Can a service member's child get Virginia in-state tuition when the parent is deployed and Virginia is not listed on the military orders?

Plain-English summary

Senator Harry Blevins asked the AG about two military families whose children wanted in-state tuition at Virginia public colleges. In both scenarios, the service member was on an "unaccompanied deployment" (a duty station where dependents are not allowed to live), and in both, the service member's orders did not list Virginia as the duty station.

Scenario one involved a family that moved to Chesapeake while the service member was deployed. Virginia was effectively the family's next "follow-on duty station," but it was not on the orders. The service member was not a Virginia resident, though the spouse and children held Virginia driver's licenses and registered to vote in Virginia. Scenario two involved a service member who had lived in Virginia for three years on active duty but was assigned in March 2012 to the Emory S. Land, a submarine tender home-ported at Diego Garcia, on an unaccompanied tour for a year. His family stayed in Virginia. His orders did not list Virginia as the ultimate duty station.

The AG concluded, on those facts, that neither family qualified to use the service member's status to get in-state tuition. The opinion walked through two separate avenues in § 23-7.4 and rejected both. The one-year domicile waiver in § 23-7.4(B) requires the service member (and dependents claiming through the member) to "reside in the Commonwealth" and to have voluntarily elected Virginia as a permanent residence for domiciliary purposes. Neither service member in the scenarios was residing in Virginia. The rule in § 23-7.4(E) deems certain military dependents to be domiciled in Virginia if the service member is assigned to a permanent duty station in Virginia, an adjacent state, or DC, and "reside in Virginia." Neither service member's permanent duty station fit that geography.

The conclusion is limited to eligibility based on the service member's military status in the two scenarios described. The opinion does not decide other bases for in-state tuition.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applies § 23-7.4 as it stood in 2013. Check current Virginia tuition and domicile law before relying on its analysis.

Common questions

What was the issue with "Virginia not being on the orders"?
The orders were part of the facts, but the AG considered more than the orders. For the one-year waiver, he found the members did not reside in Virginia and the facts did not show that they voluntarily elected Virginia as their permanent residence. For deemed domicile, he found neither member assigned to a qualifying permanent duty station or to a temporary assignment within the stated home-port exception.

Why didn't holding a Virginia driver's license and voter registration matter for the children?
The AG noted those facts about the family, then assessed whether the dependents qualified through the service members' military status. He did not decide whether a dependent could qualify on another basis.

Did the AG decide whether a non-military parent could establish eligibility?
No. The opinion addresses whether these dependents qualified based on the service members' military status. It contains no ruling about eligibility through a non-military parent.

What is a "follow-on duty station"?
The request described a next duty station where the family would typically be moved after an unaccompanied deployment. In the first scenario, the next station was Virginia but it was not listed in the service member's orders. The AG found that the stated facts did not meet the tuition provisions he analyzed.

What is an "unaccompanied deployment"?
The opinion uses the term for the two assignments in the request. In one scenario, a service member was assigned to a submarine tender with a home port in Diego Garcia while the family remained in Virginia. It does not provide a general list of deployment types.

Background and statutory framework

At the time, Va. Code § 23-7.4 governed eligibility for in-state tuition. The general rule required clear and convincing evidence that, for at least one year before the date of alleged entitlement, the person through whom the student claimed eligibility had been domiciled in Virginia and had abandoned any previous domicile. The domicile of a dependent student was rebuttably presumed to be the domicile of the parent or legal guardian.

Section 23-7.4(B) carved out a one-year-waiver path for active-duty military and dependents "residing in the Commonwealth" who "voluntarily elect to establish Virginia as their permanent residence for domiciliary purposes." Section 23-7.4(E) went further: dependents (as defined in 37 U.S.C. § 401) of active-duty personnel, reservists, or guard members "assigned to a permanent duty station or workplace geographically located in Virginia, or in a state contiguous to Virginia or the District of Columbia, who reside in Virginia," were deemed to be domiciled in Virginia. The State Council of Higher Education for Virginia (SCHEV) implemented these provisions through Domicile Guidelines. The Guidelines recognized a limited temporary-assignment exception for service members assigned to a unit whose home port or base was located in Virginia, an adjacent state, or DC.

The AG read both subsections strictly. Neither service member in the senator's scenarios was "residing in the Commonwealth" at the relevant time, and neither was "assigned to a permanent duty station or workplace geographically located in Virginia, or in a state contiguous to Virginia or the District of Columbia." Both were on unaccompanied deployments to locations outside the qualifying geographic area, and the AG did not treat those as "temporary assignments" of a unit otherwise based in the qualifying area.

Citations

• Va. Code § 2.2-505 (Attorney General advisory opinions)
• Va. Code § 23-7.4(B), (E) (in-state tuition; military waiver and deemed-domicile provisions)
• 37 U.S.C. § 401 (definition of military dependents)
• State Council of Higher Education for Virginia, Domicile Guidelines

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-087_Blevins.pdf

Original opinion text

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Kenneth T. Cuccinelli, II
Attorney General
900 East Main Street
Richmond, Virginia 23219
804-786-2071

February 11, 2013

FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Harry B. Blevins
Member, Senate of Virginia
Post Office Box 16207
Chesapeake, Virginia 23328

Dear Senator Blevins:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire regarding eligibility for in-state tuition of dependents of certain military personnel. Specifically, you ask whether the one-year residency requirement must be satisfied to establish domicile in the following situations: 1) when the service member has been ordered on an unaccompanied deployment with a "follow-on duty station" in Virginia, where Virginia is not listed on the orders; and 2) when the service member has been stationed in Virginia for 3 years but assigned to a one-year unaccompanied submarine tour and Virginia is not listed as the ultimate duty station on the orders.

Response

It is my opinion, based on the limited facts provided, that the dependents of the service members described in the scenarios you present neither qualify for waiver of the one-year residency requirement, nor otherwise can be deemed domiciled in Virginia for purposes of in-state tuition based on the service member's military status.

Background

You present two scenarios involving the domicile status of dependents of military service members. In the first scenario, the family of a military service member has moved to the City of Chesapeake while the service member is on an unaccompanied deployment. You indicate that in these situations, the family is typically moved by the military to the follow-on duty station. You state that in this instance the next duty station is Virginia, but that Virginia is not listed in the orders. You relate that the service member is not a Virginia resident, but that the family members hold Virginia drivers' licenses and are registered to vote in the Commonwealth.

In the second scenario you describe, the military service member has been on active duty and stationed in Virginia for the past three years, but in March 2012, he was assigned to the Emory S. Land, a submarine tender, which has its home port in Diego Garcia. You relate his assignment is an unaccompanied tour for one year, during which time the service member's family will remain in Virginia. The service member's orders currently do not list Virginia as the ultimate duty station.

Applicable Law and Discussion

Eligibility for in-state tuition charges for students enrolled in Virginia's institutions of higher education is governed by § 23-7.4 of the Code of Virginia. The law generally provides that

To become eligible for in-state tuition, a dependent student or unemancipated minor shall establish by clear and convincing evidence that for a period of at least one year prior to the date of the alleged entitlement, the person through whom he claims eligibility was domiciled in Virginia and had abandoned any previous domicile, if such existed.

Further,

The domicile of a dependent student shall be rebuttably presumed to be the domicile of the parent or legal guardian claiming him as an exemption on federal or state income tax returns currently and for the tax year prior to the date of the alleged entitlement or providing him substantial financial support.

In determining domicile status, several factors are required to be considered; these factors, which include continuous residency in the Commonwealth, must exist for the one-year period prior to the date of alleged entitlement. Nonetheless, this one-year requirement is waived statutorily for active duty military personnel residing in the Commonwealth and their dependents who voluntarily elect to establish Virginia as their permanent residence for domiciliary purposes, provided all other conditions for establishing domicile are satisfied.

In the first scenario you present, although the family, including the future student, have relocated to Virginia, the military service member does not appear to reside in the Commonwealth. Also, the facts you relate do not indicate that he has voluntarily elected to establish Virginia as his permanent residence for domiciliary purposes. Moreover, Virginia is not listed in the military member's orders. The service member in your second scenario similarly neither currently resides in the Commonwealth, nor has orders listing Virginia as a duty station. Furthermore, the facts you present do not suggest that he has voluntarily elected to establish Virginia as his permanent residence for domiciliary purposes, even though he resided in Virginia prior to his new assignment. Applying the plain language of § 23-7.4(B), which affords a waiver for military personnel "residing in the Commonwealth" and their dependents "who claim domicile through them," I conclude that the conditions for waiving the one-year residency requirement are not met in the scenarios you present as you describe them.

Nonetheless, § 23-7.4 further provides that,

all dependents, as defined by 37 U.S.C. § 401, of active duty military personnel, or activated or temporarily mobilized reservists or guard members, assigned to a permanent duty station or workplace geographically located in Virginia, or in a state contiguous to Virginia or the District of Columbia, who reside in Virginia shall be deemed to be domiciled in Virginia for purposes of eligibility for in-state tuition and shall be eligible to receive in-state tuition in Virginia . . . .

In neither scenario does it appear that the military service member is assigned to a permanent duty station or workplace geographically located in Virginia, or in a state contiguous to Virginia or the District of Columbia. Although the guidelines developed by the State Council of Higher Education for Virginia further allow that such assignment may include temporary assignments to locations outside Virginia, a state contiguous to Virginia or the District of Columbia as long as the member remains assigned to a unit considered to have its home port or base located in Virginia, the District of Columbia, or a state contiguous to Virginia, it does not appear from the facts you present that either military member is on such a temporary assignment. Rather, the unaccompanied deployments are assignments of each service member to areas outside this geographic area. Therefore, the provision found in subsection 23-7.4(E) deeming certain military dependents to be domiciled in Virginia does not apply in the situations you relate.

Conclusion

Accordingly, it is my opinion, based on the limited facts provided, that the dependents of the service members described in the scenarios you present neither qualify for waiver of the one-year residency requirement, nor otherwise can be deemed domiciled in Virginia for purposes in-state tuition based on the service member's military status.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General