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(2) A servicemember serving on active duty had to discontinue course pursuit as a result of being ordered, in connection with the Persian Gulf War, to a new duty location or assignment or to perform an increased amount of work; and

(3) The veteran or servicemember failed to receive credit or lost training time toward completion of his or her educational, professional or vocational objective as a result of having to discontinue course pursuit, as described in paragraphs (i)(1) or (i)(2) of this section.

(Authority: 38 U.S.C. 3235; Pub. L. 102–127) (Oct. 10, 1991) [45 FR 31, Jan. 2, 1980, as amended at 47 FR 51745, Nov. 17, 1982; 48 FR 50530, Nov. 2, 1983; 52 FR 3429, Feb. 4, 1987; 53 FR 34497, Sept. 7, 1988; 55 FR 31582, Aug. 3, 1990; 58 FR 31910, June 7, 1993; 58 FR 34369, June 25, 1993; 58 FR 34526, June 28, 1993]

$21.5076 Entitlement charge-over

payment cases. (a) Overpayment cases. VA will make a charge against an individual's entitlement of an overpayment of educational assistance allowance only if:

(1) The overpayment is discharged in bankruptcy; or

(2) VA waives the overpayment and does not recover it; or

(3) The overpayment is compromised.

(Authority: 38 U.S.C. 3231)

(b) Debt discharged in bankruptcy or is waived. If the overpayment is discharged in bankruptcy or is waived and is not recovered, the entitlement charge will be at the appropriate rate for the elapsed period covered by the overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees).

(Authority: 38 U.S.C. 3231; Pub. L. 94-502)

(c) Overpayment is compromised. (1) If the overpayment is compromised and the compromise offer is less than the amount of interest, administrative costs of collection, court costs and marshal fees, the charge against entitlement will be at the appropriate rate for the elapsed period covered by the overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees).

tutorial assistance paid to the indiJual in excess of $600 that is equal to B amount of monthly educational astance the individual is otherwise elile to receive for full-time pursuit of residence course as provided in .5138(c) of this part. When the ount of tutorial assistance paid to

individual in excess of $600 is less the amount of monthly eduional assistance the individual is erwise eligible to receive, the entinent charge will be prorated.

hority: 38 U.S.C. 3234; Pub. L. 100-689) ) Flight training courses. (1) A rge against the period of entitleit for pursuit of a flight training se will be one month for each sum 1oney paid equivalent to the dollar le of a month of entitlement as deained under $21.5138(a)(5)(viii). in this computation results in a peof time other than a full month, charge will be prorated. ) If the individual is contributing to fund at the same time that benefits being used or subsequently contrib1 a sum or sums, the entitlement ges will not be recomputed. Thus, he monthly rate arrived at under 5138(a)(5)(viii) is $150 at the time rational assistance allowance is I for a period of flight training, the vidual will be charged one month ntitlement for each $150 paid. If a arent monthly rate is computed at time of a subsequent payment for a training, no adjustment will be le in the entitlement charged for previous payment(s) even though value of each month's entitlement vary from payment to payment.

hority: 38 U.S.C. 3231(1); Pub. L. 102– Apr. 1, 1991) ) Entitlement charge may be omitted course discontinuance (Persian Gulf

). VA will make no charge against entitlement of a servicemember or eran for a payment of educational istance allowance whenD A veteran not serving on active y had to discontinue course pursuit a result of being ordered, in connec

with the Persian Gulf War, to ve on active duty under section 672 (d), or (g), 673, 673b, or 688 of title or

197-135 D-12

(2) If the overpayment is compromised and compromise offer is equal to or greater than the amount of interest, administrative costs of collection, court costs and marshal fees, the charge against entitlement will be determined by

(i) Subtracting from the sum paid in the compromise offer the amount attributable to interest, administrative costs of collection, court costs and marshal fees.

(ii) Subtracting the remaining amount of the overpayment balance determined in paragraph (c)(2)(i) of this section from the amount of the original overpayment (exclusive of interest, administrative costs of collection, court costs and marshal fees),

(iii) Dividing the result obtained in paragraph (c)(2)(ii) of this section by the amount of the original debt (exclusive of interest, administrative costs of collection, court costs and marshal fees), and

(iv) Multiplying the percentage obtained in paragraph (c)(2)(iii) of this section by the amount of the entitlement otherwise chargeable for the period of the original overpayment.

(1) Enrollment actually is 1 nated.

(2) Enrollment is canceled and 1 dividual has not negotiated ar cational benefits check for any i the certified period of enrollment

(3) The individual:

(i) Interrupts his or her enrol at the scheduled end of any term ter, semester or school year with certified period of enrollment; an

(ii) Has not negotiated any che educational benefits for the succ term, quarter, semester or schoo

(4) The individual requests in tion or cancellation for any when a school was closed during tified period of enrollment an ments were continued under an lished policy based upon an Exe order of the President or due emergency situation. This exo applies whether or not the indi has negotiated a check for educa benefits for the certified period.

(Authority: 38 U.S.C. 3241, 3680)

COUNSELING

(Authority: 38 U.S.C. 3231) [45 FR 31, Jan. 2, 1980, as amended at 52 FR 45181, Nov, 25, 1987)

$21.5078 Interruption to conserve en

titlement. (a) Interruption to conserve entitlement generally prohibited. No one may interrupt a certified period of enrollment for the purpose of conserving entitlement. A school may not certify a period of enrollment for a fractional part of the normal term, quarter or semester if the individual actually is enrolled and is pursuing his or her program of education for the entire term, quarter or semester.

(b) Erceptions. The Department of Veterans Affairs will charge entitlement for the entire period of enrollment certified if the individual otherwise is eligible for benefits, except when benefits are interrupted under any of the following conditions:

$21.5100 Counseling.

(a) Purpose. The purpose of seling is:

(1) To assist in selecting an obj

(2) To develop a suitable progi education or training; and

(3) To resolve any personal pre which are likely to interfere wi successful pursuit of a program.

(b) Availability of counseling. seling assistance in available for

(1) Identifying and removing r for academic difficulties which n sult in interruption or disconti of training, or

(2) In considering changes in plans, and making sound dec about the changes.

(Authority: 38 U.S.C. 3697A(a))

(c) Optional counseling. VA sha vide counseling as needed for th poses identified in paragraphs (1 (b) of this section upon request individual. VA shall take appro steps (including individual notifi tere feasible) to acquaint all particints with the availability and advanges of counseling services.

as a result of a voluntary request by the veteran.

(Authority: 38 U.S.C. 111) (61 FR 29030, June 7, 1996)

PAYMENTS; EDUCATIONAL ASSISTANCE

ALLOWANCE

ithority: 38 U.S.C. 3241, 3697A(a) and (b)) d) Required counseling. (1) In any case which VA has rated the veteran as ng incompetent, VA must provide Inseling as described in 38 U.S.C. 1A prior to selection of a program of cation or training. The counseling 1 follow the veteran's initial appliion for benefits or any communica, from the veteran or guardian indiing that the veteran wishes to nge his or her program. This retement that counseling be provided let when) The veteran has had one or more jonal interviews with the counselor; D The counselor has jointly devel1 with the veteran recommendaB for selecting a program; 1) These recommendations have a reviewed with the veteran. ) The veteran may follow the recmendations developed in the course ounseling, but is not required to do

$21.5130 Payments; educational assist

) VA will take no further action on steran's application for assistance er 38 U.S.C. chapter 32 unless he or

ance allowance. VA will apply the following sections in administering benefits payable under 38 U.S.C. Chapter 32:

(a) Section 21.4131—Commencing dates (except paragraph (d)).

(b) Section 21.4135—Discontinuance dates.

(c) Section 21.4138 (except paragraph (b)Certifications and release of payments.

(d) Section 21.4146— Assignments of benefits prohibited.

(Authority: 38 U.S.C. 3241(a))

(e) Section 21.4136(k) (except paragraph (k)(3))Mitigating circumstances.

Reports for counseling;
Cooperates in the counseling
less, and
1) Completes counseling to the ex-
i required under paragraph (d)(1) of
isection.

(Authority: 38 U.S.C. 3241(a), 3680(a))
(45 FR 31, Jan. 2, 1980, as amended at 46 FR
32024, June 19, 1981; 53 FR 617, Jan. 11, 1988; 55
FR 31582, Aug. 3, 1990; 57 FR 38612, Aug. 26,
1992; 61 FR 29030, June 7, 1996; 63 FR 35836,
July 1, 1998; 64 FR 23772, May 4, 1999; 65 FR
5786, Feb. 7, 2000)

thority: 38 U.S.C. 3241, 3697A(C))
FR 31, Jan. 2, 1980, as amended at 47 FR
Nov. 17, 1982; 53 FR 34497, Sept. 7, 1988;
R 31911, June 7. 1993; 61 FR 29030, June 7,
61 FR 36629, July 12, 1996)

5103 Travel expenses.
0 General. VA shall determine and
#the necessary expense of travel to
I from the place of counseling for a
eran who is required to receive
unseling as provided under 38 U.S.C.
(a), (d), (e), and (g).

$21.5131 Educational assistance allow

ance. VA will pay educational assistance allowance at the rate specified in 8821.5136 and 21.5138 of this part while the individual is pursuing either an approved program of education or a refresher or deficiency course or other preparatory or special education or training course which is necessary to enable the individual to pursue an approved program of education. VA will make no payment for pursuit of any course which either is not part of the veteran's program of education, or is not a refresher, deficiency or other preparatory or special education or training course which is necessary to enable the individual to pursue an approved program of education. VA may withhold a payment until it receives

thority: 38 U.S.C. 111(a), (d), (e), and (g)) b) Restriction. VA will not pay the cessary cost of travel to and from place of counseling when counLing is not required, but is provided

verification or certification of the individual's continued enrollment and adjusts the individual's account. See $21.5133.

(Authority: 38 U.S.C. 3241; Pub. L. 94-592, Pub. L. 99-576, Pub. L. 101-237) [57 FR 38612, Aug. 26, 1992]

$21.5132 Criteria used in determining

benefit payments. (a) Training time. The amount of benefit payment to an individual in all types of training except cooperative training, correspondence training and apprenticeship and other on-job training depends on whether VA determines that the individual is a full-time student, three-quarter-time student, halftime student or one-quarter-time student.

(Authority: 38 U.S.C. 3241, 3688; Pub. L. 99 576, Pub. L. 100_689)

(b) Contributions. The amount of benefit payment to an individual also depends on:

(1) The amount the individual has contributed to the fund.

(2) The amount the Secretary of Defense has contributed to the fund for the individual.

Generally, this verification will quired monthly, resulting in m payments.

(b) Apprenticeship and other training. VA will pay educatioi sistance to a veteran pursuing gram of apprenticeship or other training only after

(1) The training establishme certified his or her enrollment training program as

provid $21.5200(d); and

(2) VA has received from the and the training establishment tification of hours worked. Ger this certification will be re monthly, resulting in monthl ments.

(c) Correspondence training. V pay educational assistance to a or servicemember who is purs correspondence course orth respondence portion of a combin respondence-residence course after

(1) The educational instituti certified his or her enrollment;

(2) VA has received from the v or servicemember a certification the number of lessons complet serviced by the educational insti and

(3) VA has received from th cational institution a certificat an endorsement on the vetera servicemember's certificate, as number of lessons completed 1 veteran or servicemember and si by the educational institution erally, this certification will quired quarterly, resulting in qui payments. (Authority: 38 U.S.C. 3680(g)) (Approved by the Office of Managem Budget under control number 2900-046 (57 FR 38612, Aug. 26, 1992)

(Authority: 38 U.S.C. 3231) (45 FR 31, Jan. 2, 1980, as amended at 47 FR 51746, Nov. 17, 1982; 48 FR 3369, Jan. 25, 1983; 52 FR 3429, Feb. 4, 1987; 53 FR 34498, Sept. 7, 1988; 55 FR 31582, Aug. 3, 1990; 61 FR 29030, June 7, 1996)

a

or

$ 21.5133 Certifications and release of

payments. An individual must be pursuing a program of education in order to receive payments. To ensure that this is the case, the provisions of this paragraph must be met.

(a) General. VA will pay educational assistance to

veteran servicemember (other than one who qualifies for an advance payment, or one pursuing a program of apprenticeship, other on-job training, or a correspondence course) only after

(1) The educational institution has certified his or her enrollment as provided in $21.5200(d) of this part; and

(2) VA has received from the individual a verification of the enrollment.

$21.5134 Restrictions on paying

fits to servicepersons. The Department of Veterans may not pay benefits to a se person (other than one enrolled course, courses or a program cation leading to a secondary sch ploma or an equivalency certi unless he or she:

(a) Has completed 3 months tributions to the fund or has m lomp-sum payment which is the equivalent of at least 3 months of contributions to the fund;

(b) Has agreed either to have a monthly deduction from his or her military pay, or has made a lump-sum contribution to the fund, or both, so that the 12 months participation requirement of $21.5052(a) of this part vill be met, and

(c) Is serving on active duty in an enlistment period subsequent to the initial period of active duty defined in $21.5040(b)(3) of this part. Authority: 38 U.S.C. 3221, 3231, Pub. L. 94

education leading to a secondary school diploma or an equivalency certificate will receive one of two monthly rates.

(1) Unless the individual notifies the Department of Veterans Affairs to the contrary, the monthly rate of his or her educational assistance allowance will be based upon his or her tuition and fees. The Department of Veterans Affairs will make no charge against the entitlement of the individual who is receiving benefits at this monthly rate. The monthly rate will be the rate of tuition and fees being charged to the individual for the course, not to exceed:

(i) $376 for full-time training.

(ii) $283 for three-quarter time training.

(iii) $188 for half-time training.
(iv) $94 for quarter-time training.

(2) The individual may elect to receive educational assistance allowance at the monthly rate provided in 821.5138. The Department of Veterans Affairs will make an appropriate charge against the individual's entitlement if such an election is made.

(6 FR 31, Jan. 2, 1980, as amended at 47 FR 51746, Nov. 17, 1982; 54 FR 49977, Dec. 4, 1989)

$21.5135 Advance payments.

VA will apply the provisions of $21.4138(a) in making advance payments to veterans and servicemembers. Authority: 38 U.S.C. 3241, 3680) 64 FR 52652, Sept. 30, 1999)

$21.5136 Benefit payments—secondary

school program. (a) Restrictions on payments. (1) The Department of Veterans Affairs may authorize benefits to qualified enlisted Servicepersons for a course, courses or program of education leading to a secondary school diploma or an equivalency certificate without charge to entitlement. Payments may be made only

(1) The individual has contributed to the fund for at least 1 month, and

(ii) The training is received while the individual is serving:

(A) The last 6 months of his or her first enlistment after December 31, 1976; or

B) At any time after completing his er her first enlistment.

(2) An individual who is not on active duty must have been an enlisted servleperson while he or she was on active inty in order to receive benefits while enrolled in a course, courses or profram of education leading to a secondary school diploma or an equivalency certificate.

(Authority: 38 U.S.C. 3241, 3491)

(c) Method of payment. (1) If the individual's educational assistance allowance is based upon the rate as determined in paragraph (b)(1) of this section, payment shall be made in a lump sum for the term, quarter or semester at the beginning of the month in which training begins.

(2) If the individual elects to have his or her educational assistance allowance computed as provided in 821.5138, payment will be made in the same manner as for any other residence training

(Authority: 38 U.S.C. 3241) [47 FR 51746, Nov. 17, 1982, as amended at 50 FR 19933, May 13, 1985)

$21.5138 Computation of benefit pay

ments and monthly rates. The Department of Veterans Affairs will compute all monthly rates and benefit payments as stated in this section except for those individuals to whom $21.5136(b)(1) applies.

Hathority: 38 U.S.C. 3231(b))

b) Monthly rate. An individual pursuing a course, courses or a program of

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