10 U.S.C. § 16132a — Authority to transfer unused education

Page 3769 TITLE 10—ARMED FORCES § 16132a the purpose of organizing, administering, recruiting, instructing, or training the reserve components in a po- sition which is included in the end strength required to be authorized each year by section 115(b)(1)(A)(ii) of this title.’’ 1988—Subsec. (a)(2). Pub. L. 100–689, § 111(b)(2), sub- stituted ‘‘completed the requirements of’’ for ‘‘re- ceived’’, and inserted before semicolon at end ‘‘, or in the case of an individual who reenlists or extends an enlistment as described in paragraph (1)(A) of this sub- section, has completed such requirements at any time before such reenlistment or extension’’. Subsec. (b). Pub. L. 100–689, § 110(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘Educational assistance may not be provided to a member under this chapter until the member— ‘‘(1) has completed the initial period of active duty for training required of the member; and ‘‘(2) has completed 180 days of service in the Se- lected Reserve.’’ Subsec. (c). Pub. L. 100–689, § 111(b)(3), inserted at end ‘‘At the request of the Administrator of Veterans’ Af- fairs, the Secretary of Defense shall transmit a notice of entitlement for each such person to the Adminis- trator.’’ Subsec. (d). Pub. L. 100–689, § 111(b)(4), amended sub- sec. (d) generally. Prior to amendment, subsec. (d) read as follows: ‘‘A person who is entitled to educational as- sistance under chapter 30 of title 38 based on section 1412 of that title may not also be provided educational assistance under this chapter.’’ 1987—Subsec. (a)(1). Pub. L. 100–48 substituted ‘‘after June 30, 1985’’ for ‘‘during the period beginning on July 1, 1985, and ending on June 30, 1988’’. 1984—Pub. L. 98–525 amended section generally, up- dating provisions covering eligibility for educational assistance to cover the period beginning July 1, 1985, and ending June 30, 1988. 1980—Pub. L. 96–513 inserted ‘‘of this title’’ after ‘‘sec- tion 2131’’ wherever appearing. 1978—Subsec. (b)(1). Pub. L. 95–485 substituted ‘‘not less than six years’’ for ‘‘automatically extended by two years’’ and ‘‘last day of the term’’ for ‘‘eighth anni- versary’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–106 effective as if included in the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103–337, as enacted on Oct. 5, 1994, see section 1501(f)(3) of Pub. L. 104–106, set out as a note under section 113 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–525 effective July 1, 1985, applicable only to members of the Armed Forces who qualify for educational assistance under this chapter on or after such date, see section 705(b) of Pub. L. 98–525, set out as a note under section 16131 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title. SAVINGS PROVISION Pub. L. 101–189, div. A, title VI, § 643(b), Nov. 29, 1989, 103 Stat. 1458, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall not affect the eligibility for educational assistance of any person who before the date of the enactment of this Act [Nov. 29, 1989] is entitled to educational assistance under sec- tion 2131(a) [now 16131(a)] of title 10, United States Code.’’ § 16132a. Authority to transfer unused education benefits to family members (a) IN GENERAL.—Subject to regulation pre- scribed by the Secretary of Defense, the Sec- retary concerned may permit a member de- scribed in subsection (b) who is entitled to basic educational assistance under this chapter to elect to transfer to one or more of the depend- ents specified in subsection (c) a portion of such member’s entitlement to such assistance, sub- ject to the limitation under subsection (d). (b) ELIGIBLE MEMBERS.—A member referred to in subsection (a) is a member of the Selected Re- serve of the Ready Reserve who, at the time of the approval of the member’s request to transfer entitlement to basic educational assistance under this section, has completed— (1) at least six years of service in the Se- lected Reserve and enters into an agreement to serve at least four more years as a member of the armed forces; or (2) the years of service as determined in reg- ulations pursuant to subsection (j). (c) ELIGIBLE DEPENDENTS.—A member ap- proved to transfer an entitlement to basic edu- cational assistance under this section may transfer the member’s entitlement as follows: (1) To the member’s spouse. (2) To one or more of the member’s children. (3) To a combination of the individuals re- ferred to in paragraphs (1) and (2). (d) LIMITATION ON MONTHS OF TRANSFER.—The total number of months of entitlement trans- ferred by a member under this section may not exceed 36 months. The Secretary of Defense 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.—A member transferring an entitlement to basic educational 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 16133, a mem- ber approved to transfer entitlement to basic educational assistance under this section may transfer such entitlement at any time after the approval of the member’s request to transfer such entitlement. (2) A member transferring entitlement under this section may modify or revoke at any time the transfer of any unused portion of the entitle- ment so transferred. The modification or revoca- tion of the transfer of entitlement under this paragraph shall be made by the submittal of written notice of the action to both the Sec- retary concerned and the Secretary of Veterans Affairs. Page 3770 TITLE 10—ARMED FORCES § 16133 (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 member mak- ing the transfer of at least— (A) six years of service in the armed forces; or (B) the years of service as determined in regulations pursuant to subsection (j); or (2) in the case of entitlement transferred to a child, both— (A) the completion by the member making the transfer of at least— (i) ten years of service in the armed forces; or (ii) the years of service as determined in regulations pursuant to subsection (j); 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 mem- ber 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 chapter in the same manner as the member from whom the entitlement was transferred. (3) The monthly rate of educational assistance payable to a dependent to whom entitlement is transferred under this section shall be the monthly amount payable under sections 16131 and 16131a to the member making the transfer. (4) The death of a member transferring an en- titlement under this section shall not affect the use of the entitlement by the dependent to whom the entitlement is transferred. (5) The involuntary separation or retirement of the member— (A) because of a nondiscretionary provision of law for age or years of service; (B) because of a policy prescribed by the Sec- retary concerned mandating such separation or retirement based solely on age or years of service for the prescribed pay grade of an en- listed member; (C) under section 16133(b); or (D) because of medical disqualification which is not the result of gross negligence or misconduct of the member, shall not affect the use of entitlement by the de- pendent to whom the entitlement is transferred. (6) A child to whom entitlement is transferred under this section may not use any entitlement so transferred after attaining the age of 26 years. (7) The administrative provisions of this chap- ter shall apply to the use of entitlement trans- ferred under this section, except that the de- pendent to whom the entitlement is transferred shall be treated as the eligible member for pur- poses of such provisions. (8) 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 member 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 title 38. (2) Except as provided in paragraph (3), if a member’s eligibility is terminated under section 16134(2), the amount of any transferred entitle- ment under this section that is used by a de- pendent of the member as of the date of such termination shall be treated as an overpayment of basic educational assistance under paragraph (1). (3) Paragraph (2) shall not apply in the case of a member who fails to complete service agreed to by the member— (A) by reason of the death of the member; or (B) for a reason referred to in section 16133(b). (j) REGULATIONS.—The Secretary of Defense, in consultation with the Secretary of Veterans Af- fairs, 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 manner and effect of an election to modify or revoke a transfer of entitlement under subsection (f)(2); and (4) the manner in which the provisions re- ferred to in subsections (h)(4) and (5) shall be administered with respect to a dependent to whom entitlement is transferred under this section. (Added Pub. L. 110–252, title V, § 5006(b), June 30, 2008, 122 Stat. 2381; amended Pub. L. 111–383, div. A, title X, § 1075(b)(55), Jan. 7, 2011, 124 Stat. 4372.) Editorial Notes AMENDMENTS 2011—Subsec. (b)(1). Pub. L. 111–383, § 1075(b)(55)(A), substituted ‘‘agreement to serve’’ for ‘‘agreement to service’’. Subsec. (i)(2). Pub. L. 111–383, § 1075(b)(55)(B), struck out ‘‘whose’’ after ‘‘member’s’’. § 16133. Time limitation for use of entitlement (a) Except as provided in subsection (b), the period during which a person entitled to edu-