Alabama Advisory Opinions October 22, 2002: AGO 2003-015 (October 22, 2002)

AGO 2003-015.

Dear Mr. Wilkes:

This opinion of the Attorney General is issued in response to your request on behalf of the Department of Veterans Affairs.

Based on the facts presented in the request, was the veteran in question a resident of Alabama at the time of entry into military service so that his child may receive the educational benefits provided in section 31-6-11(b)(1), (2), and (3)?

Section 31-6-11(b)(1), (2), and (3) of the Code of Alabama provides:

(b) Before the application of a wife, widow or child of a disabled veteran or a deceased veteran or serviceman for educational benefits under this chapter is approved, proof, satisfactory to the State Department of Veterans Affairs, must be submitted:

(1) Establishing the identification of such wife, widow or child as the wife, widow or child of the veteran or serviceman, as the case may be;

(2) Of such veteran or serviceman having been a permanent resident of the State of Alabama for at least one year immediately prior to his or her entrance into service, or if the applicant is the wife, widow or child of a totally and permanently disabled veteran, then proof either of the veteran's having been a permanent resident of the State of Alabama for at least one year prior to his entrance into service or proof that such veteran has been a bona fide resident of this state for at least five years immediately prior to the filing of the application for benefits under this chapter or immediately prior to his death if the veteran is deceased; and,

(3) An honorable discharge or other proof of honorable termination of service of the veteran or serviceman in the armed forces for a period of at least 90 days between the dates mentioned in this chapter, or service of less than 90 days if the veteran or serviceman was discharged or released by reason of service-connected disability.

ALA. CODE § 31-6-11(b)(1), (2), & (3) (1998).

Your request states:

As the office of primary responsibility for the adjudication of educational benefits, as set forth in the above-referenced statute, we have received an application for such on behalf of a child of a veteran who's home of record on his military document at the time of entry into federal military service clearly states Pensacola, Florida. a. The veteran insists that because he was a full-time student at Auburn University during the year 1979 and joined the military through the R.O.T.C. program while at Auburn, as well as, b. Filing Alabama individual income tax, part-year resident, 1979, that his dependent should be eligible for the Alabama GI Dependents Scholarship Program. His DD Form 214, Certificate of Release from Active Duty, clearly shows his home of record at the time of entry as Pensacola, Florida. The 1979 Alabama part-year resident tax form was marked NO where asked if he was a resident for the entire year and gives residence in this state as 1 Jan. 79 to 9 Jun. 79.

In this instance, the veteran contends that he should be considered an Alabama resident based on the facts presented above, and that his dependent should be eligible for the Alabama GI Dependent's Scholarship Program.

"Permanent resident," as used in section 31-6-11(b) of the Code of Alabama, means having a legal residence or domicile in the State of Alabama. Domicile is the place where one is deemed to live at law and may not always be the place of one's actual dwelling. Ex parte Weissinger , 247 Ala. 113, 117, 22 So. 2d 510, 573 (Ala. 1945).

The Alabama Supreme Court has held that the terms "legally resides" and "resident" are synonymous with domicile. Osborn v. O'Barr , 401 So. 2d 773, 775 (Ala. 1981). The Court further stated:

"`In order to acquire a domicile of choice there must be both an abandonment of the former domicile with no present intention of return, and the establishment of another place of residence with the intention to remain permanently, or at least for an unlimited time. . . .'" Id . at 775.

For voter registration purposes, the residence or domicile of a college student is the address in the county where his parents or guardians reside, and upon which his or her voter registration is based, unless the student has affirmatively established a new residence and changed his voter registration. Opinion of the Attorney General to Honorable F. Lenton White, City Attorney, Dothan, dated June 19, 1997, A.G. No. 97-00209 at 4. In deciding whether a student, who is in school in another state, is still a resident of the state in which his parents or guardians reside, a determination must be made based on whether the student presents evidence of his or her intention to live and remain in the state where he or she attends school Opinion of the Attorney General to Ms. Carolyn N. Love, Chairman, Colbert County Board of Registrars, dated September 22, 1982, A.G. No. 82-00562 at 2.

The Attorney General makes determinations of law and not of fact. ALA. CODE § 36-15-1(1) (2001). This Office is, therefore, unable to provide you with the ultimate answer to your question.

Section 31-6-11(b) of the Code states that, before an application for educational benefits under that statute is approved, satisfactory proof must be submitted to the State Department of Veterans Affairs that the requirements set out in section 31-6-11(b)(1), (2), and (3) are met. The facts presented in your request evidence that the legal residence or domicile of the veteran at the time of his entry into the service was Pensacola, Florida, and that the student resided in Alabama only from January to June 1979. The evidence, therefore, suggests that the veteran was not a legal resident of Alabama for at least one year immediately prior to his entry into the Armed Forces.

The ultimate determination of whether a child of a veteran is eligible to receive educational benefits under section 31-6-11(b) of the Code of Alabama must be made by the Department of Veterans Affairs. In the absence of clear and convincing proof that the veteran intended to and did change his legal residence to the State of Alabama while attending Auburn University, his child may not receive educational benefits.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Carol Jean Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

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