Have you been told that you do not qualify for VA benefits because you have a less than honorable discharge? Frequently, Veterans are given bad information regarding their characterization of service and the benefits that they are eligible for. They may have even been denied a claim because the VA incorrectly decided that they are ineligible for the benefit applied. This article discusses the types and reasons for military discharges and their effect on eligibility for VA benefits.
Requirement of Discharge “Under Conditions Other Than Dishonorable.”
In order to be eligible for most VA benefits, you must be a qualifying Veteran. The VA requires that a person has been discharged or released from the military “under conditions other than dishonorable” to qualify as a Veteran for VA benefit purposes. There are five types of discharges issued by the military: 1) honorable discharge; 2) a discharge under honorable conditions or general discharge; 3) discharge under other than honorable conditions; 4) bad conduct discharge; and 5) dishonorable discharge. Since, “under conditions other than dishonorable” does not directly correspond with the language used by the military to characterize a person’s discharge, the VA often determines on a case-by-case basis whether the Veteran’s discharge qualifies them for VA benefits. In most cases, the VA will find that a Veteran with an honorable discharge or a discharge under honorable conditions to qualify as a Veteran that served “under conditions other than dishonorable.” Remember, the finding that you are a Veteran for VA benefit purposes is only the first step in the eligibility test. Some benefits, such as educational benefits, require you to have a fully honorable discharge. You may still need to meet other qualifications such as a minimum length of service or service during a period of war.
Statutory Bars to VA Benefits.
The VA will always find that a veteran with a “dishonorable discharge” was discharged under dishonorable conditions. This is because only a general court-martial can issue a dishonorable discharge and any discharge by reason of a sentence of a general court-martial is a statutory bar to benefits. A Veteran with a dishonorable discharge can overcome this bar if it is determined that the individual was insane when committing the acts that resulted in the discharge. There are other reasons why a Veteran, even with an honorable discharge, may be statutorily barred from VA benefits including: 1) refusing to perform military duty or refusing to wear the military uniform (conscientious objector); 2) an officer who resigns for the good of the service; 3) desertion; and 4) discharge under other than honorable conditions issued as a result of being AWOL for at least 180 continuous days.
There is a special exception to the statutory bar to benefits imposed for being discharged under other than honorable conditions due to being AWOL for at least 180 continuous days. This bar does not apply of the VA determines that there were “compelling circumstances to warrant the prolonged absence.” The VA must consider factors such as: 1) the quality and length of the Veteran’s service; 2) family emergencies or obligations; and 3) obligation owed to third parties. The reasons for going AWOL should be evaluated in terms of the person’s age, cultural background, educational level, and maturity. The VA should also consider hardship or suffering incurred overseas or as a result of combat.
Regulatory Bars to VA Benefits
A bad conduct discharge from a special court-martial and other discharges made under other than honorable conditions may or may not disqualify the claimant from being considered a Veteran for purposes of benefits eligibility. In the case of such discharges, the VA will make a special “character of service determination,” based on the particular facts in the Veteran’s case. The VA will consider a discharge a bar to benefits if the conduct upon which the discharge was based fits into one of the following four categories: 1) accepting a discharge under other than honorable conditions to escape a trial by general court-martial; 2) mutiny or spying; 3) an offense involving moral turpitude (generally a conviction of a felony); and 4) willful and persistent misconduct.
With respect to the “willful and persistent misconduct” bar, the regulation explains that a discharge because of a minor offense is not considered willful and persistent misconduct of service was otherwise honest, faithful, and meritorious. Mere technical violations of police regulations or ordinances are not per se willful misconduct.
I Have a Disqualifying Discharge, What Can I Do?
If you do not qualify for VA benefits based on your discharge, you can ask your service to “upgrade” your discharge. A veteran has two choices of where to apply for a discharge upgrade: the Discharge Review Board (DRB) or the Board of Corrections for Military Records (BCMR). If your main concern is to receive VA benefits, you can also request a character of discharge determination. A favorable character of discharge determination will not change your DD-214, but it may make you eligible for VA benefits.
A major consideration in choosing where to apply is the different time limits imposed by the DRB and the BCMR. The DRB statute of limitations is fifteen years from the date of discharge. This statute of limitations cannot be waived. The BCMR has a three year statute of limitations from the date of discovery of the error. However, this statute of limitation is usually waived upon request. Applying for a discharge upgrade requires the Veteran to complete either DD Form 293 (for DRB) or DD Form 149 (BCMR). An experienced attorney can assist the Veteran with these applications.
The Veteran has the burden to prove that the discharge is either illegal or unfair. The boards presume the discharge was fair and legal, that commands and discharge authorities acted properly, and that the military records given to the board provide an accurate statement of the necessary facts. Some boards also look at the how the discharge has affected the Veteran
Edward M. Farmer is a U.S. Army veteran and attorney. A majority of his career has been dedicated to assisting veterans. More information regarding Edward and his law firm can be found at www.vetlawoffice.com
The material and information contained on these pages and on any pages linked from these pages are intended to provide general information only and not legal advice. You should consult with an attorney licensed to practice in your jurisdiction before relying upon any of the information presented here.