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Getting Schooled: Maximizing Veterans’ Education Benefits

The Court will decide whether Veterans have the right to collect full benefits.

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Rudisill v. McDonough,

No. 22-888,

55 F.4th 879 (Fed. Cir. 2022),

cert. granted, 2023 WL 4163202 (June 26, 2023).

Oral argument is scheduled for Nov. 8, 2023.

Issue: Whether a veteran who has served two separate and distinct periods of qualifying service under the Montgomery GI Bill and the Post-9/11 GI Bill is entitled to receive a total of 48 months of education benefits as between both programs, without first exhausting the Montgomery benefit in order to obtain the more generous Post-9/11 benefit.

Today, approximately 18 million veterans are living in the United States. To recognize their service, Congress has enacted several iterations of the GI Bill to provide education benefits to veterans, such as the Montgomery GI Bill (“MGIB”) and the Post-9/11 GI Bill. The MGIB guarantees education benefits for veterans who serve on active duty for at least two to three years between July 1, 1985, and September 30, 2030. 38 U.S.C. § 3011(a)(1)(A). Similarly, the Post-9/11 Bill promises education benefits for veterans who serve on active duty after September 11, 2001. 38 U.S.C. § 3311(b). Various statutory provisions say that an eligible person may receive education benefits under all programs for a total of forty-eight months. See 38 U.S.C. §§ 3013(c) (36 months), 3695 (48-81 months), 3312(a)(36 months). However, there also is a provision that limits the number of months of entitlement to educational assistance for veterans who switch from MGIB program to Post-9/11 program benefits without first exhausting their MGIB benefits. Rudisill v. McDonough, 55 F.4th 879, 881 (Fed. Cir. 2022)  (quotation omitted). Consequently, many veterans struggle to ascertain and acquire all the educational benefits they are entitled to under these programs.

James Rudisill completed nearly eight years of active-duty service as both an enlisted soldier and later as a commissioned officer. Rudisill, 55 F.4th at 883. The Board of Veterans’ Appeals (“the Board”) found that Rudisill qualified for VA educational assistance benefits under both the MGIB and Post-9/11 Bill programs. BO v. Wilkie, 31 Vet. App., 321,327 (2019). Beginning in 2003, Rudisill used 25 of the 36 months of eligibility that he accrued under MGIB for his undergraduate education. Rudisill, 55 F.4th at 883. After leaving military service in 2011, Yale Divinity School accepted Rudisill, and he filed an application to receive Post-9/11 Bill education benefits. Id. The VA issued Rudisill a certificate of eligibility for 10 months and 16 days of Post-9/11 benefits, which was equal to his remaining MGIB entitlement. Id. Rudisill’s appeal for full education assistance benefits available under the Post-9/11 program was denied. Id.

The United States Court of Appeals for Veterans Claims reversed and remanded, holding that Congress’s statutory scheme was ambiguous, and that the limiting provision in § 3327(d)(2) should not be interpreted to apply to veterans with multiple periods of service. BO, 31 Vet. App. at 327-28, 46. Therefore, the court held that Mr. Rudisill is entitled to full benefits under both programs subject to the aggregate cap, rather than restricting his Post-9/11 education benefits to his remaining time under MGIB. Id. at 328.

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The Secretary of Veterans Affairs appealed the ruling to the United States Federal Circuit Court of Appeals. See generally, Rudisill, 55 F.4th 879. On December 15, 2022, in an en banc ruling, the Federal Circuit reversed again, concluding that Mr. Rudisill’s benefits under the Post-9/11 Bill should be limited to the amount of his unused MGIB entitlement. Id. at 881. The majority reasoned that it would be inappropriate to hold otherwise, due to the lack of ambiguity in the statute. Id. at 887-88.

The Supreme Court will now have the final say on whether § 3327(d)(2) applies to veterans with multiple periods of service.


Congress enacted programs such as the MGIB and Post-9/11 Bill, in part, to allow veterans to pursue educational opportunities and career paths they may have missed due to their service. In 2022, there were 834,460 veterans using these programs to fund their educational goals. Out of the eight available education programs, the Post-9/11 Bill serves the greatest number of veterans, accounting for 67.6% of all VA education program recipients in 2022. If the Supreme Court holds that § 3327(d)(2) does not apply to individuals with multiple terms of service, it could provide additional educational benefits to approximately 1.7 million veterans, who risked life and limb in service of our country, enabling them to pursue their dreams of higher education. 

Benjamin Davis

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