Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

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Veterans’ Benefits: The Impact of Military

Discharges on Basic Eligibility

-name redactedAnalyst in Disability Policy

-name redactedSpecialist in Veterans Policy

March 6, 2015

Congressional Research Service

7-....

www.crs.gov

R43928

Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

Summary

The Department of Veterans Affairs (VA) offers a broad range of benefits to veterans of the U.S.

Armed Forces and to certain members of their families; however, a claimant must meet the basic

eligibility criteria. A benefit claimant must prove that he or she meets the statutory definition of a

“veteran,” which includes (1) service in the active military (i.e., Army, Navy, Air Force, Marine

Corps, Coast Guard) or commissioned officers of the Public Health Service (PHS), and National

Oceanic and Atmospheric Administration (NOAA); (2) minimum length of service requirements;

and (3) discharge or separation from military service under conditions “other than dishonorable.”

This report focuses on the discharge or separation requirement for veteran status or, more

specifically, how the VA determines that a former servicemember’s military service can be

characterized as under conditions other than dishonorable. The conditions surrounding a

servicemember’s discharge from the military can have important implications for his or her

ability to subsequently claim entitlement to a host of benefits provided through the VA. The VA

may deny benefits to former servicemembers whose military separation is characterized as “other

than honorable” (OTH) or if they have received a punitive discharge adjudicated by a courtmartial. In addition, certain types of misconduct could create a legal bar to receiving veterans’

benefits.

The VA generally accepts discharges that are characterized as “honorable” or “general” (under

honorable conditions) for purposes of veterans’ benefits. Such discharges generally do not

disqualify a veteran for a wide range of VA benefits, including disability compensation and

pension, health care services, educational assistance, vocational rehabilitation and employment

services, home loan guaranty, and memorial and burial services. However, for purposes of the

Montgomery GI Bill and the Post-9/11 GI Bill, a veteran must have received an honorable

discharge. Furthermore, with certain exceptions, VA health care will be furnished for any

disability incurred in or aggravated during a period of service terminated by a discharge under

OTH conditions.

However, an adverse discharge may preclude a former servicemember from receiving one or

more VA benefits based on a complex set of statutory and regulatory restrictions. In these

instances, the VA must develop the character of service, through an assessment of facts and other

evidence related to a claimant’s time in the military, to determine whether his or her military

service meets the general statutory and regulatory criteria for entitlement to veterans’ benefits.

This report primarily focuses on the VA adjudication process for claimants who—as a result of an

adverse discharge—are entitled to a character of service determination resulting in either a

favorable finding of “other than dishonorable” service or an unfavorable finding of

“dishonorable” service for the purposes of VA benefits. This report does not address Department

of Defense (DOD) policy on military discharge procedures aside from descriptions of how

military discharges impact the potential receipt of veterans’ benefits. Although a former

servicemember may also exercise the right to seek redress through the Discharge Review Board

(DRB) or the Board for Correction for Military/Naval Records (BCM/NV) of his or her military

department, the VA has no involvement in DOD administrative remedies and therefore a

discussion of DOD-related discharge issues is outside the scope of this report. Situations where

policy or program overlap occurs between the VA and DOD are addressed where appropriate.

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Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

Contents

Introduction...................................................................................................................................... 1

Veterans’ Benefits Claims Process ................................................................................................... 2

VA “Duty to Assist” ................................................................................................................... 2

Establishing “Veteran” Status .......................................................................................................... 3

Active Service Criteria for Veteran Status ................................................................................. 4

Length-of-Service Criteria for Veteran Status ........................................................................... 5

Discharge Criteria for Veteran Status ........................................................................................ 5

Comparison of Military Character of Discharge and VA Character of Service................... 8

Conditions that Create a Legal Bar to VA Benefits ......................................................................... 8

Statutory Bars to VA Benefits .................................................................................................... 8

Regulatory Bars to VA Benefits................................................................................................. 9

Exceptions to Legal Bars to VA Benefits ......................................................................................... 9

Insanity at the Time of Offense ................................................................................................. 9

Prior Period of Other than Dishonorable Service .................................................................... 10

VA Character of Service Determination Process ........................................................................... 10

VA Duty to Assist in Developing Character of Service ........................................................... 10

VA Notice and Fact-Finding Process ....................................................................................... 11

The Impact of Military Discharges on VA Health Care ................................................................. 12

Eligibility for Medical Care Tentatively Approved on Prima Facie Evidence ........................ 13

Military Sexual Trauma Exception .......................................................................................... 14

Appealing an Unfavorable VA Determination ............................................................................... 16

Decision Review Officer ......................................................................................................... 16

The Board of Veterans’ Appeals .............................................................................................. 16

The Court of Appeals for Veterans Claims .............................................................................. 17

The Court of Appeals for the Federal Circuit .......................................................................... 17

The Supreme Court of the United States ................................................................................. 17

Figures

Figure 1. Other Than Honorable (OTH) Discharges and VA Health Care Eligibility ................... 15

Tables

Table 1. Eligibility for Common VA Benefits by Military Character of Discharge ......................... 7

Table B-1. Descriptions of Statutory Bars to VA Benefits ............................................................. 19

Table B-2. Descriptions of Regulatory Bars to VA Benefits .......................................................... 20

Appendixes

Appendix A. Descriptions of Military Character of Discharge ..................................................... 18

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Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

Appendix B. Descriptions of Statutory and Regulatory Bars to VA Benefits ................................ 19

Appendix C. Applied Example: Understanding the Impact of Character of Discharge and

VA’s Decision.............................................................................................................................. 21

Contacts

Author Contact Information........................................................................................................... 24

Acknowledgments ......................................................................................................................... 24

Key Policy Staff ............................................................................................................................. 24

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Introduction

Recent legal events related to Vietnam-era servicemembers who received an “other than

honorable” (OTH) discharge (commonly referred to as an “undesirable” or “bad paper”

discharge) from the military have drawn the attention of Congress due to the impact that OTH

discharges may have on restricting eligibility for veterans’ benefits.

On March 3, 2014, a group of veterans, assisted by the Yale Law School Veterans Legal Services

Clinic, filed a class action lawsuit on behalf of Vietnam servicemembers who received OTH

discharges due to misconduct that—the servicemembers contend—was related to undiagnosed

post-traumatic stress disorder (PTSD).1 The plaintiffs sued the Secretaries of the Army, Navy, and

Air Force alleging violations of the Administrative Procedure Act during the review of petitions

to the Boards for Correction of Military/Naval Records (BCM/NR) requesting an “upgrade” in

discharge status. An upgrade to an honorable or general discharge (under honorable conditions)

would allow some Vietnam-era servicemembers with OTH discharges to establish basic eligibility

for veterans’ benefits.2

In response to the class action, then-Secretary of Defense Chuck Hagel issued a September 3,

2014, memorandum to the Secretaries of the military departments providing supplemental policy

guidance for the BCM/NR to give “liberal consideration” to petitions for changes in discharge

status.3 The guidance “ ... is intended to ease the application process ... and assist the Boards in

reaching fair and consistent results” for PTSD-related cases involving former servicemembers

petitioning the BCM/NR for redress.4

Although the Department of Veterans Affairs (VA) is not party to the lawsuit, in a process known

as a character of service determination, the VA plays a separate, but related, role in assessing

entitlement to veterans’ benefits for individuals whose character of discharge does not

automatically meet basic eligibility criteria.

The circumstances surrounding a servicemember’s discharge from the military have implications

for his or her ability to claim entitlement to a wide range of gratuitous benefits administered by

Monk v. Mabus, Case 3:14-CV-00260 (U.S. District Court for the District of Connecticut 2014). Post-Traumatic

Stress Disorder (PTSD) is a mental health condition that can manifest as a psychological response to a traumatic event.

PTSD did not gain clinical recognition until after the Vietnam War. Currently, if a servicemember facing an OTH

discharge reasonably alleges to be suffering from PTSD, the military must provide a medical examination to that

person. A resulting diagnosis of PTSD can then be taken into consideration when determining the servicemember’s

discharge status and subsequent eligibility for veterans’ benefits (10 U.S.C. §1177).

Each respective military department’s Discharge Review Board (DRB) or the Boards for Correction of Military/Naval

Records (BCM/NV) provides potential recourse to former servicemembers who petition the boards. Each board is

authorized to (1) review the relevant evidence provided by former servicemembers contesting the contents of their

service records, and (2) apply retroactive upgrades to the discharge status or other correction(s).

See Memorandum to Secretaries of the Military Departments available on the Department of Defense (DOD) website

at http://www.defense.gov/news/OSD009883-14.pdf and Monk. v. Mabus, Civil Action No. 3:14-CV-00260 (WWE)

(U.S. District Court for District of Connecticut 2014).

This report describes the impact of a military discharge on eligibility for veterans’ benefits, but does not address DOD

policy on military discharge procedures. Although a former servicemember may seek a discharge upgrade through a

DRB or the BCM/NV, the VA has no involvement in DOD administrative remedies. Therefore, a discussion of DODrelated discharge issues is outside the scope of this report.

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Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

the VA, including service-connected disability compensation, health care, education assistance,

non-service-connected pension, burial benefits, housing benefits, and vocational rehabilitation,

among others. To meet basic eligibility criteria for veterans’ benefits, the former servicemember

must first establish “veteran” status. Specifically, the individual must meet certain active duty

service requirements and minimum length-of-service requirements, and have a discharge or

separation from the military under conditions that are “other than dishonorable.” Entitlement to

veterans’ benefits is generally denied to former servicemembers who do not meet the statutory

definition of a veteran.5

This report discusses the discharge or separation requirement for veteran status or, more

specifically, how the VA assesses character of service to determine whether a former

servicemember’s separation from the military can be considered other than dishonorable. In some

instances, the military characterization of discharge is relatively uncomplicated, creating a

binding entitlement to VA benefits (i.e., an honorable or general discharge [under honorable

conditions]), assuming the individual meets other eligibility requirements for veteran status.

However, if the characterization of discharge may preclude access to veteran’s benefits, the VA

must develop the case, through an assessment of service records and other evidence related to a

claimant’s time in the military. This report includes a hypothetical example (in Appendix C)

illustrating the complexities associated with making character of service determinations by the

VA.

Veterans’ Benefits Claims Process

The initial step in filing a claim, for example, for VA disability compensation or pension benefits,

is to submit an application either through the VA’s online system or a completed VA Form 21-526

to a local VA regional office in person or by mail. Currently, a former servicemember does not

need to submit a completed form to initiate a claim for veterans’ benefits, because the VA accepts

informal claims that include “[a]ny communication or action, indicating an intent to apply for one

or more benefits under the laws administered by the Department of Veterans Affairs, from a

claimant, [or] his or her duly authorized representative.”6

VA “Duty to Assist”

Under the duty to assist provisions,7 the VA is required to “make reasonable efforts to assist a

claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a

For more information on establishing “veteran” status see CRS Report R42324, Who is a “Veteran”?—Basic

Eligibility for Veterans’ Benefits, by (name redacted).

38 C.F.R. §3.155. On September 25, 2014, the VA promulgated final rules that are to eliminate informal claims

starting March 24, 2015. At that time, the VA is to only accept claims filed electronically or locally using one of two

standard forms: (1) VA Form 21-0966 (Intent to File), which allows a former servicemember to initiate a claim while

gathering additional evidence to support the claim, or (2) VA Form 21-526EZ, which is used to file the actual claim (79

F.R. 57660).

See CRS Report R43740, Veterans’ Benefits: The Department of Veterans Affairs and the Duty to Assist Claimants,

by (name redacted).

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law administered by the Secretary [of Veterans Affairs].”8 Former servicemembers can also

receive free assistance in filing claims through a certified veterans service organization (VSO).9

After the VA receives a complete or substantially complete application for benefits,10 it is required

to assist in the development of the claim. The Veterans Claims Assistance Act of 2000 (VCAA)11

requires the VA to notify the claimant of any information or medical or lay evidence that is

needed to substantiate the claim.12

The VA is also obligated to inform the claimant about information it will attempt to obtain on the

claimant’s behalf and which information or evidence the claimant will be required to provide.13

Furthermore, the VA, when adjudicating any claim for benefits, is obligated to give the claimant

the “benefit of the doubt” when there is “an approximate balance of positive and negative

evidence regarding” any claim,14 and must consider legal theories that a claimant fails to raise if it

would help substantiate a claim for benefits.15 However, if the claimant does not respond to the

VA’s notice within one year, then “no benefit may be paid or furnished by reason of the claimant’s

application.”16 The application is no longer valid and the claimant must re-file for benefits with

the VA.

Establishing “Veteran” Status

Veteran status forms the basis for eligibility for all VA benefits. The VA predicates access to

benefits based on a former servicemember meeting the statutory criteria for a veteran, without

which, they would generally be barred from benefits.17 Although veteran status can be

demonstrated through a number of pathways, a former servicemember must meet three primary

criteria:

38 U.S.C. §5103A(a)(1); 38 C.F.R. §3.159(c)(1).

Certain veterans service organizations (VSOs) have been congressionally chartered, which means they are federally

recognized or approved by the VA Secretary for purposes of preparation, presentation, and prosecution of claims under

laws administered by the VA. A directory of chartered and unchartered VSOs can be found on the VA website at

http://www.va.gov/vso/.

A “substantially complete” application includes “the claimant’s name; his or her relationship to the veteran, if

applicable; sufficient service information for VA to verify the claimed service, if applicable; the benefit claimed and

any medical condition(s) on which it is based; the claimant’s signature; and in claims for nonservice-connected

disability or death pension and parents’ dependency and indemnity compensation, a statement of income.” 38 C.F.R.

§3.159(a)(3).

P.L. 106-475, 114 Stat. 2096 (2000).

38 U.S.C. §5103(a); 38 C.F.R. §3.159(b).

38 U.S.C. §5103(a); 38 C.F.R. §3.159(b); see also infra section on VA’s obligation to obtain certain records on

behalf of the claimant.

38 U.S.C. §5107.

38 C.F.R. §3.103(a).

38 U.S.C. §5103(b).

Former servicemembers that are barred from VA benefits due to an inability to meet the statutory criteria for veteran

status, are still eligible for the VA program that allows conversion from Servicemembers Group Life Insurance (SGLI)

to Veterans Group Life Insurance (VGLI). See CRS Report R41435, Veterans’ Benefits: Current Life Insurance

Programs, by (name redacted).

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1. full-time active duty (other than active duty for training) military service (i.e.,

Army, Navy, Air Force, Marine Corps, Coast Guard) or commissioned officers of

the Public Health Service (PHS), and National Oceanic and Atmospheric

Administration (NOAA) or its predecessor, the Environmental Science Services

Administration;

2. 24 months of continuous service, or the full period for which the servicemember

was called to duty if activated for less than 24 months (applicable to enlistments

after September 7, 1980); and

3. discharge or separation from the military under conditions other than

dishonorable.18

Active Service Criteria for Veteran Status

An applicant must have “active military, naval, or air service” to be considered a veteran for most

VA benefits.19 However, not all types of service are considered active military service for this

purpose.20

In general, active service means full-time service, other than active duty for training, as a member

of the Army, Navy, Air Force, Marine Corps, Coast Guard, or as a commissioned officer of the

Public Health Service, the National Oceanic and Atmospheric Administration, or its predecessor,

the Environmental Science Services Administration.

Active service includes a period of active duty for training during which the person was disabled

or died from an injury or disease incurred or aggravated in the line of duty21 and any period of

inactive duty for training during which the person was disabled or died from an injury incurred or

aggravated in the line of duty or from certain health conditions incurred during the training.22

Additional circumstances of service, and whether they are deemed to be active military service,

are set out in statute.23 For example, if on authorized travel to and from the performance of active

38 U.S.C. §101(2); 38 C.F.R. §3.1(d).

38 U.S.C. §101(2); 38 C.F.R. §3.12(a).

For example, National Guard and Reserve duty may not be considered active service unless an individual performing

this duty was disabled or died from a disease or injury incurred or aggravated in the line of duty (38 U.S.C. §101(24);

38 C.F.R. §3.6(a)).

Active duty for training is a tour of active duty that is used for training members of reserve and other components to

fill the Armed Forces during time of war or national emergency. Active duty for training has been determined to mean

(1) full-time duty for training performed by reservists [38 U.S.C. §101(22)(A); 38 C.F.R. §3.6(c)(1)]; (2) full-time duty

for training purposes as a commissioned officer in the Reserved Corps of the Public Health Service [38 U.S.C.

§101(22)(B); 38 C.F.R. §3.6(c)(2)]; (3) full-time training duty by members of the Air or Army National Guard of any

state [38 U.S.C. §101(22)(C); 38 C.F.R. §3.6(c)(3)]; (4) duty by members of the Senior ROTC program on field

training or a practice cruise [38 U.S.C. §101 (22)(D); 38 C.F.R. §3.6(c)(4)]; and (5) authorized travel to and from duty

for training [38 U.S.C. §101(22)(E); 38 C.F.R. §3.6(c)(6)].

38 U.S.C. §101(24). Inactive duty for training has been defined to mean (1) duty, other than full-time duty, for

reservists [38 U.S.C. §101(23)(A); 38 C.F.R. §3.6(d)(1)]; (2) other duties authorized for Reservists performed on a

voluntary basis [38 U.S.C. §101(23)(B); 38 C.F.R. §3.6(d)(2)]; (3) training (other than active duty for training) by a

member of, or applicant for membership in, Senior ROTC [38 U.S.C. §101(23)(C); 38 C.F.R. §3.6(d)(3)]; and (4) for

the members of the Air or Army National Guard of any state, such training means duty other than full-time duty [38

U.S.C. §101(23); 38 C.F.R. §3.6(d)(4)].

38 U.S.C. §§101, 106.

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duty training or inactive duty for training, a person is disabled or dies while proceeding directly to

or returning from such duty, the duty will be considered to be active duty for training or inactive

duty for training.24

The determination of whether a claimant has met the “active service” requirement may not be a

simple process. It is possible that the claimant and the VA may have to scrutinize the claimant’s

service record(s) to determine whether the claimant’s service fits into one of the many categories

of active service, or whether an exception has been made for his or her service, so that it is

considered to be active service for the purposes of veterans’ benefits. In addition, if a claimant has

more than one period of service, this may further complicate the determination.

Length-of-Service Criteria for Veteran Status

Prior to September 8, 1980, there was no minimum length of service necessary to be considered a

veteran for most VA benefits. However, for an individual who enlisted after September 7, 1980,

certain minimum length-of-service requirements must be met.25 The general requirement is either

24 months of continuous active duty or the “full period” for which the servicemember was called

or ordered to active duty.26

Several exceptions exist to this general rule. For example, service-connected disability

compensation benefits are exempt from the minimum active duty requirements. Thus, a veteran

with a disease or injury incurred or aggravated during active service would generally be able to

receive service-connected compensation for his or her condition or disability.27 Other exceptions

to the minimum service requirements include claims for VA life insurance benefits,28 hardship

discharges,29 and retirements or separations resulting from a service-related disability.30

If the former servicemember does not fall within the 24 months of active duty or the full period of

active duty, or within one of the statutory exceptions, then the claimant has not completed a

minimum period of active duty and is “not eligible for any benefit under Title 38, United States

Code or under any law administered by the Department of Veterans Affairs based on that period

of active service.”31

Discharge Criteria for Veteran Status

The statutory definition of veteran also requires that the servicemember be discharged or released

from military service under conditions other than dishonorable.32 The military characterization of

38 U.S.C. §106(d); 38 C.F.R. §3.6(e).

Servicemembers who entered on active duty after October 16, 1981, and had not: (1) previously completed a

continuous period of active duty of at least 24 months, nor (2) been discharged or released from active duty under 10

U.S.C. §1171 are also subject to the minimum length-of-service requirement for veteran status.

38 U.S.C. §5303A(b); 38 C.F.R. §3.12a(a)(1).

38 U.S.C. §5303A(b)(3)(C); 38 C.F.R. §3.12a(d)(4).

38 U.S.C. §5303A(b)(3)(E); 38 C.F.R. §3.12a(d)(5).

38 U.S.C. §5303A(b)(3)(A); 38 C.F.R. §3.12a(d)(1).

38 U.S.C. §5303A(b)(3)(B); 38 C.F.R. §3.12a(d)(2).

38 U.S.C. §5303A(b)(1); 38 C.F.R. §3.12a(b).

38 U.S.C. §101(2); 38 C.F.R. §3.12(a).

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discharge generally falls into one of five categories: (1) honorable, (2) general (under honorable

conditions), (3) other than honorable (OTH), (4) bad conduct (adjudicated by a general courtmartial or a special court-martial), and (5) dishonorable. See a description of the discharge

categories in Appendix A. The military character of discharge is typically included in the former

servicemember’s DD-214 or other discharge paperwork.33 Assuming a former servicemember

meets the active duty and length-of-service requirements for veteran status as discussed above,

the character of his or her discharge will impact eligibility for VA benefits in one of three ways.

The VA is to

•

determine that the former servicemember is eligible for benefits,

•

determine that the former servicemember is not eligible for benefits, or

•

develop the case (i.e., assess the character of service) to make an eligibility

determination.

Military service characterized as honorable or general (under honorable conditions) is generally

binding on the VA for the purposes of veterans’ benefit eligibility, and former servicemembers

will typically be awarded benefits for which they are entitled, regardless of the reason for

separation.

Servicemembers receiving a bad conduct discharge by a general court-martial34 or a

dishonorable35 discharge are legally barred from receiving veterans’ benefits unless, during the

course of developing the character of service, the VA determines that they were insane at the time

of the offense that led to the discharge or if eligibility for benefits can be established based on a

prior period of other than dishonorable service.36

If the military service is characterized as OTH37 or a bad conduct discharge by a special courtmartial, it is necessary for the VA to develop a formal character of service determination for

potential eligibility for benefits.

Table 1 illustrates basic eligibility criteria for common VA benefits based on a former

servicemember’s character of discharge.

The DD Form 214, “Certificate of Release or Discharge from Active Duty,” is issued by the Department of Defense

upon the servicemember’s retirement, separation, or discharge from the active duty military.

According to VA’s Adjudication Procedures Manual, “even if a [bad conduct discharge] is determined to be

honorable for VA purposes, the service member is not eligible for health care. This is the only circumstance in which a

service member may be found to have service connected disabilities but not be eligible for health care.” (M21-1MR,

Part III, Subpart v, Chapter 1, Section B, 1-B-18).

A “dismissal” is the functional equivalent of a dishonorable discharge for officers. See Appendix A.

See section “Exceptions to Legal Bars to VA Benefits” in this CRS report.

Effective October 8, 1977, any serviceperson who is discharged under other than honorable conditions is eligible for

the health care and related benefits for any service-connected disability, provided that he or she was not discharged (1)

by reason of a bad conduct discharge or (2) under one of the statutory bars of 38 CFR 3.12(c) [see 38 U.S.C. Chapter

17].

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Table 1. Eligibility for Common VA Benefits by Military Character of Discharge

Military Character of Discharge

Honorablea

General

Other than

Honorable

Bad-Conduct (Court-Martial)

Special

Generalb

Dishonorableb

Disability

Compensation

eligible

COS

determination

COS

determination

not eligible

Health Carec

eligible

COS

determination

COS

determination

not eligible

Dependency and

Indemnity

Compensation

eligible

COS

determination

COS

determination

not eligible

Education

Assistanced

eligible

not eligible

Survivor

Pension

eligible

COS

determination

COS

determination

not eligible

Burial Benefits

eligible

COS

determination

COS

determination

not eligible

Special Housing

eligible

COS

determination

COS

determination

not eligible

Vocational

Rehabilitationd

eligible

COS

determination

COS

determination

not eligible

Disabled

Automotive

eligible

COS

determination

COS

determination

not eligible

Reenlistment

Rights

eligible

COS

determination

COS

determination

not eligible

VA Benefit

Source: Congressional Research Service (CRS) using data from the Naval Justice School study guide.

Notes: COS = Character of Service.

This chart shows general eligibility for benefits based on the characterization of military discharge and assumes a

servicemember meets all other requirements for “veteran” status, including active duty and length of service

requirements. This chart does not indicate any other eligibility criteria that may be required for a particular

benefit listed (e.g., to receive disability compensation benefits, a veteran must first establish veteran status in

addition to having a current disability that is connected to an injury or illness incurred or aggravated during a

qualifying period of military service).

Only former servicemembers whose discharge from the military is characterized as honorable are eligible

for the Presidential Memorial Certificate (a burial benefit), and education assistance through the

Montgomery and Post-9/11 GI Bills. See CRS Report R42785, GI Bills Enacted Prior to 2008 and Related

Veterans’ Educational Assistance Programs: A Primer, and CRS Report R42755, The Post-9/11 Veterans

Educational Assistance Act of 2008 (Post-9/11 GI Bill): Primer and Issues, both by (name redacted).

Former servicemembers whose discharge from the military is characterized as bad-conduct adjudicated by

general court-martial or under dishonorable conditions are legally barred from receiving VA benefits unless

the VA finds that the servicemember was insane at the time of the offense that led to the bar or if eligibility

for VA benefits can be established based on a prior period of other than dishonorable service. See the

“Exceptions to Legal Bars to VA Benefits,” below.

A former servicemember with an OTH discharge as a result of a regulatory bar will be limited to receiving

VA health care services only for the treatment of a disability that is connected to an injury or illness

incurred or aggravated during the relevant period of military service. However, an OTH discharge as a

result of a statutory bar will prohibit the former servicemember from receiving any VA health care services

based on the relevant period of service (P.L. 95-126). See Appendix B. Furthermore, according to VA’s

Adjudication Procedures Manual, “even if a [bad conduct discharge] is determined to be honorable for VA

purposes, the service member is not eligible for health care. This is the only circumstance in which a service

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Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

member may be found to have service connected disabilities but not be eligible for health care.” (M21-1MR,

Part III, Subpart v, Chapter 1, Section B, 1-B-18).

For veterans not eligible for education assistance, opportunities for postsecondary education may be

available through the VA Vocational Rehabilitation Program. For more information see CRS Report

RL34627, Veterans’ Benefits: The Vocational Rehabilitation and Employment Program, by (name redacted).

Comparison of Military Character of Discharge and VA Character of Service

Characterization of service is distinct from the military in that the VA has no authority to change

or upgrade a military discharge.38 The VA is limited to reviewing the relevant evidence to

determine whether the former servicemember’s record meets VA criteria for the awarding of

veterans’ benefits. The determination is bound by two outcomes: a finding that the record of

service is (1) other than dishonorable (a favorable outcome) or (2) dishonorable (an unfavorable

outcome).

In determining potential eligibility for veteran’s benefits, the VA adheres to a separate set of

statutory and regulatory criteria than the military and considers mitigating factors that may have

led to an adverse discharge, such as insanity. Character of service determinations are case-bycase, based on service records and other evidence related to the former servicemember’s time in

the military. The outcome is not always predictable and does not always directly correspond to a

specific military discharge characterization.

Conditions that Create a Legal Bar to VA Benefits

Congress has established that certain characterizations of service will preclude a former

servicemember from receiving VA benefits. In addition, Congress has delegated to the Secretary

of the VA the authority to promulgate regulations establishing additional circumstances that could

bar receipt of VA benefits.39 Collectively, these are known as legal bars. Legal bars to veterans’

benefits will not apply if the VA finds that the former servicemember was insane at the time of the

offense that led to the OTH discharge.40 In addition, a former servicemember may qualify for

veterans’ benefits based on a prior period of other than dishonorable service. See the “Exceptions

to Legal Bars to VA Benefits” section below.

Statutory Bars to VA Benefits

Benefits may be barred to servicemembers who receive an OTH discharge as a result of the

following conditions: (1) conscientious objection with refusal to perform duty, (2) sentencing by a

general court-martial, (3) resignation by an officer for the “good of the service,” (4) deserters, (5)

an alien during a period of hostilities in which the servicemember requested release, and (6)

For the purposes of this CRS Report, character of service is used to describe the VA process for benefit eligibility

determination, which we distinguish from the character of discharge that describes the nature of a servicemember’s

separation from the military. However, the VA Adjudication Procedures Manual Rewrite (M21-1MR) uses these terms

interchangeably.

38 C.F.R. §3.12.

Under 38 C.F.R. §3.12(e), an honorable discharge or general discharge (under honorable conditions) issued through

Boards for Correction of Military/Naval Records (BCM/NR) sets aside any prior statutory or regulatory bars to

benefits.

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absence without official leave (AWOL). Statutory bars will deprive the claimant of any VA

benefits.41 For a description of the statutory bars to VA benefits, see Table B-1 in Appendix B.

Regulatory Bars to VA Benefits

In addition, benefits may also be barred to servicemembers who receive an OTH discharge as a

result of the following conditions: (1) acceptance of an OTH discharge to escape trial by general

court-martial, (2) mutiny or spying, (3) an offense involving moral turpitude, (4) willful and

persistent misconduct, and (5) certain homosexual acts involving aggravating circumstances. For

a description of the regulatory bars to VA benefits, see Table B-2 in Appendix B.

Exceptions to Legal Bars to VA Benefits

Certain exceptions permit the awarding of veterans’ benefits, even if a statutory or regulatory bar

would ordinarily prohibit access. If the VA determines that the claimant was insane at the time of

the offense leading up to the discharge, the claimant may be granted veterans’ benefits. There

does not need to be a direct connection between the insanity and any misconduct that led to the

punitive discharge. In addition, the VA may grant benefit eligibility based on a prior period of

other than dishonorable service for individuals with two or more periods of service.

Insanity at the Time of Offense

If the VA finds evidence of insanity while developing the character of service, it will further

develop the case to identify records that may indicate whether the misconduct that led to the

adverse discharge was the result of insanity. The VA defines an insane person as

one who, while not mentally defective or constitutionally psychopathic, except when a

psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or

less prolonged deviation from his normal method of behavior; or who interferes with the

peace of society; or who has so departed (become antisocial) from the accepted standards of

the community to which by birth and education he belongs as to lack the adaptability to

make further adjustments to the social customs of the community in which he resides.42

The issue of insanity must emerge from the facts, circumstances, and evidence surrounding the

case or by the claimant or claimant’s representative. If the VA is alerted to the issue of possible

insanity, the agency is obligated to develop evidence that may support this claim under its duty to

Former servicemembers that are barred from VA benefits due to a legal bar are still eligible for the VA program that

allows conversion from Servicemembers Group Life Insurance (SGLI) to Veterans Group Life Insurance (VGLI). See

CRS Report R41435, Veterans’ Benefits: Current Life Insurance Programs, by (name redacted).

38 C.F.R. §3.354(a). The definition of insanity highlights the differing standards used by the military and the VA for

similar terminology. The VA regulatory definition of insanity is less restrictive than the definition used by the military

justice system, which states that “(i)t is an affirmative defense to a prosecution under any Federal statute that, at the

time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or

defect, was unable to appreciate the nature and quality or the wrongfulness of his acts ... ” [18 U.S.C. §17(a)]. Because

of the differing standards, it is possible that a former servicemember found to be sane during a court-martial

proceeding, could be found to be insane for the purposes of VA benefits.

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assist provision.43 A formal rating decision will be required, with full and complete development

of all relevant available and obtainable records, which may include administrative records, legal

records, and a medical opinion on the servicemember’s sanity at the time of the offense.

However, a claimant is not specifically required to demonstrate insanity through medical or legal

determinations.

Prior Period of Other than Dishonorable Service

Under 38 C.F.R. §3.13, a former servicemember may be entitled to certain VA benefits based on a

prior period of honorable service for the purposes of VA benefits, even if his or her most recent

discharge is characterized as dishonorable.44 For example, a former servicemember who is

separated from a second period of service with an OTH discharge would be precluded from

receiving education assistance benefits such as the Post-9/11 GI Bill. However, if the

servicemember has a prior period of qualifying honorable service, the VA could predicate the

awarding of Post-9/11 GI Bill benefits based on that prior enlistment period.

VA Character of Service Determination Process

If the characterization of a former servicemember’s discharge comes into question during the

claims process for veterans’ benefits, the regional offices of the Veterans Benefits Administration

(VBA), a sub-agency of the VA, are tasked with developing the character of service to make a

basic eligibility determination.45

The VA will “ ... request the facts and circumstances surrounding the claimant’s discharge prior to

making a formal decision,”46 which entails a comprehensive review of the entire period of the

claimant’s enlistment(s) to assess the quality of the service and to determine whether the

individual is deserving of veterans benefits. In making the determination, the VA will generally

review personnel files provided by the claimant’s military branch, service treatment records,

records of any court-martial proceedings (if applicable), and statements, documents, or other

information submitted by the claimant.

VA Duty to Assist in Developing Character of Service

As mentioned earlier, once a former servicemember has filed an application for benefits with the

VA, the agency has a unique obligation to the claimant when adjudicating the claim—the VA has

a duty to assist the claimant throughout the claims process.47 This duty to assist includes

38 U.S.C. §§5102, 5103, 5103A.

A complete and separate period of service is defined as a break in service greater than one day (M21-1MR, Part III,

Subpart v, ch.1 §B).

According to the VA Adjudication Procedures Manual Rewrite, “It is not necessary to make a [character of service]

determination for VA claims purpose before the claimant applies to a VBA and places the matter at issue ... ” (M211MR, Part III, Subpart v, ch.1, §B).

M21-1MR, Part III, Subpart v, ch.1, §B.

38 U.S.C. §§5102, 5103, 5103A.

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obligations to ensure that a claimant’s file is complete, seek evidence and records substantiating

the claim, and provide medical examinations under certain circumstances.48

VA Notice and Fact-Finding Process

For cases requiring a character of service determination, a team at a VA Regional Office (VARO)

becomes responsible for developing evidence and preparing administrative decisions for these

cases. The VARO is to provide the claimant with advance notice of the need to conduct the

determination. The notice explains reasons why a determination is necessary (e.g., the claimant’s

records indicate an OTH discharge). The notice would also include the criteria and applicable VA

regulations to be used in the determination process. In addition, the VA is to provide information

outlining the claimant’s legal and procedural rights including the right to (1) legal representation;

(2) an in-person hearing; and (3) submit any relevant evidence, contention, or argument.49

The VA notice would also explain the implications of an unfavorable determination, including

benefits for which the claimant may be deprived. The claimant has 60 days to respond to the VA

if he or she intends to submit additional evidence or needs additional time “for presentation of

his/her case.”50

The VA is to then request a complete summary of the facts, circumstances, and legal proceedings

that are relevant to the discharge from the claimant’s service department.51 In the event that a

military department provides only limited information on the facts and circumstances, the VA is

to make a determination using all of the evidence available. The evidence would be applied to a

series of statutes and regulations to determine whether the former servicemember’s service can be

characterized as other than dishonorable for the purposes of veterans’ benefits.

Following a review of the facts, if the VA finds in favor of the claimant that the character of

service is other than dishonorable, this will bestow “veteran” status and basic eligibility for full

VA benefits (except for certain education assistance benefits), assuming active duty service and

length-of-service criteria are also met.

However, if the outcome is an unfavorable finding of dishonorable service, the VA is to notify the

claimant of the effect on his or her entitlement to VA benefits, which will generally deprive the

former servicemember of any VA benefits (except for the SGLI to VGLI conversion), pending the

outcome of any subsequent appeals as discussed in the “Appealing an Unfavorable VA

Determination” section below. Any notification of an unfavorable determination would also

include information on how the former servicemember can seek a review of his or her discharge

through the military department.

A former servicemember’s first contact with the VA may come many years after military

separation and the individual may be unaware of the specific role that discharge status plays in

determining eligibility. For example, consider the hypothetical case of a former soldier, Specialist

A 2009 Court of Appeals for Veterans Claims (CAVC) decision effectively extended the duty to assist provision to

claims involving the “critical element” of veteran status. See Gardner v. Shinseki, 22 Vet. App. 415, 418 (2009).

M21-1MR, Part III, Subpart v, ch. 1, §A, 1-A-13.

Ibid.

Discharge proceedings for a dishonorable discharge only requested if the former servicemember’s sanity is at issue.

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(SPC) Mallone, as described in Appendix C.52 The applied example draws from a 2012 Military

Law Review article that assesses the interaction between character of discharge and VA character

of service decisions. The article also addresses factors that may affect the outcome of a VA

determination, including the development of service records, advocacy by a representative for the

former servicemember, and a former servicemember’s willingness to appeal a VA decision.

The Impact of Military Discharges on VA Health

Care

The Veterans Health Administration (VHA) of the VA operates the nation’s largest integrated

direct health care delivery system. Eligible veterans receive health care and counseling services

through 150 VA Medical Centers (hospitals), 830 community-based outpatient clinics (CBOCs),53

136 community-living centers, and 300 Vet Centers. Generally, veterans are required to be

enrolled in the VA health care system to obtain health care services.54 Veterans who are enrolled

have access to a comprehensive medical benefits package that includes a range of outpatient and

inpatient services.55 Once enrolled, the veteran remains enrolled in the health care system and

may access health care services at any VA medical facility. VHA’s health care system manages the

enrollment of veterans based on priority categories (Priority Groups).56 Veterans are not required

to be enrolled to receive readjustment counseling services through Vet Centers.57

Similar to other benefits and services provided by the VA, eligibility for VA health care is based

primarily on veteran status.58 To reiterate, veteran status is established by the former

servicemember meeting three primary criteria:

1. full-time active duty (other than active duty for training) military service (i.e.,

Army, Navy, Air Force, Marine Corps, Coast Guard) or commissioned officers of

the Public Health Service, and National Oceanic and Atmospheric Administration

or its predecessor, the Environmental Science Services Administration;

The hypothetical examples used in this report are for illustrative purposes only to demonstrate how the character of

service process can play out in one situation. The VA develops characterizations case-by-case, so the conditions

surrounding a former servicemember’s discharge, the types of evidence gathered, and the ultimate outcome will vary

depending upon the individual circumstances.

Community-Based Outpatient Clinic (CBOC) is a VA-operated, VA-funded (through a contract), or VA-reimbursed

site of care, which is located separate from a VA medical facility. A CBOC can provide primary, specialty,

subspecialty, mental health, or any combination of health care delivery services that can be appropriately provided in

an outpatient setting.

Some veterans are not required to enroll to receive hospital and outpatient care. 38 C.F.R. §17.37.

38 C.F.R. §17.38.

For more in-depth information on enrollment in the VA health care system, see CRS Report R42747, Health Care

for Veterans: Answers to Frequently Asked Questions, by (name redacted) and (name redacted).

Readjustment counseling services offered at Vet Centers may address problems such as war-related psychological

readjustment, PTSD counseling, family or relationship problems, lack of adequate employment or career goals, social

isolation, homelessness and lack of adequate resources, and other psychological problems such as depression or

substance use disorders. Vet Centers also provide military-related sexual trauma counseling, bereavement counseling,

employment counseling and job referrals, preventive health care information, and referrals to other VA and non-VA

medical care.

See the “Establishing “Veteran” Status” section in this CRS Report.

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2. minimum active duty requirement of 24 months of service or the period called to

service if activated for less than 24 months—Reservists and National Guard

members called to active duty by a federal order (for other than training

purposes) and completing the full call-up period would qualify;

3. discharge or release from active military service under conditions other than

dishonorable—VA accepts discharges that are characterized as honorable or

general (under honorable conditions), as other than dishonorable for VA benefit

purposes.59

Once these three criteria are met a veteran may enroll in the VA health care system. A veteran

who does not receive an honorable or general discharge (under honorable conditions) from the

military may still receive health care services from the VHA. It should be noted that a veteran’s

character of discharge under OTH conditions is not the same as dishonorable and does not

deprive the veteran of all benefits. If a veteran received an OTH discharge that is determined to

fall under a regulatory bar,60 the veteran will still be eligible to receive care for a disability or

illness determined to be incurred or aggravated during active service (see Figure 1).61 However, a

veteran with an OTH discharge that is determined to fall under a statutory bar62 for VA benefits or

discharged by reason of a bad conduct discharge, would not be eligible for VA health care for that

same period of service.63 Veterans with multiple periods of service may be eligible for VA health

care services based on a prior period of other than dishonorable service.64

Eligibility for Medical Care Tentatively Approved on Prima Facie

Evidence

In some cases VHA could provide treatment to a former servicemember, even if their character of

discharge is at issue, based on prima facie eligibility. If treatment based on prima facie eligibility

is initially authorized by VHA, VHA prepares VA Form 10-7131, Exchange of Beneficiary

Information and Request for Administrative and Adjudicative Action and annotates it with

“Medical care being authorized for (condition) on prima facie evidence of eligibility,” and

forwards the completed form along with a copy of the VA examination, hospital report, or

outpatient treatment report, as applicable, to the Veterans Service Center (VSC) of the VBA office

with claims folder jurisdiction.

38 U.S.C. §101(2); 38 C.F.R. §3.1(d).

See the list of regulatory bars at 38 CFR 3.12(d) and Table B-2.

Effective October 1977 (P.L. 95-126). When Congress passed P.L. 95-126, Congress recognized the “strong moral

obligation of the Federal Government to provide treatment of for service-connected disabilities” See ,U.S. Congress,

Senate Committee on Veterans’ Affairs, Eligibility for Veterans Benefits Pursuant to Vietnam Era Discharge

Upgrading, report to accompany S. 1307, 95th Cong., 1st sess., June 28, 1977, p. 18.

See the statutory bars at 38 U.S.C. 5303(a) and Table B-1.

According to VA’s Adjudication Procedures Manual, “even if a [bad conduct discharge] is determined to be

honorable for VA purposes, the service member is not eligible for health care. This is the only circumstance in which a

service member may be found to have service connected disabilities but not be eligible for health care.” (M21-1MR,

Part III, Subpart v, Chapter 1, Section B, 1-B-18).

Major John W. Brooker, Major Evan R. Seamone, and Leslie C. Rogall, “Beyond ‘T.B.D.’: Understanding VA’s

Evaluation of A Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive Discharge from the

Armed Forces,” Military Law Review, vol. 214 (winter 2012), p50.

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Upon receipt of VA Form 10-7131, the VSC is to determine if the claimant’s character discharge

is favorable, or if eligibility for VA health care services is found to exist. The case is then referred

to the rating activity for preparation of the memorandum rating. Upon review of the

memorandum rating from the rating activity, the “Remarks” section of Part II of VA Form 107131 is completed to show the following: “The individual (is) (is not) entitled to health care under

Section 1710 of Title 38, U.S. Code [VA health care] for any disabilities determined to be service

connected. (List the SC [service connected] disabilities) is/are service connected.”65

Military Sexual Trauma Exception

There is a specific exception with regard to discharge status and eligibility for VA health care for

servicemembers who have experienced military sexual trauma (MST). According to statute, MST

is defined as ‘‘psychological trauma, which, in the judgment of a mental health professional

employed by the Department [VHA], resulted from a physical assault of a sexual nature, battery

of a sexual nature, or sexual harassment while the veteran was serving on active duty or active

duty for training.’’ Furthermore, sexual harassment is defined as ‘‘repeated, unsolicited verbal or

physical contact of a sexual nature which is threatening in character.’’66 Until the enactment of the

Veterans Access, Choice, and Accountability Act of 2014 (P.L. 113-146 as amended by P.L. 113175 and P.L. 113-235) VHA policy interpreted this statute very broadly, and for VHA purposes of

MST, VHA defined an

“Eligible individual” as someone without veteran status who experienced sexual trauma ...

while on active duty or active duty for training. Because eligibility accrues as a result of

events incurred in service and is not dependent on length of service some individuals may be

eligible for MST-related care even if they do not have veteran status... This benefit extends

to Reservists and members of the National Guard who were activated to full- time duty status

in the Armed Forces. Veterans and eligible individuals who received an “other than

honorable” discharge may be able to receive free MST-related care with the Veterans

Benefits Administration (VBA) Regional Office approval.67

The Veterans Access, Choice, and Accountability Act of 2014 amended the existing treatment

authority and further broadened VHA’s interpretation to also allow former servicemembers who

experienced sexual trauma while serving on inactive duty training (i.e., reservists and members of

the National Guard performing weekend drills) access to free MST-related health care.68

Accordingly, veterans are not required to be enrolled in VA’s health care system to be eligible to

receive MST-related counseling and care. In addition, veterans do not need to have a VA serviceconnected disability rating or other documentation that the MST experience occurred to receive

VA health care services. All VA health care services (inpatient, outpatient, and pharmaceutical

Source: M21-1MR, Part III, Subpart v, ch. 7, §A, p.7-A-11.

38 U.S.C. §1720D.

Department of Veterans Affairs, Veterans Health Administration, VHA Directive 2010-033, Military Sexual Trauma

(MST) Programming, July 14, 2010.

For more information see, Department of Veterans Affairs, “Veterans Access, Choice, and Accountability Act of

2014 Military Sexual Trauma,” fact sheet, September 2014, http://www.va.gov/opa/choiceact/documents/Fact-SheetMilitary-Sexual-Trauma.pdf. Also see, U.S. Congress, Committee on Conference, Veterans Access, Choice, and

Accountability Act of 2014, conference report to accompany H.R. 3230, 113th Cong., 2nd sess., July 28, 2014, H.Rept.

113-564, p. 71.

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services) for physical and mental health conditions related to experiences of MST are provided at

no cost to veterans.

The Veterans Access, Choice, and Accountability Act of 2014 also authorized the VA, in

consultation with DOD, to provide MST-related health care benefits to servicemembers

(including members of the National Guard and Reserves) currently on active duty and individuals

who have not yet established veteran status.69

Figure 1. Other Than Honorable (OTH) Discharges and VA Health Care Eligibility

Source: CRS based on Appendix G in Major John W. Brooker, Major Evan R. Seamone, and Leslie C. Rogall,

“Beyond ‘T.B.D.’: Understanding VA’s Evaluation of A Former Servicemember’s Benefit Eligibility Following

Involuntary or Punitive Discharge from the Armed Forces,” Military Law Review, vol. 214 (winter 2012), p. 248.

Notes: 1. A disability can be any injury or illness that occurred during, or was aggravated by, military service.

2. The term service-connected means, with respect to disability or death, that such disability was incurred or

aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active

military, naval, or air service (38 U.S.C. §101).

3. Veterans are eligible for VA health care services for both service and nonservice-connected conditions and

illnesses. All health care services provided for service-connected conditions or illnesses are cost free.

For more information see, Department of Veterans Affairs, “Veterans Access, Choice, and Accountability Act of

2014 Military Sexual Trauma,” fact sheet, September 2014, http://www.va.gov/opa/choiceact/documents/Fact-SheetMilitary-Sexual-Trauma.pdf.

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4. A punitive discharge is a discharge awarded by sentence of a court martial.

5. Generally, there are some limitations for some VA benefits, for instance, for the purposes of the Montgomery

GI Bill and the Post-9/11 GI Bill, a veteran must have received an honorable discharge.

Appealing an Unfavorable VA Determination70

The process for appealing a dishonorable character of service determination by the VA is handled

in the same manner as other appeals for veterans claims.71 During the appeal process for veterans’

claims, various officials will handle the claim. This section briefly introduces the decision makers

who will potentially review an appeal.

Decision Review Officer

Each VA regional office (RO) has at least one decision review officer (DRO) on staff. The DRO is

a “senior technical expert who is responsible” for processing appeals made to the RO.72 If a

claimant elects to undergo a DRO review, the DRO is to review the claim at the RO level, before

the appeal reaches the Board of Veterans’ Appeals (BVA). During review, a DRO will examine

the claim de novo—that is, he or she will look at the case anew and afford no deference to the

initial determination made by the RO.73 The DRO may not revise the initial decision “in a manner

that is less advantageous to the claimant” unless the DRO finds an instance of “clear and

unmistakable error.”74 To have an appeal reviewed by a DRO, the claimant must ask to take DRO

review. Otherwise a review, directly through the BVA, will proceed.75 If a claimant opts for DRO

review, the claimant may still request that the BVA review the claim if the DRO’s decision is not

favorable to the claimant.76

The Board of Veterans’ Appeals

When a claimant’s application for benefits has been denied, an appeal can be made to the BVA.77

The BVA is part of the VA, located in Washington, DC, and makes the final determination on an

appeal within the VA. The board consists of experienced attorneys in the field of veterans law.

Board members are appointed by the VA Secretary, with the approval of the President.78 As of

2012, the board consisted of 64 members.79 The BVA also employs staff attorneys that assist the

Board members while preparing a decision for a claim, much like a clerk for a judge.80

This portion of the Report was pulled from CRS Report R42609, Overview of the Appeal Process for Veterans’

Claims, by (name redacted).

See CRS Report R42609, Overview of the Appeal Process for Veterans’ Claims, by (name redacted).

VA, Decision Review Officer (DRO) Review Process, M21-1MR, Part I, Ch. 5, §C at http://www.benefits.va.gov/

WARMS/M21_1mr1.asp.

38 C.F.R. §3.2600(a).

38 C.F.R. §§3.2600(d), 3.2600(e).

38 C.F.R. §3.2600(b).

38 C.F.R. §3.2600(f).

38 U.S.C. §7104(a).

38 U.S.C. §7101A.

Board of Veterans’ Appeals, Report of the Chairman: Fiscal Year 2012 at 19 (2013), at http://www.bva.va.gov/docs/

(continued...)

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The Court of Appeals for Veterans Claims

If a claimant is not satisfied with the decision from the BVA, the claimant has the option of

appealing to the Court of Appeals for Veterans Claims (CAVC).81 The CAVC is an Article I court,

established by Congress, which has exclusive jurisdiction over appeals from the BVA.82

Therefore, the CAVC is a separate entity from the VA that reviews BVA decisions. Currently, up

to nine judges may sit on the CAVC and review appeals from the BVA.83 The VA’s General

Counsel will defend the BVA decision before the court.84

The Court of Appeals for the Federal Circuit

If the claimant is dissatisfied with the determination reached by the CAVC, the claimant may

appeal the decision to the Court of Appeals for the Federal Circuit (Federal Circuit).85 The scope

of review on veterans’ appeals provided by the Federal Circuit is limited by statute. The Federal

Circuit can set aside regulations that are arbitrary or capricious, unconstitutional, in excess of

statutory jurisdiction, or procedurally deficient.86 Generally, the Federal Circuit is not permitted to

review any challenge to a factual determination, or a “challenge to a law or regulation as applied

to the facts of a particular case.”87 The Federal Circuit provides the last appeal of right for

claimants appealing decisions made by the BVA.

The Supreme Court of the United States

Finally, if the claimant is still not satisfied by the decision reached by the Court of Appeals for the

Federal Circuit, the claimant may petition the Supreme Court for certiorari.88 The Supreme Court

may or may not decide to grant certiorari (hear the case)—the claimant is not guaranteed to have

the Supreme Court hear the appeal. If the Supreme Court grants certiorari, any decision provided

by the Supreme Court is final.

(...continued)

Chairmans_Annual_Rpts/BVA2012AR.pdf.

Board of Veterans’ Appeals, VA Pamphlet 01-00-1, Understanding the Appeals Process 6 (2000), at

http://www.ptsdmanual.com/y2000.pdf.

38 U.S.C. §§7252, 7266.

38 U.S.C. §§7251–7252.

38 U.S.C. §7253 (establishing that there may be up to nine judges sitting on the CAVC, if two additional judges are

appointed by January 1, 2013).

See 38 U.S.C. §7263.

38 U.S.C. §7292.

38 U.S.C. §7292(d)(1).

38 U.S.C. §7292(d)(2).

38 U.S.C. §7292(c).

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Appendix A. Descriptions of Military Character of

Discharge

Character of Discharge

Description

Honorable

When the quality of the servicemember’s service generally has met the

standards of acceptable conduct and performance of duty for military personnel

or is otherwise so meritorious that any other characterization would be clearly

inappropriate.

General (Under Honorable

Conditions)

When a servicemember’s service has been honest and faithful, it is appropriate

to characterize that service under honorable conditions. Characterization of

service as general (under honorable conditions) is warranted when the negative

aspects of the servicemember’s conduct or performance of duty outweigh

positive aspects of the servicemember’s conduct or performance of duty as

documented in his or her service record.

Other than Honorable

(OTH) Conditions

When separation is based upon a pattern of behavior that constitutes a

significant departure from the conduct expected of servicemembers. Or, when

separation is based upon one or more acts or omissions that constitute a

significant departure from the conduct expected of servicemembers. Examples

of factors that may be considered include the use of force or violence to

produce serious bodily injury or death; abuse of a special position of trust;

disregard by a superior of customary superior-subordinate relationships; acts or

omissions that endanger the security of the United States or the health and

welfare of other servicemembers; and deliberate acts or omissions that seriously

endanger the health and safety of other persons.

Bad-Conduct (by General

Court-Martial and Special

Court-Martial)

A bad-conduct discharge applies only to enlisted persons and may be adjudged

by a general court-martial and by a special court-martial which has met the

requirements of R.C.M. §201(f)(2)(B). A bad-conduct discharge is less severe

than a dishonorable discharge and is designed as a punishment for bad-conduct

rather than a punishment for serious offenses of either a civilian or military

nature. It is also appropriate for an accused who has been convicted repeatedly

of minor offenses and whose punitive separation appears to be necessary.

Dishonorable

A dishonorable discharge applies only to enlisted persons and warrant officers

who are not commissioned and may be adjudged only by a general court-martial.

A dishonorable discharge may be adjudged for any offense of which a warrant

officer who is not commissioned has been found guilty. A dishonorable discharge

should be reserved for those who should be separated under conditions of

dishonor, after having been convicted of offenses usually recognized in civil

jurisdictions as felonies, or of offenses of a military nature requiring severe

punishment.

Dismissal

Dismissal applies only to commissioned officers, commissioned warrant officers,

cadets, and midshipmen and may be adjudged only by a general court-martial. A

dismissal may be adjudged for any offense of which a commissioned officer,

commissioned warrant officer, cadet, or midshipman has been found guilty.

Functionally equivalent to a dishonorable discharge.

Source: CRS, using data from the Manual for Courts-Martial United States (2012 edition).

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Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

Appendix B. Descriptions of Statutory and

Regulatory Bars to VA Benefits

Table B-1. Descriptions of Statutory Bars to VA Benefits

Statutory Bar

Conscientious Objection

Description

A conscientious objection is a “ ... firm, fixed and sincere objection to

participation in war in any form or the bearing of arms, because of

religious training and belief” (DOD Instruction 1300.06). A

servicemember must request a discharge based on conscientious

objector status.

This condition is a statutory bar when a conscientious objector refuses

to perform military duty, wear the uniform, or comply with lawful orders of

competent military authorities.

Bad Conduct Discharge by

General Court-Martial

Any servicemember discharged by reason of the sentence of a general

court-martial.

Officer Resignation

When a commissioned officer or warrant officer resigns for the good

of the service, typically in lieu of a general court-martial.

Desertion

(1) Any servicemember who, without authority goes or remains absent

from his unit, organization, or place of duty with intent to remain away

therefrom permanently; quits his unit, organization, or place of duty

with intent to avoid hazardous duty or to shirk important service; or

without being regularly separated from one of the armed forces enlists

or accepts an appointment in the same or another one of the armed

forces without fully disclosing the fact that he has not been regularly

separated, or enters any foreign armed service except when authorized

by the United States [10 U.S.C. §885(a)].

(2) Any commissioned officer of the armed forces who, after tender of

his resignation and before notice of its acceptance, quits his post or

proper duties without leave and with intent to remain away therefrom

permanently is guilty of desertion [10 U.S.C. §885(b)].

Alienage

An alien discharged during a period of hostilities, where it is

affirmatively shown that the former service member requested his or

her release. See 38 C.F.R. §3.7(b) for more information.

Absence Without Official

Leave (AWOL)/Unauthorized

Absence (UA)

Applied to a servicemember with an OTH discharge issued as a result

of an AWOL for a continuous period of at least 180 days. This bar to

benefit entitlement does not apply if the VA Secretary determines that

there are compelling circumstances to warrant the prolonged UA [38

C.F.R. §3.12(c)(6)].

Sources: CRS, using data from 38 U.S.C. §5303(a), 38 C.F.R. §3.12(c), DOD Instruction, and 10 U.S.C. Subchap.

Notes: A former servicemember with an OTH discharge as a result of a statutory bar (or a punitive discharge

adjudged at a court-martial) is prohibited from receiving VA health care services based on the relevant period of

service (P.L. 95-126).

Statutory bars may not preclude a former servicemember from receiving veterans’ benefits if the VA finds that

he or she was insane at the time of the offense that led to the bar or if eligibility for VA benefits can be

established based on a prior period of other than dishonorable service. See the “Exceptions to Legal Bars to VA

Benefits” section in this CRS report.

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Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

Under 38 C.F.R. §3.12(e) an honorable discharge or general discharge (under honorable conditions) issued

through Boards for Correction of Military/Naval Records (BCM/NR) sets aside any prior statutory or regulatory

bars to benefits.

Table B-2. Descriptions of Regulatory Bars to VA Benefits

Regulatory Bar

Description

Undesirable Discharge to

escape trial by general courtmartial

A servicemember who accepts an OTH discharge to avoid a general

court-martial.

Mutiny or spying

Mutiny: A person refuses, in concert with any other person, to obey

orders or otherwise do his duty or creates any violence or disturbance

with intent to usurp or override lawful military authority (10 U.S.C.

§894).

Spying: Any person who in time of war is found lurking as a spy or

acting as a spy in or about anyplace, vessel, or aircraft, within the

control or jurisdiction of any of the armed forces, or in or about any

shipyard, any manufacturing or industrial plant, or any other place or

institution engaged in work in aid of the prosecution of the war by the

United States, or elsewhere, shall be tried by a general court-martial or

by a military commission and on conviction shall be punished by death

(10 U.S.C. §906).

Offenses involving moral

turpitude

Generally includes conviction of a felony.

Willful and persistent

misconduct

Includes a discharge under OTH conditions, if it is determined that it

was issued because of willful and persistent misconduct. A discharge

because of a minor offense will not, however, be considered willful and

persistent misconduct if service was otherwise honest, faithful and

meritorious.

Homosexual acts involving

aggravating circumstances or

other factors affecting the

performance of duty

Examples include child molestation, homosexual prostitution,

homosexual acts or conduct accompanied by assault or coercion, and

homosexual acts or conduct taking place between service members of

disparate rank, grade, or status when a service member has taken

advantage of his or her superior rank, grade, or status.

Sources: CRS, using data from 38 C.F.R. §3.12(d), and 10 U.S.C. Subchap. X.

Notes: A former servicemember with an OTH discharge as a result of a regulatory bar is limited to receiving VA

health care services only for the treatment of a disability incurred or aggravated during the relevant period of

service (P.L. 95-126).

Regulatory bars may not preclude a former servicemember from receiving veterans’ benefits if the VA finds that

he or she was insane at the time of the offense that led to the bar or if eligibility for veterans’ benefits can be

established based on a prior period of other than dishonorable service. See the “Exceptions to Legal Bars to VA

Benefits” section in this CRS report.

Under 38 C.F.R. §3.12(e) an honorable discharge or general discharge (under honorable conditions) issued

through BCM/NR sets aside any prior statutory or regulatory bars to benefits.

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Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

Appendix C. Applied Example: Understanding the

Impact of Character of Discharge and VA’s

Decision89

To illustrate the critical importance of the potential impact of an OTH, and VA’s determination of eligibility for

benefits resulting therefrom, we tell the story of a fictional former soldier, Specialist (SPC) Mallone, who was

discharged under Other Than Honorable conditions. Based on the circumstances of his discharge, and the VA rating

decision determining his eligibility for VA benefits, the course of his life could take two very different paths.

Specialist Mallone enlisted for a term of three years. Shortly after he reported to his unit, his brigade deployed to Iraq

for nine months. While he was not physically wounded during his combat service, SPC Mallone rode in two different

convoys in which a lead vehicle was the target of an Improvised Explosive Device (IED). In one incident, three of the

occupants sustained severe, but not life threatening, injuries. In a second incident, two of the vehicle’s occupants died,

and another occupant sustained severe burn injuries. As a medic, SPC Mallone treated these injured comrades, and

provided comfort to one of the soldiers in the minutes prior to his passing.

When SPC Mallone returned from Iraq, he began to reflect on the events that occurred during his deployment. As a

medic, he was intimately familiar with the post-deployment screening process and deliberately denied any mental

health problems when he was screened during his post-deployment surveys and medical examinations.90 Within

weeks of his return from Iraq, he was arrested twice by civilian law enforcement authorities for driving under the

influence (DUI) and for a simple assault that occurred during a bar fight. Shortly after pleading guilty to the assault

charge and returning from two weeks of block leave, SPC Mallone tested positive for Marijuana during a properlyperformed unit urinalysis.91 When he learned that he was facing civilian prosecution for his drug use, SPC Mallone

admittedly just “wanted out” of the military service. SPC Mallone’s unit initiated administrative separation for a

pattern of misconduct.92 He decided to not fight an administrative separation, despite the fact that he would likely

receive an OTH discharge characterization. SPC Mallone unconditionally waived his right to an administrative

separation board,93 as his primary concern and motivation was to get out of the Army.

The records pertaining to SPC Mallone’s DUI and simple assault arrests were associated with the record of his

administrative separation proceedings. SPC Mallone’s defense counsel wanted SPC Mallone to self-refer for behavioral

health treatment and evaluation, but SPC Mallone resisted. During the medical and mental health examinations

pursuant to the administrative separation,94 the providers did not document any psychiatric abnormalities, as SPC

Mallone steadfastly denied that he had any mental health symptomatology.

After much effort, SPC Mallone’s defense counsel was able to convince him to submit a statement for the separation

authority to consider. In this statement, SPC Mallone indicated that he had “a lot going on in his head” and that he

was “drinking quite a bit to deal with his issues.” In particular, but without providing any specific details, Mallone

explained that he had cared for wounded and deceased soldiers as a medic. At the time of his separation examination

The following is excerpted (with changes to the footnotes) from Major John W. Brooker, Major Evan R. Seamone,

and Ms. Leslie C. Rogall, “Beyond ‘T.B.D.’: Understanding VA’s Evaluation of Former Servicemember’s Benefit

Eligibility Following Involuntary or Punitive Discharge from the Armed Forces,” Military Law Review, vol. 214

(winter 2012) pp. 36-42.

The Army uses Deployment Health Assessments (DHAs) to “address physical and behavioral health needs prior to,

during and after deployment.” See U.S. Department of Army, “Today’s Focus: Army Deployment Health

Assessments,” STAND-TO!, March 20, 2012, available at http://www.army.mil/standto/archive/issue.php?issue=201203-20. The Post-Deployment Health Assessment (PDHA) and Post-Deployment Health Reassessment (PDHRA) are

performed after redeployment. Id.

Manual for Courts-Martial, United States (2012), Military Rules of Evidence 313. (“An order to produce body fluids,

such as urine, is permissible in accordance with this rule.”)

U.S. Department of the Army, Active Duty Enlisted Administrative Separations, Reg. 635-200 (June 6, 2005), Rapid

Action Revision (RAR) September 6, 2011.

Ibid. Typically, when the command seeks an OTH separation, a soldier has the right to a separation board.

Ibid.

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Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

from service, Mallone continued to deny that he had any mental health issues. Five years after he separated from

service, Mallone sought outpatient medical care at a VA Community Based Outpatient Clinic (CBOC). 95,96

_____________________________________

Path 1: The Effect of a Favorable Discretionary Determination

The Eligibility Office informed him that, due to the fact that he had been discharged under OTH conditions, an

administrative decision was necessary in order to determine whether he was eligible for VA benefits. Several months

later, the VA regional office issued an administrative decision, which was based on a review of information provided

to VA by the Army. In addition, Mallone had submitted copies of documents pertaining to his discharge that he had

maintained since his departure from service, to include the statement he had written at the request of his attorney.

The adjudicator determined that, despite the Army’s characterization of his service as OTH and the determination

that he had engaged in a pattern of misconduct, Mallone’s service was nonetheless “other than dishonorable” for VA

benefits purposes.

In support of this determination, the decision explained that, although the Army had characterized his actions as a

pattern of misconduct, the two arrests (without evidence of a conviction for the DUI in the record) and single

positive drug test were not “willful and persistent misconduct” such that would be a regulatory bar to VA benefits.97

The decision put considerable emphasis on Mallone’s statement that he submitted at the time of his administrative

separation. The decision interpreted this statement to be an explanation that Mallone had been drinking heavily as a

way to deal with his combat experiences, and that his heavy drinking led to at least two of the three instances of

misconduct.

Mallone had earned his certification as an Emergency Medical Technician while in the Army, and he was able to obtain

employment with a private medical transport company following his discharge. He became increasingly stressed and

frequently had flashbacks about the convoy incidents in Iraq while he was on the job. He tried working in a less

stressful and lower paying job as a medical technician at a doctor’s office, but he eventually quit this job, as well.

Shortly after he became unemployed, he was seen by the VA CBOC for a respiratory infection.98 At that time, a

routine PTSD screening was performed. When the health care provider reported that his PTSD screen was positive,

Mallone continued to insist that he was “fine.” After significant persuasion by the treatment provider, Mallone

reluctantly accepted a referral to visit a psychologist. This psychologist diagnosed PTSD, established a good rapport

Veterans who served in a theater of combat operations after November 11, 1998 are eligible for VA health care for

five years from the most recent day of discharge. VHA provides health care services and community living care for any

condition possibly related to the veteran’s service in the theater of operations. Combat veterans who were discharged

between January 2009 and January 2011, and did not enroll in the VA health care system during their five year period

of eligibility have an additional one year to enroll and receive care. The additional one-year eligibility period began

February 12, 2015, with the enactment of the Clay Hunt Suicide Prevention for America Veterans Act (H.R. 203; P.L.

114-2).

Community-Based Outpatient Clinic (CBOC) is a VA-operated, VA-funded (through contract), or VA-reimbursed

site of care, which is located separate from a VA medical facility. A CBOC can provide primary, specialty,

subspecialty, mental health, or any combination of health care delivery services that can be appropriately provided in

an outpatient setting.

In some cases VHA could provide treatment to a former servicemember, even if their character of discharge is at

issue, based on prima facie eligibility. If treatment based on prima facie eligibility is initially authorized by VHA, VHA

prepares VA Form 10-7131, Exchange of Beneficiary Information and Request for Administrative and Adjudicative

Action and annotates it with “Medical care being authorized for (condition) on prima facie evidence of eligibility,” and

forwards the completed form along with a copy of the VA examination, hospital report, or outpatient treatment report,

as applicable, to the Veterans Service Center (VSC) of the VBA office with claims folder jurisdiction.

Upon receipt of VA Form 10-7131, the VSC will determine if the claimant’s character discharge is favorable, or if

eligibility for VA health care services is found to exist. The case is then referred to the rating activity for preparation of

the memorandum rating. Upon review of the memorandum rating from the rating activity, the “Remarks” section of

Part II of VA Form 10-7131 is completed to show the following: “The individual (is) (is not) entitled to health care

under Section 1710 of Title 38, U.S. Code [VA health care] for any disabilities determined to be service connected.

(List the SC [service connected] disabilities) is/are service connected.” (Source: M21-1MR, Part III, Subpart v, ch. 7,

§A, p.7-A-11).

See Descriptions of Regulatory Bars in Table B-2.

Congressional Research Service

Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

with Mallone, and persuaded him to attend counseling on a recurring basis, which helped him improve his outlook on

life and motivated him to try to return to work. Mallone soon thereafter filed a claim for service connection for

PTSD, which was granted and for which he received a 30 percent rating. Although he was not eligible for the post9/11 GI Bill due to his lack of honorable service, his 30 percent rating entitled him to Vocational Rehabilitation

Benefits, which would give him the training necessary to work in a field other than emergency medicine. Mallone

attended college through that program, and he chose to study computer programming, which was a career field that

interested him and would allow him to work independently and in an environment that was less stressful than his

former position as an Emergency Medical Technician. With the income and stability of a good job, he was able to

purchase a home several years later with the assistance of his VA Home Loan Guaranty benefit.

_____________________________________

Path 2: The Effect of an Unfavorable Discretionary Determination

Five years after he separated from service, Mallone sought outpatient medical care at a VA CBOC. The Eligibility

Office informed him that, due to the fact that he had been discharged under OTH conditions, an administrative

decision was necessary in order to determine whether he was eligible for VA benefits. Several months later, the VA

regional office issued an administrative decision, which was largely based on a review of Mallone’s service personnel

records.

The adjudicator reviewed the circumstances surrounding Mallone’s discharge under Other Than Honorable

conditions and determined that he was discharged as a result of “willful and persistent misconduct,” which is a

regulatory bar to most VA benefits.99 The decision explained that Mallone had engaged in multiple instances of

misconduct during service, and that the Army’s determination that he had engaged in a pattern of misconduct

weighed heavily in its decision. The decision explained that VA considered whether Mallone’s combat service in Iraq

was a factor in his misconduct during service, but it specifically referenced the multiple examinations that denied any

PTSD symptoms and provided normal psychiatric assessments, including at the time of discharge from service.

Mallone’s statement that he submitted at the time of his administrative separation was also considered, but it was

given less probative weight because it was determined to have been submitted in an attempt avert a potential courtmartial. Based on the administrative decision, Mallone was informed that he was not entitled to any VA health care

benefits since he did not have any service-connected disabilities. Furthermore, he was informed that he would be

ineligible for most VA benefits. Mallone chose not to appeal the decision.

Because Mallone had been certified as an Emergency Medical Technician while in the Army, he was able to obtain

employment with a private medical transport company following his discharge. He became increasingly stressed on

the job and frequently had flashbacks about the convoy incidents in Iraq while he was on the job. He tried working at

a lower paying job as a medical technician at a doctor’s office, but he eventually quit this job, as well. Without a job

and only trained to work in a career field that unduly stressed him, Mallone returned home to live with his parents,

where he would work occasional “odd jobs.” Since Mallone was not service connected for any disabilities, he was not

eligible for any VA health care treatment and rarely saw a doctor because he did not have any health insurance.

Therefore, he never had a PTSD screening that could have led to a diagnosis of and treatment for his PTSD; in fact,

he continued to live in denial that he may have PTSD. With dishonorable service for VA purposes, Mallone was

ineligible for any disability compensation. As a non-service connected former servicemember with a dishonorable

discharge for VA purposes, Mallone was not entitled to Vocational Rehabilitation benefits that would allow him to

retrain or provide the funding for him to go back to college. Despite his struggles and lack of steady employment,

Mallone was fortunate to have a supportive family that provided a place for him to stay.

_____________________________________

The Intersection of the Two Paths

Mallone’s service terminated with a discharge under Other Than Honorable conditions based on a pattern of

misconduct, and he ultimately bears responsibility for his actions that led to his administrative separation from

service. However, the adjudicative process requires VA to consider whether the circumstances of his discharge were

nonetheless under other than dishonorable conditions. In the examples provided above, the outcomes and VA

benefits that would accompany each determination were very different, but it is important to note that neither VA

decision is incorrect; each was a plausible decision based on the available evidence. This fictional case study

demonstrates the nature and importance of the benefits that are at stake when VA adjudicates when a discharge

Ibid.

Congressional Research Service

Veterans’ Benefits: The Impact of Military Discharges on Basic Eligibility

under Other Than Honorable conditions is considered other than dishonorable for VA purposes. It further

exemplifies why a former servicemember’s actions during service, and VA’s adjudication thereafter, can have lifelong

and powerful consequences. This case shows how the same evidence, even when carefully considered, can lead to

two very different and equally justifiable outcomes. Further development of the record, advocacy by a representative,

and a willingness to appeal VA’s decision are undoubtedly factors that can lead to a more favorable outcome for a

former servicemember.

Author Contact Information

(name redacted)

Analyst in Disability Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in Veterans Policy

[redacted]@crs.loc.gov, 7-....

Acknowledgments

(name redacted) and (name redacted), legislative attorneys at CRS, contributed to this report.

Key Policy Staff

Area of Expertise

Name

Phone

Veterans Disability Compensation, Pension,

Burial Benefits, and VA Character of

Service

(name redacted)

7-....

Veterans Health Benefits

(name redacted)

Post-Traumatic Stress Disorder (PTSD)

(name redacted)

VA Claims Appeals

(name redacted)

Military Character of Discharge

(name redacted)

Congressional Research Service

7-....

E-mail

[redacted]@crs.loc.gov

7-....

[redacted]@crs.loc.gov

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