November 16, 1983

Dr. Gordon F. Foster 
Executive Director 
South Dakota Board of Regents 
Kneip Building 
Pierre, South Dakota 57501

Official Opinion No. 83-44

Free Tuition for Veterans

Dear Dr. Foster:

On behalf of the South Dakota Board of Regents, you have requested my opinion concerning eligibility of veterans for free tuition pursuant to SDCL 13-55-3 .  You asked the following questions:

QUESTIONS: 

1.  Does a veteran, who in all other ways meets the eligibility requirements for free tuition under SDCL 13-55-2, continue to be eligible after he/she has completed four academic years at an institution using the G.I. Bill or some other source of funding? 

2.  Does a veteran, who in all other ways meets the eligibility requirements for free tuition under SDCL 13-55-2, continue to be eligible if he/she already has attained a bachelor's degree? 

3.  Could a veteran, who is otherwise eligible under SDCL 13-55-2, who had completed three years of academic training under the G.I. Bill and exhausted his/her benefits, now become eligible for three more years of training under SDCL 13-55-3?

STATUTES TO BE CONSTRUED

SDCL 13-55-2, 13-55-3, 13-55-4 and 13-55-5 read as follows: 

SDCL 13-55-2.  Any person residing in this state who is a veteran as defined by §  33-17-1 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 mentioned in subdivisions (1), (3) and (5) of §  33-17-2, shall, upon compliance with all the other requirements for admission, be entitled to attend and pursue any undergraduate 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 for each month of qualified service or major fraction thereof a month in academic time but in no event shall eligible veterans be entitled to less than one nor more than four academic year of free tuition hereunder. 

SDCL 13-55-3.  The benefits to which a veteran may be entitled under  

§ 13-55-2 must be used by him within twelve years from and after the date proclaimed for the cessation of hostilities or within six years from and after the date of his discharge from the military service, whichever is later. 

SDCL 13-55-4.  Section 13-55-2 shall not be applicable if such person under Act of Congress is entitled to have such tuition paid by the United States, or is entitled to receive in part from the United States for education and training allowance and in part the expenses of his subsistence,  tuition, fees, supplies, books and equipment.  [Emphasis supplied.] 

SDCL 13-55-5.  It shall be the duty of the board of regents to determine who are entitled to the benefits of § 13-55-2.

IN RE QUESTION NO. 1:

This question has been addressed by predecessors on at least four occasions.  Although my predecessors were addressing the statute as it existed prior to 1966, there appears to be no reason to depart from the holdings in those opinions.  See Report of the Attorney General 1947-48, page 27; 1949-50 page 203; 1949-50 page 426; and 1951-52 page 238.  In each of the situations addressed in these previous opinions the crucial factor was that the statute in effect at the time, SDC 1939 § 15.0717, (now SDCL 13-55-4) provided that the institution must examine the applicant for free tuition at the time he presents himself for the entitlement.  The statute precludes free tuition for any person who 'is entitled to have such tuition paid by the United States.' [Emphasis supplied.]  In one case the Veteran's entitlement had expired; in another the entitlement had been used in another state, and in a third the Veteran's Administration did not approve the course of study pursued.  In each case, the then Attorney General held that since the veteran was not entitled to federal benefits at the time he applied for the state benefits, he was entitled  to receive the state benefits assuming all other eligibility requirements were met.  My answer to Question No. 1 is YES.

IN RE QUESTION NO 2:

Review of SDCL 13-55-2 reveals that the benefits of free tuition are restricted to undergraduate courses and not more than four academic years of free tuition under the provisions of the statute. Accordingly, assuming the institution allows persons with a bachelor's degree to pursue other undergraduate courses, and the veteran has not received his or her years of entitlement under the statute, he or she would be entitled to the free tuition provisions of SDCL 13-55-2.

IN RE QUESTION NO. 3:

In view of the answer to question No. 1, if the veteran has exhausted his entitlements under the G.I. Bill, he or she is now eligible for the entitlements found in SDCL 13-55-22.

Respectfully submitted,

Mark V. Meierhenry
Attorney General