (b)( (b)(4)(ii) or (c) of this section, meas in accordance with $821.4270 thri 21.4275 of this part, as appropriate.

(Authority: 38 U.S.C. 3511(a); Pub. L. 102 127)(Oct. 10, 1991)

(e) Determining entitlement charge. The provisions of this paragraph apply to all courses except those courses for

(Authority: 38 U.S.C. 3533(a); Pub. L. 10

(f) Entitlement charge for pursuit si by independent study. For enrollm in terms, quarters, or semesters begin after June 30, 1993, VA will m charges against the entitlement o

eligible person in the manner pre- less than the amount of interest, adscribed by paragraph (e) of this section, ministrative costs of collection, court if he or she is pursuing a program of costs and marshal fees, the charge education solely by independent study. against entitlement will be at the apFor all other enrollments where the el- propriate rate for the elapsed period igible person is pursuing a program of covered by the overpayment (exclusive education solely by independent study, of interest, administrative costs of colthe computation will be made as lection, court costs and marshal fees). though the eligible person's training (3) If the overpayment is comwere one-quarter time.

promised and the compromise offer is

equal to or greater than the amount of (Authority: 38 U.S.C. 3482(b), 3532(a))

interest, administrative costs of collec(g) Entitlement charge for apprentice

tion, court costs and marshal fees, the

charge against entitlement will be deship or other on-job training. The charge

termined byagainst entitlement for pursuit of ap

(i) Subtracting from the sum paid in prenticeship or other on-job training

the compromise offer the amount atprogram shall be 1 month for each

tributable to interest, administrative month of training assistance allowance

costs of collection, court costs and paid to the eligible person for the pro

marshal fees, gram. If there is a reduction in the eli

(ii) Subtracting the remaining gible person's monthly training assist

amount of the overpayment balance deance allowance due to his or her failure

termined in paragraph (i)(3)(i) of this to complete 120 hours of training dur

section from the amount of the origiing the month, VA will combine the

nal overpayment (exclusive of interest, portions of those months for which a

administrative costs of collection, reduction was made. VA will make no

court costs and marshal fees), charge against entitlement for the pe

(iii) Dividing the result obtained in riod of combined reductions.

paragraph (h)(3)(ii) of this section by (Authority: 38 U.S.C. 3534, 3687)

the amount of the original debt (exclu

sive of interest, administrative costs of (h) Entitlement charge for correspond collection, court costs and marshal ence courses. The charge against enti fees), and tlement for pursuit of a course exclu- (iv) Multiplying the percentage obsively by correspondence will be 1 tained in paragraph (h)(3)(iii) of this month for each:

section by the amount of the entitle(1) $485 paid after September 30, 1998, ment otherwise chargeable for the peand before November 1, 2000, to a riod of the original overpayment. spouse or surviving spouse as an educational assistance allowance;

(Authority: 38 U.S.C, 3471, 3532) (2) $588 paid after October 31, 2000.

(j) Interruption to conserve entitlement.

An eligible person may not interrupt a (Authority: 38 U.S.C. 3534(b), 3686(a))

certified period of enrollment for the (i) Overpayment cases. VA will make a purpose of conserving entitlement. An charge against entitlement for an over educational institution may not certify payment only if the overpayment is a period of enrollment for a fractional discharged in bankruptcy, is waived part of the normal term, quarter or seand is not recovered, or is com mester, if the eligible person is enpromised.

rolled for the term, quarter or semes(1) If the overpayment is discharged ter. VA will make a charge against enin bankruptcy or is waived and is not titlement for the entire period of cerrecovered, the charge against entitle tified enrollment, if the eligible person ment will be at the appropriate rate for is otherwise eligible for benefits, exthe elapsed period covered by the over cept when benefits are interrupted payment (exclusive of interest, admin under any of the following conditions: istrative costs of collection, court (1) Enrollment is actually termicosts and marshal fees).

nated; (2) If the overpayment is com (2) The eligible person cancels his or promised and the compromise offer is her enrollment, and does not negotiate

an educational benefits check for any part of the certified period of enrollment;

(3) The eligible person interrupts his or her enrollment at the end of any term, quarter, or semester within the certified period of enrollment, and does not negotiate a check for educational benefits for the succeeding term, quarter, or semester;

(4) The eligible person requests interruption or cancellation for any break when a school was closed during a certified period of enrollment, and VA continued payments under an established policy based upon an Executive Order of the President or an emergency situation. Whether the eligible person negotiated a check for educational benefits for the certified period is immaterial.

(a) Beginning date of eligibility periodspouses. (1) If the permanent total rating is effective before December 1, 1968, the beginning date of the 10-year period of eligibility is December 1, 1968.

(2) The beginning date of eligibility

(i) Shall be determined as provided in paragraph (a)(2) of this section when

(A) The permanent total rating is effective after November 30, 1968, or the notification to the veteran of the rating was after that date, and

(B) Eligibility does not arise under $21.3021(a)(3)(ii) of this part.

(ii) For spouses for whom VA made a final determination of eligibility before October 28, 1986, shall be

(A) The effective date of the rating, or

(B) The date of notification, whichever is more advantageous to the spouse.

(iii) For spouses for whom VA made a final determination of eligibility after October 27, 1986, shall be

(A) The effective date of the rating,

or

(Authority: 38 U.S.C. 3511)

(k) Education loan after otherwise applicable delimiting date-spouse or surviving spouse. VA will make a charge against the entitlement of a spouse or surviving spouse who receives an education loan pursuant to $21.4501(c) at the rate of 1 day for each day of entitlement that would have been used had the spouse or surviving spouse been in receipt of educational assistance allowance for the period for which the loan was granted.

(B) The date of notification, or

(C) Any date between the dates specified in paragraphs (a)(2)(iii) (A) and (B) of this section as chosen by the eligible spouse.

(iv) May not be changed once a spouse has chosen it as provided in paragraph (a)(2)(iii) of this section.

(3) If eligibility arises under $21.3021(a)(3)(ii) of this part, the beginning date of the 10-year eligibility period is

(i) December 24, 1970, or

(ii) The date the member of the Armed Forces on whose service eligibility is based was so listed by the Secretary concerned, whichever last occurs.

(Authority: 38 U.S.C. 3512) (55 FR 28024, July 9, 1990, as amended at 57 FR 29799, July 7, 1992; 58 FR 26240, May 3, 1993; 61 FR 26109, May 24, 1996; 62 FR 55760, Oct. 28, 1997; 63 FR 67778, Dec. 9, 1998; 66 FR 32227, June 14, 2001)

$21.3046 Periods of eligibility; spouses

and surviving spouses. This section states how VA will compute the beginning date, the ending date and the length of a spouse's or surviving spouse's period of eligibility. The period of eligibility of a spouse computed under the provisions of paragraph (a) of this section will be recomputed under the provisions of paragraph (b) of this section if her or his status changes to that of surviving spouse.

(Authority: 38 U.S.C. 3501(a); Pub. L. 99 576)

(b) Beginning date of eligibility periodsurviving spouses. (1) If VA determines before December 1, 1968, that the veteran died of a service-connected disability, the beginning date of the 10year period is December 1, 1968.

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

(2) If the veteran's death occurred before December 1, 1968, but VA does not determine that the veteran died of a service-connected disability until after

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

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