Upgraded Discharges

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AI40

Upgraded Discharges

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document makes nonsubstantive changes to the Department

of Veterans Affairs (VA) adjudication regulations regarding upgraded

discharges. The intended effect of these changes is to make the

regulations simpler and easier to understand.

EFFECTIVE DATE: This amendment is effective March 28, 1997.

FOR FURTHER INFORMATION CONTACT: Laurence Freiheit, Consultant,

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, 810 Vermont Avenue, NW., Washington, DC 20420,

telephone (202) 273-7252.

SUPPLEMENTARY INFORMATION: 38 U.S.C. 1110 authorizes the Secretary of

Veterans Affairs to compensate veterans for disability resulting from

injury or disease incurred or aggravated during active military service

provided that the veteran was discharged or released under conditions

other than

[[Page 14823]]

dishonorable from the period of service in which the injury or disease

was incurred. 38 U.S.C. 1521(a) authorizes the Secretary to pay non-

service-connected disability pension to certain veterans who are

permanently and totally disabled from non-service-connected disability.

Regulations at 38 CFR 3.12 implement two distinct statutory

provisions governing entitlement to most benefits administered by VA.

One provision, 38 U.S.C. 101(2), defines the term ``veteran'' for

purposes of establishing entitlement to benefits as a person who served

in the active military, naval, or air service, and who was discharged

or released under conditions other than dishonorable. The other, 38

U.S.C. 5303, bars the payment of VA benefits to individuals discharged

under certain listed circumstances regardless of how they fare under

the statutory definition of veteran.

Paragraphs 3.12(g) and (h) implement provisions of Public Law 95-

126, enacted on October 8, 1977, concerning the effect of certain

discharge upgrades and discharge review programs on the definition of

veteran and the statutory bars to benefits. This document reorganizes

the material in paragraphs (g) and (h) into a format that is simpler to

read and understand. The changes are not substantive.

Since these amendments merely reorganize and simplify the current

regulation and are not substantive in nature, this change is being

promulgated without regard to notice and comment and effective date

provisions of 5 U.S.C. 553.

Because no notice of proposed rulemaking was required with the

adoption of this final rule, no regulatory flexibility analysis is

required under the Regulatory Flexibility Act, 5 U.S.C. 601-612. Even

so, the Secretary hereby certifies that these regulatory amendments

will not have a significant economic impact on a substantial number of

small entities as they are defined in the Regulatory Flexibility Act, 5

U.S.C. 601-612. The reason for this certification is that these

amendments would not directly affect any small entities. Only VA

beneficiaries could be directly affected.

The Catalog of Federal Domestic Assistance program numbers are

64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,

Health care, Pensions, Veterans, Vietnam.

Approved: March 14, 1997.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended

as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

1. The authority citation for part 3, subpart A continues to read

as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

2. In Sec. 3.12, paragraphs (g) and (h) are revised and an

authority citation is added to paragraph (h) to read as follows:

Sec. 3.12 Character of discharge.

* * * * *

(g) An honorable or general discharge issued on or after October 8,

1977, by a discharge review board established under 10 U.S.C. 1553,

sets aside a bar to benefits imposed under paragraph (d), but not

paragraph (c), of this section provided that:

(1) The discharge is upgraded as a result of an individual case

review;

(2) The discharge is upgraded under uniform published standards and

procedures that generally apply to all persons administratively

discharged or released from active military, naval or air service under

conditions other than honorable; and

(3) Such standards are consistent with historical standards for

determining honorable service and do not contain any provision for

automatically granting or denying an upgraded discharge.

(h) Unless a discharge review board established under 10 U.S.C.

1553 determines on an individual case basis that the discharge would be

upgraded under uniform standards meeting the requirements set forth in

paragraph (g) of this section, an honorable or general discharge

awarded under one of the following programs does not remove any bar to

benefits imposed under this section:

(1) The President's directive of January 19, 1977, implementing

Presidential Proclamation 4313 of September 16, 1974; or

(2) The Department of Defense's special discharge review program

effective April 5, 1977; or

(3) Any discharge review program implemented after April 5, 1977,

that does not apply to all persons administratively discharged or

released from active military service under other than honorable

conditions.

(Authority: 38 U.S.C. 5303 (e))

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[FR Doc. 97-7835 Filed 3-27-97; 8:45 am]

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