81-Month Rule for Dependents: Another VA “Gotcha” Tactic
Editor’s Note: I met Caitlin this past fall in DC as part of a work conference, where I was presenting. (Is messin’ with the VA really work though?) She approached me afterwards to discuss some real sneaky VA stuff. She asked if I could help spread the word. While I personally don’t have any clients affected by this (that I know of, at least), I will never turn down an opportunity to shine some bright light on the VA. To give you a primer, one of the benefits of being a 100% disabled Veteran is tuition assistance for your children. Well, what if both your parents are 100% Veterans? Shouldn’t your children be entitled to double the benefits? Room and board along with those textbooks and fancy calculators get expensive. You both served and earned those benefits, right? Well, according to the VA, not only no, but hell no!
-WAM
The VA loves to think it’s above the law—but that’s not the case. When it takes that position it dishonors its core mission, along with wasting valuable resources better used elsewhere. Nor is it a public works program for bureaucrats as they spin hamster wheels for Veterans and our families, much as it comes across as such all too often. Rather, it is a vital department of the U.S. government tasked with a sacred duty. Unfortunately, it routinely subverts that fact by twisting legal basics leading to the incorrect denial of key benefits like educational ones, as if saving itself money is its prime directive.
The 81-Month Rule
On July 31, 2025, VA published a final rule in the Federal Register with an immediate effective date, titled “The 81-Month Rule for Dependents’ Education Assistance.” The very slight variation from the actual name of what many of us call “Chapter 35”—Dependents’ Educational Assistance—was surely deliberate as VA is also attempting to limit transferred GI Bill (Chapter 33) benefits. With this sudden rule though many might not catch that on a casual glance. However, as a Veteran with a law degree whose own family just saw significant earned educational benefits erased in a matter of hours on top of others denied for years, three things are deeply disturbing about this tactic.
One, it cavalierly dispensed with the 30 days of notice and comment required by the Administrative Procedures Act. A month is barely long enough to catch a looming change about to pull the carpet out from underneath a family and voice concerns; VA invoked the so-called good-cause exception, saying this change is “insignificant in nature and impact, and inconsequential…to the public.” That goes far beyond the pale. Thousands of military families around the world are deeply impacted, not just from one semester to the next, but literally from July 31st to August 1st as Congress went on recess, and Veteran parents and their young students were distracted, packing to leave for campuses across the country.
This rule doesn’t merely tell child students—typically teenagers—to apply on pink paper if mom is the second Veteran deceased or rated 100% in the family, but using crafty wording I’ve never seen before, preemptively spoils most of the educational benefits any second—or third—Veteran parent in the family has earned for the next generation. It does so by reducing them from 72 months each (36 of Chapter 33, the GI Bill, and 36 of Chapter 35, DEA), to just nine in total—the difference between 72 and 81. And it apparently did so between 8 AM and 5 PM on a single day. Try getting through a medical residency in less than a year after charting a future based on benefits earned by the death of one military parent, the severe injuries of another, along with the love—and earned benefits—of a third who stepped in when your family was rebuilding after trauma caused by military service.
This is not just a procedural change, but a substantive one that undermines the financial futures of entire families long after individuals raised right hands to separately support and defend the nation, putting our very lives on the line while taking that solemn oath. Offer, acceptance, contract—this is first year law school stuff; revising the terms now is beyond duplicitous. Sadly, we’ve seen it before—when Army Signal Corps “Hello Girls” women soldiers came back from serving in France during WWI and were deemed to have been contractors and denied Veterans’ benefits, only to have it happen again following WWII when Black GI’s were barred from using the educational benefits they’d honorably earned in the far longer war overseas.
Two, this rule is 13 years late—the underlying legal change was passed by Congress over a decade ago in the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 as part of Public Law 112-154. Why it took so long to draft an implementing rule is very curious, and makes me wonder if there’s a connection to VA having lost the GI Bill case at the U.S. Supreme Court in a 7-2 decision on April 16, 2024—and how many Veterans may have been perhaps incorrectly limited to 48 months between their own earned GI Bill and other benefits such as Chapter 31 (Vocational Readiness and Employment, VR&E or “voc rehab”, which has an educational track) well after 2012 when 48 months was expanded to 81. I know several attorneys who worked pro bono for nearly 10 years on Rudisill v. McDonough; I’ll have to ask what the connection between this rule to combining earned Montgomery and Post 9-11 GI Bills might be the next time we bump into one another. It’s hard to believe they are having to help yet more Veterans litigate all over again as officers in particular are being wrongly denied even just an extra 12 months of what they earned, having been induced to remain on active duty longer without technically reenlisting, only to still be wrongly capped at 36 months by VA once out of uniform. My fellow Virginia Army Veteran Jim Rudisill is one of them, along with another Virginia Army officer who’s daughter is at Harvard Law—and fighting for those crucial 12 months with the assistance of our Attorney General, VFW and IAVA.
A Deep Rooted History
Three, given the unusual linguistic sleight of hand where for the first time the student—often a 17 or 18-year-old family member—is suddenly limited to 81 months rather than retaining the proper focus on the military parent(s) who earned the benefits, this strikes me as yet another attempted end run around having to follow the 2008 Osman v. Peake decision of the United States Court of Appeals for Veterans Claims. Regardless of the starting point, be it 45 months of benefits as Chapter 35 long was until August 1st, 2018, when the Harry Colmery (Forever GI Bill) Act of 2017 went into effect, dropping a set down to 36 months (though raising the monthly benefit nicely), that current, binding and precedential decision still requires VA to multiply times two if both parents each earned Chapter 35.
And VA hates it, especially when combined with the original language of the U.S. Code that has long allowed two full sets for decades through a father and stepfather if the child student uses the second one for graduate school. Same sex marriage in 2013 led to awkward revised statutory wording about two parents “in the same parental line” that clearly confuses VA employees let alone most Veterans and teenagers. What’s really hard to take though is the false narrative about “double dipping” VA then deploys to deny benefits earned by married or divorced parents of any sort as if dad and mom are two halves of the same service member, and avoid the basic Kindergarten logic of adding one plus one to arrive at two full sets of Chapter 35.
In most of the 50 states the set coming from the father is needed for tuition and fees, while the second set from the mother covers room and board during college. Even in states like Virginia where we’ve long had a solid program that waives tuition and fees at public institutions for family members of Veterans rated 90% and 100%, we’ve come to find that’s not a good Plan B. The Virginia Military Survivors and Dependents Education Program (VMSDEP) was gutted out of the blue on May 13th, 2024, also without notice and comment as required by our state Constitution. We had to fight extremely hard in Richmond to get it restored two months later on July 18th but only with funding through June 2026, which makes it difficult to count on moving forward. And our General Assembly continues to violate state law by denying VMSDEP to stepchildren, despite having gone from protecting Veterans to military families in 2022, so yet again families with the most trauma find themselves harmed the worst under the radar—while really needing federal benefits to work correctly.
Two full sets of Chapter 35 if earned by each parent’s death or 100% rating need to be available simply to get through a first four-year degree without unwarranted debt—and not count against a set of transferred Chapter 33, or GI Bill benefits. This latest bait and switch of July 31st is all too similar to the widows’ tax, where DIC was earned through service and SPB was paid for with premiums but for many decades, only one benefit could actually be used. The irony of it taking over 20 years to eliminate the widows’ tax just two years ago, only to have this new “gotcha” arise is a bitter pill to swallow in our community.
In fact, this 81-month rule as written likely impacts child students with just one military parent if they later go on to marry a service member. And they won’t see it until broadsided badly. A daughter currently using 36 months of transferred GI Bill from her active duty father to get a bachelor’s degree in biology, who then goes on to medical school once he’s retired and rated 100% thus can use 36 months of Chapter 35 at $1,536 each academic month to help pay her rent while taking out loans for tuition and fees, would later be shocked to find that she’s limited to using only nine months of transferred GI Bill from her new husband—who has 36 to offer her—to become a surgeon. That goal often takes longer than medical school itself, and the rent still needs paying then too along with tuition. Rather like young Dr. Brian Osman two decades ago, she is likely to feel duped by this unexpected rule that really isn’t law, or even legal. It’s heartbreakingly similar to what VA did overseas between 2017-23 when Veterans and family members were denied all Chapters (30, 31, 33, and 35) on a made-up technicality—even in countries like Germany that don’t charge U.S. citizens tuition—simply to deny the beneficiary BAH or other funds like Chapter 35 for rent and food. VA probably “saved” less than half a billion dollars during those six years yet given the lack of retroactive benefits thus far when it acts this way, is likely to keep playing the same card over and over.
Playing Games
VA shoots DoD in the foot with such tactics, all too often attempting to send the ER bill to dual Veteran parent families despite current, binding and precedential case law—Osman v. Peake—two levels below the U.S. Supreme Court, establishing that one plus one equals two if both parents each earned Chapter 35 through death or ratings of 100%. The same goes for Chapter 33 when a dual couple has only one child; it’s ludicrous that VA terms that “double dipping” as well. VA never appealed Osman, surely realizing it had no hope of winning at the highest court in the land either. The SCOTUS Frontiero v. Richardson decision of 1973 would definitely be a factor there. That it also unconstitutionally strips the typical second parent in the family of compensation on behalf of the joint child too, leaving a student with dual Veteran parents worse off financially than one in a solo Veteran household, is a real sign of misguided priorities at 810 Vermont Avenue.
That we now have widows—Veterans in their own right—being told by VA it is “cracking down extra hard on double dipping since losing the GI Bill case at the Supreme Court” when they call to protest getting recoupment letters for years’ worth of their own compensation because a child in the family is using Chapter 35 through a deceased father, is where we draw the line. Dual Veterans from across the country went to Capitol Hill October 8th, 2025, to commemorate 17 years of VA’s failure to follow Osman v. Peake in good faith, duping an entire generation of hidden heroes out of the educations their fathers and mothers earned for them. As Veterans Day approaches we already have our eyes on October 8, 2026, by which time we plan to have a wave of appeals enroute to the United States Court of Appeals for Veterans Claims. Pass the word and join our efforts if you can!
Entire families are impacted by Veterans’ benefits—whether during the Bonus Army of 1932 or NOW
VA Chapter 35 Dual Veteran Families | Facebook
Anyone who wants to help immediately is welcome to sign and share the change.org petition going to members of Congress.
About the Author
Caitlin Goodale-Porter was the only female Army cadet commissioned in 1984 at the College of William and Mary in Virginia as a 20 year old, initially serving on active duty as a missile maintenance officer in the Ordnance Corps both at Redstone Arsenal and the 3rd Armored Division in Germany. In 1989—after being told her records had burned up in the St. Louis fire of 1973—she managed to join an Army Reserve unit and began the process of switching to the Chemical Corps to take command only to have Desert Storm strike as she started law school at West Virginia University in 1990.
Once graduating in 1994, her first--and only--law firm turned out not to be supportive of military reservists, so she enlisted in the Coast Guard and attended OCS. Instead of a legal billet, her next stop for a year was the Navy's flight school where ultimately binocular vision damage from Army TBI's led to her washing out before moving on to Air Station Corpus Christi as the surface law enforcement officer.
While there she married her husband Dan and went on to become a trailing Army wife and mother until his retirement in 2014. It is only recently that her legal training has come in handy again as a grassroots education advocate for Veterans and their families on both the state and federal levels, helping to secure millions of dollars in funding for the Virginia Military Survivors and Dependents Education Program in 2024 after it was nearly gutted in the state's biennial budget bill without notice and comment, let alone due process.
Now her goal is to make sure stepchildren are able to use that program in accordance with state law, and ensure dual Veteran parent families are no longer denied full and fair compensation and educational benefits on the federal side simply for having met and married in the military.
