(5) When a reservist withdraws from flight training, VA will terminate educational assistance effective the date of last instruction.

(Authority: 10 U.S.C. 2136(b); 38 U.S.C. 3680(a); sec. 705(a)(1), Pub. L. 98-525, 98 Stat. 2565, 2567; sec. 642 (c), (d), Pub. L. 101-189, 103 Stat. 1457-1458)

(c) Reduction in the rate of pursuit of the course. If the reservist reduces the rate of training by withdrawing from part of a course, but continues training in part of the course, the provisions of this paragraph apply.

(1) If the reduction in the rate of training occurs other than on the first date of the term, VA will reduce the reservist's educational assistance effective on the date the reduction occurred when

(i) A nonpunitive grade is assigned for the part of the course from which he or she withdraws, and

(A) The reservist withdraws because he or she is ordered to active duty, or (B) The withdrawal occurs with mitigating circumstances; or

(ii) A punitive grade is assigned for the part of the course from which the reservist withdraws.

(2) VA will reduce educational assistance effective the first date of the enrollment in which the reduction occurs when

(i) The reduction occurs on the first date of the term, or

(ii) The reservist

(A) Receives a nonpunitive grade for the part of the course from which he or she withdraws, and

(B) Withdraws without mitigating circumstances, and

(C) Does not withdraw because he or she is ordered to active duty.

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680(a); Pub. L. 102-127) (Aug. 1, 1990)

(3) A reservist, who enrolls in several subjects and reduces his or her rate of pursuit by completing one or more of them while continuing training in the others, may receive an interval payment based on the subjects completed if the requirements of § 21.7640 are met. If those requirements are not met, VA will reduce the reservist's educational

assistance effective the date the subper ject or subjects were completed.

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680 Pub. L. 98-525, Pub. L. 100-689)

(d) Nonpunitive grade. (1) If the re servist receives a nonpunitive grade in a particular course, for any reaso1 other than a withdrawal from it, V will reduce his or her educational as sistance effective the first date of en rollment for the term in which the grade applies when no mitigating cir cumstances are found.

(2) If the reservist receives a non punitive grade for a particular course, for any reason other than a withdrawa from it, VA will reduce the reservist's educational assistance effective the last date of attendance when miti gating circumstances are found.

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680 Pub. L. 98-525, Pub. L. 100-689) (Nov. 18, 1988

(e) Discontinued by VA. If VA discon tinues payment to a reservist following the procedures stated in §21.4211(d) and th (g), the date of discontinuance of payment of educational assistance will be

(1) The date on which payments first were suspended by the Director of a VAR facility as provided in §21.4210, if the discontinuance was preceded by suspension.

(2) The end of the month in which the decision to discontinue, made by VA under § 21.7633 or § 21.4211(d) and (g), is 182 effective, if the Director of a VA facility did not suspend payments before the discontinuance.

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3690; Pub. L. 98-525)

(f) Disapproved by State approving agency. If a State approving agency disapproves a course in which a reservist is enrolled, the date of discontinuance of payment of educational assistance will be

(1) The date on which payments first were suspended by the Director of a VA facility as provided in §21.4210 if disapproval was preceded by such a suspension.

(2) The end of the month in which disapproval is effective or VA receives notice of the disapproval, whichever is later, provided that the Director of a

facility did not suspend payments re the disapproval.

hority: 10 U.S.C. 16131(b), 38 U.S.C. a), 3690; Pub. L. 98-525)

Disapproval by VA. If VA disoves a course in which a reservist arolled, the effective date of disinuance of payment of educational tance will be

The date on which the Director of facility first suspended payments, rovided in §21.4210 of this part, if a suspension preceded the disval.

The end of the month in which the proval occurred, provided that the tor of a VA facility did not suspayments before the disapproval.

ority: 10 U.S.C. 16131(b), 38 U.S.C. ), 3672(a), 3690; Pub. L. 98-525) Unsatisfactory progress. If a reservprogress is unsatisfactory, his or ducational assistance shall be disnued effective the earlier of the ving:

The date the educational instituliscontinues the reservist's enroll

.. or

The date on which the reservist's ess becomes unsatisfactory acng to the educational institution's arly established standards of

ess.

rity: 10 U.S.C. 16131(b), 38 U.S.C. 3474; 1.98-525)

False or misleading statements. If tional assistance is paid as the of false or misleading states, see § 21.7658 of this part.

brity: 10 U.S.C. 16136(b), 38 U.S.C. 3690; .. 98-525)

Conflicting interests (not waived). If istitution of higher learning and ave conflicting interests as proin $21.4005 and §21.7805 of this and VA does not grant the waiver, late of discontinuance shall be 30 after the date of the letter notithe reservist.

ority: 10 U.S.C. 16136(b), 38 U.S.C. 3683; L. 98-525)

Incarceration in prison or penal inion for conviction of a felony. (1)

The provisions of this paragraph apply to a reservist whose educational assistance must be discontinued or who becomes restricted to payment of educational assistance at a reduced rate under § 21.7639(d) of this part.

(2) The reduced rate or discontinuance will be effective the latest of the following dates:

(i) The first day on which all or part of the reservist's tuition and fees were paid by a Federal, State or local program,

(ii) The date the reservist is incarcerated in prison or penal institution, or

(iii) The commencing date of the award as determined by §21.7631 of this part.

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3482(g); Pub. L. 98-525)

(1) Exhaustion of entitlement. If a reservist exhausts his or her 36 months of entitlement, the discontinuance date shall be the date the entitlement is exhausted.

(Authority: 10 U.S.C. 16131(c); Pub. L. 98-525)

(m) End of eligibility period. If the reservist's eligibility period ends while the reservist is receiving educational assistance, the date of discontinuance shall be the date on which eligibility ends as determined by $21.7550 and § 21.7551 of this part.

(Authority: 10 U.S.C. 16133; Pub. L. 98-525)

(n) Required certifications not received after certification of enrollment. (1) If VA does not timely receive a required certification of attendance for a reservist enrolled in a course not leading to a standard college degree, VA will terminate payments effective the last date of the last period for which a certification of the reservist's attendance was received. If VA later receives the certification, VA will make any adjustment on the basis of facts found.

(2) In the case of an advance payment, if VA does not receive verification of enrollment and certificate of delivery of the check within 60 days of the first day of the term, quarter, semester, or course for which the advance payment was made, VA will determine the actual facts and make

an adjustment, if required. If the reservist failed to enroll, termination will be effective the beginning date of the enrollment period.

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3680(d); Pub. L. 98-525)

(0) Receipt of financial assistance under 10 U.S.C. 2107. If the reservist receives financial assistance under 10 U.S.C. 2107, the effective date for discontinuance of payment of educational assistance shall be the first date for which the reservist receives such assistance.

(Authority: 10 U.S.C. 16134; Pub. L. 98-525)

(p) Failure to participate satisfactorily in required training in Selected Reserve. If the reservist fails to participate satisfactorily in required training in the Selected Reserve, VA will discontinue payment of educational assistance allowance effective the first date certified by the Department of Defense or the Department of Transportation as the date on which the reservist fails to participate satisfactorily as a member of the Selected Reserve.

(Authority: 10 U.S.C. 16134; Pub. L. 98-525)

(q) Error-payee's or administrative. (1) When an act of commission or omission by a payee or with his or her knowledge results in an erroneous award of educational assistance, the effective date of the reduction or discontinuance will be the effective date of the award, or the day before the act, whichever is later, but not before the last date on which the reservist was entitled to payment of educational assistance.

(2) When an administrative error or error in judgment by VA, the Department of Defense, or the Department of Transportation is the sole cause of an erroneous award, the award will be reduced or terminated effective the date of last payment.

(Authority: 38 U.S.C. 5112(b), 5113; Pub. L. 98525)

(r) Completion of baccalaureate instruction. If a reservist who is limited in the types of courses he or she may pursue, as provided in §21.7540 (b)(2) and (b)(3), completes a course of instruction required for the award of a baccalaureate degree or the equivalent evidence of

completion of study (see $21.7622(f): of VA will discontinue educational assis ance effective the day after the da upon which the required course of i E struction was completed.

(Authority: 10 U.S.C. 2131; sec. 705(a)(1). Pu L. 98-525, 98 Stat. 2565; secs. 642 (a), (b), (c 645(a), (b), Pub. L. 101-189, 103 Stat. 1456-145

(s) Forfeiture for fraud. If a reservi: must forfeit his or her educational a sistance due to fraud, the date of di continuance of payment of education: assistance will be the later of—

(1) The effective date of the award, (2) The day before the date of th fraudulent act.

(Authority: 38 U.S.C. 6103, Pub. L. 98-525)

(t) Forfeiture for treasonable acts ( subversive activities. If a reservist mus forfeit his or her educational assis ance due to treasonable acts or subvel sive activities, the date of discontin ance of payment of educational assist ance will be the later of—

(1) The effective date of the award, ca (2) The day before the date the re servist committed the treasonable ac or subversive activities for which he o she was convicted.

(Authority: 38 U.S.C. 6104, 6105; Pub. L. 98 525)

(u) Change in law or VA issue or inter atq pretation. If there is a change in applied cable law or VA issue, or in the Depart ment of Veterans Affairs's applicatior of the law or VA issue, VA will use the P provisions of §3.114(b) of this chapter tc determine the date of discontinuance of the reservist's educational assist

ance.

(Authority: 38 U.S.C. 5112, 5113; Pub. L. 98525)

(v) Independent study course loses ac creditation. If the reservist is enrolled in a course offered in whole or in part by independent study, and the course loses its accreditation (or the educational institution offering the course loses its accreditation), the date of reduction or discontinuance will be the effective date of the withdrawal of accreditation by the accrediting agency,

ess the provisions of §21.7620 (c)(3) 3)(4) apply.

hority: 10 U.S.C. 16136; 38 U.S.C. \(a)(4))

) [Reserved]

Reduction following loss of increase ker"). If a reservist is entitled to ncrease ("kicker") in the monthly of basic educational assistance as ided in §21.7636(b) and loses that lement, the effective date for the ction in the monthly rate payable e date, as determined by the Secy of the military department coned, that the reservist is no longer led to the increase (“kicker").

ority: 10 U.S.C. 16131)

Election to receive educational asice under 38 U.S.C. chapter 30. VA terminate educational assistance tive the first date for which the rest received educational assistance

The service that formed a basis establishing eligibility for edunal assistance under 10 U.S.C. ter 1606 included a period of active as described in §21.7020(b)(1)(iv);

The reservist subsequently made election, as described in 142(a)(7) or (b)(10), to become entito basic educational assistance r38 U.S.C. chapter 30.

ority: Sec. 107, Pub. L. 104-275, 110 Stat. 330)

Except as otherwise provided. If the vist's educational assistance must iscontinued for any reason other those stated in the other parahs of this section, VA will deterthe date of discontinuance of payt of educational assistance on the 3 of facts found.

hority: 38 U.S.C. 5112(a), 5113; Pub. L. 98

R 34740, Sept. 8, 1988, as amended at 57 7106, Dec. 3, 1992; 58 FR 51783, Oct. 5, 1993; 329304, June 10, 1996; 62 FR 55520, Oct. 27, 63 FR 35837, July 1, 1998; 65 FR 5788, Feb. 30; 65 FR 61101, Oct. 16, 2000; 66 FR 38939, 26, 2001]

(ii) Full-time training will consist of the number of hours which constitute the standard workweek of the training establishment, but not less than 30 hours unless a lesser number of hours is established as the standard workweek for the particular establishment through bona fide collective bargaining between employers and employees.

(3) The monthly rate of basic educational assistance payable to a reservist for pursuit of a cooperative course that occurs after September 30, 2001, and before October 1, 2002, is the rate stated in paragraph (a)(1) of this section for full-time training during that period of time.

(Authority: 10 U.S.C. 16131(b), (c); sec. 8203(b), Pub. L. 105-178, 112 Stat. 493-494)

(b) Increase ("kicker") in educational assistance rates. (1) The Secretary of the military department concerned may increase the amount of educational assistance stated in paragraph (a) of this section that is payable to a reservist who has a skill or specialty in which there is a critical shortage of personnel or for which it is difficult to recruit,

or, in the case of critical units, retain personnel.

(2) The Secretary of the military department concerned

(i) Will set the amount of the increase ("kicker") for full-time training, but the increase ("kicker") may not exceed $350 per month; and

(ii) May set the amount of the increase ("kicker") payable, for a reservist pursuing a program of education less than full time or pursuing an apprenticeship or other on-job training, at an amount less than the amount described in paragraph (b)(2)(i) of this section.

(Authority: 10 U.S.C. 16131(i)(1))

(c) Limitations on payments. VA may withhold final payment until VA receives proof of the reservist's enrollment and adjusts the reservist's account.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3680(g))

[61 FR 29305, June 10, 1996, as amended at 62 FR 27964, May 22, 1997; 62 FR 55520, Oct. 27, 1997; 62 FR 66278, Dec. 18, 1997; 64 FR 26297, May 14, 1999; 65 FR 59127, Oct. 4, 2000; 65 FR 60499, Oct. 11, 2000; 66 FR 38937, July 26, 2001; 67 FR 6655, Feb. 13, 2002]

$21.7639 Conditions which result in reduced rates or no payment.

The payment of educational assistance at the monthly rates established in § 21.7636 shall be subject to reduction, whenever the circumstances described in this section arise.

(a) Withdrawals and nonpunitive grades. (1) Withdrawal from a course or receipt of a nonpunitive grade affects payments to a reservist. VA will not pay benefits to a reservist for pursuit of a course from which the reservist withdraws or receives a nonpunitive grade which is not used in computing requirements for graduation unless the provisions of this paragraph are met.

(i) The reservist withdraws because he or she is ordered to active duty; or (ii) Both of the following exist. (A) There are mitigating cumstances, and

cir

(B) The reservist submits a description of the circumstances in writing to VA either within one year from the date VA notifies the reservist that he

or she must submit the mitigating ci cumstances, or at a later date if the re servist is able to show good cause wh the one-year time limit should be ex tended to the date on which he or sh submitted the description of the miti gating circumstances.

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 347. 3680(a), 5101, 5113; Pub. L. 102-127) (Aug. 1990))

(2) If VA considers that mitigatin circumstances exist because the reserv ist withdrew during a drop-add perio or because the withdrawal constitute the first withdrawal of no more tha six credits after May 31, 1989, the re servist is not subject to the reporting requirement found in paragrap (b)(1)(ii)(B) of this section.

(Authority: 10 U.S.C. 16130(b), 38 U.S.C 3680(a)) (June. 1, 1989)

(b) No education assistance for some in carcerated reservists. VA will pay n educational assistance to reservists who are incarcerated and who are training less than one-half time. In ad dition, VA will pay no educational as sistance to a reservist who

(1) Is incarcerated in Federal, State or local penal institution for conviction of a felony, and

(2) Is enrolled in a course

(i) For which there are no tuition and fees, or

(ii) For which tuition and fees are being paid by a Federal program (other than one administered by VA) or by a State or local program, and

(3) Is incurring no charge for the books, supplies and equipment necessary for the course.

(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3482(g); Pub. L. 98-525)

(c) Reduced educational assistance for some incarcerated reservists. (1) VA will pay reduced educational assistance to a reservist who

(i) Is incarcerated in a Federal, State or local penal institution for conviction of a felony, and

(ii) Is enrolled in a course

(A) For which the reservist pays some (but not all) of the charges for tuition and fees, or

(B) For which a Federal program (other than one administered by VA) or