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

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. 

 

  1. 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.) 

 

  1. 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). 

  2. 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. 

 

  1. 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. 

  2. 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. 

  3. 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. 

  4. 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). 


  1. 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. 


  1. 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). 
  2. 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. 

  3. 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). 


  1. 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. 

  2. 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.

  3. 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. 

  4. 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). 

  5. 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).