What is PTSD and why is it so misunderstood? June 13 2018, 0 Comments

How New Jersey’s Bail Reform Can Hurt Veterans June 13 2018, 0 Comments

Sexual Assault in the Military June 13 2018, 0 Comments

While sexual assault in the military is not a new problem, it is, unfortunately, a persistent one. It is also a problem that seems to be growing, despite the prevalence in recent years of news articles and lawsuits highlighting the issue. The military is often unfairly aggressive in these prosecutions.

Recoupment of bonus payments and tuition as Health Professionals Scholarship Program and Service Academies March 03 2018, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

Bonus money and tuition payments for attendance at West Point, United States Military Academy, United States Air Force Academy, the Naval Academy and also for follow on education at graduate schools is a very important consideration if you are unable to fulfill the requirements that the military expects.  This is an area where my law firm has experience whether you are a doctor, dentist, nurse or a recent graduate or not able to graduate.  Indeed you might have been injured and are unable to fulfill your end of the bargain or the military's negligence may cause your inability to complete your service.  There is a good chance that you will not have to repay the money if there is a reasonable explanation.

Injuries, hazing, medical disability claims and Disability Evaluation System at Service Academies February 15 2018, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

Whether Naval Academy, Air Force Academy or United States Military Academy or any or the preparation schools, the branch regulations and instructions and manuals and Department of Defense Instructions (DoDI) still apply? 

One DoDI stipulates that a Medical Evaluation Board will evaluate the medical status and duty limitations of “[s]ervice members...when the Secretary of the Military Department concerned determines that a U.S. cadet or midshipman is medically disqualified for appointment as a commissioned officer due to injury, illness, or disease aggravated or incurred in the line of duty while entitled to cadet or midshipman pay, the Secretary may retire the cadet or midshipman with retired pay in accordance with chapter 61 of Reference (f).”

Even Service Academies must consider Disability Evaluation System, DES.  Profiles, recorded in the Army on a DA 3349, as required by AR 40-400 and AR 635-40, are critical.

Relying on a DoDI “Medically disqualified cadets,” the following options are available :

Whenever the Surgeon, USMA, determines that a USMA cadet does not meet the fitness requirements to perform all duties as a member of the Corps of Cadets during the current academic term or summer training period, or will not meet the medical fitness standards for appointment on active duty at the expected time of commissioning, the Superintendent will review the case and, at his discretion, take one of the following actions:

(1) Afford the cadet an opportunity to resign.

(2) Recommend that, in the case of the medical disqualification under cadet retention standards as provided in AR 40–501, the cadet be separated (see AR 612–205).

(3) For cadets of the first class, recommend they be retained and graduated, either as provided in paragraph 5–3b of this regulation, or, if otherwise qualified, by being granted a waiver and commissioned.

(4) Recommend that the cadet, if physically disqualified for any military service, be discharged (paragraph 5–3b of this regulation and AR 612–205).

(5) Permit the cadet, upon the cadet’s written request, to complete the academic year in which the defect is noted, and in those cases in which it appears that the disqualifying defect is clearly remediable, to continue for an additional period of time beyond the current academic year for the purpose of further observation and/or treatment. This additional period will not go beyond the end of the academic year following that in which the defect is noted unless the physical disqualification is removed.

(6) Grant leave without pay to the cadet, upon the cadet’s written request, or direct leave from the Military Academy for an appropriate period of time, not to exceed one year. At a time designated by the Surgeon, USMA, the cadet will be reexamined to determine if the medical disqualification has been remedied. If so, and otherwise qualified, the cadet will be permitted to return to the Military Academy. In the event that the medical disqualification continues to exist, the case will be reevaluated

The medical separation requires are further explained in another Army Regulation regarding appointment and commissioning.

When separating for physical disability, the Academy will be required to protect the medical status of the injured student.

Army Regulations offer additional guidance in United States Military Academy

A cadet will be afforded a hearing as if it were misconduct.

Many presumptions apply to protect Midshipmen and cadets of the service academies.

Hazing is also a concern in situations where there are claimed disabilities and medical conditions.

  Of course, the practice of hazing is prohibited by Department policy and law (see sections 4352, 6964, and 9352 of Reference (f)).  Specifically,

2. HAZING, HARASSMENT, OR VIOLENCE NOT TOLERATED. The practice of hazing is prohibited by law (sections 4352, 6964, and 9352 of Reference (f)). A cadet or midshipman dismissed from an academy for hazing may not be reappointed as a cadet or midshipman at an academy. The Military Services do not tolerate harassment or violence against any Service member for any reason. Cadets and midshipmen must treat all Service members, at all times, with dignity and respect. Failure to do so may result in the individual being disciplined or involuntarily separated before his or her term of service ends.

documents to apply for NJ Veteran Personal Income Tax $3,000 deduction February 06 2018, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

File for your Tax Deductions - Will your NJ "Veteratens Status" Confirmation of Combat suffice?  I don't know but I tried.

http://www.state.nj.us/treasury/taxation/documents/pdf/guides/Veterans-in-New-Jersey.pdf

This guide provides New Jersey veterans who have served our country with important information about federal and State program benefits, entitlements, and services available to them.

New Jersey Property Tax Benefits Property Tax Exemption for Disabled Veterans War veterans and those who served in certain peacekeeping missions* are exempt from real estate taxes on their principal residence if they are deemed totally and permanently disabled.

This exemption also includes surviving spouses/civil union or domestic partners of disabled war veterans or servicepersons who died on wartime active duty. To qualify for a property tax exemption as a veteran, you must be:

• Honorably discharged from active wartime service in the U.S. Armed Forces; and

• Certified by the U.S. Department of Veterans Affairs as having service-connected total or 100% permanent disability; and

• The full or partial owner of a home which you occupy as your principal residence; and

• A resident of New Jersey. The exemption requires a veteran to have served during a specific wartime period. For military service after 1975, a veteran is required to have served at least 14 days in a combat zone. *For peacekeeping missions, a veteran is required to have a minimum of 14 days of service in the combat zone, unless the service-incurred disability occurs in the combat zone. In that case, the veteran’s service is sufficient for purposes of the property tax exemption, even if the veteran served less than 14 days in the combat zone. A surviving spouse/civil union or domestic partner may be eligible so long as he or she is not remarried, is a New Jersey resident, and is the owner and occupant of the home. You can access the application form and instructions here. Contact your local tax assessor’s office for more information. Annual $250 Property Tax Deduction for Veterans War veterans and those who served in peacekeeping missions* may be eligible for a $250 annual deduction from taxes due on real or personal property. A surviving spouse/civil union or domestic partner may be eligible so long as he or she is not remarried, is a New Jersey resident, and is the owner and occupant of the home. *For peacekeeping missions, a veteran is required to have a minimum of 14 days of service in the combat zone, unless the service-incurred injury or disability occurs in the combat zone. In that case, the veteran’s service is sufficient for purposes of the property tax deduction, even if the veteran served less than 14 days in the combat zone. You can access the application form and instructions here. Contact your local tax assessor’s office for more information. Income Tax Benefits New Income Tax Exemption for Veterans Begins in 2017 Tax Year Many veterans qualify for an additional exemption of $3,000 on their New Jersey Income Tax for income earned in 2017 and beyond. This exemption does not apply to income earned in 2016 or earlier. If you are a military veteran, you are eligible for this exemption if you were honorably discharged. Recently discharged veterans become eligible in the tax year they were released under honorable circumstances. When completing your return you must fill in the oval (resident return) or check the box (nonresident return) to indicate that you are claiming this exemption. Otherwise, the exemption(s) will be disallowed. Your spouse or civil union partner also can take this exemption if he/she is a military veteran who meets the requirements above. You cannot claim this exemption for a domestic partner or your dependents. See Military Personnel for more information. Providing Documentation You must provide official documentation showing that you were honorably discharged or released under honorable circumstances from active duty the first time you claim the exemption(s). Your documentation must list your character of service (discharge). If you do not have any of the documentation on the list, you may submit any other official documentation you have showing that you were honorably discharged or released under honorable circumstances from active duty. Once the Division of Taxation confirms your eligibility in your first year of filing, you do not need to submit documentation each year you claim this exemption. The Division will send you a letter confirming your eligibility, which you should keep with your records. The United States National Archives and Records Administration can assist if you need to obtain a copy of your records. You can certify for the exemption before you file a tax return by sending a copy of your documentation and Veteran Income Tax Exemption Submission Form to the Division. This may help your return to process faster. To certify: • Use our secure document upload feature. Enter the notice code VET and select PO Box 440; or • Mail a copy of your documentation and the Veteran Income Tax Exemption Submission Form to: The New Jersey Division of Taxation Veteran Exemption PO Box 440 Trenton, NJ 08646-0440; or • Fax your documentation and Veteran Income Tax Exemption Submission Form to 609-633-8427. If you do not certify before you file, you will need to submit your documentation when you file a tax return: • Paper Return. Enclose your documentation with your return; • NJ Fill’nFile. Upload documentation into the repository; • Other Electronic Filings. If you file your return using NJ WebFile, third-party software (such as TurboTax), or a tax professional who electronically submits your return, you can send a copy of your documentation and the Veteran Income Tax Exemption Submission Form using one of the three methods listed above for certifying before you file a return. Veteran Benefits in New Jersey Over 400,000 veterans and their dependents call New Jersey home. Your service has earned a long list of benefits, such as: • Housing; • Financial assistance; • Employment; • Education; • Transportation assistance; • Mental Health. The State of New Jersey’s Department of Veteran’s Affairs created a Benefits Guide to assist you in obtaining information regarding numerous federal and State benefits.

General facts about Survivor Benefit Program - little known benefit for troops February 06 2018, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL 

Here is what DFAS has to say:

https://www.dfas.mil/retiredmilitary/provide/sbp.html

Survivor Benefit Plan

Enrollment in an annuity plan is a decision that requires careful consideration. If you are considering enrolling in an annuity plan, you should review the:

• advantages
• Eligibility
• costs

The Survivor Benefit Plan (SBP), Reserve Component Survivor Benefit Plan (RC-SBP) and Retired Serviceman's Family Protection Plan (RSFPP) provide eligible beneficiaries with a form of benefit called an "annuity." An annuity is a monthly payment for the lifetime of the beneficiary. The amount of the benefit is a percentage of your retirement benefit based on your election.

Enrollment in an annuity plan is not automatic and there are costs. If you are enrolled you will pay premiums for your SBP coverage. In addition you can only leave an annuity to eligible beneficiaries.

Election to participate in these programs is generally made at the time of retirement, although some situations allow a retiree to add coverage after retirement. In most cases, costs to participate are deducted from the retiree's monthly pay and are based on the amount of coverage a retiree elects.

 The SBP election does not entitle the beneficiary named for SBP to Arrears of Pay (AOP). A separate AOP designation has to be made in order to designate the desired individual.

Some facts regarding the Department of Defense DOD Survivor Benefit Program February 06 2018, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

Changing or Stopping Your Coverage

Survivors Benefit Program has specific rules and electing coverage is mandatory and mistakes may be impossible to repair or correct.  Retirement is one such opportunity or an "open enrollment" period but they don't happen often

Here is what DFAS posted:

https://www.dfas.mil/dfas/retiredmilitary/provide/sbp/change.html

The SBP election you make at the time of your retirement is very difficult to change. There are only a few circumstances in which it is possible to change or alter a previously made election. Please review the list below carefully to learn when you can change an SBP election and when you cannot.

To make this change, please complete a Survivor Benefit Plan Election Change Certificate (DD 2656-6) and mail or fax it to DFAS R&A Pay.

Enrolling after Retirement

Some service members choose not to enroll in the SBP plan because they have no eligible beneficiaries at the time of their retirement. Later, through marriage or the birth of a child, they find themselves with eligible beneficiaries and want to change their earlier election.

If this happens to you, you have one year from the date of initial eligibility -- the date of marriage or the birth date of the child -- to declare your wishes to have the beneficiary covered.

To do so, please mail or fax the following items to DFAS Retired and Annuitant Pay within one year of the date of eligibility:

• Survivor Benefit Plan Election Change Certificate (DD 2656-6)
• a copy of any relevant legal document (e.g., marriage certificate or birth certificate)

If you have eligible beneficiaries at the time of your retirement and elect not to have them covered, you will not be able to change that election in the future.

Ending SBP after Retirement

You are free to cancel or terminate your SBP election from the 25th month through the 36th month - or the third year - of your retirement. Please note that this window is an exit only, not an entrance, meaning that it applies only to withdrawing from an unwanted election and does not allow retirees to begin an election that they had earlier declined.  As with declining at retirement, spousal concurrence is required.

If you believe you are eligible, please complete a Survivor Benefit Plan Termination Request (DD 2656-2) and mail or fax it to DFAS Retired and Annuitant Pay.

Divorce

A divorce's impact on SBP election depends not only on your wishes, but also on the requirements imposed by the court-ordered divorce decree.

If your divorce decree contains no language mandating you to elect Former Spouse coverage, then you have complete freedom to either have the former spouse removed from the plan or to voluntarily continue the coverage.

If you remove your former spouse from the plan, any premiums deducted beyond the date of divorce will be refunded.  If you choose to voluntarily cover your former spouse under the plan, you have until one year after the date of divorce to do so.

If your divorce decree requires you to cover your former spouse, either you or your former spouse must declare your intentions to claim Former Spouse SBP coverage in writing within one year of the date of divorce.  To do this, please complete a SBP Election Statement for Former Spouse Coverage (DD 2656-1) and mail or fax it to DFAS Retired and Annuitant Pay.

Death of a Spouse

The death of a spouse covered under the plan results in immediate termination of coverage for that spouse.  If the spouse alone was covered, cost will terminate and any premiums paid beyond the date of death will be refunded.  If the spouse was covered with children, the election and its costs will change so that only the eligible children are covered.

Remarriage

Changes to your account upon remarriage will depend upon whether you were married at retirement.

If you were married and elected Full Spouse coverage at retirement, you can notify us at any time of your remarriage and a new Full Spouse election will automatically begin effective one year after that marriage date.  Spousal concurrence must be obtained to begin coverage at any level lower than the original Spouse election.

If you were married at retirement and elected not to cover your spouse, you cannot ever cover another spouse throughout retirement.

If you were not married at retirement, you must notify us of your intentions to add your spouse to the plan within one year of your marriage.  The election will become effective and premium costs will begin to be deducted upon your first anniversary.

To make changes to your spouse election, please complete a Survivor Benefit Plan Election Change Certificate (DD 2656-6) and mail or fax it to DFAS R&A Pay.

Birth of a Child

Upon the birth of a new child, please inform us by supplying us with a copy of the birth certificate.

If you had no children at retirement, we will add the child to the plan and an additional, nominal amount will be added to your monthly premium.

If you did have children at retirement and elected to cover them under the plan, we will add this youngest child and recalculate your cost based on a factor considering your age and the age of this child.

If you had children at retirement and elected not to cover them, any new or existing children will not be covered under the plan throughout your retirement.

Only a decision by Congress to initiate a free period of enrollment called an “Open Season” would allow a retiree to begin a new election after retirement.  Such periods are rare. The most recent Open Season was in 2005.  During this period, everyone who took advantage was required to “buy-in” to the program, meaning they paid an amount equal to the total of all premiums they would have paid if they had enrolled when they first became eligible.

Learn more about SBP

• Advantages & disadvantages - Things to consider before enrolling
• Enroll - How to set up your SBP account
• Eligible beneficiaries - Find out who can be covered
• Cost - What SBP costs at the different coverage levels
• Paying for SBP - How you can pay
• Update beneficiary - How to update beneficiaries or update contact information 
• Educate your beneficiaries - What your beneficiary needs to know
• What happens when you die - Next steps for your beneficiary

Read about these topics at SBP overview

Good Paper and Bad Paper - Eligibility for VA benefits with multiple periods of service or enlistments November 15 2017, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

This is an exciting bit of information to post as there are many rumors and opinions but few seem to know the answer.

If a Veteran had an honorable period of service or a Reservist receives an honorable discharge from a mobilization on their DD-214, but subsequently suffer from alleged misconduct and receive "bad paper" or an other than honorable discharge, bad conduct discharge or dishonorable discharge, is that Veteran still eligible for VA benefits?

ANSWER: Generally yes.  More info and some links below.  The Service Connected disability claims should relate to the honorable (or in VA language not dishonorable) period of service.  This eligibility also includes those Veterans with a characterization of discharge that is General Under Honorable.

The Air Force send such a query to the VA in 1991 and here is the answer in this cite and I have quoted the entire article below:

1.       VA general counsel Prec 61-91 july 17 1991

2.         https://www.va.gov/healthbenefits/resources/publications/IB10-448_other_than_honorable_discharges5_17.pdf

3.        "Who is a Veteran?" by Congressional Research Service.   http://www.ncdsv.org/images/CRS_WhoIsAVeteran-BasicEligibilityForVeterans'Benefits_1-23-2012.pdf

1.   

DATE: 07-17-91

CITATION: VAOPGCPREC 61-91 
Vet. Aff. Op. Gen. Couns. Prec. 61-91 

TEXT:
 
The Effect of a Discharge Under Dishonorable Conditions on  Eligibility for Gratuitous Veterans' Benefits Based on a Prior Period of Honorable Service
 
QUESTION PRESENTED: 

Does a discharge under dishonorable conditions bar an individual from receiving gratuitous benefits under laws administered by the Department of Veterans Affairs (VA) based on a prior period of service which terminated under honorable conditions?
 
COMMENTS: 

1. The Department of the Air Force recently requested our advice concerning the effect of a discharge under dishonorable conditions on a service member's eligibility to receive veterans' benefits based on a prior period of service which terminated under honorable conditions.  We conclude that, unless VA 
   determines that an individual was guilty of an offense listed in 38 U.S.C. § 6104 (formerly § 3504) FN1 , subject to the limitations on application of that section imposed by 38 U.S.C. § 103(d)(1) (formerly § 3503(d)(1)), or the individual was  convicted of an offense listed in 38 U.S.C. § 6105(b) (formerly § 3505(b)), a discharge under dishonorable conditions does not bar such individual from receiving VA benefits based on a prior period of service which terminated under honorable conditions. 
2. 
   Section 101(2) of title 38, United States Code, provides the basic definition of the term "veteran" for purposes of benefits under laws administered by VA, i.e., " t he term 'veteran' means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under 
   conditions other than dishonorable."  See also 38 C.F.R. § 3.1(d).  The term "veteran" is used repeatedly in title 38 to identify an individual who is eligible for benefits by virtue of his or her service.  The section-101(2) definition establishes a standard regarding the quality of active service which will result in eligibility for veterans' benefits. 

3. A discharge under honorable conditions is binding on VA as to character of discharge.  38 C.F.R. § 3.12(a).  Under the terms of 38 U.S.C. § 101(2) and 38 C.F.R. § 3.12(a), a "dishonorable" discharge would require a finding that an individual is not a veteran for purposes of the period of service in question. 
   However, in cases in which an individual's discharge is neither honorable nor dishonorable (i.e., "undesirable," "bad conduct," or "under other than honorable conditions"), VA is required to determine whether such discharge was issued "under conditions other than dishonorable."  38 U.S.C. § 101(2);  38 C.F.R. § 3.12(a).  A discharge because of acceptance of an undesirable 
   discharge to escape trial by general court-martial, mutiny or spying, an offense involving moral turpitude, willful and persistent misconduct, or homosexual acts involving aggravating circumstances or other factors affecting the performance of duty is considered to have been issued under dishonorable conditions and, thus, effectively bars an individual from receiving gratuitous VA benefits based on the period of service for which it was issued.  38 C.F.R. § 3.12(d).  (Pub.L. No. 95-126, § 2, 91 Stat. 1106, 1107 (1977), does authorize VA to provide health care and related benefits under 38 U.S.C. ch. 17 for a disability incurred or aggravated in line of duty by a person other than a person barred from receiving benefits under 38 U.S.C. § 5303(a) (formerly § 3103(a)), except for a disability incurred or aggravated during a period of service from which the person was discharged by reason of a bad conduct discharge.) 

4. A discharge found by VA to have been issued under dishonorable conditions does not, in and of itself, bar an individual from receiving VA benefits based on an earlier period of service which terminated under honorable conditions.  VA long ago adopted an administrative interpretation that a discharge under dishonorable conditions from one period of service does not constitute a bar to VA benefits if there was another period of 
   qualifying service upon which a claim could be predicated. SeeAdministrator's Decision No. 655 (6-20-45);  Op.Sol. 218-51 (6-4-51).  This interpretation is currently reflected in the language of 38 C.F.R. § 3.12(a), which provides, in part, that " i f the former service member did not die in service, pension,  compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable" (emphasis added). 
5. 
   Congress' recognition and approval of VA's interpretation is found at 38 U.S.C. § 101(18), which provides that: 

The term 'discharge or release' includes (A) retirement from  active military, naval, or air service, and (B) the satisfactory completion of the period of active military, naval, or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment 
or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable. 

Subsection (B) was added by Pub.L. No. 95-126, s 3, 91 Stat. 1106, 1108  (1977), which provided new rules for determining certain veterans' eligibility for VA benefits.  The legislative history of this provision discloses that Congress was attempting to correct an inequity:  veterans were being denied benefits based upon an entire period of service which terminated in a 
discharge under dishonorable conditions, even though the individuals had successfully completed the period of service to which they had originally agreed.  The intent of the change in law was to treat the honorable completion of the original period of obligated service as though it had resulted in a full discharge or release.  See, e.g., H.R.Rep. No. 95-580, 95th Cong., 1st Sess. 18, reprinted in 1977 U.S.Code Cong. & Admin.News 2844, 2861.  This resulted in the individual having more than one period of service and the final discharge under dishonorable conditions no longer constituting a bar to receipt of veterans' benefits based on the prior period. 

6. Section 5303 of title 38, United States Code, and the regulation implementing this statutory provision, 38 C.F.R. § 3.12(c), provide that an individual may be denied gratuitous VA benefits if the nature of such individual's discharge falls within one of the bars to benefits listed in 38 U.S.C. § 5303(a).  Those bars include "discharge or dismissal by reason of the 
   sentence of a general court-martial," discharge as "a conscientious objector who refused to perform military duty or refused to wear the uniform or otherwise to comply with lawful orders of competent military authority," discharge as a deserter, discharge under conditions other than honorable "on the basis of an absence without authority from active duty for a continuous  period of at least one hundred and eighty days" unless there are compelling circumstances to warrant such prolonged unauthorized  absence, discharge of an individual upon his or her request during a period of hostilities as an alien, or, in the case of an officer, resignation for the good of the service. However, under the terms of section 5303(a), the bars to benefits listed in that section only affect rights of persons so discharged "based upon the period of service from which discharged or dismissed."  Thus, even though the nature of an individual's last discharge from service falls within one of these bars to benefits, such person may retain eligibility for VA benefits based on an earlier period of service which terminated under honorable conditions. 
7. 
   A question arises as to eligibility for national-cemetery burial due to prior law on the subject.  An examination of the legislative history of the National Cemeteries Act of 1973, Pub.L. No. 93-43, 87 Stat. 75, which established the National Cemetery System within VA, discloses that, under then- current law, eligibility requirements for burial in national cemeteries varied with the operating agency (Department of the Army, VA, National Park Service, and American Battle Monuments Commission).  See S.Rep. No. 93-55, 93th Cong., 1st Sess., reprinted in 1973 U.S.Code Cong. & Admin.News 1401, 1404.  Section 1002, as included in S. 49, 93rd Cong., which became Pub.L. No. 93-43, established a single standard for eligibility for burial in national cemeteries transferred to VA.  The eligibility provisions of the bill were described as being "identical to those currently in force in section 281 of title 24, United States Code."  See id. at 1420.  However, the language of section 1002 differed significantly from 24 U.S.C. § 281 in that the latter provided that only members or former members of the Armed Forces whose last period of service terminated honorably were eligible for burial in national cemeteries.  Section 1002 had no such provision and was interpreted by VA as differing from the title 24 provision in this regard.  See Letter of the  Administrator of Veterans Affairs to Congressman Lamar Baker, November 23, 1973. 
8. 
   The legislative history of the National Cemeteries Act of 1973 contains no explanation for the failure to incorporate the express terms of 24 U.S.C. § 281 into new section 1002.  The act contains no definitional provision defining the term "veteran" and, in the absence of such a provision, the general definitional statute applicable to title 38, 38 U.S.C. § 101(2), should be relied on in determining the meaning of the term "veteran."  See1A N. Singer, Sutherland Statutory Construction, § 27.02 (4th ed. 1985).  There is no basis for applying that term more restrictively for purposes of section 1002 than for purposes of 
   other provisions of title 38.  We conclude, therefore, that for purposes of establishing eligibility for burial in national cemeteries under VA's control, there is no requirement that a veteran's last period of service have terminated honorably. 
9. 
   A review of the forfeiture provisions of title 38, United States Code, and their legislative history leads us to conclude that there are some circumstances under which a person discharged under dishonorable conditions may be barred from receipt of gratuitous VA benefits based on a prior period of service which terminated under honorable conditions.  Section 6104(a) of title 38, United States Code, provides that: 

Any person shown by evidence satisfactory to the Secretary of Veterans Affairs to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies shall forfeit all accrued or future gratuitous benefits under laws administered by the Department of Veterans Affairs (emphasis added). 

The application of this provision has been severely limited since September 1, 1959.  No forfeiture of benefits may be imposed under 38 U.S.C. § 6104 after that date against an individual who was a resident of, or domiciled in, a state at the time of commission of the offense unless the individual ceases to be a resident of, or domiciled in, a state before the expiration of the period during which criminal prosecution could be instituted.  38 U.S.C. § 6103(d)(1).  This limitation does not apply with respect to any forfeiture which occurred before September 1, 1959, or to acts which occurred in the Philippine Islands prior to July 4, 1946.  Id.  The term "state" means the several states, territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.  38 U.S.C. § 101(20). 

10. 
    The forfeiture provision embodied in section 6104(a) developed from a provision of the World War Veterans' Act, 1924, ch. 320, § 23, 43 Stat. 607, 613, which provided that: 

The discharge or dismissal of any person from the military or naval forces on the ground that he is guilty of mutiny, treason, spying, or any offense involving moral turpitude, or willful and persistent misconduct, of which he has been found guilty by a court-martial, or that he is an enemy alien, conscientious 
objector, or a deserter, shall terminate any insurance granted on the life of such person under the provisions of Title III and shall bar all rights to any compensation under Title II.... 

Pursuant to section 208 of that act, a dismissal or discharge from the service by sentence of court martial barred all rights to compensation only for the period of service from which such discharge was given.  Sections 23 and 208 of the World War Veterans' Act, 1924 were consolidated and amended by the Act  of March 4, 1925, ch. 553, § 3, 43 Stat. 1302, 1303.  This later act  removed contracts of insurance from the operation of the bar limited the application of the bar in the case of aliens and minors, and retained the provision which limited the bar to compensation to benefits based on the period of service for which the bad discharge or dismissal was issued. 

11. 
    The Act of July 13, 1943, ch. 233, s 4, 57 Stat. 554, 555, used language very similar to that of current section 6104, providing that persons shown by evidence satisfactory to the Administrator to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States would forfeit "all accrued or future benefits" under laws administered by VA. the proviso regarding prior periods of service was retained in the law on a much more limited basis by the Servicemen's Readjustment Act of 1944, ch. 268, § 300, 58 Stat. 284, 286, which provided that a bar to VA benefits for actions similar to those currently listed in 38 U.S.C. § 5303, would apply only to the period of service from which the person was discharged or dismissed.  The legislative history of section 4 of the Act of July 13, 1943, contains no discussion of its intended scope.  See S.Rep.No. 403, 78th Cong., 1st Sess. 8 (1943);H.R.Rep. No. 463, 78th Cong., 1st Sess. 10 (1943).  However, courts have recognized VA's authority, pursuant to the  predecessors to 38 U.S.C. § 6104(a), i.e., former 38 U.S.C. §§ 728 and 3504(a), to terminate gratuitous benefits awarded to veterans based on periods of honorable service when, subsequent to discharge, such veterans were found by VA to have aided the enemies of the United States or conspired or advocated the forceful overthrow of the Government.  See Thompson v. Gleason, 317 F.2d 901 (D.C.Cir.1962); Wellman v. Whittier, 259 F.2d 163(D.C.Cir.1958); Thompson v. Whittier, 185 F.Supp. 306 (D.D.C.1960), appeal dismissed, 365 U.S. 465 (1961).  Further, 38 U.S.C. s§6104(c), added in 1959 as 38 U.S.C. § 3504(c) by Pub.LNo. 86-222, § 2, 73 Stat. 452 (1959), prohibits an award to any  person of gratuitous benefits based on any period of military, naval, or air service commencing before the date of commission of an offense listed in subsection (a). 
12. In light of the terms of section 6104(a), including Congress' use of the sweeping language "all accrued or future gratuitous benefits," the referenced judicial precedents, and the terms of section 6104(c), we conclude that, subject to section 6103(d)(1), if VA determines upon the evidence (see 38 C.F.R. § 3.905(b)) that an individual is guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies, regardless of whether there has been a criminal conviction for the offense, such individual would be barred from receiving any gratuitous benefits administered by VA, including burial in a national cemetery, based on a prior period of service which terminated under honorable conditions. 
13. 
    Section 6105(a) of title 38, United States Code, added by Pub.L. No. 86- 222, § 3(a), 73 Stat. 452, 453 (1959), as amended, provides in part that: 

Any individual who is convicted after September 1, 1959, of any offense listed in subsection (b) of this section shall, from and after the date of commission of such offense, have no right to gratuitous benefits (including the right to burial in a national cemetery) under laws administered by the Department of Veterans Affairs based on periods of military, naval, or air service  commencing before the date of the commission of such offense and no other person shall be entitled to such benefits on account of such individual. 

 
The offenses enumerated in subsection (b) of 38 U.S.C. § 6105 include offenses for which punishment is prescribed in articles 94 (mutiny or sedition), 104 (aiding the enemy), and 106 (spying) of the Uniform Code of Military Justice, various violations of title 18, United States Code, relating to espionage, treason, rebellion, sedition, subversive activities, and sabotage, as well as certain violations of the Atomic Energy Act of 1954 and the Internal Security Act of 1950.  Only a Presidential pardon for the offense would restore eligibility for VA benefits.  See 38 U.S.C. § 6105(a). 

14. 
    H.R. 7106, 86th Cong., which became Pub.L. No. 86-222, was intended to modify existing law by providing automatic forfeiture of rights of veterans to gratuitous benefits in all cases of conviction of specified offenses involving loyalty or security.  See S.Rep. No. 664, 86th Cong., 1st Sess., reprinted in 1959 U.S.Code Cong. & Admin.News 2216.  In a letter dated August 4, 1959, to the Chairman of the Senate Committee on Finance on H.R. 7106, incorporated in the Committee's report, the Deputy Administrator of Veterans Affairs stated that " t he disentitlement to VA benefits would apply to benefits based on service before or after conviction."  Id. at 2217.  The Deputy  Administrator expressed the view that proposed 38 U.S.C. § 3505 (now § 6105) was an improvement over the related existing 38 U.S.C. § 3504 (now § 6104), stating " c learly, an individual convicted of serious offenses against the Government, involving national security, should not be the recipient of our  Government's gratuities."  Id. at 2218.  This legislative history and the sweeping language of 38 U.S.C. § 6105 support the conclusion that a veteran who is discharged as a result of a conviction of an offense enumerated in 38 U.S.C. § 6105(b) is barred from receiving gratuitous VA benefits, including the right to burial in a national cemetery, based on a prior period of service which terminated under honorable conditions. 
15. 
    We do not believe that the absence of the parenthetical phrase  "including the right to burial in a national cemetery" in 38 U.S.C. § 6104 and the inclusion of the phrase in 38 U.S.C. § 6105 by section 8 of the National Cemeteries Act of 1973 suggests that the former provision was intended to have a narrower scope. The use of the phrase "all accrued or future gratuitous benefits under laws administered by VA " in section 6104 is sufficiently board to include the right to burial in a national cemetery. There is nothing in the legislative history of Pub.L. No. 86-222, which added what are now section 6105 and subsection (c) of section 6104, to suggest that the forfeiture prescribed by section 6104 was to be less inclusive than the penalty prescribed in section 6105.
16. 
    Section 1002 of title 38, United States Code, as contained in section 2(a) of the National Cemeteries Act of 1973, included within the class of persons eligible for interment in national cemeteries " a ny veteran," but added the proviso "subject to the provisions of section 6105 of title 38." The regulation 
    implementing this provision, 38 C.F.R. § 1.620(a), essentially  restates the definition of a "veteran" found in 38 U.S.C. § 101(2) and 38 C.F.R. § 3.1(d) and provides for adjudication of character of discharge under 38 C.F.R. § 3.12. 
17. 
    Both 38 U.S.C. § 1002 and 38 U.S.C. § 6105 specifically indicate that persons convicted of certain offenses listed in 38 U.S.C. § 6105(b) have no right to burial in a national cemetery. S.Rep. No. 93-55, 93rd Cong., 1st Sess., reprinted in 1973 U.S. Code Cong. & Admin.News 1401, 1425, and H.R.Rep. No. 93-131, 93d Cong., 1st Sess. 22, indicate that section 8 of the National  Cemeteries Act was intended "to make explicit" that forfeiture pursuant to 38 U.S.C. § 6105 included the right to burial in a national cemetery.  Such language suggests that this penalty would otherwise have been implicit in the terms of then current section 3505 (now section 6105) and that Congress, for whatever reason, wished to highlight the effects of forfeiture on persons  convicted of offenses listed in what is now 38 U.S.C. 6105(b). 
18. 
    As discussed above, the broad language of section 6104 indicates that an individual shown by evidence satisfactory to the Secretary to be guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or its allies forfeits all accrued or future gratuitous VA Benefits,  including eligibility for burial in a national cemetery.  The legislative history of the National Cemeteries Act contains no reference to the effect of forfeiture pursuant to 38 U.S.C. § 6104, nor any statement suggesting that Congress intended to liberalize then-existing law regarding forfeiture pursuant to what is now 38 U.S.C. § 6104.  See S.Rep.No. 93-55, supra; H.R.Rep. No. 93- 131, supra.  In the face of such legislative silence, it would be absurd to conclude that at the same time it was taking measures to ensure that individuals convicted of espionage are excluded from burial in national cemeteries,  Congress intended to restrict the scope of another provision which would serve to exclude individuals guilty of treason and other serious offenses from access to national-cemetery burial. See 1A N. Singer, Sutherland Statutory Construction § 23.06 (4th ed. 1985).  Such an action would be tantamount to repeal by implication of the broad reference in what is now section 6104 to "all accrued or future gratuitous benefits."  "Courts have created a presumption against the repeal of prior laws by implication.... Where the repealing effect of a statute is doubtful, the statute is strictly construed to effectuate its consistent operation with previous legislation."  Id. at § 23.10 (emphasis in original). Accordingly, we conclude that, in specifically barring national-cemetery burial for persons convicted of offenses listed in 38 U.S.C. § 6105, Congress did not intend to limit the effect of 38 U.S.C. § 6104 in this regard, and that persons subject to forfeiture under the latter provision are hereby barred from national-cemetery burial. 

 
HELD:

 
Unless the Secretary of Veterans Affairs determines that an individual is guilty of an offense listed in 38 U.S.C. § 6104 (formerly § 3504) (mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies) or the individual is convicted of an offense listed in 38 U.S.C. § 
6105 (formerly § 3505) (articles 94 (mutiny or sedition), 104 (aiding the enemy), and 106 (spying) of the Uniform Code of Military Justice;  various provisions of title 18, United States Code, relating to espionage, treason, rebellion,sedition, subversive activities, and sabotage;  violations of the Atomic Energy Act of 1954 and the Internal Security Act of 1950), a discharge under dishonorable conditions does not bar that individual from receiving gratuitous benefits administered by the Department of Veterans Affairs, including burial in a national cemetery, based on a prior period of service which terminated under conditions other than dishonorable. However, if VA 
determines, subject to the severe limitations on application of 38 U.S.C. § 6104 to U.S. residents and domiciliaries after September 1, 1959, under 38 U.S.C. § 6103(d)(1) (formerly § 3503(d)(1)), that an individual is guilty of an offense listed in 38 U.S.C. § 6104, or if an individual is convicted of an offense listed in 38 U.S.C. § 6105, such individual is barred from receiving all accrued or future benefits regardless of whether the individual may have had a prior period of honorable service.
 
VETERANS ADMINISTRATION GENERAL COUNSEL 
Vet. Aff. Op. Gen. Couns. Prec. 61-91

1/   The Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub. L. No. 102-40, s 402 (b)(1), 105 Stat. 187, 238 (1991), redesignated each section in, among other chapters, chapters 53 and 61 of title 38, United States Code, so that the first two digits of the section number are the same as the chapter containing that section.

2.    From May 2017 on the VA website

Other than Honorable1 Discharges Impact on Eligibility for VA Health Care Benefits Benefit Description Except for persons who die during military service, status as a Veteran requires that he or she was discharged or released under conditions other than dishonorable. If a Veteran honorably completed the period of military service for which he or she was initially obligated but because of a change in military status was not discharged or released, and he or she did not honorably complete a subsequent period of service, then the Veteran may be eligible for VA benefits based on the initial period. An administrative decision is required by VBA to determine if the initial obligation was satisfied and whether or not the individual meets the qualification of a Veteran. Examples of a change in military status include: • Reenlistment • Voluntary or involuntary extensions of a period of obligated service • Discharge for acceptance of an appointment as a commissioned officer or warrant officer; • Change from a Reserve commission to a Regular commission • Change from a Regular commission to a Reserve commission (Title 38 U.S.C. 101(18)). Administrative “Other than Honorable” discharges may or may not be disqualifying for purposes of general VA benefit eligibility or VA health benefits eligibility specifically. In assessing whether such discharges were issued “under conditions other than dishonorable,” VA must apply the standards set forth in Title 38 Code of Federal Regulations (C.F.R.) §3.12 “Other than Honorable” Discharges – Special Health Care Rule An individual with an “Other than Honorable” discharge that VA has determined to be disqualifying under application of title 38 C.F.R. §3.12 still retains eligibility for VA health care benefits for serviceincurred or service-aggravated disabilities unless he or she is subject to one of the statutory bars to benefits set forth in Title 38 United States Code §5303(a). Authority: Section 2 of Public Law 95-126 (Oct. 8, 1977). VA health care benefits: If an individual presents or makes an application for VA health care benefits and has an “other than honorable” discharge, eligibility staff must register the individual and place in a Pending Verification Status unless Veteran has a separate and distinct “unconditional” qualifying military service episode with a qualifying Character of Service. A request for an administrative decision regarding the character of service for VA health care purposes must be made to the local VA Regional Office (VARO). 1 In this document, the phrase “other than honorable discharge” refers to specific the administrative military discharge “under other than honorable conditions.” Thus, this term does not encompass punitive discharges (dishonorable discharges, bad-conduct discharges, or officer dismissals), or other types of military discharges. IB 10-448 Page 1 of 2 This request may be submitted using a VA Form 7131, Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action. In making determinations of health care eligibility the same criteria will be used as are now applicable to determinations of service connection when there is no character of discharge bar. The active psychosis or mental illness presumptions under 38 U.S.C. § 1702 (implemented at 38 C.F.R. § 17.109) may be applicable to an individual with an other than honorable discharge. If the eligibility criteria are met, the individual’s mental health condition will be presumed to be service-connected for purposes of health care benefits for service-incurred or service-aggravated disabilities. Note: Treatment for mental health conditions may be provided under VA’s tentative eligibility authority (38 C.F.R. § 17.34) to an individual with an other than honorable discharge who presents to VA seeking mental health care in emergency circumstances for a condition the former servicemember asserts is related to military service. For non-mental health conditions, VA may provide emergent treatment under VA’s humanitarian care authority at 38 U.S.C. 1784. In instances where a former servicemember’s eligibility is not yet established, the former servicemember must sign a VA Form 119, Report of Contact, stating that if s/he is subsequently found to be NOT eligible for VA health care, they agree to pay the Humanitarian Rate for any emergent care or services provided. Review of Military Discharge References: A Veteran may request a review of his/her discharge from the Armed Forces, by submitting Form DD 293, “Application for the Review of Discharge from the Armed Forces of the United States” to the appropriate branch of service where the active duty was served. This request must be made within 15 years of discharge from active service. Form DD 293 can be found at the following link: www.dtic.mil/whs/directives/forms/eforms/dd0293.pdf. If the discharge the Veteran wants reviewed was issued over 15 years ago, instead of applying on a DD Form 293, the Veteran must petition the appropriate Board for Correction of Military Record using DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552. Form DD 149 can be found at the following link: www.dtic.mil/whs/directives/forms/eforms/dd0149.pdf. Note: A Veteran may request copies of Military Records, by submitting Form SF 180, “Request Pertaining to Military Records” to the appropriate branch of service. The form can be found at www.archives.gov/research/order/standard-form-180.pdf, or it may be completed online at www.archives.gov/veterans/military-service-records. For Further Information: Contact your local VA health care facility’s Eligibility office or the Health Eligibility Center at 404-828-5257. This and other eligibility related fact sheets are available at www.va.gov/healthbenefits/resources/publications.asp. Authorities: Title 38, United States Code, §5303(a); Pub. L. No. 95-126, §2; and Title 38, Code of Federal Regulations, §§3.12 and 17.34.

“Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Christine Scott Specialist in Social Policy January 23, 2012 Congressional Research Service 7-5700 www.crs.gov R42324 “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service Summary A broad range of benefits are offered to veterans of the U.S. Armed Forces and to certain members of their families by the U.S. Department of Veterans Affairs (VA). Among these benefits are various types of financial assistance, including monthly cash payments to disabled veterans, health care, education, and housing benefits. Basic criteria must be met to be eligible to receive any of the benefits administered by the VA. For a former servicemember to receive certain VA benefits, the person must have active U.S. military service for a minimum period of time and meet nature of discharge requirements. Some members of the National Guard and reserve components have difficulty meeting the active duty and length of service requirements. However, a member of the National Guard or reserve components who is activated for federal military service and serves the full period of activation is considered a veteran for purposes of VA benefits. The GI Bill Improvement Act of 1977 (P.L. 95-202) recognized the service of one group of civilians, the Women’s Air Forces Service Pilots, as active service for benefits administered by the VA, and it also established that the Secretary of Defense could determine that service for the Armed Forces by a group of civilians, or contractors, be considered active service for benefits administered by the VA. This report examines the basic eligibility criteria for VA administered veterans’ benefits, including the issue of eligibility of members of the National Guard and reserve components. “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service Contents Introduction...................................................................................................................................... 1 Who is a Veteran? ............................................................................................................................ 1 Active Service ........................................................................................................................... 2 Length of Service ...................................................................................................................... 3 Discharge Criteria...................................................................................................................... 3 Whether the Military Service Was During a Time of War......................................................... 4 National Guard and Reserve............................................................................................................ 5 Civilian Groups................................................................................................................................ 6 Contacts Author Contact Information............................................................................................................. 7 Acknowledgments ........................................................................................................................... 7 “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service 1 Introduction A broad range of benefits are offered to veterans of the U.S. Armed Forces and to certain members of their families by the U.S. Department of Veterans Affairs (VA). Among these benefits are various types of financial assistance, including monthly cash payments to disabled veterans, health care, education, and housing benefits. Basic criteria must be met to be eligible to receive any of the benefits administered by the VA. This report focuses upon the basic eligibility/entitlement requirements for former servicemembers for veterans’ benefits administered by the VA. Certain VA benefits are available to current servicemembers, and the eligibility requirements for those benefits are not a component of this report. The VA uses a two-step process to evaluate claims for benefits. First, the claimant must demonstrate that he or she is eligible. That is, the claimant must prove that he or she is a bona fide veteran and verify certain related matters. In this sense, the eligibility relates to the veteran’s general qualification(s) for the benefit(s). Second, the veteran must prove entitlement to the particular benefit being sought.1 Who is a Veteran? To be eligible for most VA benefits, the claimant must be a veteran or, in some circumstances, the survivor or the dependent of a veteran. By statute, a “veteran” is defined as a “person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.”2 In evaluating the evidence to determine whether the applicant is a “veteran” for the purposes of VA benefits, the VA relies upon military department service records. The VA is bound by information that the service documents contain.3 Generally speaking, the VA findings will be in accord with the information contained in the applicant’s military service records.4 Such records may include an original military service record; a copy issued by the military service with the certification that it is a true document; or a copy submitted by an accredited agent, attorney, or service representative with special training, who certifies that it is a copy of an original military service document or a copy of a copy of such a document.5 In addition to meeting these criteria, the document must contain data regarding the length, time, and character of the service, and the VA must believe that the document is genuine and accurate.6 If the 1 For example, to be entitled to receive disability compensation, a veteran must provide sufficient evidence of certain elements (e.g., current diagnosis, medical evidence of an in-service occurrence, and link between the in-service occurrence and the current disability). 2 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). 3 Venturella v. Gober, 10 Vet. App. 340, 341-342 (1977); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). 4 38 C.F.R. § 3.203. 5 38 C.F.R. § 3.203(a)(1). See CRS Report RS21282, Military Service Records and Unit Histories: A Guide to Locating Sources, by Julissa Gomez-Granger and Anne Leland. 6 38 C.F.R. § 3.203(a)(2), (3). “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service 2 claimant does not provide the requisite documentation or other evidence, or the submitted documentation does not meet the requirements, the VA must seek to verify the applicant’s military service directly from the appropriate military service.7 Active Service An applicant must have “active military, naval, or air service” to be considered a veteran for most VA benefits.8 However, not all types of service are considered active military service for this purpose.9 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 Environmental Science Services Administration or the National Oceanic and Atmospheric Administration, or its predecessor, the Coast and Geodectic Survey. Active service also 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 duty10 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.11 Additional circumstances of service, and whether they are deemed to be active military service, are set out in law.12 For example, if on authorized travel to and from the performance of active 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.13 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 7 Duro, 2 Vet. App. at 532. 8 38 U.S.C. § 101(2); 38 C.F.R. § 3.12(a). 9 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)). 10 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)). 11 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)). 12 38 U.S.C. §§ 101, 106. 13 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service 3 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, a claimant may have more than one period of service, which may further complicate the determination. Length of Service 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 8, 1980, there are now certain minimum length of service requirements. 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.14 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 during active service should almost always be able to receive service-connected compensation for his or her condition or disability.15 Other exceptions to the minimum service requirements include claims for VA life insurance benefits,16 hardship discharges,17 and persons retired or separated from service because of a service-related disability.18 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 veteran 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.”19 Discharge Criteria The statutory definition of “veteran” requires that the individual be discharged or released from military service “under conditions other than dishonorable.”20 There are currently five types of discharges issued by the military services: (1) honorable discharge (HD), (2) discharge under honorable conditions (UHC) or general discharge (GD), (3) discharge under other than honorable conditions (UOTHC) or undesirable discharge (UD), (4) bad conduct discharge (BCD), and (5) dishonorable discharge (DD).21 The language of the statute does not precisely match the current categories of the discharges, and the VA often determines on a case-by-case basis whether the claimant’s discharge satisfies any of 14 38 U.S.C. § 5303A(b); 38 C.F.R. § 3.12a(a)(1). 15 38 U.S.C. § 5303A(b)(3)(C); 38 C.F.R. § 3.12a(d)(4). 16 38 U.S.C. § 5303A(b)(3)(E); 38 C.F.R. § 3.12a(d)(5). 17 38 U.S.C. § 5303A(b)(3)(A); 38 C.F.R. § 3.12a(d)(1). 18 38 U.S.C. § 5303A(b)(3)(B); 38 C.F.R. § 3.12a(d)(2). 19 38 U.S.C. § 5303A(b)(1); 38 C.F.R. § 3.12a(b). 20 38 U.S.C. § 101(2); 38 C.F.R. § 3.12(a). 21 Barton F. Stichman et al., Veterans Benefits Manual, at § 2.2.1 (Cited to afterward as “Veterans Benefits Manual”). “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service 4 the criteria and which category of discharge applies. In most cases, the VA considers honorable discharges and discharges under honorable conditions to fall within the “conditions other than dishonorable” category, and will usually qualify the claimant as a veteran under the first step of the eligibility test.22 Usually, honorable and general discharges qualify a veteran for most benefits.23 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.24 In the case of such a discharge, the VA will make a special “character of service determination,” based on the particular facts in the claimant’s case. On this basis, the VA will determine whether the veteran was separated from service under “dishonorable conditions” or under “other than dishonorable conditions.” The VA will review the entire period of the claimant’s enlistment(s) to assess the quality of the service and to determine whether it is sufficient to deserve the award of veterans’ benefits.25 If a claimant has served more than one period of enlistment, he or she may have two or more different discharge categories. Dishonorable and bad conduct discharges issued by general courts-martial may bar VA benefits. Veterans in prison and parolees may be eligible for certain VA benefits and must contact the VA to determine eligibility. VA benefits will not be provided to any veteran or dependent wanted for an outstanding felony warrant. Certain exceptions permit the award of VA benefits, even if the character of the discharge would ordinarily bar VA benefits. For example, if it is determined that the claimant was insane at the time of the offense leading up to the discharge, the claimant may be granted VA benefits. There does not need to be a direct connection between the insanity and the misconduct.26 Whether the Military Service Was During a Time of War27 All military service is classified as either wartime or peacetime service. Whether a veteran has served during a time of war may impact his or her potential VA benefits. For example, the Improved Pension benefit for low-income veterans who are either elderly or non-serviceconnected disabled veterans, is only for veterans with wartime service.28 Congress has set out the periods of “wartime” for the purposes of veterans’ benefits.29 To be considered to have “served during wartime” by the VA, a veteran does not have to have served in an actual combat zone, but during the specified periods of war set out below. Those time periods not designated by Congress as “wartime” are considered to be “peacetime.” If a veteran served his or her duty partly during wartime and partly during peacetime, the veteran would meet the 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 38 U.S.C. § 5303(b). 27 See CRS Report RS21405, U.S. Periods of War and Dates of Current Conflicts, by Barbara Salazar Torreon. 28 38 U.S.C. § 1521(j). 29 38 U.S.C. § 101 (6)-(11); 38 C.F.R. § 3.2. “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service 5 “wartime” criteria if he or she served 90 consecutive days, at least one day of which occurred during a period designated as wartime. Following is a list of those periods of “wartime” designated by Congress: • Indian Wars—January 1, 1817, through December 31, 189830 • Spanish-American War—April 21, 1898, through July 4, 190231 • Mexican Border Period—May 19, 1916, though April 5, 191732 • World War I—April 6, 1917, through November 11, 1918; extended to April 1, 1920; by regulation extended to July 1, 1921, under certain specific conditions33 • World War II—December 7, 1941, through December 31, 1946; extended to July 25, 194734 • Korean Conflict—June 27, 1950, through January 31, 195535 • Vietnam Era—August 5, 1964, through May 7, 197536 • Persian Gulf War—August 2, 1990, through a date to be prescribed by Presidential proclamation or law37 National Guard and Reserve Two particular elements of the criteria to be a veteran—“active duty” and “length of service”— are often difficult for members of the National Guard and the reserve components to meet. As a result, these servicemembers, having not met the statutory threshold criteria for “veteran,” are often not eligible for VA benefits. In many cases, members of the Guard and the reserves may not have fulfilled the “active duty” requirement. Members of the Guard and reserves who have never been activated for federal active duty military service, and consequently have not served on regular federal active duty, do not meet the active duty requirement for the definition of a veteran for VA benefits. For other National Guard and reserve members, the two requirements may be met at the same time. An example of this situation would be a Guard or reserve member who was activated for federal military service and served in the Persian Gulf for 12 months. At the end of the activation period, the servicemember would be considered to have served on active duty for that period of 30 See 38 C.F.R. § 3.2(a). 31 38 U.S.C. § 101(6); 38 C.F.R. § 3.2(b). 32 38 U.S.C. § 101(30); 38 C.F.R. § 3.2(h). 33 38 U.S.C. § 101(7); 38 C.F.R. § 3.2(c). 34 38 U.S.C. § 101(8); 38 C.F.R. § 3.2(d). 35 38 U.S.C. § 101(9); 38 C.F.R. § 3.2(e). 36 38 U.S.C. § 101(29); 38 C.F.R. § 3.2(f). Military personnel who served in the Republic of Vietnam between February 28, 1961, and May 7, 1975, are also considered to have served during the Vietnam Era. 37 38 U.S.C. §§ 101(33), 1501(4); 38 C.F.R. §§ 3.2(I), 3.3(a)(3), 3.17, 3.54(a)(3)(viii). At the present time, no termination date has been established. “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service 6 time. Serving for the full period of activation also meets the minimum length of service requirement to be a veteran. Otherwise, Guard and reserve duty may not be considered “active duty” for benefits unless the servicemember performing this duty was disabled or died from a disease or injury incurred or aggravated in the line of duty.38 Although many National Guard and reserve members may not appear to be eligible “veterans” for the purposes of VA benefits, certain exceptions and special circumstances may exist, which add to the complexity of the eligibility determination. For example, under certain conditions Guard and reserve members may be eligible for education benefits (through the Reserve Educational Program or the Post-9/11 GI Bill) and home loans from the VA (with six years of service in the Selected Reserves or National Guard). As each servicemember’s military service may be different, and therefore may fit within certain case categories or exceptions, eligibility is usually determined by the VA on a case-by-case basis after reviewing the individual servicemember’s military service records. Civilian Groups The GI Bill Improvement Act of 1977 (P.L. 95-202) recognized the service of one group of civilians, the Women’s Air Forces Service Pilots, as active service for benefits administered by the U.S. Department of Veterans Affairs. In addition, P.L. 95-202 provided that the Secretary of Defense could determine that service for the Armed Forces by a group of civilians, or contractors, be considered active service for benefits administered by the VA. Based on the provisions of P.L. 95-202,39 the Secretary of Defense established that the Secretary of the Air Force would develop and maintain the process to determine if the wartime employment of certain groups of individuals is considered “active duty” military service for the purpose of receiving certain veterans benefits. If these groups of individuals are considered to be “active duty” by the Secretary, they are eligible to receive certain benefits, including health care.40 Regulations implementing P.L. 95-202 specify which groups the Secretary has determined were employed in “active duty” service.41 The regulations also established the Department of Defense Civilian/Military Service Review Board and Advisory Panel to review each application for “active duty” status.42 Following its review, the board issues a written recommendation to the Secretary as to whether the applicant group should be considered “active duty” for the purposes of the act. The Secretary makes the final decision, based upon the recommendation of the board. Pursuant to this procedure, various groups of persons have been accorded “active duty” status. Among the successful applicants were Women’s Air Forces Service Pilots (WASPs), Signal Corps Female Telephone Operators Unit (World War I), Engineer Field Clerks (World War I), Male Civilian Ferry Pilots (World War II), and other groups of employees with war-related 38 38 U.S.C. § 101(21)(A); 38 C.F.R. § 3.6(a). Inactive duty would include duty other than full-time duty, such as weekend assignments or part-time details. 39 38 U.S.C. § 106 note. 40 See 38 C.F.R. § 3.7. 41 32 C.F.R. § 47. See 38 C.F.R. § 3.7 for those groups that have been so designated. 42 The applications are usually submitted by representatives of the employment group. “Who is a Veteran?”—Basic Eligibility for Veterans’ Benefits Congressional Research Service 7 occupations.43 At this time, all of the successful applicants have been civilian groups associated with World War I and World War II. The regulations concerning the designation of “active duty” status have undergone revision over the years. Changes and clarification to the regulations implemented in 1989 “stem from a Federal Court determination [Schumacher v. Aldridge] 44 that the Department of Defense had failed to clarify factors and criteria in their implementing directive concerning P.L. 95-202.”45 The 1989 regulations remain in effect. Author Contact Information Christine Scott Specialist in Social Policy cscott@crs.loc.gov, 7-7366 Acknowledgments This report uses material from a previous report on eligibility written by Douglas R. Weimer. 43 38 C.F.R. § 3.7. 44 665 F.Supp. 41 (D.D.C. 1987). 45 54 Fed. Reg. 39,991 (September 29, 1989).

Coast Guard does not participate in Integrated Disability Evaluation System IDES October 14 2017, 0 Comments

Disabled American Veterans v. Secretary of Veterans Affairs October 14 2017, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

This is an important case for VSO's and Veterans Appeals' lawyers.

United States Court of Appeals for the Federal Circuit

DISABLED AMERICAN VETERANS, Petitioner

v.

SECRETARY OF VETERANS AFFAIRS, Respondent ______________________ 2016-1493 ______________________ Petition for review pursuant to 38 U.S.C. Section 502. ______________________ Decided: June 14, 2017 ______________________ ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for petitioner. Also represented by ROBERT VINCENT CHISHOLM, JENNA ZELLMER; CHRISTOPHER J. CLAY, Disabled American Veterans, Cold Spring, KY; BARBARA J. COOK, Cincinnati, OH. EMMA BOND, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; BRIAN D. GRIFFIN, BRANDON A. JONAS, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. ______________________ 2 DAV v. SECRETARY OF VETERANS AFFAIRS Before MOORE, O’MALLEY, and REYNA, Circuit Judges. MOORE, Circuit Judge. Disabled American Veterans (“DAV”) petitions for review of provisions of the Department of Veterans Affairs’ (“VA”) Adjudication Procedures Manual M21-1 (“M21-1 Manual”). We dismiss for lack of jurisdiction. BACKGROUND 38 U.S.C. § 1117 provides presumptive service connection for veterans who served in the Persian Gulf War with a qualifying chronic disability. The statute articulates three types of qualifying chronic disabilities: (a) an undiagnosed illness; (b) a medically unexplained chronic multisymptom illness (“MUCMI”); and (c) any diagnosed illness as determined by the Secretary. 38 U.S.C. § 1117(a)(2). The VA’s regulations define a MUCMI as: a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii) (emphasis added). Both statute and regulation identify sleep disturbances and signs or symptoms involving the respiratory system as possible manifestations of a MUCMI. 38 U.S.C. § 1117(g)(8)–(9); 38 C.F.R. § 3.317(b)(8)–(9). The VA consolidates its policy and procedures into one resource known as the M21-1 Manual. The M21-1 Manual provides guidance to Veterans Benefits Administration DAV v. SECRETARY OF VETERANS AFFAIRS 3 (“VBA”) employees and stakeholders “to allow [the] VBA to process claims benefits quicker and with higher accuracy.” J.A. 81. Any VBA employee can request changes to the M21-1 Manual through submission of an online form. The M21-1 Manual discusses service connection for qualifying disabilities under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in section IV.ii.2.D. In September 2015, a VBA employee requested a change to this portion of the M21-1 Manual to specify that the language “without conclusive pathophysiology or etiology” in § 3.317 requires “there is ‘both’ an inconclusive pathophysiology ‘and’ an inconclusive etiology” for an illness to qualify as a MUCMI. J.A. 78. He also requested the M21-1 Manual specify that sleep apnea is not a qualifying chronic disability under § 1117 and § 3.317. On November 30, 2015, the VA adopted the requested revisions. The VA changed the definition of MUCMI from illnesses exhibiting “no conclusive physiology or etiology” to require “both an inconclusive pathology, and an inconclusive etiology.” J.A. 60, 100–01. Under the subsection “Signs and Symptoms of Undiagnosed Illnesses or MUCMIs,” the VA added, “Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 38 C.F.R. § 3.317 since it is a diagnosable condition.” J.A. 103. DAV petitions for review of these revisions pursuant to 38 U.S.C. § 502. DISCUSSION Our jurisdiction to review VA actions pursuant to § 502 is limited. We can review actions of the Secretary subject to 5 U.S.C. §§ 552(a)(1) and 553. 38 U.S.C. § 502. Under § 502, we cannot review all VA actions which fall under § 552; only those in § 552(a)(1). Section 552(a)(1) refers to agency actions that must be published in the Federal Register, including “substantive rules of general applicability . . . and statements of general policy or interpretations of general applicability.” 5 U.S.C. 4 DAV v. SECRETARY OF VETERANS AFFAIRS § 552(a)(1)(D). Section 553 refers to agency rulemaking that must comply with notice-and-comment procedures under the Administrative Procedure Act. “A party seeking the exercise of jurisdiction in its favor has the burden of establishing that such jurisdiction exists.” Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Section 552(a)(2) refers to agency actions that need not be published in the Federal Register. These agency actions must only be made publicly available in an electronic format. 5 U.S.C. § 552(a)(2). Section 552(a)(2)(C) defines “administrative staff manuals and instructions to staff that affect a member of the public” as agency actions falling under this category. The M21-1 Manual is an administrative staff manual that affects a member of the public. The M21-1 Manual is “an electronic resource that has consolidated all of VA’s policy and procedural guidance on processing disability claims into one location.” J.A. 81. It is intended for “VBA employees processing Veteran and Survivor claims for compensation, pension and burial benefits.” Id. The manual is intended to instruct VBA employees when processing claims, and its provisions affect the public. Section 502’s express exclusion of agency actions subject to § 552(a)(2) renders the M21-1 Manual beyond our § 502 jurisdiction unless DAV can show the VA’s revisions more readily fall under §§ 552(a)(1) or 553. Because DAV has not shown that the VA’s revisions to the M21-1 Manual are actions of the Secretary subject to either §§ 552(a)(1) or 553, we lack jurisdiction to review the M21-1 Manual revisions. DAV cites precedent in which we found agency actions subject to § 552(a)(1) and thus reviewable pursuant to § 502, but those cases are distinguishable from the VA’s M21-1 Manual revisions. For example, in Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000), we reviewed a precedential General Counsel opinion pursuant to § 502. See also DAV v. SECRETARY OF VETERANS AFFAIRS 5 Snyder v. Sec’y of Veterans Affairs, No. 16-1529 (Fed. Cir. June 8, 2017). Precedential General Counsel opinions are published in the Federal Register and are expressly subject to § 552(a)(1). See Splane, 216 F.3d at 1062; 38 U.S.C. § 501(c) (specifying that opinions and interpretations of the VA General Counsel must comply with § 552(a)(1)); 38 C.F.R. § 14.507(b) (“Written legal opinions designated as precedent opinions [of the General Counsel] under this section shall be considered by the Department of Veterans Affairs to be subject to the provisions of 5 U.S.C. § 552(a)(1).”). In LeFevre v. Secretary of Veterans Affairs, 66 F.3d 1191 (Fed. Cir. 1995), we found that we had jurisdiction under § 502 to review the VA’s decision “not to create a presumption that prostate cancer, liver cancer, and nose cancer are connected to exposure to herbicides in Vietnam.” Id. at 1192–93. Congress directed the Secretary to work with the National Academy of Science to review and summarize scientific evidence concerning exposure to herbicide in Vietnam. Id. Congress delegated to the Secretary the authority to determine whether to create a presumption of service connection for diseases that may have resulted from such exposure, and the Secretary published a detailed explanation of his decision in the Federal Register. Id. at 1196– 97. We concluded that we had jurisdiction to review the Secretary’s determination because it was a “statement of general . . . applicability and future effect designed to implement . . . or prescribe . . . law or policy” as provided in § 552(a)(1). Id. And we have exercised our jurisdiction pursuant to § 502 in numerous other cases to review the VA’s final regulations published in the Federal Register. See, e.g., McKinney v. McDonald, 796 F.3d 1377 (Fed. Cir. 2015); Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012). DAV also fails to draw similarities between the VA’s M21-1 Manual revisions and certain VA letters that we held constituted actions of the Secretary reviewable 6 DAV v. SECRETARY OF VETERANS AFFAIRS pursuant to § 502. See Military Order of the Purple Heart of the USA v. Sec’y of Veterans Affairs, 580 F.3d 1293, 1294, 1296 (Fed. Cir. 2009) (holding a Fast Letter issued by a VA Director announced a “new procedure promulgated by the Secretary” subject to our review pursuant to § 502); Coal. for Common Sense in Gov’t Procurement v. Sec’y of Veterans Affairs, 464 F.3d 1306, 1317–18 (Fed. Cir. 2006) (holding Dear Manufacturer Letter issued by an Acting VA Director announced a substantive rule that was “[a]n action of the Secretary” under § 502). The M21- 1 Manual revisions are distinguishable from these VA letters. Fast Letters and Dear Manufacturer Letters are not agency actions defined under § 552. While Congress explicitly designated administrative staff manuals as agency actions falling under § 552(a)(2), it did not similarly specify whether VA letters are agency actions subject to § 552(a)(1) or § 552(a)(2). DAV argues we nonetheless have jurisdiction to review the VA’s revisions to the M21-1 Manual because the revisions announce substantive rules subject to § 553 which should be voided for failure to provide the required notice and comment. “[S]ubstantive rules [are] those that effect a change in existing law or policy or which affect individual rights and obligations.” Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998). DAV argues the M21-1 Manual revisions are substantive rules subject to § 553 because the revisions are inconsistent with 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 and thus announce a change in existing law. DAV Br. 13–17 (arguing § 1117 and § 3.317 entitle a veteran to presumptive service connection as long as the illness exhibits no conclusive pathophysiology or no conclusive etiology). It argues the Veterans Court has explained that “VA handbooks, circulars, and manuals” may have the “force and effect of law” if they prescribe substantive rules. DAV Br. 11–13 (quoting Castellano v. Shinseki, 25 Vet. App. 146, 150 (2011)); see also Guerra v. Shinseki, 642 F.3d DAV v. SECRETARY OF VETERANS AFFAIRS 7 1046, 1051 n.2 (Fed. Cir. 2011) (“The Veterans Court has in the past found that certain provisions of the [M21-1] Manual constituted substantive rules for purposes of the APA.”); Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990) (holding a provision in the M21-1 Manual “affected a substantive right and its placement in a procedural manual cannot disguise its true nature as a substantive rule”). “[T]he question whether a particular provision is substantive or interpretative for purposes of the APA is not resolved simply by the title of the document in which the provision is found.” Guerra, 642 F.3d at 1051 n.2. There are three relevant factors to whether an agency action constitutes substantive rulemaking under the APA: (1) the [a]gency’s own characterization of the action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency. The first two criteria serve to illuminate the third, for the ultimate focus of the inquiry is whether the agency action partakes of the fundamental characteristic of a regulation, i.e., that it has the force of law. Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999); see also Nat’l Min. Ass’n v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014) (“The most important factor [in distinguishing substantive rules from general statements of policy] concerns the actual legal effect (or lack thereof) of the agency action in question on regulated entities.”); Guerra, 642 F.3d at 1051 n.2 (“If an agency announces new substantive rules, those rules are subject to the procedural requirements of 5 U.S.C. § 553 even if they are not formally published as agency regulations.”). To amount to substantive rulemaking with the force and effect of law, the rule’s change in existing law must be “binding not only within the agency, but [] binding on 8 DAV v. SECRETARY OF VETERANS AFFAIRS tribunals outside the agency.” Coal. for Common Sense, 464 F.3d at 1318. The M21-1 Manual revisions do not amount to a § 553 rulemaking and do not carry the force of law. All relevant factors point to this conclusion. The VA does not intend for the M21-1 Manual to carry the force of law: “The M21- 1 is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation.” 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007). There is no notice-and-comment rulemaking for Manual revisions as required by § 553. The VA does not publish M21-1 Manual revisions in the Federal Register or Code of Federal Regulations, but instead issues revisions through an informal electronic process which can be initiated by VBA employees. The M21-1 Manual is binding on neither the agency nor tribunals. The Board of Veterans’ Appeals (“Board”) is bound only by “regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.” 38 U.S.C. § 7104(c). The M21-1 Manual falls under none of these categories. The VA’s regulations specify, “[t]he Board is not bound by Department manuals, circulars, or similar administrative issues.” 38 C.F.R. § 19.5. These rules announced in the M21-1 Manual revisions lack the legal effect to constitute substantive rulemaking under § 553 and thus there was no procedural infirmity in the agency’s failure to provide notice and comment before making revisions to the M21-1 Manual. DAV has the burden of establishing this court’s jurisdiction over its petition. Congress chose to limit this court’s jurisdiction in § 502 to challenges to agency actions that fall under § 552(a)(1) or § 553. Congress expressly exempted from § 502 challenges to agency actions which fall under § 552(a)(2). DAV has not met its jurisdictional burden in this case. The Manual revisions are not, as DAV argues, substantive rules which require DAV v. SECRETARY OF VETERANS AFFAIRS 9 notice and comment rulemaking procedure. DAV argues we have jurisdiction to review the M21-1 Manual revisions even if they are interpretative rules, but fails to articulate why the revisions amount to “statements of general policy or interpretations of general applicability” subject to § 552(a)(1)(D) as compared to the interpretative rules subject to § 552(a)(2)(B)–(C). See Cathedral Candle Co. v. ITC, 400 F.3d 1352, 1369 (Fed. Cir. 2005) (“The statute makes clear that section 552(a)(1)(D) does not require the publication of all statements of policy and interpretation, because another provision of the same statute, section 552(a)(2)(B), states that each agency shall ‘make available for public inspection and copying . . . those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register.’”). As the government persuasively argues, § 552(a)(2) expressly includes “statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register” and further includes “administrative staff manuals and instructions to staff that affect a member of the public.” The VA Manual revisions at issue clearly fall under these § 552(a)(2) provisions. Where, as here, manual provisions are interpretations adopted by the agency, not published in the Federal Register, not binding on the Board itself, and contained within an administrative staff manual, they fall within § 552(a)(2)—not § 552(a)(1). DAV has the burden of establishing jurisdiction and has not established that the Manual revisions fall within § 552(a)(1) or § 553. This is not to say that a veteran is without recourse if the VA’s M21-1 Manual adopts a rule inconsistent with statute or regulation. A veteran adversely affected by a M21-1 Manual provision can contest the validity of that provision as applied to the facts of his case under 38 U.S.C. § 7292. See, e.g., Guerra, 642 F.3d 1046. But absent a showing that the rule is an action of the Secre- 10 DAV v. SECRETARY OF VETERANS AFFAIRS tary to which § 552(a)(1) or § 553 refers, DAV cannot directly request review of that provision pursuant to 38 U.S.C. § 502. CONCLUSION For the reasons discussed above, we dismiss for lack of jurisdiction. DISMISSED COSTS No costs.

Individual Unemployability (TDIU) - Cantrell Decision October 14 2017, 0 Comments

 THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

Veterans can still receive Individual Unemployability, commonly known as TDIU, even though they are still working.  How is that possible?

Marginal employment is still an acceptable action by the Veteran as long as the Veteran is working in a protected environment and "particular employment" is modified or eliminated to support the Veteran employee.  Some responsibility of the job may even be overlooked if the Veteran Employee makes mistakes or cannot function in the same way as a "typical" employee.

The Veteran's salary can even exceed the poverty level, again, as long as the employment is sheltered or protected.

This is an important benefit and lay statements from fellow Veterans and others can help.  The relevant regulation is Section 4.16