[Federal Register Volume 61, Number 214 (Monday, November 4, 1996)]
[Rules and Regulations]
[Pages 56626-56627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28190]


-----------------------------------------------------------------------


DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3

RIN 2900-AI26


Willful Misconduct

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations regarding ``willful misconduct.'' The purpose 
is to remove unnecessary Latin phrases and to remove other unnecessary 
or

[[Page 56627]]

redundant material for purposes of clarity and readability.

EFFECTIVE DATE: This amendment is effective November 4, 1996.

FOR FURTHER INFORMATION CONTACT: Laurence Freiheit, Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW., Washington, DC 20420, 
telephone (202) 273-7252.

SUPPLEMENTARY INFORMATION: 38 U.S.C. 1110 and 1131 authorize the 
Secretary of Veterans Affairs to compensate veterans for disability 
resulting from injury or disease incurred or aggravated during active 
military service provided that the disability is not the result of the 
person's own willful misconduct. 38 U.S.C. 1521(a) authorizes the 
Secretary to pay disability pension to certain veterans who are 
permanently and totally disabled from nonservice-connected disability 
not the result of the veteran's willful misconduct. Although the 
statute does not define the term ``willful misconduct,'' the VA 
regulation at 38 CFR 3.1(n) defines it as ``an act involving conscious 
wrongdoing or known prohibited action (malum in se or malum 
prohibitum).''
    We are deleting the Latin terms ``malum in se or malum 
prohibitum.'' Although they are standard legal terms, they serve no 
purpose here because the definition in Sec. 3.1(n) is clear without 
them. Malum in se and malum prohibitum are legal terms of art which 
carry with them bodies of case law defining their meaning. Essentially, 
they differentiate between actions that are inherently evil or immoral 
and those that are not inherently immoral but which become so because 
their commission is expressly forbidden by positive law. These terms 
are apparently included in the regulation to make clear that both types 
of actions are included within the terms ``wrongdoing'' and 
``prohibited action,'' together, would normally be understood to 
encompass both types of action, and, therefore, use of the Latin terms, 
the meaning of which is obscure to most persons, is not necessary.
    A note following Sec. 3.1(n)(3) directs users to 
Sec. 3.1(y)(2)(iii) for a definition of the term ``willful misconduct'' 
in determining whether certain veterans meet the requirements to be 
considered former prisoners of war. The correct citation is 
Sec. 3.1(y)(4); however, the definition at Sec. 3.1(y)(4) merely 
duplicates the first sentence of Sec. 3.1(n) (without the Latin terms) 
and all of Sec. 3.1(n)(1). It is therefore, redundant, and we are 
deleting the last two sentences in Sec. 3.1(y)(4) as well as the note 
following Sec. 3.1(n)(3).
    Since these amendments merely remove unnecessary material and are 
not substantive in nature, the Secretary finds under 5 U.S.C. 553(b) 
that prior notice and comment are unnecessary and that there is a basis 
for dispensing with a 30-day delay of the effective date.
    Because no notice of proposed rulemaking was required in connection 
with the adoption of this final rule, no regulatory flexibility 
analysis is required under the Regulatory Flexibility Act, 5 U.S.C. 
601-612. Even so, the Secretary hereby certifies that these regulatory 
amendments will not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility. These amendments are not substantive and do not affect any 
small entities.

    The Catalog of Federal Domestic Assistance program numbers are 
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: September 12, 1996.
Jesse Brown,
Secretary of Veterans Affairs.

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

PART 3--ADJUDICATION

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

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

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


Sec. 3.1   [Amended]

    2. In Sec. 3.1, paragraph (n) introductory text is amended by 
removing ``(malum in se or malum prohibitum)''; and by removing the 
Note immediately following paragraph (n)(3).
    3. In Sec. 3.1, paragraph (y)(4) is amended by removing the last 
two sentences.

[FR Doc. 96-28190 Filed 11-1-96; 8:45 am]
BILLING CODE 8320-01-P