Post-9/11 Improvements, Fry Scholarship, and Interval Payments Amendments

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 21</CFR> <RIN>RIN 2900-AQ88</RIN> <SUBJECT>Post-9/11 Improvements, Fry Scholarship, and Interval Payments Amendments</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) is amending its regulations that govern VA's administration of educational assistance programs to implement the provisions of the Post-9/11 Veterans Educational Assistance Improvements Act of 2010, which modified the manner in which payments of educational assistance are determined and expanded the types of programs students may pursue under the Post-9/11 GI Bill; section 1002 of the Supplemental Appropriations Act, 2009, which authorized the “Marine Gunnery Sergeant John David Fry Scholarship;” and a select number of provisions of the Harry W. Colmery Veterans Educational Assistance Act of 2017. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective March 17, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Thomas Alphonso, Assistant Director, Policy and Procedures, Education Service, Department of Veterans Affairs, Veterans Benefits Administration (22), 810 Vermont Avenue NW, Washington, DC 20420. Telephone: (202) 461-9800. (This is not a toll-free telephone number.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Under chapter 5 of title 38, United States Code (U.S.C.), the Secretary has the authority to prescribe rules and regulations which are appropriate and necessary to carry out the laws administered by VA. Accordingly, on May 24, 2023, VA published a proposed rule at 88 FR 33672 to amend its regulations to implement section 1002 of the Supplemental Appropriations Act, 2009 (Pub. L. 111-32), which amended 38 U.S.C. chapter 33 to allow surviving children of active duty Servicemembers who died on or after September 11, 2001, to receive educational assistance under the Post-9/11 GI Bill (chapter 33); the Post-9/11 Veterans Educational Assistance Improvements Act of 2010 (Pub. L. 111-377), which amended the Post-9/11 GI Bill; six sections of the Harry W. Colmery Veterans Educational Assistance Act of 2017, or Forever GI Bill (Pub. L. 115-48); and a policy change to address how VA manages overpayments and discontinuance dates. VA provided a 60-day comment period, which ended on July 24, 2023, and received six comments on the proposed amendments. The comments are addressed below. <HD SOURCE="HD1">Eligibility for Post-9/11 GI Bill Benefits and Time Limit for Transfer of Entitlement</HD> One commenter expressed the belief that all veterans—no matter the length of their service—should be entitled to Post-9/11 GI Bill benefits if they were not discharged early for disciplinary reasons. The commenter stated that individuals who served honorably but with less time in service than others are not afforded the same entitlement. The commenter also indicated that the rulemaking should expand the period individuals can transfer entitlement to their children. Requirements for payment of benefits are explicitly set by statute in 38 U.S.C. 3311 and 3313. Payment of educational assistance is based on the length of an individual's service as prescribed in sections 3311(b) and 3313(c). Generally, the greater the length of service, the greater the payment. Additionally, the time period for transferring benefits is explicitly set by statute in 38 U.S.C. 3319. Under section 3319(f) an individual may transfer entitlement only while serving in the Armed Forces. VA does not have authority to change statutory requirements through regulatory action. Accordingly, VA makes no changes to the rule based on these comments. <HD SOURCE="HD1">Expansion of Eligibility for Post-9/11 GI Bill Benefits for Individuals</HD> Two commenters recommended that the final rulemaking include revisions to allow more individuals the opportunity to obtain Post-9/11 GI Bill educational assistance benefits. One commenter suggested that VA should make the process to obtain these benefits easier and another suggested that individuals should be eligible for Post-9/11 GI Bill benefits regardless of when they attend school. This rulemaking implements the Post-9/11 Veterans Educational Assistance Improvements Act of 2010, which among other things, greatly expanded the types of programs students may pursue under the Post-9/11 GI Bill and eligibility for these programs. The provisions also refine and enhance VA's administration of Post-9/11 GI Bill educational assistance, improving the efficiency to deliver these benefits to claimants. Implementation of these provisions, as reflected in this rulemaking, will make provision of benefits easier and more efficient. Furthermore, under current law, individuals who were discharged on or after January 1, 2013, may use Post 9/11 GI Bill benefits to attend school any time after discharge. Individuals who were discharged prior to that date have 15 years from the date of discharge to use their benefits. 38 U.S.C. 3321(a). We have been implementing this law and will incorporate it into our regulations in a future rulemaking. As such, VA makes no changes to this rule based on these comments. <HD SOURCE="HD1">Enhancement of the Definition of “In-Residence Course” and of an Attendance and Participation Requirement</HD> One commenter suggested strengthening the definition of what constitutes an “on-site course,” stating that educational institutions offering “hybrid” programs with only one residential class are actually distance-learning courses and that individuals enrolled in these hybrid programs should not be eligible for the payment of a full housing allowance when the majority of classes would be online and not “on-site.” (The commenter used the term “on-site course” to refer to what VA's regulations define as an “in-residence course.”) According to 38 U.S.C. 3313(c)(1)(B)(i)(I), an individual who “pursues a [degree] program of education on more than a half-time basis” is entitled to a monthly housing allowance based on “the campus of the institution of where the individual physically participates in a majority of classes.” However, 38 U.S.C. 3313(c)(1)(B)(iii) expressly authorizes payment of a monthly housing allowance at half the national average of the monthly amount of the basic allowance for housing payable under 37 U.S.C. 403 for a member with dependents in pay grade E-5 (which we will refer to as “the national average”) for “an individual pursuing a [degree] program of education <E T="03">solely</E> through distance learning on more than a half-time basis.” (Emphasis added.) Similarly, for an individual pursuing a non-degree program of education on a more than half-time basis, 38 U.S.C. 3313(g)(3)(A)(ii)(I)(aa) provides a monthly housing allowance based on “the campus of the institution of where the individual physically participates in a majority of classes.” But 38 U.S.C. 3313(g)(3)(A)(ii)(I)(bb) authorizes payment of a monthly housing allowance at half that amount for “an individual pursuing a [non-degree] program of education through distance learning” on more than a half-time basis without specifically requiring that pursuit be “ <E T="03">solely</E> through distance learning.” (Emphasis added.) VA faces several challenges in interpreting these statutory provisions. First, aspects of the statutory language at 38 U.S.C. 3313(g)(3)(A)(ii)(I)(bb) are unworkable as literally drafted. That provision calculates the monthly housing allowance for individuals pursuing non-degree distance-learning programs by reference to 38 U.S.C. 3313(g)(3)(A)(ii)(I)(aa), which is based on a locality (“campus of the institution of where the individual physically participates in a majority of classes”). However, it would be impossible to apply 38 U.S.C. 3313(g)(3)(A)(ii)(I)(bb) according to its literal terms because, for students in distance learning programs, there is no campus where the individual “physically participates in a majority of classes.” Second, although 38 U.S.C. 3313(c)(1)(B)(iii) refers to “an individual pursuing a program of education <E T="03">solely</E> through distance learning” (emphasis added) and 38 U.S.C. 3313(g)(3)(A)(ii)(I)(bb) refers to “an individual pursuing a program of education through distance learning” (omitting the word “solely”), VA does not believe that Congress intended to attribute any significance to this omission because a strictly literal reading would have absurd and inequitable results. With respect to the specific scenario raised by the commenter, VA is concerned that it would be absurd and inequitable to pay the full housing allowance for an individual who is taking one on-site course as part of a degree program (and thus not “solely” through distance learning) but to pay only half the housing allowance for an individual who is taking one on-site course as part of a non-degree program (and thus also not “solely” through distance learning). To avoid this absurd and inequitable result, we have interpreted the language in section 3313(g)(3)(A)(ii)(I)(bb) as referring to an individual pursuing a non-degree program <E T="03">solely</E> through distance learning, which is still consistent with the plain language of the statute, which refers to “an individual pursuing a [non-degree] program of education through distance learning.” Taking into account both of these interpretive challenges, the VA has concluded that the best reading of the statute is reflected in § 21.9641(c)(4), which provides that “[a]fter September 30, 2011, an individual . . . , who is pursuing a program of education solely via distance learning at a rate of pursuit of greater than 50 percent, can receive a monthly housing allowance . . . equal to 50 percent of the [national average].” The interpretation reflected in this r ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 252k characters. 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