this paragraph. If the basic pay of an individual is not reduced and/or VA does not collect from the individual an amount equal to the difference between $1,200 and the total amount of the pay reductions, that individual is ineligible for educational assistance.

(Authority: Sec. 107(b)(3), Pub. L. 104-275, 110 Stat. 3329-3330)

(5) If through administrative error, or other reason

(i) The basic pay of an individual described in paragraph (a)(1) through (a)(6), (b)(1) through (b)(9), (c), or (d) of this section is not reduced as provided in paragraph (g)(1) or (g)(2) of this section, the failure to make the reduction will have no effect on his or her eligibility, but will negate or reduce the individual's entitlement to educational assistance under 38 U.S.C. chapter 30 determined as provided in § 21.7073 for an individual described in paragraph (c) of this section;

(ii) The basic pay of an individual, described in paragraph (a)(7) or (b)(10) of this section, is not reduced as described in paragraph (g)(4) of this section and/or VA does not collect from the individual an amount equal to the difference between $1,200 and the total amount of the pay reductions described in paragraph (g)(4) of this section, that individual is ineligible for educational assistance. If the failure to reduce the individual's basic pay and/or the failure to collect from the individual was due to administrative error on the part of the Federal government or any of its employees, the individual may be considered for equitable relief depending on the facts and circumstances of the case. See §2.7 of this chapter.

(Authority: 38 U.S.C. 3002, 3011, 3012, 3018)

(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0594)

[53 FR 1757, Jan. 22, 1988, as amended a FR 18603, May 3, 1990; 55 FR 28384, July 1990; 56 FR 20130-20132, May 2, 1991; 57 15023, Apr. 24, 1992; 57 FR 29026, June 30, 59 FR 24050, 24051, May 10, 1994; 60 FR 2 Apr. 24, 1995; 60 FR 32272, June 21, 1995; 61 6785, Feb. 22, 1996; 61 FR 20729, May 8, 199 FR 45718, Aug. 27, 1998; 64 FR 52652, Sept 1999; 65 FR 5786, Feb. 7, 2000; 65 FR 20745,.. 18, 2000; 65 FR 67266, Nov. 9, 2000; 65 FR 80 Dec. 21, 2000]

under 38 U.S.C. chapter 34. Certain individuals with 38 U.S chapter 34 eligibility may establish + gibility for educational assista under 38 U.S.C. chapter 30. In det mining whether an individual has I the service requirements of this s tion, VA will exclude any period dur which the individual is not entitled credit for service for periods of ti specified in §3.15 of this chapter.

(a) Eligibility based solely on aci duty. An individual may establish eli bility for basic educational assistan based on service on active duty un the following terms, conditions, and quirements

(1) The individual must have met t requirements of 38 U.S.C. chapter 34, in effect on December 31, 1989, esta lishing eligibility for educational : sistance allowance under that chapt

(2) As of December 31, 1989, the in vidual must have entitlement remai ing for educational assistance allo ance under 38 U.S.C. chapter 34;

(3) The individual must either(i) Complete the requirements of secondary school diploma or an equiv lency certificate before January 1, 199

or

(ii) Successfully complete (or othe wise receive academic credit for) 12 s mester hours (or the equivalent) in

program of education leading to a standard college degree. This may be done at any time.

(4) After June 30, 1985

(1) The individual must serve at least three years continuous active duty in the Armed Forces, or

(ii) The individual must be discharged or released from active duty(A) For a service-connected disability, or

B) For a medical condition which preexisted the individual's service on active duty and which VA determines 23 not service connected, or

(C) Under 10 U.S.C. 1173 (Hardship discharge), or

(D) For the convenience of the Government provided the individual completes at least 30 months of active duty, or

(E) Involuntarily for convenience of the government as a result of a reduction in force, as determined by the Secretary of the military department concerned in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, or

(F) For a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as determined by the Secretary of each military department in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when A is not operating as a service in the Navy:

(5) Upon completion of the requisite active duty service the individual must either

(1) Continue on active duty, or (Be discharged from active duty with an honorable discharge, or

(iii) Be released after service on acve duty characterized by the Secretary concerned as honorable service and

(A) Be placed on the retired list, or (B) Be transferred to the Fleet Reserve or Fleet Marine Corps Reserve, or (C) Be placed on the temporary disability retired list, or

(iv) Be released from active duty for further service in a reserve component of the Armed Forces after service on active duty characterized by the Secretary concerned as honorable service; and

(6) The individual must have been on active duty at any time during the period beginning on October 19, 1984, and ending on July 1, 1985, and continued on active duty without a break in service.

(Authority: 38 U.S.C. 3011)

(b) Eligibility based on combined active duty service and service in the Selected Reserve. An individual may establish eligibility for basic educational assistance based on a combination of service on active duty and service in the Selected Reserve under the following terms, conditions and requirements.

(1) The individual must have met the requirements of 38 U.S.C. chapter 34, as in effect on December 31, 1989, establishing eligibility for educational assistance allowance under that chapter;

(2) As of December 31, 1989, the individual must have entitlement remaining for educational assistance allowance under 38 U.S.C. chapter 34;

(3) Except as provided in paragraph (b)(13) of this section, the individual must either

(i) Complete the requirements for a secondary school diploma (or an equivalency certificate) before completing the service requirements of this paragraph; or

(ii) Successfully complete (or otherwise receive academic credit for) 12 semester hours (or the equivalent) in a program of education leading to standard college degree. This may be done at any time.

(Authority: 38 U.S.C. 3012 (a), (b))

a

(4) The individual must have been on active duty on October 19, 1984, and have served without a break in service from October 19, 1984 through June 30, 1985.

(5) After June 30, 1985, the individual must

(i) Except as provided in paragraph (b)(6) of this section, serve at least two years of continuous active duty in the Armed Forces characterized by the

Secretary concerned as honorable service, and

(ii) Except as provided in paragraph (b)(7) of this section, after completion of this active duty service, the individual must serve at least four continuous years service in the Selected Reserve, during which the individual must participate satisfactorily in training as prescribed by the Secretary concerned.

(Authority: 38 U.S.C. 3012(b))

(6) The individual also must

(i) Be discharged from service with an honorable discharge, or

(ii) Be placed on the retired list, or (iii) Be transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service in the Selected Reserve characterized by the Secretary concerned as honorable service, or

(iv) Continue on active duty, or

(v) Continue in the Selected Reserve. (7) An individual is exempt from serving two years on active duty as provided in paragraph (b)(3) of this section when he or she is discharged or released during those two years—

or

(i) For a service-connected disability,

(ii) For a medical condition which preexisted such service on active duty and which VA determines is not service-connected, or

(iii) Under 10 U.S.C. 1173 (hardship discharge), or

(iv) For convenience of the government provided the individual completes at least 20 months of active duty, or

(v) Involuntarily, for the convenience of the government as a result of a reduction in force as determined by the Secretary of the military department concerned in accordance with regulations prescribed by the Secretary of Defense or by the Secretary of Transportation with respect to the Coast Guard when it is not operating as a service in the Navy, or

(vi) For a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as determined by the Secretary of each military department

in accordance with regulations p scribed by the Secretary of Defense by the Secretary of Transportat with respect to the Coast Guard wh it is not operating as a service in 1 Navy.

(Authority: 38 U.S.C. 3012; Pub. L. 98Pub. L. 99-576, Pub. L. 100-689, Pub. L. 1 510) (Oct. 19, 1984)

(8) An individual is exempt from se ing four years in the Selected Resel as provided in paragraph (b)(5) of t section when

(i) After completion of the acti duty required by this paragraph he she serves a continuous period of se ice in the Selected Reserve, and

(A) Is discharged for a service-cc nected disability, or

(B) Is discharged for a medical con tion which preexisted the individua becoming a member of the Selected F serve and which VA determines is r service connected, or

(C) Is discharged for hardship, or (D) Is discharged or released after minimum of 30 months service in t Selected Reserve for convenience of the Government, or

(E) Is discharged involuntarily fo the convenience of the government as result of a reduction in force, as detest mined by the Secretary of the militare department concerned in accordanc with regulations prescribed by the Se retary of Defense or by the Secretare of Transportation with respect to the Coast Guard when it is not operating: a service in the Navy, or

(F) Is discharged for a physical mental condition that was not chara terized as a disability and did not re sult from the individual's own willfu misconduct but did interfere with th individual's performance of duty, as de termined by the Secretary of eac military department in accordanc with regulations prescribed by the Sec retary of Defense or by the Secretar of Transportation with respect to the Coast Guard when it is not operating a a service in the Navy; or

(Authority: 38 U.S.C. 3012; Pub. L. 98-525. Pub. L. 99-576. Pub. L. 100-689, Pub. L. 101510) (Oct. 19, 1984)

(ii) The individual is obligated at the beginning of the two years active duty

fbed in paragraph (b)(3) of this in to serve the four years in the ted Reserve as described in para(b)(5) of this section, and during wo years of active duty service he ie is discharged or released from e duty in the Armed Forces

For a service-connected disty, or

For a medical condition which xisted that period of active duty which VA determines is not service lected, or

Before completing four years ce in the Selected Reserve the inJual ceases to be a member of the eted Reserve during the period bening on October 1, 1991, and ending September 30, 1999, by reason of the tivation of the individual's unit of gnment or by reason of involunly ceasing to be designated as a mber of the Selected Reserve pursuto 10 U.S.C. 268(b). However, this emption from the four years service quirement does not apply to a reservwho ceases to be a member of the lected Reserve under adverse condins as characterized by the Secretary the military department concerned, to a reservist who after having inluntarily ceased to be a member of # Selected Reserve is involuntarily arated from the Armed Forces ler adverse conditions as characteri by the Secretary of the military artment concerned.

thority: 10 U.S.C. 16133(b)(1); sec. 4421(b) 1(c), Pub. L. 102-484, 106 Stat. 2718)

9) A veteran who has completed the tive duty service required by this ragraph and has made a commitment determined by the Secretary conned) to serve four continuous years the Selected Reserve may pursue a ogram of education with basic edutional assistance while performing be required Selected Reserve service. (10) For the purpose of determining ontinuity of Selected Reserve service, e Secretary concerned may prescribe regulation a maximum period of me during which the individual is insidered to have continuous service I the Selected Reserve even through # or she

(i) Is unable to locate a unit of the elected Reserve of the individual's

Armed Force that the individual is eligible to join or that has a vacancy, or

(ii) Is not attached to a unit of the Selected Reserve for any reason prescribed by the Secretary concerned by regulation other than those stated in subdivision (i) of this subparagraph.

(11) Any decision as to the continuity of an individual's service in the Selected Reserve made by the Department of Defense or the Department of Transportation under regulations described in paragraph (b) (9) or (10) of this section shall be binding upon VA.

(Authority: 38 U.S.C. 3011, 3012, 3016; Pub. L. 98-525, Pub. L. 100-689) (July 1, 1985)

(12) The individual must have been on active duty at any time during the period beginning on October 19, 1984, and ending on July 1, 1985, and continued on active duty without a break in service.

(Authority: 38 U.S.C. 3012(a)(1)(B))

(13) An individual who does not meet the requirements of paragraph (b)(3) of this section nevertheless is eligible for basic educational assistance if he or she

(i) Was on active duty on August 2, 1990; and

(ii) Completed the requirements of a secondary school diploma (or an equivalency certificate) before October 29, 1994.

(Authority: 38 U.S.C. 3012)

(c) Restrictions on establishing eligibility. Except as provided in paragraph (d) of this section, an individual, who would otherwise be eligible for educational assistance under paragraphs (a) or (b) of this section, is not eligible for educational assistance under 38 U.S.C. ch. 30, if after December 31, 1976, he or she receives a commission as an officer in the Armed Forces

(1) Upon graduation from— (i) The United States Military Academy, or

(ii) The United States Naval Academy, or

(iii) The United States Air Force Academy, or

(iv) The Coast Guard Academy; or (2) Upon completion of a program of educational assistance under 10 U.S.C.

2107 (the Reserve Officers Training Corps Scholarship Program).

(Authority: 38 U.S.C. 3011, 3012; Pub. L. 98525)

(d) Exception to restrictions on establishing eligibility. Paragraph (c) of this section does not apply to a veteran who has met the requirements for educational assistance under paragraph (a) or (b) of this section before receiving a commission as an officer in the Armed Forces upon graduation from the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, or the Coast Guard Academy; or upon completion of a program of educational assistance under 10 U.S.C. 2107 (the Reserve Officers Training Corps Scholarship Program).

(Authority: 38 U.S.C. 3011, 3012, 3018)

[53 FR 1757, Jan. 22, 1988, as amended at 55 FR 28384, July 11, 1990; 56 FR 20132, May 2, 1991; 57 FR 29026, June 30, 1992; 59 FR 24050, 24051, May 10, 1994; 61 FR 6786, Feb. 22, 1996; 61 FR 26116, May 24, 1996; 62 FR 55761, Oct. 28, 1997; 65 FR 20745, Apr. 18, 2000; 65 FR 67266, Nov. 9, 2000]

$21.7045 Eligibility based on involun

tary separation, voluntary separation, or participation in the PostVietnam Era Veterans' Educational Assistance Program.

An individual who fails to meet the eligibility requirements found in § 21.7042 or § 21.7044 nevertheless will be eligible for educational assistance as provided in this subpart if he or she meets the requirements of paragraphs (a) and (b) of this section; paragraphs (a) and (c) of this section; or paragraph (d) of this section.

(a) Service requirements. The individual must meet one of the following sets of service requirements.

(1) The individual—

(i) If not a member of the Coast Guard, must be on active duty or fulltime National Guard duty either on September 30, 1990, or after November 29, 1993, or if a member of the Coast Guard, must be on active duty after September 30, 1994, and

(ii) After February 2, 1991, must be involuntarily separated, as that term is defined in 10 U.S.C. 1141, with an honorable discharge; or

(2) The individual must

(i) Be separated from active milit naval, or air service with an honora discharge, and

(ii) Receive voluntary separation centives under 10 U.S.C. 1174a or 1175

(Authority: 10 U.S.C. 1141; 38 U.S.C. 3018A

(b) Additional requirements for those dividuals voluntarily separated after tober 23, 1992, or involuntarily separa An individual who meets the requ ments of paragraph (a)(1) of this s tion; or an individual who meets requirements of paragraph (a)(2) of t section and who either was not a me ber of the Coast Guard and was se rated after October 22, 1992, or who a member of the Coast Guard and ▾ separated after September 30, 19 must meet the following additional quirements in order to establish eli bility for educational assistance:

(1) Required election. (i) If, un §21.7042(f), the individual elected not receive educational assistance under U.S.C. ch. 30, he or she must irre ocably withdraw that election a make an election to receive ed cational assistance under 38 U.S.C.c 30. The withdrawal and the electi must be made:

(A) Before the involuntary or v untary separation as the case may and

(B) Pursuant to procedures which t Secretary of the military departme concerned provides in accordance wi regulations prescribed by the Secreta of Defense or which the Secretary Transportation provides with respe to the Coast Guard when it is not ope ating as a service in the Navy; and

(ii) If the individual is a participar (as defined in §21.5021(e)) in the ed cational program provided in 38 U.S. ch. 32, the individual must make an i revocable election to receive ed cational assistance under 38 U.S.C. cl 30 rather than under 38 U.S.C. ch. 3. Such an election must be made:

(A) Before the individual is involun tarily or voluntarily separated as th