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VETERANS WITH "BAD" DISCHARGES MAY STILL
QUALIFY FOR SOME VA BENEFITS -- A special
report from Veterans' Advocate Jim Strickland.
Veterans' Advocate Jim Strickland provides
regular columns for VA Watchdog dot Org.
If you would like to contact Jim about his
columns, you can email him here...
The archive of Jim's articles
is here...
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In a previous Mail Call I wrote of a Veteran
who was very ill with lung cancer. His mom had written to me asking why
he was eligible for some benefits and not others...such as disability
compensation. In her letter to me she said that he had an honorable
discharge, spent time in the National Guard, reenlisted and during that
second enlistment had some troubles that landed him in a military
prison.
She said he'd been told by a Service Officer that he had no benefits
coming and the SO didn't apply to VA for anything on his behalf. I
answered that he should apply...his honorable discharge gave him a right
to some benefits.
I didn't elaborate about details though and an eagle-eyed VBA Veterans
Service Representative has written to me to explain exactly how this
works. The following comes to us straight from the inside of the VBA. My
friend is a dedicated, hard working, retired military guy...a Veteran's
Veteran who goes to his office each day to do all he can to ensure that
we get every benefit we deserve and nothing less. We communicate often
and without him and the other VA staff who write to me, I couldn't dish
out the facts for you.
A big thanks to him and all the other VA folks who do their jobs so well
for us. Now, on to his commentary...
Jim:
On the question of honorable service vs. dishonorable service, I'll tell
you how it's viewed at the VA. First off, it's all about obligation...if
a guy comes in and enlists for 6 years, then at the 4th year reenlists
for another 6 (to take advantage of a bonus or something), gets an
honorable discharge, then at the 5 year mark, messes up and gets a
dishonorable, he will not be entitled to benefits.
Why not? Well, because he messed up during his initial 6 year
obligation. Now, let's say it's the same situation, but this time he
messes up at the 7 year mark. He's eligible for benefits for any
disability incurred during the first 6 years but none in that final
year. It's all about the violation in the period of initial obligation.
Also, remember this; as long as he wasn't AWOL for over 180 days or has
committed a heinous crime of some sort (i.e. general court martial), he
may be eligible for medical care for any disabilities deemed service
connected even if disability benefits for those service connected
conditions aren't payable.
Another note, VSR's are the ones who make the character of discharge
(COD) determinations and the senior VSR's review and the coaches
approve...just like raters make rating decisions.
One of the things I've noticed about COD decisions is that rarely does
the Veteran send in anything positive to sway the opinion of the VSR.
Even if a guy has had an OTH discharge, I would be inclined to grant him
an HVA (honorable for VA purposes) COD if he sent in a letter that
outlined the reasons for what happened and he was honest and sincere and
remorseful and showed a pattern of progressive improvement in his
personal and professional life.
I'm sure every situation is different and I'm sure there are some really
bad people out there but I also know that the military is not for
everyone. Many people join (or were drafted) against their wishes (maybe
to please their parents or impress a girl), then they find they don't
fit in so they try to make the best of a bad situation but they get
involved with some dirt bag and get in trouble.
They see a way out early, they take the OTH and breathe a sigh of
relief. Then they get a job and move up the ladder and years later,
they're suffering from agent orange related diabetes and need to get
some help.
If they would just tell their story and show how they've done better and
wish they'd known then what they know now...hell, I'd grant it to them
no matter what it takes.
I'll include a few of the rules below for you Jim.
(Signed)
Your Friend,
The Anonymous VBA Guy
§ 3.360 Service-connected health-care eligibility of certain persons
administratively discharged under other than honorable condition.
(a) General. The health-care and related benefits authorized by chapter
17 of title 38 U.S.C. shall be provided to certain former service
persons with administrative discharges under other than honorable
conditions for any disability incurred or aggravated during active
military, naval, or air service in line of duty.
(b) Discharge categorization. With certain exceptions such benefits
shall be furnished for any disability incurred or aggravated during a
period of service terminated by a discharge under other than honorable
conditions. Specifically, they may not be furnished for any disability
incurred or aggravated during a period of service terminated by a bad
conduct discharge or when one of the bars listed in §3.12(c) applies.
(c) Eligibility criteria. In making determinations of health-care
eligibility the same criteria will be used as is now applicable to
determinations of service incurrence and in line of duty when there is
no character of discharge bar.
§ 3.12 Character of discharge.
(c) Benefits are not payable where the former service member was
discharged or released under one of the following conditions:
(1) As a conscientious objector who refused to perform military duty,
wear the uniform, or comply with lawful order of competent military
authorities.
(2) By reason of the sentence of a general court-martial.
(3) Resignation by an officer for the good of the service.
(4) As a deserter.
(5) As an alien during a period of hostilities, where it is
affirmatively shown that the former service member requested his or her
release. See §3.7(b).
(6) By reason of a discharge under other than honorable conditions
issued as a result of an absence without official leave (AWOL) for a
continuous period of at least 180 days. This bar to benefit entitlement
does not apply if there are compelling circumstances to warrant the
prolonged unauthorized absence. This bar applies to any person awarded
an honorable or general discharge prior to October 8, 1977, under one of
the programs listed in paragraph (h) of this section, and to any person
who prior to October 8, 1977, had not otherwise established basic
eligibility to receive Department of Veterans Affairs benefits. The term
established basic eligibility to receive Department of Veterans Affairs
benefits means either a Department of Veterans Affairs determination
that an other than honorable discharge was issued under conditions other
than dishonorable, or an upgraded honorable or general discharge issued
prior to October 8, 1977, under criteria other than those prescribed by
one of the programs listed in paragraph (h) of this section. However, if
a person was discharged or released by reason of the sentence of a
general court-martial, only a finding of insanity (paragraph (b) of this
section) or a decision of a board of correction of records established
under 10 U.S.C. 1552 can estalish basic eligibility to receive
Department of Veterans Affairs benefits. The following factors will be
considered in determining whether there are compelling circumstances to
warrant the prolonged unauthorized absence.
(i) Length and character of service exclusive of the period of prolonged
AWOL. Service exclusive of the period of prolonged AWOL should generally
be of such quality and length that it can be characterized as honest,
faithful and meritorious and of benefit to the Nation.
(ii) Reasons for going AWOL. Reasons which are entitled to be given
consideration when offered by the claimant include family emergencies or
obligations, or similar types of obligations or duties owed to third
parties. The reasons for going AWOL should be evaluated in terms of the
person's age, cultural background, educational level and judgmental
maturity. Consideration should be given to how the situation appeared to
the person himself or herself, and not how the adjudicator might have
reacted. Hardship or suffering incurred during overseas service, or as a
result of combat wounds of other service-incurred or aggravated
disability, is to be carefully and sympathetically considered in
evaluating the person's state of mind at the time the prolonged AWOL
period began.
(iii)A valid legal defense exists for the absence which would have
precluded a conviction for AWOL. Compelling circumstances could occur as
a matter of law if the absence could not validly be charged as, or lead
to a conviction of, an offense under the Uniform Code of Military
Justice. For purposes of this paragraph the defense must go directly to
the substantive issue of absence rather than to procedures,
technicalities or formalities.
Now we know that an other than honorable discharge isn't an absolute
barrier to certain VA benefits. Our VBA friend has made an excellent
point in that many of us in our youth simply weren't capable of coping
with the demands of military service. Years later, a person who wasn't
able to succeed in the military may have turned their life around and
become our friend, our neighbor or our employee.
Is there a path for them to modify the character of their discharge? Of
course there is. It begins, as usual in anything military or VA, with
more paperwork. In this case the individual is dealing with the
Secretary of their branch of service and will petition for a change of
character using a form DD 293, 'Application For The Review of Discharge
From The Armed Forces Of The United States'.
In a VA training module, we're told:
EXCEPT AS PROVIDED BY 38 CFR §§ 3.360 AND 17.47(A)(2) FOR HEALTH CARE
BENEFITS, and 38 CFR § 21.7042(a)(4)(ii) for Chapter 30 (Montgomery GI
Bill) education benefits, eligibility for VA benefits in general
requires that the claimant or the person on whose service the claim is
based have been discharged from service under honorable conditions. With
certain exceptions, an honorable discharge or a general discharge under
honorable conditions is binding upon VA for all benefits purposes. If
the discharge was less than honorable, VA will determine if the
discharge was under other than dishonorable conditions, so long as it
was not issued for any of the reasons constituting a statutory bar to
benefits, such as a discharge or dismissal by reason of sentence of a
general court-martial, or a resignation of an officer for the good of
the service, etc. If VA determines that the discharge was issued under
other than dishonorable conditions, the claimant is eligible to proceed
with his or her claim for benefits.
Otherwise, the claim(s) must be denied. Persons
whose discharge from service was under other than honorable conditions
may instead choose to apply for a review and upgrade of the discharge by
the Service Department. This may be either by a Discharge Review Board
or by a Board for Correction of Military Records.
Very little is ever final with your Veterans Administration. Far too
many Vets are told “No” by a busy clerk and then they give up. With a
little persistence and a lot of paper pushing, you'll eventually get to
the benefits you've earned even under some unlikely circumstances.
Non illigitamus carborundum!
More about this is available by clicking the
links below...
http://www.archives.gov/veterans/
military-service-records/corr
ecting-records.html
http://www.cdva.ca.gov/service/CVSO
%20Training/MODULE%20
19C%2012-06.pdf
http://www.dtic.mil/whs/directives/inf
omgt/forms/eforms/dd0293.pdf
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Larry Scott --
