### §3311. Educational assistance for service in the Armed Forces commencing on or after September 11, 2001: entitlement

(a) Entitlement.—Subject to subsections (d) and (e), each individual described in subsection (b) is entitled to educational assistance under this chapter.

(b) Covered Individuals.—An individual described in this subsection is any individual as follows:

(1) An individual who—

(A) commencing on or after September 11, 2001, serves an aggregate of at least 36 months on active duty in the Armed Forces (including service on active duty in entry level and skill training); and

(B) after completion of service described in subparagraph (A)—

(i) continues on active duty; or

(ii) is discharged or released from active duty as described in subsection (c).

(2) An individual—

(A) who—

(i) commencing on or after September 11, 2001, serves at least 30 continuous days on active duty in the Armed Forces; and

(ii) after completion of service described in clause (i), is discharged or released from active duty in the Armed Forces for a service-connected disability or by reason of a sole survivorship discharge (as that term is defined in section 1174(i) of title 10); or

(B) who—

(i) commencing on or after September 11, 2001, completes at least 30 continuous days of service described in subsection (d)(1) or (2); and

(ii) after completion of service described in clause (i), is discharged or released by reason of a sole survivorship discharge (as that term is defined in section 1174(i) of title 10).

(3) An individual who—

(A) commencing on or after September 11, 2001, serves an aggregate of at least 30 months, but less than 36 months, on active duty in the Armed Forces (including service on active duty in entry level and skill training); and

(B) after completion of service described in subparagraph (A)—

(i) continues on active duty for an aggregate of less than 36 months; or

(ii) before completion of service on active duty of an aggregate of 36 months, is discharged or released from active duty as described in subsection (c).

(4) An individual who—

(A) commencing on or after September 11, 2001, serves an aggregate of at least 24 months, but less than 30 months, on active duty in the Armed Forces (including service on active duty in entry level and skill training); and

(B) after completion of service described in subparagraph (A)—

(i) continues on active duty for an aggregate of less than 30 months; or

(ii) before completion of service on active duty of an aggregate of 30 months, is discharged or released from active duty as described in subsection (c).

(5) An individual who—

(A) commencing on or after September 11, 2001, serves an aggregate of at least 18 months, but less than 24 months, on active duty in the Armed Forces (excluding service on active duty in entry level and skill training); and

(B) after completion of service described in subparagraph (A)—

(i) continues on active duty for an aggregate of less than 24 months; or

(ii) before completion of service on active duty of an aggregate of 24 months, is discharged or released from active duty as described in subsection (c).

(6) An individual who—

(A) commencing on or after September 11, 2001, serves an aggregate of at least 6 months, but less than 18 months, on active duty in the Armed Forces (excluding service on active duty in entry level and skill training); and

(B) after completion of service described in subparagraph (A)—

(i) continues on active duty for an aggregate of less than 18 months; or

(ii) before completion of service on active duty of an aggregate of 18 months, is discharged or released from active duty as described in subsection (c).

(7) An individual who—

(A) commencing on or after September 11, 2001, serves an aggregate of at least 90 days, but less than 6 months, on active duty in the Armed Forces (excluding service on active duty in entry level and skill training); and

(B) after completion of service described in subparagraph (A)—

(i) continues on active duty for an aggregate of less than 6 months; or

(ii) before completion of service on active duty of an aggregate of 6 months, is discharged or released from active duty as described in subsection (c).

(8) An individual who is the child or spouse of a person who, on or after September 11, 2001, dies in line of duty while serving on active duty as a member of the Armed Forces.

(9) An individual who is the child or spouse of a person who, on or after September 11, 2001, dies in line of duty while serving on duty other than active duty as a member of the Armed Forces.

(10) An individual who is the child or spouse of a member of the Selected Reserve who dies on or after September 11, 2001, while a member of the Selected Reserve from a service-connected disability.

(11) An individual who is awarded the Purple Heart for service in the Armed Forces occurring on or after September 11, 2001, and continues to serve on active duty in the Armed Forces or is discharged or released from active duty as described in subsection (c).

(c) Covered Discharges and Releases.—A discharge or release from active duty of an individual described in this subsection is a discharge or release as follows:

(1) A discharge from active duty in the Armed Forces with an honorable discharge.

(2) A release after service on active duty in the Armed Forces characterized by the Secretary concerned as honorable service and placement on the retired list, transfer to the Fleet Reserve or Fleet Marine Corps Reserve, or placement on the temporary disability retired list.

(3) A release from active duty in the Armed Forces for further service in a reserve component of the Armed Forces, or for further service in the Space Force in a space force active status not on sustained duty under section 20105 of title 10, after service on active duty characterized by the Secretary concerned as honorable service.

(4) A discharge or release from active duty in the Armed Forces after service on active duty in the Armed Forces characterized by the Secretary concerned as honorable service for—

(A) a medical condition which preexisted the service of the individual as described in the applicable paragraph of subsection (b) and which the Secretary determines is not service-connected;

(B) hardship; or

(C) a physical or mental condition that was not characterized as a disability and did not result from the individual's own willful misconduct but did interfere with the individual's performance of duty, as determined by the Secretary concerned in accordance with regulations prescribed by the Secretary of Defense.

(d) Prohibition on Treatment of Certain Service as Period of Active Duty.—Except as provided in subsection (b)(2)(B), the following periods of service shall not be considered a part of the period of active duty on which an individual's entitlement to educational assistance under this chapter is based:

(1) A period of service on active duty of an officer pursuant to an agreement under section 2107(b) of title 10.

(2) A period of service on active duty of an officer pursuant to an agreement under section 7448, 8459, or 9448 of title 10 or section 182 1 of title 14.

(3) A period of service that is terminated because of a defective enlistment and induction based on—

(A) the individual's being a minor for purposes of service in the Armed Forces;

(B) an erroneous enlistment or induction; or

(C) a defective enlistment agreement.

(e) Treatment of Individuals Entitled Under Multiple Provisions.—In the event an individual entitled to educational assistance under this chapter is entitled by reason of both paragraphs (4) and (5) of subsection (b), the individual shall be treated as being entitled to educational assistance under this chapter by reason of paragraph (5) of subsection (b).

(f) Marine Gunnery Sergeant John David Fry Scholarship.—

(1) In general.—Educational assistance payable by reason of paragraphs (8), (9), and (10) of subsection (b) shall be known as the "Marine Gunnery Sergeant John David Fry scholarship".

(2) Limitation.—The entitlement of an individual to assistance under subsection (a) pursuant to paragraphs (8), (9), and (10) of subsection (b) because the individual was a spouse of a person described in such paragraph shall expire on the earlier of—

(A) the date that is 15 years after the date on which the person died; or

(B) the date on which the individual remarries.

(3) Election on receipt of certain benefits.—Except as provided in paragraph (4), a surviving spouse entitled to assistance under subsection (a) pursuant to paragraphs (8), (9), and (10) of subsection (b) who is also entitled to educational assistance under chapter 35 of this title may not receive assistance under both this section and such chapter, but shall make an irrevocable election (in such form and manner as the Secretary may prescribe) under which section or chapter to receive educational assistance.

(4) Exception for certain elections.—

(A) In general.—An election made under paragraph (3) by a spouse described in subparagraph (B) may not be treated as irrevocable if such election occurred before the date of the enactment of this paragraph.

(B) Eligible surviving spouse.—A spouse described in this subparagraph is an individual—

(i) who is entitled to assistance under subsection (a) pursuant to paragraphs (8), (9), and (10) of subsection (b); and

(ii) who was the spouse of a member of the Armed Forces who died during the period beginning on September 11, 2001, and ending on December 31, 2005.

(5) Definition of child.—For purposes of paragraphs (8), (9), and (10) of subsection (b), the term "child" includes a married individual or an individual who is above the age of twenty-three years.

(Added Pub. L. 110–252, title V, §5003(a)(1), June 30, 2008, 122 Stat. 2359; amended Pub. L. 111–32, title X, §1002(a), June 24, 2009, 123 Stat. 1889; Pub. L. 111–377, title I, §101(b), (c), Jan. 4, 2011, 124 Stat. 4107; Pub. L. 113–146, title VII, §701(a), (b), Aug. 7, 2014, 128 Stat. 1795; Pub. L. 114–315, title IV, §401(b), (c), Dec. 16, 2016, 130 Stat. 1553; Pub. L. 115–48, title I, §§102(a), 105(a), (c)(1), Aug. 16, 2017, 131 Stat. 975; Pub. L. 115–232, div. A, title VIII, §809(n)(3), Aug. 13, 2018, 132 Stat. 1844; Pub. L. 116–315, title I, §1002(a), (b)(1), Jan. 5, 2021, 134 Stat. 4938; Pub. L. 117–333, §10(b), (c), Jan. 5, 2023, 136 Stat. 6131, 6132; Pub. L. 118–31, div. A, title XVII, §1723(c)(2), Dec. 22, 2023, 137 Stat. 675.)

#### **Editorial Notes**

#### References in Text

Section 182 of title 14, referred to in subsec. (d)(2), was repealed by Pub. L. 115–282, title I, §110(c)(2), Dec. 4, 2018, 132 Stat. 4215.

The date of the enactment of this paragraph, referred to in subsec. (f)(4)(A), is the date of enactment of Pub. L. 114–315, which was approved Dec. 16, 2016.

#### Amendments

2023—Subsec. (c)(3). Pub. L. 118–31, which directed insertion of ", or for further service in the Space Force in a space force active status not on sustained duty under section 20105 of title 10," after "of the Armed Forces" second time appearing, was executed by making the insertion after "of the Armed Forces" the only time the phrase appeared to reflect the probable intent of Congress.

2023—Subsec. (b)(2). Pub. L. 117–333, 10(b)(1)–(3), struck out "who" after "individual" in introductory provisions, inserted "(A) who—" after "individual—", and redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, of subpar. (A) and realigned margins.

Subsec. (b)(2)(A)(ii). Pub. L. 117–333, §10(b)(4), substituted "in clause (i)" for "in subparagraph (A)" and "or by reason of a sole survivorship discharge (as that term is defined in section 1174(i) of title 10); or" for period at end.

Subsec. (b)(2)(B). Pub. L. 117–333, §10(b)(5), added subpar. (B). Former subpar. (B) redesignated (A)(ii).

Subsec. (d). Pub. L. 117–333, §10(c), substituted "Except as provided in subsection (b)(2)(B), the following" for "The following" in introductory provisions.

2021—Subsec. (b)(9) to (11). Pub. L. 116–315, §1002(a), added pars. (9) and (10) and redesignated former par. (9) as (11).

Subsec. (f). Pub. L. 116–315, §1002(b)(1), substituted "paragraphs (8), (9), and (10)" for "paragraph (8)" wherever appearing.

2018—Subsec. (d)(2). Pub. L. 115–232 substituted "section 7448, 8459, or 9448 of title 10" for "section 4348, 6959, or 9348 of title 10".

2017—Subsec. (b)(6)(A). Pub. L. 115–48, §105(a)(1), substituted "6 months" for "12 months".

Subsec. (b)(7) to (9). Pub. L. 115–48, §105(a)(2), (3), redesignated pars. (8) to (10) as (7) to (9), respectively, and struck out former par. (7) which read as follows: "An individual who—

"(A) commencing on or after September 11, 2001, serves an aggregate of at least 6 months, but less than 12 months, on active duty in the Armed Forces (excluding service on active duty in entry level and skill training); and

"(B) after completion of service described in subparagraph (A)—

"(i) continues on active duty for an aggregate of less than 12 months; or

"(ii) before completion of service on active duty of an aggregate of 12 months, is discharged or released from active duty as described in subsection (c)."

Subsec. (b)(10). Pub. L. 115–48, §105(a)(3), redesignated par. (10) as (9).

Pub. L. 115–48, §102(a), added par. (10).

Subsec. (f). Pub. L. 115–48, §105(c)(1), substituted "paragraph (8)" for "paragraph (9)" wherever appearing.

2016—Subsec. (f)(3). Pub. L. 114–315, §401(b)(1), substituted "Except as provided in paragraph (4), a surviving spouse" for "A surviving spouse".

Subsec. (f)(4). Pub. L. 114–315, §401(b)(3), added par. (4). Former par. (4) redesignated (5).

Subsec. (f)(5). Pub. L. 114–315, §401(b)(2), (c), redesignated par. (4) as (5) and substituted "paragraph (9) of subsection (b)" for "that paragraph".

2014—Subsec. (b)(9). Pub. L. 113–146, §701(a), inserted "or spouse" after "child".

Subsec. (f)(2) to (4). Pub. L. 113–146, §701(b), added pars. (2) and (3) and redesignated former par. (2) as (4).

2011—Subsec. (c)(4). Pub. L. 111–377, §101(b), substituted "A discharge or release from active duty in the Armed Forces after service on active duty in the Armed Forces characterized by the Secretary concerned as honorable service" for "A discharge or release from active duty in the Armed Forces" in introductory provisions.

Subsec. (d)(2). Pub. L. 111–377, §101(c), inserted "or section 182 of title 14" before period at end.

2009—Subsec. (b)(9). Pub. L. 111–32, §1002(a)(1), added par. (9).

Subsec. (f). Pub. L. 111–32, §1002(a)(2), added subsec. (f).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2021 Amendment

Pub. L. 116–315, title I, §1002(c), Jan. 5, 2021, 134 Stat. 4939, provided that: "The amendments made by this section [amending this section and sections 3313, 3317, 3320, and 3322 of this title] shall take effect immediately after the amendments made by section 105 of the Harry W. Colmery Veterans Educational Assistance Act of 2017 (Public Law 115–48) [see section 105(d) of Pub. L. 115–48 set out as a note below] take effect [Aug. 1, 2020] and shall apply with respect to a quarter, semester, or term, as applicable, commencing on or after August 1, 2021."

#### Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of Title 10, Armed Forces.

#### Effective Date of 2017 Amendment

Pub. L. 115–48, title I, §102(c), Aug. 16, 2017, 131 Stat. 975, provided that: "The amendments made by this section [amending this section and section 3313 of this title] shall take effect on August 1, 2018."

Pub. L. 115–48, title I, §105(d), Aug. 16, 2017, 131 Stat. 977, provided that: "The amendments made by this section [amending this section and sections 3313, 3316, 3317, 3321, 3322, and 3679 of this title] shall take effect on August 1, 2020."

#### Effective Date of 2014 Amendment

Pub. L. 113–146, title VII, §701(d), Aug. 7, 2014, 128 Stat. 1796, as amended by Pub. L. 114–315, title IV, §401(a), Dec. 16, 2016, 130 Stat. 1553, provided that:

"(1) In general.—The amendments made by this section [amending this section and section 3321 of this title] shall apply with respect to a quarter, semester, or term, as applicable, commencing on or after January 1, 2015.

"(2) Deaths that occurred between september 11, 2001, and december 31, 2005.—For purposes of section 3311(f)(2) of title 38, United States Code, any member of the Armed Forces who died during the period beginning on September 11, 2001, and ending on December 31, 2005, is deemed to have died on January 1, 2006."

#### Effective Date of 2011 Amendment

Pub. L. 111–377, title I, §101(d)(4), (5), Jan. 4, 2011, 124 Stat. 4108, provided that:

"(4) Honorable service requirement.—The amendment made by subsection (b) [amending this section] shall take effect on the date of the enactment of this Act [Jan. 4, 2011], and shall apply with respect to discharges and releases from the Armed Forces that occur on or after that date.

"(5) Service in connection with attendance at coast guard academy.—The amendment made by subsection (c) [amending this section] shall take effect on the date of the enactment of this Act, and shall apply with respect to individuals entering into agreements on service in the Coast Guard on or after that date."

#### Effective Date of 2009 Amendment

Pub. L. 111–32, title X, §1002(d), June 24, 2009, 123 Stat. 1890, provided that:

"(1) Effective date.—The amendments made by this section [amending this section and sections 3313 and 3321 of this title] shall take effect on August 1, 2009.

"(2) Applicability.—The Secretary of Veterans Affairs shall begin making payments to individuals entitled to educational assistance by reason of paragraph (9) of section 3311(b) [now 38 U.S.C. 3311(b)(8)] of title 38, United States Code, as added by subsection (a), by not later than August 1, 2010. In the case of an individual entitled to educational assistance by reason of such paragraph for the period beginning on August 1, 2009, and ending on July 31, 2010, the Secretary shall make retroactive payments to such individual for such period by not later than August 1, 2010."

#### Effective Date

Section effective Aug. 1, 2009, see section 5003(d) of Pub. L. 110–252, set out as an Effective Date of 2008 Amendment note under section 16163 of Title 10, Armed Forces.

#### Construction of Covered Individuals

Pub. L. 115–48, title I, §106(c), Aug. 16, 2017, 131 Stat. 977, provided that: "Section 3311(b)(6) of title 38, United States Code, shall be construed to include an individual who, before November 25, 2015, established eligibility for educational assistance under chapter 1607 of title 10, United States Code, pursuant to section 16163(b) of such title, but lost such eligibility pursuant to section 16167(b) of such title."

1 See References in Text note below.