Veterans May Receive Additional Educational Benefits Due to Recent Court Case

Like many veterans, I have had the opportunity to obtain higher education which would have never been possible but for the Post 9-11 GI-Bill.[i] In addition to paying for tuition, the Post 9-11 GI Bill provides a living stipend that allows student to attend school full time without having to work full time, as well as a stipend for books. In certain instances this program even provides money to help veterans relocate to attend college.

The GI Bill has gone through numerous changes since it was first established after World War II. [ii]These programs modified to allow generation of veterans to attend college before and after the Korean war and then following the Vietnam war. In the 1980s the Montgomery GI Bill was established which provided a set cash benefit each month to eligible veterans and service members who were enrolled in colleges and graduate schools.[iii] 

Then finally in 2008 Congress enacted the Post 9-11 GI Bill, modeled after the original GI Bill from WWII. That program has been in operation for over a decade giving another generation of veterans educational opportunities they might not have otherwise had. However, last year’s decision by the United States Court of Appeals for Veterans Claims (“CAVC”) may change that in a big way, and for the benefit of American veterans.[iv]

In BO v. Wilkie, the Veteran was an Army officer who had previously served as an enlisted person.[v] The Veteran had three qualifying periods of service, January 2000 until June 2002, June 2004 until December 2005, and November 2007 until August 2011.[vi]

Between 2002 and 2007, the Veteran attended college and used 25 months and 14 days of his MGIB.[vii] After the Veteran left the Army in 2011, he had sufficient qualifying time for full eligibility under the Post 9-11 GI Bill.[viii]

In 2015, the Veteran was admitted to Yale Divinity School and applied for Post 9-11 GI Bill educational benefits.[ix] The Department of Veterans Affairs (“DVA”) determined that he was only eligible for 10 months and 16 days.[x]

After first initiating a congressional investigation, the Veteran challenged the DVA’s decision by appealing to the regional office (“RO”).[xi] The RO issued a Statement of the Case holding that a “an irrevocable election to relinquish MGIB benefits” is required to use the Post 9-11 GI Bill.[xii]

The Veteran then appealed to the Board of Veterans’ Appeals (“Board”). The Board concluded that when the Veteran submitted a properly completed electronic application for educational benefits, he had irrevocably elected Post-9/11 benefits over MGIB benefits.[xiii]

The Veteran then appealed this case to the to the Court of Appeals for Veterans Claims (“CAVC”) which overturned the Board’s decision finding that the Statute was ambiguous and that in cases concerning a veteran’s benefits, ambiguity should be should be resolved in favor of the veteran. [xiv]

The DVA has already made two attempts to rehear the issue in the CAVC and will almost certainly appeal to the Court of Appeals for the Federal Circuit.[xv]

There is no doubt that Judge Bartley’s strongly worded dissent will factor heavily as this case proceeds to the Court of Appeals for the Federal Circuit, and then potentially, to the Supreme Court.

 

How this Could Affect Illinois Veterans in Divorce

Interestingly, if BO v. Wilke is upheld on appeal, it could have a significant effect on divorcing Illinois veterans and their spouses. Illinois is what is known as an “equitable” division state, which means, unlike a community property state, property owned by both spouses in a divorce is not necessarily divided equally.[xvi]

Courts are prohibited from dividing Post 9-11 GI Bill benefits as “marital property” in a contested divorce. [xvii] However, the statute does not explicitly prohibit the Court from viewing these benefits as a species of non-marital property.[xviii] In Illinois, the Courts can consider the allocation of non-marital property in the distribution of assets acquired during the marriage. [xix]

This places veterans and their spouses in a very tricky legal situation.

For couples who have already finalized their divorce based on such, these additional benefits could lead to former spouses revisiting their divorce judgment. As for couples who are in the midst of a divorce, this poses an interesting issue. For instance, having more benefits from the Post 9-11 GI Bill could be a greater incentive to include a transfer of their benefits to their dependents as part of the property settlement.

How this issue plays out in the coming months is anyone’s guess. As of yesterday, January 7, the Court’s order was entered as a final judgment, so the next step will be for the DVA to appeal the CAVC’s decision. [xx]  

No matter what happens, it is vitally important that an experienced attorney who is knowledgeable about both veterans benefits and Illinois family law handle such a division, particularly when transferring Post 9-11 GI Bill benefits between the servicemember and his or her dependents.

If you have questions about a divorce involving a possible VA educational benefit, call me, Attorney David Weiss, for a free consultation.