38 C.F.R. § 21.9520

Basic eligibility

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

An individual may establish eligibility for educational assistance under 38 U.S.C. chapter 33, if he or she—

(a) Serves on active duty after September 10, 2001, for a minimum of 90 aggregate days, excluding entry level and skill training (to determine when entry level and skill training may be included in the total creditable length of service, see § 21.9640(a) or § 21.9641(a), whichever is applicable) and, after completion of such service—

(1) Continues on active duty;

(2) Is discharged from service with an honorable discharge;

(3) Is released from service characterized as honorable and placed on the retired list, temporary disability retired list, or transferred to the Fleet Reserve or the Fleet Marine Corps Reserve;

(4) Is released from service characterized as honorable for further service in a reserve component; or

(5)(i) Before January 4, 2011, is discharged or released from service for:

(A) A medical condition that preexisted such service and is not determined to be service-connected;

(B) Hardship, as determined by the Secretary of the military department concerned; or

(C) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct;

(ii) On or after January 4, 2011, is discharged or released from service with an honorable discharge for:

(A) A medical condition that preexisted such service and is not determined to be service-connected;

(B) Hardship, as determined by the Secretary of the military department concerned; or

(C) A physical or mental condition that interfered with the individual's performance of duty but was not characterized as a disability and did not result from the individual's own misconduct;

(b) Serves on active duty after September 10, 2001, for a minimum of 30 continuous days and, after completion of such service, is discharged from active duty under other than dishonorable conditions due to a service-connected disability; or

(c)(1) After meeting the minimum service requirements in paragraph (a) or (b) of this section—

(i) An individual makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33 by relinquishing eligibility under either 38 U.S.C. chapter 30, or 10 U.S.C. chapter 106a, 1606, or 1607, if eligible for such benefits;

(ii) A member of the Armed Forces who is eligible for educational assistance under 38 U.S.C. chapter 30 and who is making contributions towards educational assistance under 38 U.S.C. chapter 30 in accordance with 38 U.S.C. 3011(b) or 3012(c) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33; or

(iii) A member of the Armed Forces who made an election not to receive educational assistance under 38 U.S.C. chapter 30 in accordance with 38 U.S.C. 3011(c)(1) or 3012(d)(1) makes an irrevocable election to receive benefits under 38 U.S.C. chapter 33.

(2) An individual may make an irrevocable election to receive benefits under this chapter by properly completing VA Form 22-1990, submitting a transfer-of-entitlement designation under this chapter to the Department of Defense, or submitting a written statement that includes the following—

(i) Identification information (including name, social security number, and address);

(ii) If applicable, an election to receive benefits under 38 U.S.C. chapter 33 in lieu of benefits under one of the applicable chapters listed in paragraph (c)(1)(i) of this section (e.g., “I elect to receive benefits under the Post-9/11-GI Bill in lieu of benefits under the Montgomery GI Bill—Active Duty (chapter 30) program.”);

(iii) The date the individual wants the election to be effective (e.g., “I want this election to take effect on August 1, 2009.”). An election request for an effective date prior to August 1, 2009, will automatically be effective August 1, 2009; and

(iv) An acknowledgement that the election is irrevocable (e.g., “I understand that my election is irrevocable and may not be changed.”); or

(d) Is the child of a person who, after September 10, 2001, died in the line of duty while serving on active duty as a member of the Armed Forces. For purposes of this paragraph (d), the term “child” means an individual who meets the requirements of § 3.57 of this chapter, except as to age and marital status. With regard to age and marital status, the term includes individuals who are—

(1) Married; or

(2) Over the age of 23.

(e) Paragraphs (a) through (d) of this section issued under the authority of 38 U.S.C. 3311; Public Law 110-252, 111-32, Stat. 1859, 2375-2376.

(The Office of Management and Budget has approved the information collection provision in this section under control numbers 2900-0154 and 2900-0098) [90 FR 5336, Jan. 16, 2025]

Notes of Decisions

Cited in 9 cases (1 in the last 5 years), 2012–2022 · leading case: Rudisill v. McDonough, 55 F.4th 879 (Fed. Cir. 2022).

Sort: Relevance Newest Treatment

Rudisill v. McDonough, 55 F.4th 879 (Fed. Cir. 2022). “MCDONOUGH 38 C.F.R. § 21.9520 further envisions application of Post-9/11 benefits based on a period of service not yet used for educational benefits, as outlined in parts (a)–(b), or based on a conversion of the remaining benefits from one period of service, as provided in part…”

12-10 189 (Board of Vet. App. 2016). · cites it 8× “§§ 3301-24 (West 2014); 38 C.F.R. § 21.9520 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION For educational assistance claims, the regulations delineating the specific notification and assistance requirements.”

14-07 521 (Board of Vet. App. 2016). · cites it 2× “§ 3311 ; 38 C.F.R. § 21.9520 (a). Alternatively, the individual must have served a minimum of 30 continuous days on active duty and, after completion of such service, was discharged or released from active duty under other than dishonorable conditions due to a service-connected…”

Bo v. Robert L. Wilkie (Vet. App. 2019). · cites it 2× “at 7 (citing 38 C.F.R. § 21.9520 (c)(1) (2019)). The Board further stated that if an individual is eligible for benefits under the MGIB and he or she uses some of that entitlement before irrevocably electing to receive Post-9/11 GI Bill benefits in lieu of benefits under the…”

14-31 338 (Board of Vet. App. 2018). · cites it 2× “§ 3311 ; 38 C.F.R. § 21.9520 , AFI 36-3209, Paragraph 3.”

13-00 305 (Board of Vet. App. 2015). · cites it 3× “In October 2012, the Veteran was sent a statement of the case with the provisions of 38 C.F.R. § 21.9520 that outline basic eligibility, a discussion of the facts of the claim, notification of the basis of the decision, and a summary of the evidence used to reach that decision.”

10-16 951 (Board of Vet. App. 2012). · cites it 2× “38 C.F.R. § 21.9520 (b). Similarly, the statute which provides the authority for this regulation states that a Veteran who serves at last 36 months of active duty on or after September 11, 2001, or serves at least 30 continuous days on active duty commencing on or after…”

David A. Mays v. Eric K. Shinseki, 25 Vet. App. 256 (Vet. App. 2012). “§ 16163 ; 38 C.F.R. § 21.9520 (2011). The Board also found that the appellant was not entitled to educational benefits under Chapter 1606, the Montgomery G.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.