38 U.S.C. § 3020 — Authority to transfer unused education

Page 672 TITLE 38—VETERANS’ BENEFITS § 3019 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of Title 10, Armed Forces. EFFECTIVE DATE OF 1998 AMENDMENT Amendment by Pub. L. 105–368 effective Oct. 1, 1998, see section 203(b) of Pub. L. 105–368, set out as a note under section 3011 of this title. TREATMENT OF CERTAIN CONTRIBUTIONS Pub. L. 107–14, § 7(e)(2), June 5, 2001, 115 Stat. 33, pro- vided that: ‘‘Any amount collected under section 3018C(b) of title 38, United States Code (whether by re- duction in basic pay under paragraph (1) of that sec- tion, collection under paragraph (2) of that section, or both), with respect to an individual who enrolled in basic educational assistance under section 3018C(e) of that title, during the period beginning on November 1, 2000, and ending on the date of the enactment of this Act [June 5, 2001], shall be treated as an amount col- lected with respect to the individual under section 3018C(e)(3)(A) of that title (whether as a reduction in basic pay under clause (i) of that section, a collection under clause (ii) of that section, or both) for basic edu- cational assistance under section 3018C of that title.’’ § 3019. Tutorial assistance (a) An individual entitled to an educational assistance allowance under this chapter shall also be entitled to benefits provided an eligible veteran under section 3492 of this title, subject to the conditions applicable to an eligible vet- eran under such section. (b) The amount of such benefits payable under this section may not exceed $100 per month, for a maximum of twelve months, or until a max- imum of $1,200 is utilized. This amount is in ad- dition to the amount of educational assistance allowance payable to the individual under this chapter. (c)(1) An individual’s period of entitlement to educational assistance under this chapter shall be charged only with respect to the amount of tutorial assistance paid to the individual under this section in excess of $600. (2) An individual’s period of entitlement to educational assistance under this chapter shall be charged at the rate of one month for each amount of assistance paid to the individual under this section in excess of $600 that is equal to the amount of the monthly educational as- sistance allowance which the individual is oth- erwise eligible to receive for full-time pursuit of an institutional course under this chapter. (Added Pub. L. 100–689, title I, § 107(a)(1), Nov. 18, 1988, 102 Stat. 4167, § 1419; renumbered § 3019 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406.) Editorial Notes AMENDMENTS 1991—Pub. L. 102–83, § 5(a), renumbered section 1419 of this title as this section. Subsec. (a). Pub. L. 102–83, § 5(c)(1), substituted ‘‘3492’’ for ‘‘1692’’. § 3020. Authority to transfer unused education benefits to family members for career service members (a) IN GENERAL.—Subject to the provisions of this section, the Secretary of Defense may au- thorize the Secretary concerned, to promote re- cruitment and retention of members of the Armed Forces, to permit an individual described in subsection (b) who is entitled to basic edu- cational assistance under this subchapter to elect to transfer to one or more of the depend- ents specified in subsection (c) the unused por- tion of entitlement to such assistance, subject to the limitation under subsection (d). (b) ELIGIBLE INDIVIDUALS.—An individual re- ferred to in subsection (a) is any member of the Armed Forces— (1) who, while serving on active duty or as a member of the Selected Reserve at the time of the approval by the Secretary concerned of the member’s request to transfer entitlement to basic educational assistance under this sec- tion, has completed six years of service in the Armed Forces and enters into an agreement to serve at least four more years as a member of the Armed Forces; or (2) as determined in regulations pursuant to subsection (k). (c) ELIGIBLE DEPENDENTS.—An individual ap- proved to transfer an entitlement to basic edu- cational assistance under this section may transfer the individual’s entitlement as follows: (1) To the individual’s spouse. (2) To one or more of the individual’s chil- dren. (3) To a combination of the individuals re- ferred to in paragraphs (1) and (2). (d) LIMITATION ON MONTHS OF TRANSFER.—(1) An individual approved to transfer an entitle- ment to basic educational assistance under this section may transfer any unused entitlement to one or more of the dependents specified in sub- section (c). (2) The total number of months of entitlement transferred by an individual under this section may not exceed 36 months. The Secretary of De- fense may prescribe regulations that would limit the months of entitlement that may be transferred under this section to no less than 18 months. (e) DESIGNATION OF TRANSFEREE.—An indi- vidual transferring an entitlement to basic edu- cational assistance under this section shall— (1) designate the dependent or dependents to whom such entitlement is being transferred; (2) designate the number of months of such entitlement to be transferred to each such de- pendent; and (3) specify the period for which the transfer shall be effective for each dependent des- ignated under paragraph (1). (f) TIME FOR TRANSFER; REVOCATION AND MODI- FICATION.—(1) Subject to the time limitation for use of entitlement under section 3031 of this title, an individual approved to transfer entitle- ment to basic educational assistance under this section may transfer such entitlement at any time after the approval of the individual’s re- quest to transfer such entitlement only while Page 673 TITLE 38—VETERANS’ BENEFITS § 3020 the individual is a member of the Armed Forces when the transfer is executed. (2)(A) An individual transferring entitlement under this section may modify or revoke at any time the transfer of any unused portion of the entitlement so transferred as long as the indi- vidual is serving on active duty or as a member of the Selected Reserve. (B) The modification or revocation of the transfer of entitlement under this paragraph shall be made by the submittal of written notice of the action to both the Secretary concerned and the Secretary of Veterans Affairs. (3) Entitlement transferred under this section may not be treated as marital property, or the asset of a marital estate, subject to division in a divorce or other civil proceeding. (g) COMMENCEMENT OF USE.—A dependent to whom entitlement to basic educational assist- ance is transferred under this section may not commence the use of the transferred entitle- ment until— (1) in the case of entitlement transferred to a spouse, the completion by the individual making the transfer of six years of service in the Armed Forces; or (2) in the case of entitlement transferred to a child, both— (A) the completion by the individual mak- ing the transfer of 10 years of service in the Armed Forces; and (B) either— (i) the completion by the child of the re- quirements of a secondary school diploma (or equivalency certificate); or (ii) the attainment by the child of 18 years of age. (h) ADDITIONAL ADMINISTRATIVE MATTERS.—(1) The use of any entitlement to basic educational assistance transferred under this section shall be charged against the entitlement of the indi- vidual making the transfer at the rate of one month for each month of transferred entitle- ment that is used. (2) Except as provided under subsection (e)(2) and subject to paragraphs (5) and (6), a depend- ent to whom entitlement is transferred under this section is entitled to basic educational as- sistance under this subchapter in the same man- ner as the individual from whom the entitle- ment was transferred. (3)(A) Subject to subparagraph (B), the month- ly rate of educational assistance payable to a dependent to whom entitlement is transferred under this section shall be the monthly amount payable under sections 3015 and 3022 of this title to the individual making the transfer. (B) The monthly rate of assistance payable to a dependent under subparagraph (A) shall be subject to the provisions of section 3032 of this title, except that the provisions of subsection (a)(1) of that section shall not apply even if the individual making the transfer to the dependent under this section is on active duty during all or any part of enrollment period of the dependent in which such entitlement is used. (4) The death of an individual transferring an entitlement under this section shall not affect the use of the entitlement by the dependent to whom the entitlement is transferred. (5) Notwithstanding section 3031 of this title, a child to whom entitlement is transferred under this section may use the benefit without regard to the 10-year delimiting date, but may not use any entitlement so transferred after attaining the age of 26 years. (6) The administrative provisions of this chap- ter (including the provisions set forth in section 3034(a)(1) of this title) shall apply to the use of entitlement transferred under this section, ex- cept that the dependent to whom the entitle- ment is transferred shall be treated as the eligi- ble veteran for purposes of such provisions. (7) The purposes for which a dependent to whom entitlement is transferred under this sec- tion may use such entitlement shall include the pursuit and completion of the requirements of a secondary school diploma (or equivalency cer- tificate). (i) OVERPAYMENT.—(1) In the event of an over- payment of basic educational assistance with re- spect to a dependent to whom entitlement is transferred under this section, the dependent and the individual making the transfer shall be jointly and severally liable to the United States for the amount of the overpayment for purposes of section 3685 of this title. (2) Except as provided in paragraph (3), if an individual transferring entitlement under this section fails to complete the service agreed to by the individual under subsection (b)(3) in ac- cordance with the terms of the agreement of the individual under that subsection, the amount of any transferred entitlement under this section that is used by a dependent of the individual as of the date of such failure shall be treated as an overpayment of basic educational assistance under paragraph (1). (3) Paragraph (2) shall not apply in the case of an individual who fails to complete service agreed to by the individual— (A) by reason of the death of the individual; or (B) for a reason referred to in section 3011(a)(1)(A)(ii)(I) of this title. (j) APPROVALS OF TRANSFER SUBJECT TO AVAIL- ABILITY OF APPROPRIATIONS.—The Secretary con- cerned may approve transfers of entitlement to basic educational assistance under this section in a fiscal year only to the extent that appro- priations for military personnel are available in that fiscal year for purposes of making deposits in the Department of Defense Education Bene- fits Fund under section 2006 of title 10 in that fiscal year to cover the present value of future benefits payable from the Fund for the Depart- ment of Defense portion of payments of basic educational assistance attributable to increased usage of benefits as a result of such transfers of entitlement in that fiscal year. (k) REGULATIONS.—The Secretary of Defense, in coordination with the Secretary of Veterans Affairs, shall prescribe regulations for purposes of this section. Such regulations shall specify— (1) the manner of authorizing the military departments to offer transfer of entitlements under this section; (2) the eligibility criteria in accordance with subsection (b); (3) the limitations on the amount of entitle- ment eligible to be transferred; and (4) the manner and effect of an election to modify or revoke a transfer of entitlement under subsection (f)(2). Page 674 TITLE 38—VETERANS’ BENEFITS § 3021 (l) SECRETARY CONCERNED DEFINED.—Notwith- standing section 101(25) of this title, in this sec- tion, the term ‘‘Secretary concerned’’ means— (1) the Secretary of the Army with respect to matters concerning the Army; (2) the Secretary of the Navy with respect to matters concerning the Navy or the Marine Corps; (3) the Secretary of the Air Force with re- spect to matters concerning the Air Force or the Space Force; and (4) the Secretary of Defense with respect to matters concerning the Coast Guard, or the Secretary of Homeland Security when it is not operating as a service in the Navy. (Added Pub. L. 107–107, div. A, title VI, § 654(a)(1), Dec. 28, 2001, 115 Stat. 1153; amended Pub. L. 107–296, title XVII, § 1704(d), Nov. 25, 2002, 116 Stat. 2315; Pub. L. 107–314, div. A, title VI, § 643(a), Dec. 2, 2002, 116 Stat. 2577; Pub. L. 110–252, title V, § 5006(a), June 30, 2008, 122 Stat. 2380; Pub. L. 112–81, div. A, title X, § 1063(b), Dec. 31, 2011, 125 Stat. 1586; Pub. L. 116–283, div. A, title IX, § 926(f), Jan. 1, 2021, 134 Stat. 3831.) Editorial Notes PRIOR PROVISIONS A prior section 3020 was renumbered section 5120 of this title. AMENDMENTS 2021—Subsec. (l)(3). Pub. L. 116–283 inserted ‘‘or the Space Force’’ before semicolon. 2011—Subsecs. (l), (m). Pub. L. 112–81 redesignated subsec. (m) as (l) and struck out former subsec. (l) which required the Secretary of Defense to submit an annual report on approved transfers of entitlement to basic educational assistance. 2008—Pub. L. 110–252, § 5006(a)(1), substituted ‘‘Author- ity to transfer unused education benefits to family members for career service members’’ for ‘‘Transfer of entitlement to basic educational assistance: members of the Armed Forces with critical military skills’’ in section catchline. Subsecs. (a), (b). Pub. L. 110–252, § 5006(a)(1), added subsecs. (a) and (b) and struck out former subsecs. (a) and (b) which provided for transfers of entitlement to basic educational assistance from eligible members of the Armed Forces to certain dependents and described eligibility criteria for such members, respectively. Subsec. (d). Pub. L. 110–252, § 5006(a)(2), added subsec. (d) and struck out former subsec. (d). Prior to amend- ment, text read as follows: ‘‘The total number of months of entitlement transferred by an individual under this section may not exceed 18 months.’’ Subsec. (f)(1). Pub. L. 110–252, § 5006(a)(3), substituted ‘‘only while’’ for ‘‘without regard to whether’’. Subsec. (f)(2)(A). Pub. L. 110–252, § 5006(a)(4), inserted ‘‘as long as the individual is serving on active duty or as a member of the Selected Reserve’’ after ‘‘so trans- ferred’’. Subsec. (f)(3). Pub. L. 110–252, § 5006(a)(5), added par. (3). Subsec. (h)(5). Pub. L. 110–252, § 5006(a)(6), inserted ‘‘may use the benefit without regard to the 10-year de- limiting date, but’’ after ‘‘under this section’’. Subsec. (k). Pub. L. 110–252, § 5006(a)(7), added subsec. (k) and struck out former subsec. (k). Prior to amend- ment, text read as follows: ‘‘The Secretary of Defense shall prescribe regulations for purposes of this section. Such regulations shall specify the manner and effect of an election to modify or revoke a transfer of entitle- ment under subsection (f)(2) and shall specify the man- ner of the applicability of the administrative provi- sions referred to in subsection (h)(5) to a dependent to whom entitlement is transferred under this section.’’ 2002—Subsec. (h)(2). Pub. L. 107–314, § 643(a)(1), sub- stituted ‘‘paragraphs (5) and (6)’’ for ‘‘paragraphs (4) and (5)’’ and struck out ‘‘and at the same rate’’ after ‘‘in the same manner’’. Subsec. (h)(3) to (7). Pub. L. 107–314, § 643(a)(2), (3), added par. (3) and redesignated former pars. (3) to (6) as (4) to (7), respectively. Subsec. (m)(4). Pub. L. 107–296 substituted ‘‘of Home- land Security’’ for ‘‘of Transportation’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENTS Pub. L. 107–314, div. A, title VI, § 643(c)(1), Dec. 2, 2002, 116 Stat. 2578, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall take ef- fect as if included in the enactment of section 3020 of title 38, United States Code, by section 654(a)(1) of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107–107; 115 Stat. 1153).’’ Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of Title 10, Armed Forces. PLAN FOR IMPLEMENTATION Pub. L. 107–107, div. A, title VI, § 654(c), Dec. 28, 2001, 115 Stat. 1157, required the Secretary of Defense, not later than June 30, 2002, to submit to Congress a report describing the manner in which the Secretaries of the military departments and the Secretary of Transpor- tation propose to exercise the authority granted by this section, including the regulations prescribed under subsec. (k) of this section for purposes of the exercise of the authority. SUBCHAPTER III—SUPPLEMENTAL EDUCATIONAL ASSISTANCE § 3021. Supplemental educational assistance for additional service (a) The Secretary concerned, pursuant to regu- lations to be prescribed by the Secretary of De- fense, may provide for the payment of supple- mental educational assistance under this sub- chapter to any individual eligible for basic edu- cational assistance under section 3011 or 3018 of this title who— (1) serves five or more consecutive years of active duty in the Armed Forces after the years of active duty counted under section 3011(a)(1) of this title without a break in such service; and (2) after completion of the service described in clause (1) of this subsection— (A) is discharged from service with an hon- orable discharge, is placed on the retired list, is transferred to the Fleet Reserve or Fleet Marine Corps Reserve, or is placed on the temporary disability retired list; (B) continues on active duty without a break in service; or (C) is released from active duty for further service in a reserve component of the Armed Forces after service on active duty charac- terized by the Secretary concerned as honor- able service. (b) The Secretary concerned, pursuant to regu- lations to be prescribed by the Secretary of De- fense, may provide for the payment of supple- mental educational assistance under this sub- chapter to any individual eligible for basic edu- cational assistance under section 3012 or 3018 of this title who—