[Federal Register Volume 86, Number 179 (Monday, September 20, 2021)]
[Rules and Regulations]
[Pages 52076-52077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20220]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AR03


Referral for VA Administrative Decision for Character of 
Discharge Determinations

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations to clarify that, when determining eligibility for interment 
or memorialization benefits, the National Cemetery Administration (NCA) 
will refer cases involving other than honorable (OTH) discharges, 
certain other discharges, or potential statutory or regulatory bars to 
benefits, to the Veterans Benefits Administration (VBA) for character 
of discharge determinations. VA is merely updating its regulations to 
conform with statute and current practice.

DATES: This rule is effective October 20, 2021.

FOR FURTHER INFORMATION CONTACT: Jerry Sowders, Division Chief, 
Eligibility Verification Division, National Cemetery Administration, 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420. Telephone: 314-416-6369. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On December 18, 2020, VA published in the 
Federal Register (85 FR 82399) a proposed rule revising its regulations 
to clarify that, when determining eligibility for interment or 
memorialization benefits, NCA will refer cases involving OTH discharges 
or other character of discharge issues to VBA for an administrative 
decision. The public comment period ended on February 16, 2021.
    VA received one comment that expressed disagreement with the 
proposed rule, stating that the referral of cases for a character of 
discharge determination was ``morally and ethically reprehensible.'' 
The commenter also asserted that the proposed rule sought to assume 
Congress's role ``to write statute'' by redefining the term 
``veteran,'' and suggested that VA use an automated formula to evaluate 
whether an individual satisfies the statutory definition of veteran. We 
thank the commenter for this comment.
    However, we disagree that this rule redefines the term ``veteran'' 
in any way. While the supplemental information in the proposed rule 
explained that eligibility for NCA-administered benefits is tied to an 
individual establishing ``veteran'' status or meeting other specified 
conditions, this rule does not affect the statutory definition of 
``veteran'' as provided by Congress in 38 U.S.C. 101(2). The rule only 
amends 38 CFR 38.620 by adding a note following paragraph (i) to inform 
that a benefit request, pertaining to a decedent whose character of 
discharge may potentially bar eligibility to that benefit, may be 
referred to VBA for review in accordance with 38 CFR 3.12 (Character of 
discharge) or other applicable sections. As such, we make no changes 
based on the comment.
    We appreciate the commenter's suggested alternative approach to 
determining whether an individual satisfies the statutory definition of 
``veteran'', but Congress has delegated to VA the authority to 
promulgate reasonable regulations on VA benefits eligibility, which it 
has done in 38 CFR 3.12. See Garvey v. Wilkie, 972 F.3d 1333 (Fed. Cir. 
2020). It is not 38 CFR 38.620 or this rule (which merely clarifies NCA 
current practice), but 38 CFR 3.12, that seems to pertain more to the 
commenter's concern.
    Under 38 CFR 3.12(a), some discharges, such as honorable and 
general (under honorable conditions) automatically convey ``veteran'' 
status. However, other types of discharges require in-depth examination 
under the provisions of 38 CFR 3.12(d) to determine whether the 
discharge should be considered to have been issued under dishonorable 
conditions. Moreover, the provisions of 38 CFR 3.12(c), commonly 
referred to as the statutory bars to benefits (since they are derived 
from 38 U.S.C. 5303(a)) may also be implicated. Because of VBA's 
expertise and familiarity with 38 CFR 3.12, NCA has

[[Page 52077]]

historically referred character of discharge issues to VBA. Doing so 
helps ensure VA-wide consistency on benefits determinations and helps 
prevent confusion in claimants and beneficiaries that would likely 
result from VBA and NCA having differing standards. The amendment this 
final rule makes merely adds an explanatory note to inform the public 
of this long standing process. As such, we make no changes based on the 
comment regarding the complexity of character of discharge 
determinations, or the commentor's suggestion that VA utilize automated 
formulas to determine the character of a discharge.
    Finally, the commenter indicated that the proposed rule was not 
available for comment for the entire 60 days following publication in 
the Federal Register, and requested an extended period for comment. We 
note that the proposed rule was published in the Federal Register on 
December 18, 2020, and the comment period closed on February 16, 2021, 
which is a period of 60 days. Consequently, we take no action based on 
this comment.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The provisions associated with this rulemaking are merely internal 
administrative processes to VA specifically and do not involve or 
impact any external entities outside of VA. Therefore, pursuant to 5 
U.S.C. 605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.201, National Cemeteries; 
and 64.202, Procurement of Headstones and Markers and/or Presidential 
Memorial Certificates.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Claims, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on September 14, 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.

    For the reasons set forth in the preamble, VA amends 38 CFR part 38 
as set forth below:

PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

0
1. The authority citation for part 38 continues to read as follows:

    Authority: 38 U.S.C. 101, 107, 112, 501, 512, 2306, 2402, 2403, 
2404, 2407, 2408, 2411, 5303, 7105.


0
2. Amend Sec.  38.620 by adding a note to the section to read as 
follows:


Sec.  38.620   Persons eligible for burial.

* * * * *

    Note 1 to Sec.  38.620: A benefit request pertaining to a 
decedent whose character of discharge may potentially bar 
eligibility to that benefit may be referred to the Veterans Benefits 
Administration for review in accordance with 38 CFR 3.12 (Character 
of discharge) or other applicable sections.


[FR Doc. 2021-20220 Filed 9-17-21; 8:45 am]
BILLING CODE 8320-01-P