[Federal Register Volume 86, Number 172 (Thursday, September 9, 2021)]
[Proposed Rules]
[Pages 50513-50515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19413]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AQ95


Update and Clarify Regulatory Bars to Benefits Based on Character 
of Discharge

AGENCY: Department of Veterans Affairs.

ACTION: Request for information; notification of listening sessions.

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SUMMARY: The Department of Veterans Affairs (VA) is requesting 
information to assist in the modification of the regulatory framework 
for discharges considered ``dishonorable'' for VA benefit eligibility 
purposes. On July 10, 2020, VA published a proposed rule for public 
notice and comment. The proposed rule would modify VA regulations 
governing VA character of discharge determinations based on ``willful 
and persistent misconduct,'' ``moral turpitude,'' and ``homosexual acts 
involving aggravating circumstances or other factors affecting the 
performance of duty.'' In addition, the proposed rule would create a 
``compelling circumstances'' exception to certain regulatory bars to 
benefits in order to ensure fair character of discharge determinations 
in light of all pertinent factors. Following publication, VA received 
numerous public comments. Due to the various and differing comments 
received, VA is seeking additional information to help inform VA's 
development of updated character of discharge regulations. 
Additionally, VA is announcing a virtual listening session to further 
seek verbal feedback from a variety of entities as VA implements this 
regulation. Regardless of attendance at the virtual listening session, 
interested parties are invited to submit comments, including data and 
research.

DATES: Comments on this request for information must be received by VA 
on or before October 12, 2021. VA will also hold the first public 
virtual listening session on October 5, 2021, and the second public 
virtual listening session on October 6, 2021. Each meeting will start 
at 8:50 a.m. and conclude at or before 4:15 p.m. Eastern Daylight Time. 
Virtual check-in will begin at 8 a.m.

ADDRESSES: Comments must be submitted through www.Regulations.gov and 
will be available for public viewing, inspection, or copies.
    The virtual listening sessions will be held virtually as WebEx 
events and will be open to the public to listen on a first come, first 
served basis. Information about the meeting and registration to speak 
or listen can be obtained by emailing: [email protected]. 
Virtual attendance will be limited to the maximum allowed by WebEx.

FOR FURTHER INFORMATION CONTACT: Robert Parks, Chief, Part 3 Forms and 
Regulations (211D), Department of Veterans Affairs, 810 Vermont Avenue 
NW, Washington, DC 20420, 202-461-9540 (This is not a toll-free 
telephone number).

SUPPLEMENTARY INFORMATION:

Background

    On July 10, 2020 (85 FR 41471), VA published a proposed rule in the 
Federal Register to amend 38 CFR 3.12 by updating and clarifying the 
regulatory bars to benefits. Specifically, VA proposed to modify the 
regulatory framework for discharges considered ``dishonorable'' for VA 
benefit eligibility purposes, such as discharges due to ``willful and 
persistent misconduct,'' ``an offense involving moral turpitude,'' and 
``homosexual acts involving aggravating circumstances or other factors 
affecting the performance of duty.'' VA also proposed to extend a 
``compelling circumstances'' exception to certain regulatory bars to 
benefits in order to ensure fair character of discharge determinations 
in light of all pertinent factors.
    VA invited interested persons to submit written comments on or 
before September 8, 2020. VA received over 70 comments in response to 
the proposed rule. Over 20 of those comments were from organizations 
and the rest were from individual members of the public. Those 
organizations included: (1) American Psychological Association, (2) 
Charlotte Center for Legal Advocacy, (3) Homeless Advocacy Project, (4) 
Homeless Persons Representation Project, Inc., (5) Inner City Law 
Center, (6) Legal Aid Foundation of Los Angeles, (7) Lewis B. Puller 
Veterans Benefits Clinic of William & Mary Law School, (8) Modern 
Military Association of America, (9) National Law School Veterans 
Clinic Consortium, (10) National Organization of Veterans' Advocates, 
Inc., (11) National Veterans Legal Services Program, (12) New York 
State Division of Veterans Services, (13) NY Legal Assistance Group, 
(14) Ohio Veterans Law Task Force, (15) Public Counsel Center for 
Veterans Advancement, (16) Swords to Plowshares, (17) The Jerome N. 
Frank Legal Services Organization, (18) The Minority Veterans of 
America (MVA), (19) The National Coalition for Homeless Veterans, (20) 
The National Veterans Council for Legal Redress, (21) University of 
Florida Levin College of Law Veterans and Servicemembers Legal Clinic, 
(22) Veterans Advocacy Project, (23) Veterans Clinic at the University 
of Missouri School of Law, (24) Veterans Healthcare Policy Institute, 
(25) Veterans Legal Services, and (26) Vietnam Veterans of America. 
Individual comments were also received from U.S. Senators Richard 
Blumenthal, Jon Tester, and Sherrod Brown.
    This additional request for information, described in more detail 
below, will assist VA in gathering and taking into account diverse 
viewpoints on this issue. Responses to this request for information 
will be used to help inform VA's development of updated character of 
discharge regulations. This request for information has a written 
comment period of 30 days, during which VA invites individuals, groups, 
and entities to reply to the questions presented below. VA believes 
that 30 days is sufficient to provide comments, as the individuals, 
groups, and entities interested in this program likely have information 
and opinions readily available or can quickly compile and submit such 
information. Commenters are encouraged to provide complete but concise 
responses to the questions outlined below.
    VA will also be holding virtual public listening sessions on 
October 5, 2021, and October 6, 2021, to provide groups and entities an 
opportunity to share additional information. Oral comments, 
testimonies, and technical remarks are encouraged to be concise and 
directed

[[Page 50514]]

toward specific Request for Information topics below. Please note that 
VA will evaluate all comments (oral and written) and, as appropriate, 
incorporate them into VA's next action.

Request for Information

    To update its character of discharge regulations, VA seeks 
information on the topics and issues listed below. Commenters do not 
need to address every question and should focus on those that relate to 
their expertise or perspectives. Commenters should clearly indicate 
which topics and issues are being addressed in their response.

A. Compelling Circumstances

    1. VA proposed to consider, as a factor in a ``compelling 
circumstances'' analysis, the impact of mental impairment at the time 
of the prolonged absence without leave (AWOL) or misconduct, to include 
a diagnosis of (or evidence that could later be medically determined to 
demonstrate the existence of) certain enumerated mental disabilities. 
Some commenters felt that the list of disabilities was overinclusive; 
some felt that it was underinclusive. VA seeks comment on the following 
question: What conditions, symptoms, or circumstances if any, should VA 
consider when determining the impact of mental impairment at the time 
of the prolonged AWOL or misconduct?
    2. VA proposed to consider, as a factor in a ``compelling 
circumstances'' analysis, ``Sexual abuse/assault.'' Should VA employ a 
different or additional term for this category, such as ``Military 
Sexual Trauma (MST)''? Also, should VA include language reminding 
adjudicators to look beyond service records to corroborate the account 
of an in-service personal assault, as provided in 38 CFR 3.304(f)(5)?

B. Willful and Persistent Misconduct

    VA noted in the proposed rulemaking that ``willful misconduct'' is 
already defined in 38 CFR 3.1(n) as ``an act involving conscious 
wrongdoing or known prohibited action''--i.e., the act involves 
deliberate or intentional wrongdoing with knowledge of or wanton and 
reckless disregard of its probable consequences. VA then proposed to 
clarify what circumstances qualify as ``willful and persistent 
misconduct'' in proposed 38 CFR 3.12(d)(2)(ii), with reference to 
certain timelines for ``minor misconduct'' and ``more serious 
misconduct''. VA seeks comments on the following questions:
    1. Should VA proceed with a distinction between ``minor 
misconduct'' and ``more serious misconduct'' when evaluating whether 
misconduct is persistent? Should VA define what is considered ``serious 
misconduct?'' Should VA only consider an action to be ``misconduct'' if 
it actually caused harm to a person or property or should VA consider 
all misconduct, regardless of severity, in its determination? Should VA 
consider extenuating circumstances that may have led to or impacted the 
``misconduct'' at issue?
    2. Some commenters requested that VA clarify the number of 
incidents required to constitute willful and persistent misconduct. How 
many instances over what period of time should be considered 
persistent? Should the totality of the circumstances be considered in 
addition to the number of incidents when determining misconduct to be 
willful and persistent?

C. Moral Turpitude

    Some commenters expressed concern that the proposed rule's 
definition of moral turpitude is too vague. VA seeks comments on the 
following questions:
    1. VA regulation currently does not define moral turpitude, but 
states in 38 CFR 3.12(d)(3) that it includes ``generally, conviction of 
a felony.'' VA's proposed rule would define moral turpitude as a 
```willful act that gravely violates accepted moral standards and would 
be expected to cause harm or loss to person or property.'' Should VA 
revise this proposed definition, and if so, how?

D. Benefit Eligibility

    VA seeks comments on the following questions regarding former 
service members and the bars to VA benefits:
    1. Some commenters recommended that VA only apply statutory bars to 
benefits (those enumerated in 38 U.S.C. 5303(a)); others expressed 
concerns about how such an approach would affect military order and 
discipline. How (if at all) would removing the regulatory bars affect 
military order and discipline?
    2. Some commenters suggested that granting benefits to those with 
less than honorable discharges denigrates others' honorable service. 
How (if at all) would extending VA benefits eligibility denigrate 
others' honorable service?
    3. VA is committed to ensuring that its character of discharge 
regulations reflect the principles of fairness, inclusion, and justice 
that our Service members and our Nation deserves. What specific changes 
can be made to the proposed rule for fairly adjudicating the benefits 
eligibility of historically disadvantaged and vulnerable populations?

Listening Session Registration

    Information about the meeting, how to listen and/or register to 
speak can be obtained by emailing: [email protected].
    Individual registration: VA encourages individual registrations for 
those wishing to speak who are not affiliated with or representing a 
group, association, or organization.
    Group registration: Identification of the name of the group, 
association, or organization should be indicated in your registration 
request. Due to virtual platform meeting limitations of WebEx, and the 
statutory mandate that VA consult with certain entities, VA may select 
certain entities to speak or may limit the size of a group's 
registration to allow receipt of testimonies, and/or technical remarks 
from a broad, diverse group of stakeholders. Oral comments, 
testimonies, and/or technical remarks may be limited from a group, 
association, or organization with more than two individuals 
representing the same group, association, or organization. Efforts will 
be made to accommodate all attendees who wish to participate. The 
length of time allotted for participants to provide oral comments, 
testimonies, and/or technical remarks during the meeting will be no 
more than ten minutes, and is subject to the total number of 
participants speaking, to ensure time is allotted to selected 
registered speakers. Breaks between speakers will be ten minutes. There 
will be no opportunity for audio-visual presentations during the 
meeting.
    Audio (For listening purposes only): Virtual attendance will be 
limited to the maximum allowed by WebEx on a first come, first served 
basis. Advanced registration is not required. Audio attendees will not 
be allowed to offer oral comments, testimonies, and/or technical 
remarks as the phone line will be muted.
    Note: Should it be necessary to cancel the meeting due to technical 
issues or other emergencies, VA will take available measures to notify 
registered participants. VA will conduct the public meeting informally, 
and technical rules of evidence will not apply. VA will arrange for a 
written transcript of the meeting and keep the official record open 
until the closure of the Request For Information comment period to 
allow submission of supplemental information. The transcript will be 
posted in the docket of the rule as part of the official record when 
the rule is published.

[[Page 50515]]

    Each listening session will focus on the Request for Information 
topics described in this notice and will be scheduled according to the 
following Agendas:

Listening Session 1

Virtual Public Listening Sessions 1 (October 5, 2021)
Agenda
08:00-08:50 Arrival/Check-In
09:00-12:00 Morning Public Meeting Session
12:00-13:00 Break
13:00-16:10 Afternoon Public Meeting Session
16:15 Adjourn

Listening Session 2

Virtual Public Listening Sessions 2 (October 6, 2021)
Agenda
08:00-08:50 Arrival/Check-In
08:50-12:00 Morning Public Meeting Session
12:00-13:00 Break
13:00-16:10 Afternoon Public Meeting Session
16:15 Adjourn

Paperwork Reduction Act

    This request for information constitutes a general solicitation of 
public comments as stated in the implementing regulations of the 
Paperwork Reduction Act of 1995 at 5 CFR 1320.3(h)(4). Therefore, this 
request for information does not impose information collection 
requirements (i.e., reporting, recordkeeping, or third-party disclosure 
requirements). Consequently, there is no need for review by the Office 
of Management and Budget under the authority of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501, et seq.).

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on July 7, 2021, and authorized the undersigned to sign and 
submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.
[FR Doc. 2021-19413 Filed 9-8-21; 8:45 am]
BILLING CODE 8320-01-P