STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 22, 1971
Dr. Richard D. Gibb
Commissioner of Higher Education
State Capitol
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 71-21
Free tuition for members of the National Guard
Dear Dr. Gibb:
You have requested my official opinion on the question of whether or not a member of the South Dakota National Guard is entitled to veterans' free tuition under the provisions of SDCL 13-55-2 where, pursuant to such enlistment, he has been ordered to serve a period of active duty in a training status outside of the borders of South Dakota before being returned to his South Dakota National Guard unit.
For the purposes of this opinion, the applicable portions of 13-55-2 are set forth below:
... 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 perform military service outside the borders of this state or in the armed forces of the United States as that term is defined by section 19 of Article XIII of the South Dakota State Constitution, during the period between August 5, 1964 and the date when the governor by proclamation shall have declared existing hostilities to cease 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 ... Shall, upon compliance with all the other requirements for admission be entitled to attend or 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 ...
In my opinion, this section of entitlement to free tuition contemplates military service as opposed to training duty. This matter was taken into consideration in an earlier opinion of this office, the appropriate portion of which is set forth below:
... First of all it is necessary to differentiate between a call for military training and an order to report for active duty. SDC 1960 Supp. 41.0510 (job rights for reservists and guardsmen) applies particularly to such persons, who because of enlistment commitments are required to take a specified short period of military training annually while an order to active duty is an order to active service embodying something more than periodic training, including a possibility of actual emergency service as a combat force, for a longer period of time. 1961-62 AGR 91
Along the same line the difference between the military leave of absence for training and active duty status was discussed in 1965-66 AGR 121. See also 1919-20 AGR 191 where military service was held to qualify a guardsman for free tuition.
The term "military service" as used in 13-55-2 does, in my opinion, mean more than training duty which units and individuals of the South Dakota National Guard periodically perform outside the borders of South Dakota. The section is intended to provide tuition benefits to those persons who have served in the active armed forces or in the National Guard and have been discharged or furloughed into a reserve branch of the military or naval forces and not merely those members who are, as a result of their enlistment in the National Guard, obligated to perform a type of military training service.
Respectfully submitted,
Gordon Mydland
Attorney General
