### §3221. Eligibility

(a) Each person entering military service on or after January 1, 1977, and before July 1, 1985, shall have the right to enroll in the educational benefits program provided by this chapter (hereinafter in this chapter referred to as the "program" except where the text indicates otherwise) at any time during such person's service on active duty before July 1, 1985. When a person elects to enroll in the program, such person must participate for at least 12 consecutive months before disenrolling or suspending participation.

(b) The requirement for 12 consecutive months of participation required by subsection (a) of this section shall not apply when (1) the participant suspends participation or disenrolls from the program because of personal hardship as defined in regulations issued jointly by the Secretary and the Secretary of Defense, or (2) the participant is discharged or released from active duty.

(c) A participant shall be permitted to suspend participation or disenroll from the program at the end of any 12-consecutive-month period of participation. If participation is suspended, the participant shall be eligible to make additional contributions to the program under such terms and conditions as shall be prescribed by regulations issued jointly by the Secretary and the Secretary of Defense.

(d) If a participant disenrolls from the program, such participant forfeits any entitlement to benefits under the program except as provided in subsection (e) of this section. A participant who disenrolls from the program is eligible for a refund of such participant's contributions as provided in section 3223 of this title.

(e) A participant who has disenrolled may be permitted to reenroll in the program under such conditions as shall be prescribed jointly by the Secretary and the Secretary of Defense.

(f) An individual who serves in the Selected Reserve may not receive credit for such service under both the program established by this chapter and the program established by chapter 106 of title 10 but shall elect (in such form and manner as the Secretary of Veterans Affairs may prescribe) the program to which such service is to be credited.

(Added Pub. L. 94–502, title IV, §404, Oct. 15, 1976, 90 Stat. 2394, §1621; amended Pub. L. 99–576, title III, §309(a)(3), Oct. 28, 1986, 100 Stat. 3270; Pub. L. 101–237, title IV, §§410, 423(b)(1)(A), (4)(A), (6), Dec. 18, 1989, 103 Stat. 2084, 2092, 2093; renumbered §3221 and amended Pub. L. 102–83, §5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406.)

#### **Editorial Notes**

#### Amendments

1991—Pub. L. 102–83, §5(a), renumbered section 1621 of this title as this section.

Subsec. (d). Pub. L. 102–83, §5(c)(1), substituted "3223" for "1623".

1989—Subsec. (b)(1). Pub. L. 101–237, §423(b)(1)(A), (4)(A), substituted "Secretary" for "Administrator" after "jointly by the" and struck out "(hereinafter in this chapter referred to as the 'Secretary')" after "Secretary of Defense".

Subsecs. (c), (e). Pub. L. 101–237, §423(b)(1)(A), (4)(A), substituted "Secretary" for "Administrator" after "jointly by the" and inserted "of Defense" after "Secretary" at end.

Subsec. (f). Pub. L. 101–237, §410, added subsec. (f).

1986—Subsec. (a). Pub. L. 99–576 inserted "and before July 1, 1985," and "before July 1, 1985" in first sentence.

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

#### Effective Date

Section effective Jan. 1, 1977, see section 406 of Pub. L. 94–502, set out as a note under section 3201 of this title.

#### Enrollment in Program Before April 1, 1987

For provisions for continued eligibility for enrollment in the program established by this chapter until Apr. 1, 1987, of individuals on active duty in the Armed Forces who were eligible therefor on June 30, 1985, and requiring notice of such continued eligibility to affected individuals, see section 309(c), (d) of Pub. L. 99–576, set out as a note under section 3201 of this title.

#### Suspension of Right To Enroll in Post-Vietnam Era Program

Pub. L. 98–525, title VII, §704, Oct. 19, 1984, 98 Stat. 2564, which provided that no individual on active duty in the Armed Forces could initially enroll in the educational assistance program provided for in this chapter during the period beginning on July 1, 1985, and ending on June 30, 1988, was repealed by Pub. L. 99–576, title III, §309(b), Oct. 28, 1986, 100 Stat. 3270.

#### New Enrollments in Educational Assistance Program After December 31, 1981, Presidential Recommendation to Congress

Pub. L. 94–502, title IV, §408, Oct. 15, 1976, 90 Stat. 2397, provided that:

"(a)(1) No individual on active duty in the Armed Forces may initially enroll in the educational assistance program provided for in chapter 32 of title 38, United States Code (as added by section 404 of this Act) after December 31, 1981, unless—

"(A) before June 1, 1981, the President submits to both Houses of Congress a written recommendation that such program continue to be open for new enrollments; and

"(B) before the close of the 60-day period after the day on which the President submits to Congress the recommendation described in subparagraph (A), neither the House of Representatives nor the Senate adopts, by an affirmative vote of a majority of those present and voting in that House, a resolution which in substance disapproves such recommendation.

"(2) For purposes of computing the 60-day period referred to in paragraph (1)(B), there shall be excluded—

"(A) the days on which either House is not in session because of an adjournment of more than 3 days to a day certain or an adjournment of the Congress sine die, and

"(B) any Saturday and Sunday, not excluded under the preceding subparagraph, when either House is not in session.

The recommendation referred to in paragraph (1)(A) shall be delivered to both Houses of Congress on the same day and shall be delivered to the Clerk of the House of Representatives if the House is not in session and to the Secretary of the Senate if the Senate is not in session.

"(b) If new enrollments after December 31, 1981, in the educational assistance program provided for in such chapter 32 are authorized after the application of the provisions of subsection (a), then effective January 1, 1982, section 1622(b) [now 3222(b)] of title 38, United States Code, is amended by striking out 'Veterans' Administration' and inserting in lieu thereof 'Department of Defense'."