38 U.S.C. § 3221 — Eligibility

Page 709 TITLE 38—VETERANS’ BENEFITS § 3221 title, prescribed in subparagraph (A), shall be waived in the case of a veteran described in divi- sion (ii) of this subparagraph who elects to re- ceive benefits under this chapter instead of as- sistance under such chapter 34. A veteran who makes such an election shall be ineligible for as- sistance under such chapter. Such an election is irrevocable. (ii) A veteran referred to in division (i) of this subparagraph is a veteran who before January 1, 1977, performed military service described in subparagraph (C)(iii), is entitled under section 3452(a)(3)(C) of this title to have such service considered to be ‘‘active duty’’ for the purposes of chapter 34 of this title, and is eligible for as- sistance under such chapter only by reason of having such service considered to be active duty. (2) The term ‘‘program of education’’— (A) has the meaning given such term in sec- tion 3452(b) of this title, and (B) includes (i) a full-time program of ap- prenticeship or other on-job training approved as provided in clause (1) or (2), as appropriate, of section 3687(a) of this title, and (ii) in the case of an individual who is not serving on ac- tive duty, a cooperative program (as defined in section 3482(a)(2) of this title). (3) The term ‘‘participant’’ is a person who is participating in the educational benefits pro- gram established under this chapter. (4) The term ‘‘educational institution’’ has the meaning given such term in section 3452(c) of this title. (5) The term ‘‘training establishment’’ has the meaning given such term in section 3452(e) of this title. (Added Pub. L. 94–502, title IV, § 404, Oct. 15, 1976, 90 Stat. 2394, § 1602; amended Pub. L. 96–466, title IV, § 401, Oct. 17, 1980, 94 Stat. 2201; Pub. L. 98–223, title II, § 203(a), Mar. 2, 1984, 98 Stat. 41; Pub. L. 99–576, title III, §§ 309(a)(2), 310(a), Oct. 28, 1986, 100 Stat. 3270, 3271; Pub. L. 100–689, title I, § 108(b)(1), Nov. 18, 1988, 102 Stat. 4169; Pub. L. 102–54, § 14(c)(6), June 13, 1991, 105 Stat. 285; re- numbered § 3202 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406; Pub. L. 109–163, div. A, title V, § 515(e)(3), Jan. 6, 2006, 119 Stat. 3236.) Editorial Notes REFERENCES IN TEXT Section 511 of title 10, referred to in par. (1)(C)(iii), was renumbered section 12103 of Title 10, Armed Forces, by Pub. L. 103–337, div. A, title XVI, § 1662(b)(2), Oct. 5, 1994, 108 Stat. 2989. PRIOR PROVISIONS Prior sections 3202 to 3205 were renumbered sections 5502 to 5505 of this title, respectively, and section 5505 was subsequently repealed by Pub. L. 103–446, title XII, § 1201(g)(4)(A), Nov. 2, 1994, 108 Stat. 4687. AMENDMENTS 2006—Par. (1)(C)(iii). Pub. L. 109–163 substituted ‘‘Navy Reserve’’ for ‘‘Naval Reserve’’. 1991—Pub. L. 102–83, § 5(a), renumbered section 1602 of this title as this section. Par. (1)(A). Pub. L. 102–54 inserted comma after last reference to ‘‘1977’’. Par. (1)(D)(ii). Pub. L. 102–83, § 5(c)(1), substituted ‘‘3452(a)(3)(C)’’ for ‘‘1652(a)(3)(C)’’. Par. (2). Pub. L. 102–83, § 5(c)(1), substituted ‘‘3452(b)’’ for ‘‘1652(b)’’ in subpar. (A) and ‘‘3687(a)’’ for ‘‘1787(a)’’ and ‘‘3482(a)(2)’’ for ‘‘1682(a)(2)’’ in subpar. (B). Pars. (4), (5). Pub. L. 102–83, § 5(c)(1), substituted ‘‘3452(c)’’ for ‘‘1652(c)’’ in par. (4) and ‘‘3452(e)’’ for ‘‘1652(e)’’ in par. (5). 1988—Par. (2)(B). Pub. L. 100–689 inserted designation ‘‘(i)’’ after ‘‘includes’’ and added cl. (ii). 1986—Par. (1)(A). Pub. L. 99–576, § 309(a)(2), inserted ‘‘and before July 1, 1985,’’ in two places and substituted ‘‘commencing on or after January 1, 1977’’ for ‘‘com- mencing on or after such date’’ and ‘‘released from ac- tive duty after January 1, 1977’’ for ‘‘released from ac- tive duty after such date’’. Par. (2). Pub. L. 99–576, § 310(a)(1), added par. (2) and struck out former par. (2) which read as follows: ‘‘The terms ‘program of education’ and ‘educational institu- tion’ shall have the same meaning ascribed to them in sections 1652(b) and 1652(c), respectively, of this title.’’ Pars. (4), (5). Pub. L. 99–576, § 310(a)(2), added pars. (4) and (5). 1984—Par. (1)(D). Pub. L. 98–223 added subpar. (D). 1980—Par. (1)(A). Pub. L. 96–466 inserted ‘‘who is not eligible for educational assistance under chapter 34 of this title and’’ after ‘‘any veteran’’ and struck out ‘‘ini- tially’’ before ‘‘entered military service’’ in two places. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–689 effective Jan. 1, 1989, see section 108(c) of Pub. L. 100–689, set out as a note under section 3002 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Pub. L. 96–466, title VIII, § 802(d)(1), Oct. 17, 1980, 94 Stat. 2218, provided that: ‘‘The amendments made by section 401 [amending this section] shall take effect as of January 1, 1977.’’ EFFECTIVE DATE Section effective Jan. 1, 1977, see section 406 of Pub. L. 94–502, set out as a note under section 3201 of this title. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. ENROLLMENT IN PROGRAM BEFORE APRIL 1, 1987 For provisions for continued eligibility for enroll- ment in the program established by this chapter until Apr. 1, 1987, of individuals on active duty in the Armed Forces who were eligible therefor on June 30, 1985, and requiring notice of such continued eligibility to af- fected individuals, see section 309(c), (d) of Pub. L. 99–576, set out as a note under section 3201 of this title. SUBCHAPTER II—ELIGIBILITY; CONTRIBUTIONS; AND MATCHING FUND § 3221. Eligibility (a) Each person entering military service on or after January 1, 1977, and before July 1, 1985, shall have the right to enroll in the educational benefits program provided by this chapter (here- inafter in this chapter referred to as the ‘‘pro- gram’’ except where the text indicates other- wise) at any time during such person’s service on active duty before July 1, 1985. When a person Page 710 TITLE 38—VETERANS’ BENEFITS § 3222 elects to enroll in the program, such person must participate for at least 12 consecutive months before disenrolling or suspending par- ticipation. (b) The requirement for 12 consecutive months of participation required by subsection (a) of this section shall not apply when (1) the partici- pant suspends participation or disenrolls from the program because of personal hardship as de- fined in regulations issued jointly by the Sec- retary and the Secretary of Defense, or (2) the participant is discharged or released from active duty. (c) A participant shall be permitted to suspend participation or disenroll from the program at the end of any 12-consecutive-month period of participation. If participation is suspended, the participant shall be eligible to make additional contributions to the program under such terms and conditions as shall be prescribed by regula- tions issued jointly by the Secretary and the Secretary of Defense. (d) If a participant disenrolls from the pro- gram, such participant forfeits any entitlement to benefits under the program except as pro- vided in subsection (e) of this section. A partici- pant who disenrolls from the program is eligible for a refund of such participant’s contributions as provided in section 3223 of this title. (e) A participant who has disenrolled may be permitted to reenroll in the program under such conditions as shall be prescribed jointly by the Secretary and the Secretary of Defense. (f) An individual who serves in the Selected Reserve may not receive credit for such service under both the program established by this chapter and the program established by chapter 106 of title 10 but shall elect (in such form and manner as the Secretary of Veterans Affairs may prescribe) the program to which such serv- ice is to be credited. (Added Pub. L. 94–502, title IV, § 404, Oct. 15, 1976, 90 Stat. 2394, § 1621; amended Pub. L. 99–576, title III, § 309(a)(3), Oct. 28, 1986, 100 Stat. 3270; Pub. L. 101–237, title IV, §§ 410, 423(b)(1)(A), (4)(A), (6), Dec. 18, 1989, 103 Stat. 2084, 2092, 2093; renum- bered § 3221 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 1621 of this title as this section. Subsec. (d). Pub. L. 102–83, § 5(c)(1), substituted ‘‘3223’’ for ‘‘1623’’. 1989—Subsec. (b)(1). Pub. L. 101–237, § 423(b)(1)(A), (4)(A), substituted ‘‘Secretary’’ for ‘‘Administrator’’ after ‘‘jointly by the’’ and struck out ‘‘(hereinafter in this chapter referred to as the ‘Secretary’)’’ after ‘‘Sec- retary of Defense’’. Subsecs. (c), (e). Pub. L. 101–237, § 423(b)(1)(A), (4)(A), substituted ‘‘Secretary’’ for ‘‘Administrator’’ after ‘‘jointly by the’’ and inserted ‘‘of Defense’’ after ‘‘Sec- retary’’ at end. Subsec. (f). Pub. L. 101–237, § 410, added subsec. (f). 1986—Subsec. (a). Pub. L. 99–576 inserted ‘‘and before July 1, 1985,’’ and ‘‘before July 1, 1985’’ in first sentence. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1977, see section 406 of Pub. L. 94–502, set out as a note under section 3201 of this title. ENROLLMENT IN PROGRAM BEFORE APRIL 1, 1987 For provisions for continued eligibility for enroll- ment in the program established by this chapter until Apr. 1, 1987, of individuals on active duty in the Armed Forces who were eligible therefor on June 30, 1985, and requiring notice of such continued eligibility to af- fected individuals, see section 309(c), (d) of Pub. L. 99–576, set out as a note under section 3201 of this title. SUSPENSION OF RIGHT TO ENROLL IN POST-VIETNAM ERA PROGRAM Pub. L. 98–525, title VII, § 704, Oct. 19, 1984, 98 Stat. 2564, which provided that no individual on active duty in the Armed Forces could initially enroll in the edu- cational assistance program provided for in this chap- ter during the period beginning on July 1, 1985, and end- ing on June 30, 1988, was repealed by Pub. L. 99–576, title III, § 309(b), Oct. 28, 1986, 100 Stat. 3270. NEW ENROLLMENTS IN EDUCATIONAL ASSISTANCE PRO- GRAM AFTER DECEMBER 31, 1981, PRESIDENTIAL REC- OMMENDATION TO CONGRESS Pub. L. 94–502, title IV, § 408, Oct. 15, 1976, 90 Stat. 2397, provided that: ‘‘(a)(1) No individual on active duty in the Armed Forces may initially enroll in the educational assist- ance program provided for in chapter 32 of title 38, United States Code (as added by section 404 of this Act) after December 31, 1981, unless— ‘‘(A) before June 1, 1981, the President submits to both Houses of Congress a written recommendation that such program continue to be open for new en- rollments; and ‘‘(B) before the close of the 60-day period after the day on which the President submits to Congress the recommendation described in subparagraph (A), nei- ther the House of Representatives nor the Senate adopts, by an affirmative vote of a majority of those present and voting in that House, a resolution which in substance disapproves such recommendation. ‘‘(2) For purposes of computing the 60-day period re- ferred to in paragraph (1)(B), there shall be excluded— ‘‘(A) the days on which either House is not in ses- sion because of an adjournment of more than 3 days to a day certain or an adjournment of the Congress sine die, and ‘‘(B) any Saturday and Sunday, not excluded under the preceding subparagraph, when either House is not in session. The recommendation referred to in paragraph (1)(A) shall be delivered to both Houses of Congress on the same day and shall be delivered to the Clerk of the House of Representatives if the House is not in session and to the Secretary of the Senate if the Senate is not in session. ‘‘(b) If new enrollments after December 31, 1981, in the educational assistance program provided for in such chapter 32 are authorized after the application of the provisions of subsection (a), then effective January 1, 1982, section 1622(b) [now 3222(b)] of title 38, United States Code, is amended by striking out ‘Veterans’ Ad- ministration’ and inserting in lieu thereof ‘Department of Defense’.’’ § 3222. Contributions; matching fund (a) Except as provided in subsections (c) and (d) of this section, each person electing to par- ticipate in the program shall agree to have a monthly deduction made from such person’s military pay. Such monthly deduction shall be in any amount not less than $25 nor more than $100 except that the amount must be divisible by 5. Any such amount contributed by the partici- pant or contributed by the Secretary of Defense pursuant to subsection (c) of this section shall be deposited in a deposit fund account entitled the ‘‘Post-Vietnam Era Veterans Education Ac-