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and other pertinent elements of eligibility for a program of education made by either an Adjudicative activity or an Insurance activity by application of the same criteria and based on the same facts are binding one upon the other in the absence of clear and unmistakable error.
(Authority: 38 U.S.C. 511)
(c) Character of discharge determinations. (1) A determination of the character of a veteran's discharge made by a competent military or naval authority or by the Coast Guard is binding upon VA.
(2) Any determination of the character of a veteran's discharge made by VA in connection with the veteran's eligibility for a benefit other than educational assistance under 38 U.S.C. chapter 30, shall not affect his or her eligibility for educational assistance.
Federal equal opportunity laws fro educational institutions and from red ognized national organizations whos representatives are afforded space ar office facilities under his or her juri: diction. See part 18 of this chapte These equal opportunity laws are: (1) Title VI, Civil Rights Act of 196
(2) Title IX, Education Amendment of 1972, as amended;
(3) Section 504, Rehabilitation Act o 1973; and
(4) The Age Discrimination Act 1975.
(b) Role of State approving agencies. I obtaining evidence from educationa institutions of compliance with Fed eral equal opportunity laws, the Unde: Secretary for Benefits may use th State approving agencies as provided in $21.4258(d). (Authority: 42 U.S.C. 2000) (62 FR 55761, Oct. 28, 1997]
(Authority: 38 U.S.C. 3011(a), 3012(a); Pub. L. 98-525)
$21.7303 Revision of decisions.
The revision of a decision on which an action was predicated is subject to the following sections:
(a) Clear and unmistakable error, 83.105(a) of this chapter; and
(b) Difference of opinion, 83.105(b) of this chapter. (Authority: 38 U.S.C. 511; Pub. L. 98-525) $21.7305 Conflicting interests.
In administering benefits payable under 38 U.S.C. chapter 30, VA will apply the provisions of g 21.4005. (Authority: 38 U.S.C. 3034, 3036) [62 FR 55761, Oct. 28, 1997) $21.7307 Examination of records.
In administering benefits payable under 38 U.S.C. chapter 30, VA will apply the provisions of $21.4209. (Authority: 38 U.S.C. 3034, 3690) [62 FR 55761, Oct. 28, 1997)
$21.7320 Procedural protection; reduc
tion following loss of dependent. (a) Notice of reduction required when veteran loses entitlement to additiona educational assistance for a dependent Except as provided in paragraph (b) o this section, VA will not reduce ar award of educational assistance fol lowing the veteran's loss of a depend ent unless:
(1) VA has notified the veteran of the adverse action; and
(2) VA has provided the veteran wit a period of 60 days in which to submit evidence for the purpose of showing that the educational assistance should not be reduced.
(b) No advance notice required in cer tain situations. When the reduction i based solely on written, factual, unam biguous information as to dependenci or marital status provided by the vet eran or his or her fiduciary with knowledge or notice that the informa tion would be used to determine thi monthly rate of educational assistancı allowance:
(1) VA will not send either an ad vance or a prereduction notice as stat ed in paragraph (a) of this section; but
$ 21.7310 Civil rights.
(a) Delegation of authority concerning Federal equal opportunity laws. The Under Secretary for Benefits is delegated the responsibility to obtain evidence of voluntary compliance with
(2) VA will send notice of the adverse action contemporaneous with the reduction in educational assistance. (Authority: 38 U.S.C. 5112, 5113) [58 FR 63530, Dec. 2, 1993)
(ii) At a training establishment; or
(iii) In any other place of instruction, training, or study designated by the educational institution or training establishment where the reservist is enrolled and is pursuing a program of education.
Subpart L-Educational Assistance
for Members of the Selected Reserve
AUTHORITY: 10 U.S.C. ch. 1606; 38 U.S.C. 501(a), 512, ch. 36, unless otherwise noted.
SOURCE: 53 FR 34740, Sept. 8, 1988, unless otherwise noted.
(Authority: 10 U.S.C. 2131(c)(1), 2136(b); 38 U.S.C. 3474; sec. 705(a)(1), Pub. L. 98-525, 98 Stat. 2565, 2567; sec. 642, Pub. L. 101–189, 103 Stat. 1456–1458)
(2) Audited course. The term audited course has the same meaning as provided in $1.4200(i) of this part.
$21.7500 Establishment and purpose
of educational assistance program. An educational assistance program for certain members of the Selected Reserve is established to encourage membership in the Selected Reserve of the Ready Reserve. (Authority: 10 U.S.C. 16131(a); Pub. L. 98–525)
(Authority: 10 U.S.C. 16136(b) 38 U.S.C. 3680(a); Pub. L. 98-525)
(3) Deficiency course. The term deficiency course means any secondary level course or subject not previously completed satisfactorily which is specifically required for pursuit of a postsecondary program of education.
(Authority: 10 U.S.C. 16136(b); Pub. L. 98-525)
(4) Divisions of the school year. The term divisions of the school year has the same meaning as provided in 21.4200(b) of this part.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680(a); Pub. L. 98–55)
(5) Drop-add period. The term dropadd period has the same meaning as provided in $21.4200(1) of this part.
For the purposes of regulations from $21.7500 through $21.7999, governing the administration and payment of educational assistance under 10 U.S.C. chapter 1606, the Selected Reserve Educational Assistance Program, the following definitions apply. (See also additional definitions in $ 21.1029).
(a) Definitions of participants-(1) Reservist. The term reservist means a member of the Selected Reserve who is eligible for educational assistance under 10 U.S.C. chapter 1606.
(2) Selected Reserve. The term Selected Reserve means the Selected Reserve of the Ready Reserve of any of the reserve components (including the Army National Guard of the United States and the Air National Guard of the United States) of the Armed Forces of the United States, as required to be maintained under section 268(b), 10 U.S.C.
(Authority: 10 U.S.C. 16131; Pub. L. 98-525)
(b) Other definitions. (1) Attendance. The term attendance means the presence of a reservist
(i) In the class where the approved course in which he or she is enrolled is taught;
(Authority: 10 U.S.C. 16131(b), 38 U.S.C. 3680(a); Pub. L. 98–525)
(8) Enrollment. The term enrollment means the state of being on that roll or
file of an educational institution which contains the names of active students.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680(g); Pub. L. 98–525)
(9) Enrollment period. The term enrollment period has the same meaning as provided in 821.4200(p) of this part.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680(g); Pub. L. 98-525)
(10) In residence on a standard quarteror semester-hour basis. The term in residence on a standard quarter- or semesterhour basis has the same meaning as provided in $21.4200(r) of this part.
level academic instruction that to an associate or higher degree, educational institution is empo by the appropriate State educatic thority under State law to grant sociate or higher degree.
(ii) When there is no state law thorize the granting of a degre educational institution which
(A) Is accredited for degree prog by a recognized accrediting agen
(B) Is a recognized candidate fo creditation as a degree-granting 3 by one of the national or region crediting associations and has be censed or chartered by the approp State authority as a degree-gra institution.
(iii) A hospital offering educat programs at the postsecondary without regard to whether the hos grants a postsecondary degree.
(iv) An educational institution (A) Is not located in a state,
(B) Offers a course leading to a s ard college degree or the equiva and
(C) Is recognized as an instituti higher learning by the secretar education (or comparable officia the country in which the educat institution is located.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3688(c); Pub. L. 98-525)
(11) Independent study. The term independent study has the same meaning as provided in $21.4267(b) of this part.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3688(c); Pub. L. 98-525)
(12) Independent study-resident training. The term independent study-resident training means:
(i) The state of being enrolled concurrently in one
more undergraduate courses or subjects offered by independent study as defined in paragraph (b)(11) of this section and one or more courses or subjects offered by resident training as defined by paragraph (b)(22) of this section, or
(ii) The state of being enrolled in one or more undergraduate level subjects which
(A) Do not meet the requirements of either paragraphs (b)(22)(i), (b)(22)(ii) or (b)(22)(iii) of this section,
(B) Have some weeks when standard class sessions are scheduled, and
(C) Consist of independent study as defined in paragraph (b)(11) of this section during those weeks when there are no regularly scheduled standard class sessions.
(Authority: 10 U.S.C. 16131; Pub. L. 98-52
(14) Mitigating circumstances.
(i) Mitigating circumstances ar cumstances beyond the reservists trol which prevent him or her continuously pursuing a program education. The following cumstances are representative of which VA considers to be mitiga This list is not all-inclusive.
(A) An illness of the reservist;
(B) An illness or death in the red ist's family;
(C) An unavoidable change in ti servist's conditions of employmer
(D) An unavoidable geogra transfer resulting from the reset employment;
(E) Immediate family or financi ligations beyond the control of t1 servist which require him or her ti pend pursuit of the program of cation to obtain employment;
(F) Discontinuance of the court the educational institution;
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3688(c); Pub. L. 98-525)
(13) Institution of higher learning. The term institution of higher learning means
(i) A college, university or similar institution, including a technical or busi
school, offering postsecondary
more than one objective if all objectives pursued are generally recognized as being related to a single career field; and
(iii) Includes an approved full-time program of apprenticeship or of other on-job training.
(G) Unanticipated active duty for training; and
(H) Unanticipated difficulties in providing for child care for the reservist's child or children.
(ii) If a reservist withdraws from a course during a drop-add period, VA will consider the circumstances which caused the withdrawal to be mitigating.
(iii) In the first instance of a withdrawal after May 31, 1989, from a course or course for which the reservist received educational assistance under chapter 1606, title 10, U.S. Code, VA will consider that mitigating circumstances exist with respect to courses totaling not more than six semester hours or the equivalent. In determining whether a withdrawal is the first instance of withdrawal, VA will not consider courses dropped during an Educational institution's drop-add period as provided in paragraph (b)(14)(ii) of this section.
(Authority: 10 U.S.C. 2131; 38 U.S.C. 3452(b); sec. 705(a)(1), Pub. L. 98-525, 98 Stat. 2565, 2567; secs. 642(a), (b), (d), 645, Pub. L. 101–189, 103 Stat. 1456-1458)
(18) Punitive grade. The term punitive grade has the same meaning provided in $21.4200(k) of this part.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680(a); Pub. L. 98–525)
(i) The term pursuit means work, while enrolled, toward the objective of a program of education. This work must be in accordance with approved institutional policy and regulations, and with applicable criteria of 10 U.S.C. and 38 U.S.C.; must be necessary to reach the program's objective; and must be accomplished through
(A) Resident courses;
(D) An apprenticeship or other on-job training program; or
(E) Flight courses.
(Anthority: 38 U.S.C. 3034, 3680(a)(1); Pub. L. 100-689)(Jun. 1, 1989)
(15) Nonpunitive grade. The term nonpunitive grade has the same meaning as provided in $21.4200(j) of this part.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3880(a); Pub. L. 98-525)
(16) Normal commuting distance. The term normal commuting distance has the same meaning as provided in $21.4200(m) of this part.
(Authority: 10 U.S.C 2131, 2136; 38 U.S.C. 3680(g); sec. 705(a)(1), Pub. L. 98-525, 98 Stat. 2565, 2567; secs. 642, 645, Pub. L. 101–189, 103 Stat. 1456-1458)
(ii) VA will consider a reservist who qualifies for payment during an interval, school closing, or holiday vacation to be in pursuit of a program of education during the interval, school closing, or holiday vacation.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680; Pub. L. 98-525)
(17) Program of education. A program of education,
(i) Is any unit course or subject or combination of unit courses or subjects pursued by a reservist at an educational institution. required by the Administrator of the Small Business Administration as a condition to obtaining financial assistance under the provisions of 15 U.S.C. 636; or
(ii) Is a combination of subjects or unit courses pursued at an educational institution, which combination is generally accepted as necessary to meet requirements for a predetermined educational, professional, or vocational objective. It may consist of subjects or courses which fulfill requirements for
(Authority: 10 U.S.C. 2136(b); 38 U.S.C. 3680(g); sec. 705(a)(1), Pub. L. 98-525, 98 Stat. 2565, 2567; sec. 642(c), (d), Pub. L. 101–189, 103 Stat. 1457-1458)
(20) Refresher course. The term refresher course means either:
(i) A course at the elementary or secondary level to review or update material previously covered in a course that has been satisfactorily completed; or
(ii) A course which permits an individual to update knowledge and skills or be instructed in the technological advances which have occurred in the reservist's field of employment since his or her entry on active duty and which is necessary to enable the individual to pursue an approved program of education.
(Authority: 10 U.S.C. 2131(b), (c); sec. 705(a)(1), Pub. L. 98-525, 98 Stat. 2565; secs. 642(a), (b), (d), 645(a), (b), Pub. L. 101–189, 103 Stat. 1456–1458))
(21) Remedial course. The term remedial course means a course designed to overcome a deficiency at the elementary or secondary level in a particular area of study, or a handicap, such as in speech.
(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3491(a)(2); Pub. L. 98-525)
(22) Resident training. The term resident training means
(i) A course or subject, leading to a standard college degree, offered in residence on a standard quarter- or semester-hour basis;
(ii) A course of subject leading to a standard college degree at the undergraduate level which requires regularly scheduled, weekly classroom or laboratory sessions but does not require them in sufficient number to meet the provision of paragraph (23)(i) of this section,
(iii) A course or subject leading to standard college degree at the undergraduate level which
(A) Would qualify as a course under paragraph (b)(22)(i) of this section except that it does not have weekly class instruction,
(B) Requires pursuit of standard class sessions for each credit at a rate not less frequent than every 2 weeks,
(C) Requires monthly pursuit of a total number of standard class sessions which, during the month, is required by a course meeting the provisions of paragraph (b)(22)(i) of this section,
(D) Is considered by the institution offering it as fully equivalent to a course described in paragraph (b)(22)(i) of this section including payment of tuition and fees; the awarding of academic credit for the purpose of meeting graduation requirements; and the transfer of credits to a course meeting the provision of paragraph (b)(22)(i) of this section, and
(E) Together with all other simila courses offered by the institution higher learning, has an enrollment rep resenting less than 50 percent of per sons at that institution receiving edu cational assistance under either chap ter 31, 32, 34, 35 or 36 of title 38 U.S.C.
(iv) The hospital or fieldwork phas of a course with the objective of reg istered professional nurse or registere nurses, including a course leading to degree in nursing when
(A) The hospital or fieldwork phas of the course is an integral part of th course,
(B) The completion of the hospital o fieldwork course is a prerequisite t the successful completion of the course,
(C) The student remains enrolled in the institution of higher learning dur ing the hospital or fieldwork phase and
(D) The training is under the direc supervision of the institution of highe learning.
(v) The clinical training portion of course leading to the objective of prac tical nurse, practical trained nurse, o licensed practical nurse when
(A) The clinical training is offered by an affiliated or cooperating hospital,
(B) The student is enrolled in and su pervised by the institution of highe: learning during the clinical training and
(C) The course is accredited by a na tionally recognized accrediting agenc or meets the requirements of the li censing body of the State in which thi institution of higher learning is lo cated.
(vi) An off-campus job experience in cluded in a course offered by an insti tution of higher learning is residen training only if the course is
(A) Accredited by a nationally recog nized accrediting agency or is oftere by a school that is accredited by one the regional accrediting agencies;
(B) A part of the approved cui riculum of the institution of highe learning;
(C) Directly supervised by the insti tution of higher learning;
(D) Measured in the same unit a other courses;
(E) Required for graduation; and