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B-105303, JUL. 26, 1960

B-105303 Jul 26, 1960
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VETERANS ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF MAY 2. THE REVISED SUBSECTION (C) WOULD CHANGE THE PRESENTLY PRESCRIBED LENGTH OF AN OCCASIONAL TARDINESS FROM "ONE-HALF HOUR OR LESS" TO "LESS THAN THIRTY MINUTES" WHICH NEED NOT BE COUNTED AS AN ABSENCE "IF IT IS EXCUSED BY THE SCHOOL OR ESTABLISHMENT IN ACCORDANCE WITH ITS POLICY AS APPROVED BY THE STATE APPROVING AGENCY.'. WHICH WILL PRECLUDE ATTENDANCE FOR THE NUMBER OF HOURS FOR WHICH TRAINING HAS BEEN CERTIFIED. THE SCHOOL OR TRAINING ESTABLISHMENT WILL REPORT ON THE MONTHLY CERTIFICATION OF TRAINING (VA FORM 22-1996B OR VB22-6553) THE SCHEDULE OF HOURS DURING WHICH THE VETERAN IS ACTUALLY IN REGULAR ATTENDANCE. "2. WHERE THE CONSISTENT TARDINESS PREVENTS REGULAR ATTENDANCE FOR THE MINIMUM NUMBER OF HOURS REQUIRED (SEE VAR12066) TO SUSTAIN THE RATE AT WHICH EDUCATION AND TRAINING ALLOWANCES ARE CURRENTLY APPROVED.

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B-105303, JUL. 26, 1960

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1960, TRANSMITTING FOR OUR COMMENT PROPOSED CHANGES IN VETERANS ADMINISTRATION REGULATION 12051, 38 C.F.R. 21.2051, ENTITLED,"CONDITIONS GOVERNING PAYMENT OF EDUCATION AND TRAINING ALLOWANCE," AUTHORIZED FOR KOREAN CONFLICT VETERANS UNDER CHAPTER 33, TITLE 38, OF THE UNITED STATES CODE.

THE PROPOSED CHANGES WOULD MODIFY SUBSECTION (D) (3) RELATING TO THE "REPORTING OF ABSENCES" BY REVISING THE LANGUAGE OF SUBSECTION (C) (III) DEALING WITH "OCCASIONAL TARDINESS" AND BY ADDING THREE NEW SUBSECTIONS TO THIS SUBSECTION. THE REVISED SUBSECTION (C) WOULD CHANGE THE PRESENTLY PRESCRIBED LENGTH OF AN OCCASIONAL TARDINESS FROM "ONE-HALF HOUR OR LESS" TO "LESS THAN THIRTY MINUTES" WHICH NEED NOT BE COUNTED AS AN ABSENCE "IF IT IS EXCUSED BY THE SCHOOL OR ESTABLISHMENT IN ACCORDANCE WITH ITS POLICY AS APPROVED BY THE STATE APPROVING AGENCY.' THIS SUBSECTION WOULD ALSO PROVIDE THAT A TARDINESS NOT EXCUSED AND "ANY TARDINESS OF MORE THAN TWENTY-NINE MINUTES, WHETHER EXCUSED OR NOT, SHALL BE COUNTED AS ONE OR MORE HOURS OF ABSENCE; " THAT ANY ABSENCE OF LESS THAN AN HOUR SHALL BE COUNTED AS A FULL HOUR OF ABSENCE; THAT ABSENCES DURING ANY PORTION OF THE DAY, WHETHER MORE OR LESS THAN AN HOUR, SHALL BE COUNTED; AND FURTHER THAT "ALL EARLY DEPARTURES SHALL BE COUNTED AS ABSENCE EVEN THOUGH EXCUSED.' THE SUBSECTION TO BE ADDED TO THIS SUBSECTION WOULD PROVIDE, AS FOLLOWS:

"1. OCCASIONAL TARDINESS DOES NOT CONTEMPLATE A PATTERN OF REGULAR, CONSISTENT OR REPEATED TARDINESS FOR ANY REASON, WHICH WILL PRECLUDE ATTENDANCE FOR THE NUMBER OF HOURS FOR WHICH TRAINING HAS BEEN CERTIFIED. WHERE SUCH A PATTERN OF TARDINESS EXISTS, THE SCHOOL OR TRAINING ESTABLISHMENT WILL REPORT ON THE MONTHLY CERTIFICATION OF TRAINING (VA FORM 22-1996B OR VB22-6553) THE SCHEDULE OF HOURS DURING WHICH THE VETERAN IS ACTUALLY IN REGULAR ATTENDANCE.

"2. WHERE THE CONSISTENT TARDINESS PREVENTS REGULAR ATTENDANCE FOR THE MINIMUM NUMBER OF HOURS REQUIRED (SEE VAR12066) TO SUSTAIN THE RATE AT WHICH EDUCATION AND TRAINING ALLOWANCES ARE CURRENTLY APPROVED, THE AWARD WILL BE AMENDED AND THE RATE OF PAYMENT WILL BE REDUCED ACCORDINGLY. REDUCTIONS WILL BE MADE RETROACTIVE TO THE DATE THE PATTERN OF TARDINESS FIRST PRECLUDED ATTENDANCE FOR THE SPECIFIED MINIMUM NUMBER OF HOURS REQUIRED TO AUTHORIZE TRAINING ALLOWANCE PAYMENTS AT THE REDUCED RATE MAY BE MADE PROSPECTIVELY ONLY IF THE AMENDED SCHEDULE OF ATTENDANCE IS APPROVED BY THE STATE APPROVING AGENCY.

"3. WHERE A VETERAN FOR ANY REASON IS REGULARLY, CONSISTENTLY, OR REPEATEDLY ABSENT FROM ANY PORTION OF HIS APPROVED CERTIFIED SCHEDULE OF INSTRUCTION TO THE EXTENT THAT HE IS PRECLUDED FROM MEETING THE MINIMUM REQUIRED ATTENDANCE ON WHICH PAYMENTS OF EDUCATION AND TRAINING ALLOWANCES HAVE BEEN AUTHORIZED, ACTION WILL BE TAKEN TO AMEND HIS AWARD AND REDUCE PAYMENTS AS OUTLINED IN SUBSECTION 2. OF THIS SUBPARAGRAPH.'

THE FOLLOWING STATEMENT ACCOMPANIED THE PROPOSED CHANGES:

"VA REGULATION 12051 (D) (3) (C)

"THE ADDITION OF THIS SUBPARAGRAPH INCORPORATES INTO REGULATORY FORM A POLICY INTERPRETATION LONG IN EFFECT. UNDER THE AMENDMENT SCHOOLS AND TRAINING ESTABLISHMENTS ARE REQUIRED TO AMEND ENROLLMENT CERTIFICATIONS WHERE A REGULAR, CONSISTENT, OR REPEATED PATTERN OF TARDINESS OR ABSENCE ESTABLISHES THAT A VETERAN'S ATTENDANCE, IN TERMS OF HOURS, NO LONGER SUPPORTS THE RATE AT WHICH TRAINING ALLOWANCES WERE PREVIOUSLY AUTHORIZED.'

IT SEEMS CLEAR THAT THE EFFECT OF THE PROPOSED CHANGE WOULD BE THE ESTABLISHMENT OF A MANDATORY UNIFORM POLICY WITH RESPECT TO TARDINESS OF VETERANS ENROLLED IN NONACCREDITED COURSES, AS WELL AS IN ACCREDITED COURSES, NOT LEADING TO A STANDARD COLLEGE DEGREE, AND IN THE COURSES OF APPRENTICE OF ON-THE-JOB-TRAINING. WE HAVE BEEN INFORMALLY ADVISED THAT THE PRIMARY PURPOSE OF THE PROPOSED CHANGES IS TO REACH CASES WHERE IT HAD BEEN SHOWN BY VA COMPLIANCE SURVEYS THAT THE VETERAN'S DAILY EMPLOYMENT DID NOT TERMINATE UNTIL THE HOUR HIS HALF-TIME COURSE IN A PROFIT SCHOOL WAS SCHEDULED TO BEGIN SO THAT IT WAS IMPOSSIBLE FOR HIM TO BE IN ATTENDANCE ON TIME, AND TO PROVIDE FOR RETROACTIVE ADJUSTMENTS OF ALLOWANCES PAID TO THE VETERAN. THUS, IN THESE CASES THE VETERAN'S AWARD WOULD BE CHANGED TO LESS-THAN-HALF-TIME BASIS PERMITTING COMPUTATION OF THE ADJUSTED ALLOWANCE AT THE RATE OF THE ESTABLISHED CHARGES OF THE SCHOOL OR $110 PER MONTH FOR A FULL-TIME COURSE, WHICHEVER IS LESSER, PURSUANT TO 38 U.S.C. 1632 (F).

THE BASIC CONGRESSIONAL POLICY OF THE CONTROLLING LEGISLATION IS THAT ALL STUDENTS, VETERANS AND NONVETERANS ALIKE, SHOULD BE TREATED ON THE BASIS OF THE APPROVED POLICIES OF THE INSTITUTIONS TO THE MAXIMUM DEGREE POSSIBLE. INSOFAR AS MATERIAL HERE, UNDER THE PROVISIONS OF THE LAW, STATE AGENCIES MAY APPROVE ACCREDITED COURSES OFFERED BY EDUCATIONAL INSTITUTIONS OF HIGHER LEARNING, IN GENERAL, WHEN SUCH COURSES HAVE BEEN ACCREDITED AND APPROVED BY A NATIONALLY RECOGNIZED ACCREDITING AGENCY OR ASSOCIATION AND PROVIDED THE STATE AGENCY FINDS THAT ADEQUATE RECORDS ARE KEPT BY THE EDUCATIONAL INSTITUTION TO SHOW THE PROGRESS OF EACH ELIGIBLE VETERAN. 38 U.S.C. 1653--- APPROVAL OF ACCREDITED COURSES.

STATE AGENCIES MAY APPROVE NONACCREDITED COURSES, IN GENERAL, WHEN THE EDUCATIONAL INSTITUTION SUBMITS A WRITTEN APPLICATION ACCOMPANIED BY TWO CERTIFIED COPIES OF ITS CURRENT CATALOG OR BULLETIN SHOWING THE "INSTITUTION POLICY AND REGULATIONS RELATIVE TO LEAVE, ABSENCES, CLASS CUTS, MAKE-UP WORK, TARDINESS AND INTERRUPTIONS FOR UNSATISFACTORY ATTENDANCE," AND PROVIDED THE STATE AGENCY FINDS THAT "ADEQUATE RECORDS ARE PRESCRIBED BY THE STATE OR APPROVING AGENCY ARE KEPT TO SHOW ATTENDANCE AND PROGRESS OR GRADES, AND SATISFACTORY STANDARDS RELATING TO ATTENDANCE, PROGRESS, AND CONDUCT ARE ENFORCED.' 38 U.S.C. 1654 (B) (5) AND (C) (7/--- APPROVAL OF NONACCREDITED COURSES.

STATE APPROVING AGENCIES MAY APPROVE COURSES OF APPRENTICE OR OTHER TRAINING ON THE JOB, IN GENERAL, WHEN THE TRAINING ESTABLISHMENT SUBMITS A WRITTEN APPLICATION SHOWING THE COURSE OF TRAINING AND OTHER INFORMATION, INCLUDING THE LENGTH OF THE TRAINING PERIOD AND THE NUMBER OF HOURS OF SUPPLEMENTAL INSTRUCTION REQUIRED, AND PROVIDED THE STATE AGENCY FINDS THAT "ADEQUATE RECORDS ARE KEPT TO SHOW THE PROGRESS MADE BY EACH ELIGIBLE VETERAN TOWARD HIS JOB OBJECTIVE" AND "THAT THE COURSE MEETS SUCH OTHER CRITERIA AS MAY BE ESTABLISHED BY THE STATE APPROVING AGENCY.' 38 U.S.C. 1651 (A) (2) AND (6) AND (B) (9) AND (13/--- APPRENTICE OF OTHER TRAINING ON THE JOB.

PAYMENT OF ALLOWANCES TO A VETERAN ENROLLED IN AN INSTITUTIONAL COURSE WHICH LEADS TO A STANDARD COLLEGE DEGREE, IRRESPECTIVE OF WHETHER THE COURSE IS ACCREDITED OR NONACCREDITED, IS AUTHORIZED SO LONG AS THE VETERAN IS PURSUING HIS COURSE IN ACCORDANCE WITH THE REGULARLY ESTABLISHED POLICIES AND REGULATIONS OF THE INSTITUTION. NO ADJUSTMENTS ARE PROVIDED FOR ABSENCES. 38 U.S.C. 1631 (B) (1/--- EDUCATION AND TRAINING ALLOWANCE. AS DISTINGUISHED FROM THE PAYMENT OF ALLOWANCES FOR THE PURSUIT OF A COURSE WHICH LEADS TO A STANDARD COLLEGE DEGREE, THE LAW PROVIDES THAT ALLOWANCES FOR THE PURSUIT OF A COURSE WHICH DOES NOT LEAD TO A STANDARD COLLEGE DEGREE OR FOR APPRENTICE OR ON THE JOB TRAINING SHALL NOT BE PAID FOR ANY DAY OF ABSENCE IN EXCESS OF THIRTY DAYS IN A TWELVE-MONTH PERIOD, NOT COUNTING AS ABSENCES WEEKENDS OR LEGAL HOLIDAYS ESTABLISHED BY FEDERAL OR STATE LAW DURING WHICH THE INSTITUTION OR ESTABLISHMENT IS NOT REGULARLY IN SESSION OR OPERATION. 38 U.S.C. 1631 (B) (2).

THUS, IT IS SEEN THAT, IN PROVIDING ALLOWANCES FOR VETERANS PURSUING COURSES LEADING TO A STANDARD COLLEGE DEGREE AS WELL AS THOSE PURSUING COURSES WHICH DO NOT LEAD TO A STANDARD COLLEGE DEGREE AND THOSE TRAINING ON THE JOB, THE CRITERIA WITH RESPECT TO TARDINESS ARE THE APPROVED POLICIES OF THE INSTITUTIONS OR ESTABLISHMENTS, AND THERE IS NO REQUIREMENT IN THE LAW THAT SUCH POLICIES MUST BE UNIFORM. HENCE, IT APPEARS THAT THE REGULATION IS MORE RESTRICTIVE THAN THE STATUTE, AND INFRINGES UPON THE OPERATIONAL RESPONSIBILITIES OF THE STATE APPROVING AGENCIES AND OFFICIALS OF THE INSTITUTIONS AND ESTABLISHMENTS TO THE EXTENT IT MIGHT CONFLICT WITH THE APPROVED POLICIES PERMITTING EXCUSED TARDINESS AND EARLY DEPARTURES FROM SCHEDULED CLASSES. THE PERIOD OF TIME FOR DETERMINING "A PATTERN" OF TARDINESS IS NOT SPECIFIED IN THE PROPOSED CHANGE, AND PROVISION APPARENTLY IS NOT MADE FOR EFFECTIVE REPORTING SO AS TO SHOW THE POSSIBLE EXISTENCE OF A "PATTERN OF TARDINESS" CURRENTLY.

THE PROPOSED PROVISIONS TO THE EFFECT THAT "REDUCTIONS WILL BE MADE RETROACTIVE TO THE DATE THE PATTERN OF TARDINESS" BEGAN APPARENTLY CONTEMPLATE REVIEW OF PAYMENTS HERETOFORE MADE AND IN THE INITIATION OF COLLECTION ACTION AGAINST THE VETERANS INVOLVED. SUCH COLLECTION ACTION WITH RESPECT TO PAYMENTS MADE PRIOR TO THE PROMULGATION OF THE REGULATION CAN HARDLY BE JUSTIFIED AND, IN OUR OPINION, COULD NOT BE SUSTAINED.

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