April 30, 1979

Dr. Richard L. Bowen 
Commissioner of Higher Education 
Kneip Building 
Pierre, South Dakota 57501

Official Opinion No. 79-13

Residency Requirements for Veterans Free Tuition Program

Dear Dr. Bowen:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

A student at one of the state universities has applied for veterans free tuition benefits under SDCL 13-55-2 through 13‑55‑5. The student has performed qualified service in Southeast Asia but was not a resident of South Dakota prior to his entry into the armed forces. 

In the 1949-50 Attorney General Report at pages 113 and 203, it was determined, under the predecessor provision to 13-55-2, that a veteran must have been a resident to South Dakota prior to entry into the armed forces in order to qualify for free tuition benefits. 

Qualification for free tuition benefits was extended to veterans with Southeast Asia service in 1967.  The conditions for qualification were set forth at SDCL 33-17-2 subdivision 6 which, at that time, read as follows: 

Active duty in the armed forces of the United States during the period from August 5, 1964 to the date when the Governor by proclamation shall have declared Southeast Asia hostilities to have ceased either (a) for more than one hundred eighty days, or (b) in a combat zone area, performed by a person who was a legal resident of South Dakota for not less than six months immediately preceding his entry into the armed forces. 

In 1979, that section was amended and the language requiring preservice residency in South Dakota for Southeast Asian duty was deleted. 

It is now being argued that the deletion of the preservice residency language in SDCL 33-17-1 evinces a legislative intent to remove the preservice residency requirement for the veterans free tuition program.

Based on the above facts, you ask the following question:

QUESTION: 

May a veteran who was not a resident of South Dakota prior to entry into qualifying service receive the free tuition benefits of SDCL 13-55-2?

As indicated in your letter, the question has previously been addressed by this office in 1949-50 A.G.R. 113, 203.  Those opinions construed the predecessor provision to SDCL 13-55-2, that being SDC 15.0717 which at that time read as follows: 

Any person residing in this state who has served in the army or navy of the United States during any war in which the United States has been engaged, including members of the South Dakota National Guard, who performed military service outside of the borders of this state, and has been honorably discharged from such service, has been furloughed into any reserve branch of the military or naval service of the United States, or who performed active war service, such as nursing or assisting in the care of soldiers and sailors in any government hospital, field, or camp, as a member of the Red Cross, or any other similar organization engaged in war relief work which shall have been recognized and approved by the Government of the United States, during any of the periods hereinbefore mentioned, shall, upon compliance with all other requirements for admission, be entitled to attend and pursue any course or courses in any state educational institution under the control and management of the Board of Regents without the payment of charges for tuition, unless such person under Act of Congress is entitled to have such tuition paid by the United States.  It shall be the duty of the Board of Regents to determine who are entitled to the benefits of this section.  The term 'honorably discharged' shall be construed to include the terms “good discharge” and “release from active service.”

Without more, the retention without modification of the “residing in this state” language would lead to the conclusion that the intent of the Legislature in regard to this issue has not changed and, therefore, the earlier opinions control the answer to your question.

However, you have indicated that it is being contended that the incorporation of reference to SDCL 33-17-2 in SDCL 13-55-2 has intervened to annul the reasoning of the earlier opinions.

It is my opinion that the contention is untenable.  The inclusion of references to SDCL 33-17 in the statute establishing the veterans free tuition program was obviously a shorthand means of correlating the concurrent application of identical terminology to two different statutory programs.  The addition of a six-month preservice residency requirement in SDCL 33-17-2(6) was not intended to modify the separately stated residency language of SDCL 13-55-2. Its only effect on that section was to condition the qualification of Southeast Asian service.  As such, the later removal of that condition could not evince legislative intent in regard to the residency requirements of that section.

Therefore, the opinion of this office remains as stated in 1949-50 A.G.R. 113, 203 and your question must be answered in the negative.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:DJF:esp