[Federal Register Volume 89, Number 82 (Friday, April 26, 2024)]
[Rules and Regulations]
[Pages 32361-32373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09012]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 89 , No. 82 / Friday, April 26, 2024 / Rules
and Regulations
[[Page 32361]]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: In a document published in the Federal Register on July 10,
2020, the Department of Veterans Affairs (VA) proposed to amend its
regulation regarding character of discharge (COD) determinations. After
considering public comments, VA has decided to finalize its proposal
with some modifications to expand VA benefits eligibility, bring more
consistency to adjudications of benefits eligibility, and ensure COD
determinations consider all pertinent factors.
DATES:
Effective date: This final rule is effective June 25, 2024.
Applicability date: The provisions of this final rule shall apply
to all applications for benefits that are received by VA on or after
June 25, 2024, or that are pending before VA, the United States Court
of Appeals for Veterans Claims, or the United States Court of Appeals
for the Federal Circuit (Federal Circuit) on June 25, 2024.
FOR FURTHER INFORMATION CONTACT: Robert Parks, Chief, Part 3
Regulations Staff (211C), Compensation Service, Department of Veterans
Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-9700.
(This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION:
I. COD Regulatory History
Eligibility for most VA benefits requires that a former service
member (SM) be a ``veteran.'' ``Veteran'' status is bestowed to former
SMs ``who served in the active military, naval, air, or space service,
and who [were] discharged or released therefrom under conditions other
than dishonorable.'' 38 U.S.C. 101(2). The term ``conditions other than
dishonorable'' is not a term of art in the military and was chosen by
Congress in 1944 to provide VA some discretion with respect to setting
the standard for Veteran status and benefits eligibility of former SMs.
Garvey v. Wilkie, 972 F.3d 1333, 1337, 1339 (Fed. Cir. 2020). In
October 1946, VA codified 38 CFR 2.1064, which reiterated that, for a
former SM to obtain benefits, the SM must have been terminated under
conditions ``other than dishonorable.'' VA provided that
``dishonorable'' discharges included those due to (1) mutiny; (2)
spying; or (3) an offense involving moral turpitude or willful and
persistent misconduct (terms that originated in Public Law 68-242,
section 23, 43 Stat. 613 (1924)). 38 CFR 2.1064(a). VA also considered
dishonorable an undesirable discharge to escape trial by general court-
martial (GCM) and a discharge due to homosexual acts. 38 CFR 2.1064(c),
(d). VA further codified the ``statutory bars'' found in the
Servicemen's Readjustment Act of 1944, Public Law 78-346, section 300,
58 Stat. 284, which precluded benefits for a person who was (1)
discharged or dismissed by GCM; (2) discharged for being a
conscientious objector who refused to perform military duties, wear the
uniform or comply with lawful orders of competent military authorities;
(3) a deserter; or (4) as an officer who resigned for the good of the
service. 38 CFR 2.1064(b).
Since 1946, 38 CFR 2.1064 and its successors (most notably, current
38 CFR 3.12) have provided the criteria used by VA adjudicators for
determining Veteran status and evaluating benefit eligibility for
former SMs. Currently, there are six ``statutory bars'' to benefits for
former SMs listed in 38 U.S.C. 5303(a) and reiterated in paragraph (c)
of 38 CFR 3.12. In addition, currently, there are five ``regulatory
bars'' to benefits listed in paragraph (d) of 38 CFR 3.12, which states
that discharges based on the five listed offenses are ``considered to
have been issued under dishonorable conditions.'' The last update to
Sec. 3.12(d) occurred in 1980, more than 40 years ago. The 1980 update
provided examples of aggravated homosexual acts. 45 FR 2318 (Jan. 11,
1980).
On July 10, 2020, VA published at 85 FR 41471 its proposal to amend
its regulation governing COD determinations. Specifically, VA proposed
to modify the regulatory standards for discharges considered
``dishonorable'' for VA benefit eligibility purposes, such as
discharges due to ``willful and persistent misconduct,'' 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 to ensure consideration of all pertinent factors. In response
to the proposed rule, over 70 comments were received. Given the
``various and differing'' comments received, VA issued a Request for
Information (RFI) in September 2021. 86 FR 50513. Specifically, VA
asked the public questions about the factors for consideration in a
compelling circumstances analysis. Regarding willful and persistent
misconduct, the RFI asked whether VA should define ``serious
misconduct''; whether VA should require misconduct to actually cause
harm to person or property; and how VA should define persistence. VA
asked about the proposed rule's definition of moral turpitude. VA asked
whether removing the regulatory bars would affect military order and
discipline or denigrate others' honorable service; and what specific
changes could be made to the proposed rule to fairly adjudicate the
benefits eligibility of historically disadvantaged and vulnerable
populations.
In response to the RFI, over 45 comments were received. In addition
to the proposed rule and the RFI, in October 2021, VA held a two-day
listening session to receive oral comments from any member of the
public on the RFI questions. Transcripts from the listening session can
be found at https://www.regulations.gov/docket/VA-2020-VBA-0018.
II. VA's Decision To Finalize the Proposed Rule With Modifications
After extensive consideration of this issue and all the comments
received, VA has decided to finalize the proposed rule with some
modifications. This will expand VA benefits eligibility, bring
[[Page 32362]]
more consistency to adjudications of benefits eligibility, and ensure
character of discharge determinations consider all pertinent factors.
This decision respects concerns of the Military Departments regarding
the impact to their ability to maintain good order and discipline among
their troops. Specifically, that the removal of the regulatory bars
would undermine their ability to use the consequence of loss of VA
benefits as a deterrent to misconduct. In addition, the Military
Departments were concerned that removal of the ``in lieu of general
court-martial'' bar would deprive the commander, or for covered
offenses, Special Trial Counsel, of a tool to dispose of misconduct in
an administrative forum while balancing the interests of justice and
victim preferences. Finally, the Military Departments expressed concern
that the proposed rule's definition of ``an offense involving 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'' would exclude certain offenses that do not include a
willfulness element.
Thus, with this final rule, there will be only four regulatory
bars: (1) acceptance of a discharge under other than honorable
conditions or its equivalent in lieu of trial by GCM; (2) mutiny or
spying; (3) moral turpitude; and (4) willful and persistent misconduct.
The definition for willful and persistent misconduct has been refined
for more objective application, and an expanded compelling
circumstances exception now applies to both the moral turpitude (MT)
and willful and persistent misconduct bars. Based upon interagency
concerns, VA has decided not to alter the current regulatory bar for MT
and does not adopt the language from the proposed rule. This will allow
the military to retain a deterrent to misconduct that promotes good
order and discipline, while also allowing VA to provide a case-by-case,
more holistic analysis of whether a former SM who received a Bad-
Conduct Discharge (BCD) or Other Than Honorable (OTH) discharge
nevertheless warrants ``veteran'' status and VA benefits eligibility.
As indicated in its RFI, VA rigorously considered the possibility
of making more sweeping liberalizing changes than finalized here. But
as discussed throughout this notice, there is concern that more
sweeping changes would reduce deterrents to misconduct in the military
and undermine good order and discipline, as well as concerns that
removal of the ``in lieu of general court-martial'' bar would deprive
the commander, or for covered offenses, Special Trial Counsel, of a
tool to dispose of misconduct in an administrative forum while
balancing the interests of justice and victim preferences.
Given those factors, with this rule, VA seeks to strike a balance
between bestowing benefits to those who have earned them, even those
whose service was not without blemish, and limiting benefits for those
whose service involved serious misconduct. As the Federal Circuit in
Garvey noted, there are SMs whose significant misconduct rendered their
discharge dishonorable, even if the military did not explicitly
characterize their discharges as Dishonorable for reasons unrelated to
the seriousness of the misconduct itself. 972 F.3d at 1338-40. Military
justice is designed to be flexible, allow exercise of discretion, and
balance a number of concerns with regard to how SMs are prosecuted and
discharged. Military officials may choose not to prosecute an offense
for a variety of reasons, including: (1) to spare crime victims,
including children, or their families from the trauma of testifying;
(2) to avoid evidentiary issues involving classified documents or
military operations; or (3) because the SM has already been convicted
of the crime in another court. In these situations, the SM may be
administratively separated to avoid the burden, expense, or resources
involved in GCM litigation. That decision to avoid trial, however, does
not necessarily mean that the SM did not commit an offense.
On the other hand, there are some SMs whose service, while not
without blemish, was generally of benefit to this Nation and therefore
have earned the status of ``veteran'' and the benefits to which
veterans are entitled. There are also SMs who service to our nation
placed them in high-risk situations which could lead to injuries or
other circumstances that increase risk for behaviors or conduct that
Military Commanders deem inappropriate. For example, as consequence of
repeated traumatic exposures during combat, SMs are at risk of
posttraumatic stress disorder,\1\ traumatic brain injury,\2\ moral
injury or other combat related emotional and cognitive consequences.\3\
Symptoms of these medical conditions include changes to decision making
and behaviors. It is therefore important to institute a robust
compelling circumstances exception that considers the individual facts
and evidence in a particular case. The compelling circumstances
language in this final rule includes consideration of the length and
character of service exclusive of a period of misconduct and potential
mitigating reasons for the misconduct such as mental impairment,
physical health, hardship, sexual abuse/assault, duress, obligations to
others, and age, education, cultural background and judgmental
maturity. The compelling circumstances exception--along with more
specific criteria instituted herein for the willful and persistent
misconduct regulatory bar--will help enable SMs whose conduct was not
dishonorable to receive the VA benefits they have earned.
---------------------------------------------------------------------------
\1\ How Common is PTSD in Veterans?--PTSD: National Center for
PTSD (va.gov), https://www.ptsd.va.gov/understand/common/common_veterans.asp.
\2\ Traumatic Brain Injury and PTSD--PTSD: National Center for
PTSD (va.gov), https://www.ptsd.va.gov/understand/related/tbi_ptsd.asp.
\3\ War and Combat--PTSD: National Center for PTSD (va.gov),
https://www.ptsd.va.gov/understand/types/types_war_combat.asp.
---------------------------------------------------------------------------
It is important to clarify here that the regulatory bars shall only
be applied when they are clearly supported by the military record. The
benefit of the doubt will be resolved in favor of the former SM. See 38
U.S.C. 5107(b), 38 CFR 3.102. In other words, when there is
insufficient evidence of the alleged misconduct, racial bias in the
allegation, or an approximate balance of positive and negative evidence
about the alleged misconduct, the bar shall not be applied.
Further, as discussed below, VA agrees with the commenters who
recommended limiting the conduct being considered for a COD
determination to only that which formed the basis of the discharge from
service. In short, if the military decided that a SM's misconduct did
not preclude the SM from continuing to serve, then it also should not
preclude benefits eligibility. This limitation will prevent conduct
unrelated to the basis of the discharge from contributing to a bar from
benefits.
Overall, under this final rule, more SMs will be eligible for
benefits than under the prior 38 CFR 3.12(d). That said, a favorable
COD determination under this rule does not result in blanket
eligibility for all VA benefits or a change in the Department of
Defense's (DoD) discharge characterization. Rather, certain VA benefits
have specific eligibility requirements as it pertains to COD. For
example, education assistance under the Montgomery GI Bill program or
Post-9/11 GI Bill program is available only for periods of service
resulting in an ``honorable'' discharge. See 38 U.S.C. 3011(a)(3)(B)
and 3311(c)(1). Therefore, former SMs who do not receive an
[[Page 32363]]
Honorable discharge from DoD are ineligible for the VA Education
benefit.
Moreover, while relaxing the bars to eligibility, this final rule
does not extend VA benefits eligibility to all former SMs. Former SMs
who do not meet the criteria for benefits eligibility may remain
entitled to certain critical benefits to address the harms caused by
their military service such as mental health and substance use care,
emergent suicide care, and medical care in emergency situations, as
discussed below.
III. Discussion of the Comments Received by Topic (From the Proposed
Rule, Request for Information and the Listening Session)
VA received 148 comments total in response to the proposed rule,
RFI, and Listening Session. In this section, VA discusses in detail the
public comments addressing issues raised in the proposed rule, RFI, and
listening session.
Congressional Intent
Multiple commenters stated that Congress authorized the exclusion
from VA benefits of only those SMs who received or should have received
a dishonorable discharge or those who were discharged for conduct
falling within a statutory bar. They stated Congress never intended to
give VA authority to create new standards to determine veteran status
nor was it Congress's intent to have those standards be more
exclusionary than the statutory bars. Other commenters stated that VA
is subverting congressional intent by withholding healthcare through
these regulatory bars. VA thanks the commenters for these comments but
believes that this final rule accords with congressional intent.
Congress has authorized VA to consider discharges based on certain
conduct as dishonorable. 38 U.S.C. 101(2); see Garvey, 972 F.3d at 340;
Camarena v. Brown, 6 Vet. App. 565, 568 (1994), aff'd 60 F.3d 843 (Fed.
Cir. 1995) (per curiam); see also 90 Cong. Rec. at 3077 (Mar. 24, 1944)
(Sen. Clark) (for certain conduct, ``the Veterans' Administration will
have some discretion with respect to regarding the discharge from the
service as dishonorable''). The bars in question have been in
regulation since 1946 and the Federal Circuit has concluded that VA has
the authority to institute such bars. Garvey, 972 F.3d at 1339-40. To
the extent the current regulatory bars are viewed by some as overly
restrictive, the modifications finalized in this rule should ensure
that only SMs who committed serious, dishonorable misconduct in service
are precluded from benefits. This approach generally accords with
congressional intent. Id. at 1339.
Furthermore, VA disagrees with the comment that VA's regulatory
bars subvert congressional intent by withholding healthcare. Under 38
CFR 3.360, VA determines a service member's eligibility for healthcare
even if the SM is not eligible for other benefits. Thus, VA makes no
changes in response to these comments.
Automatic Eligibility
Some commenters urged VA to establish automatic eligibility for VA
benefits for all SMs who received an OTH discharge based on their
service to the Nation. One commenter urged VA to update its definition
of ``veteran'' to include OTH discharges and to otherwise be more SM-
friendly. VA thanks these commenters for their comments, but VA cannot
establish automatic eligibility, because some SMs who received an OTH
discharge are statutorily barred from benefits by 38 U.S.C. 5303(a).
Nevertheless, this final rule is more SM-friendly, as VA has removed
one of the regulatory bars, refined another, and instituted a
compelling circumstances exception to two bars, which will lead to an
increase in benefits eligibility in the COD process.
Healthcare Eligibility
One commenter stated that ``VA should also provide healthcare for
those veterans who are waiting for a decision by VA'' and that
``Veterans should be presumed eligible for VA health care unless proven
otherwise.'' Another argued that VA should amend 38 CFR 17.34 and 17.36
to provide tentative eligibility for healthcare and update enrollment
procedures. VA thanks the commenters for their comments. Currently,
some OTH-discharged SMs have access to certain VA health care services,
such as health care for service-incurred disabilities, mental health
and substance use care, emergent suicide care, and medical care in
emergency situations (if it is determined that benefits eligibility
will probably be established). 38 U.S.C. 1720I, 1720J; 38 CFR 3.360,
17.34. Moreover, VA has initiated efforts to amend 38 CFR 17.34, but
those amendments were not proposed in this rulemaking.
Removal of Homosexual Acts Bar
Some commenters supported the proposed rule's replacement of the
word ``homosexual'' with ``sexual.'' However, many commenters still
felt that lesbian, gay, bisexual, transgender and queer (LGBTQ+) SMs
were subject to discrimination that would manifest even with this
amendment. VA agrees that any bar that explicitly relates to sex may
still disproportionally affect LGBTQ+ SMs. Additionally, the commenters
felt that most of the offenses listed in this section could also be
barred under moral turpitude (MT) offenses (e.g., child molestation,
sexual assault, etc.) or willful and persistent misconduct, further
rendering this bar to benefits unnecessary. VA agrees that the
homosexual acts bar is outdated and unnecessary and is entirely
removing this regulatory bar. VA is also not adopting the sexual acts
bar from the proposed rule, as this misconduct will be sufficiently
excluded by either the statutory bars or the remaining regulatory bars.
COD Process/Eligibility
Many commenters asserted that VA presumes that former SMs with OTH
discharges are ineligible for VA benefits and must be proven otherwise
through the COD determination process. They also stated that VA
presumes that former SMs with honorable or under honorable conditions
discharges are eligible for VA benefits. Based on this, the commenters
asked that VA presume former SMs with OTH discharges as eligible for
benefits unless proven otherwise. One commenter stated that VA should
not review OTH discharges unless they are issued in lieu of court
marital (CM). Further, one commenter stated that the proposed rule did
not include changes to Sec. 3.12(a), the provision governing ``which
former [SMs] . . . are presumptively excluded from VA access until
successful completion of [a COD] review.''
VA thanks these commenters for their comments. VA is not persuaded
that modification of Sec. 3.12(a) is necessary here, insofar as it
merely reiterates the statutory requirement that discharge must be
``under conditions other than dishonorable.'' There is no need to
revise that provision to carry out the goals of this rulemaking.
Moreover, there is no regulation that presumes the outcome of a COD
determination for a SM with an OTH discharge. Rather, each OTH
discharge is assessed to determine VA benefits eligibility.
Another commenter asked VA to presume eligibility for all SMs with
administrative discharges except discharge in lieu of CM and stated
that ``VA annually deems about 80 to 90 percent of veterans who
received OTH have served `dishonorably'.'' VA thanks the commenter for
the comment, but that statistic is inaccurate. Between October 1, 2019,
and September 30, 2022, VA deemed SMs with OTH
[[Page 32364]]
discharges eligible for healthcare or benefits or both more than 75% of
the time. VA is providing the documentation for this data in the
rulemaking record.\4\ VA makes no changes based on these comments.
---------------------------------------------------------------------------
\4\ See https://www.regulations.gov/docket/VA-2020-VBA-0018.
---------------------------------------------------------------------------
Still another commenter stated that VA should presume eligibility
for SMs with OTH discharges and terminate benefits ``in exactly the
same process as is currently used for statutory bars. This would save
VA the expense of processing countless, costly denials of benefits
appeals, while providing veterans benefits, they have rightfully earned
in service to this country, as Congress intended.'' VA thanks the
commenter for their comment. VA believes that, through the
modifications of this final rule, including the compelling
circumstances exception, it will be able to expand VA benefits
eligibility for former SMs with OTH discharges. The reasons that VA has
determined more extensive liberalization is not being advanced are
discussed in greater detail below.
Another commenter stated ``[t]he majority of veterans do not
undergo COD determinations for numerous reasons and those that do are
overwhelmingly unsuccessful in establishing eligibility.'' VA thanks
the commenter for their comment, but, again, the data above reflects
otherwise. In any event, VA anticipates that the amendments in this
final rule--including refining the willful and persistent misconduct
bar and implementing the compelling circumstances exception for moral
turpitude and willful and persistent misconduct--will increase the
number of former SMs eligible for benefits.
One commenter stated that ``VA must assert independence from other
federal entities'' and that ``VA has a vastly different mission
statement from DoD.'' The commenter further noted that VA was proposing
to use the Uniform Code of Military Justice (UCMJ) from DoD, but the
basis for why DoD wants to remove a SM, such as drug use or minor
infractions, does not mean that VA should deny that SM health care,
mental health treatment and benefits for service-related injuries. VA
recognizes that there is a relationship between dishonorable service
and VA benefits eligibility, as reflected in Congress's enactment of 38
U.S.C. 101(2). This final rule precludes benefits eligibility for only
those SMs who committed misconduct that renders their service
effectively dishonorable.
Another commenter asserted that ``[c]onduct reviewed for COD
determinations must be clearly defined. The review must be limited to
the misconduct that led to the discharge.'' The comment includes the
story of someone discharged due to absent without leave (AWOL) and
disrespecting a superior officer, but the COD determination included a
discussion of some AWOL that occurred in a separate enlistment. Other
commenters expressed similar sentiments. VA thanks the commenters for
their comments and recognizes the concern that COD determinations might
consider unrelated conduct. But the introductory language of Sec.
3.12(d) states that the regulatory bars apply to the conditions under
which ``the former service member was discharged or released'' and VA
affirms that this language means that only misconduct that led to the
discharge may be considered in the COD determination. This is implicit
in the regulations. Meaning in its COD review, VA will only consider
misconduct or AWOL that according to military department records
explicitly indicate led to the discharge. VA notes, however, that there
remains a statutory bar of a period of AWOL of more than 180 days that
only Congress can amend.
Another commenter stated that many VA employees are without the
necessary information or training to fully serve SMs and that has led
to employees wrongfully turning away eligible SMs. Other commenters
also mentioned that many SMs who did not receive an honorable discharge
attempt to apply to VA for health care and are simply turned away. VA
is aware of these concerns and will continue to provide training to its
employees and messaging to the public that VA encourages all SMs to
apply for healthcare and benefits regardless of their COD. VA expects
that the changes made by this final rule will lead to some increased
benefits eligibility for former SMs without Honorable discharges.
Compelling Circumstances
A. Generally Apply Compelling Circumstances Exception
Multiple commenters requested that the compelling circumstances
exception should be applied generally and used to counterbalance the
negative aspects of the SM's service. Three commenters requested that
VA lower the standard necessary to apply the ``benefit to the Nation''
exception found in proposed Sec. 3.12(e)(1). Specifically, commenters
stated that requiring the character of service, exclusive of the period
of AWOL or misconduct, ``be of such quality and length that it can be
characterized as honest, faithful and meritorious and of benefit to the
Nation'' is nebulous. One commenter stated that the term
``meritorious'' has a special meaning in military law. This commenter
noted ``meritorious sets a higher standard than some former SMs would
be able to achieve, as many were willing to, but were never, deployed;
never received an award; and otherwise fulfilled their duties, but for
the conduct leading to the OTH discharge. Accordingly, VA should create
a standard that honors the sacrifice of all SMs, particularly
considering how few Americans serve in the military.'' Another
commenter recommended that VA only require the service to be
``substantially favorable. A determination of favorable service will
consider (a) the overall duration and quality of service; (b) combat,
overseas, or hardship service; (c) medals, awards, decorations, and
other achievements or acts of merit; and (d) other facts or
circumstances relevant to the inquiry.'' That commenter also stated
that all service should be considered to the Nation's benefit unless
proven otherwise (based on the commenter's belief that DoD is better at
documenting bad behavior than good behavior). Similarly, one commenter
felt that compelling circumstances should be assessed on a holistic
basis considering the totality of the circumstances.
Additionally, some commenters stated that some military branches
use OTH at higher rates than others, resulting in disparate discharges
for similar misconduct. Some commenters noted that military discharges
may vary based on the era of war in which the SM served. One commenter
noted the difference between discharges for commissioned officers and
enlisted personnel and a ``lack of insight'' into how the regulatory
change affected officers. VA thanks these commenters for their
comments. VA's intent with the compelling circumstances exception to
the moral turpitude and willful and persistent misconduct bars is to
provide claims processors a holistic means to evaluate the misconduct
underlying a SM's discharge and to determine if that misconduct is
outweighed by otherwise honorable service or can be excused due to
circumstances influencing the former SM's decision-making around the
time of the offense or otherwise providing context for the offense.
Consistent with that intent, assessment of the length and quality of
service exclusive of the misconduct necessarily must be a case-by-case
determination. If VA revised the
[[Page 32365]]
standard to suggest that the service of all former SMs who make the
sacrifice inherent in all military service is sufficient to establish
compelling circumstances, however, this exception would become the
rule, not the exception. Regarding the comment that all service is to
the Nation's benefit unless proven otherwise, it is important to note
that the only cases at issue in a compelling circumstances analysis are
those which involved a discharge due to some level of misconduct. The
goal of the compelling circumstances analysis is to determine whether
the misconduct is mitigated by the circumstances, is outweighed by
otherwise honorable service, or actually renders the service
dishonorable, not to ignore the fact that misconduct may have taken
place.
Moreover, the compelling circumstances exception is designed to
counter the possibility that certain military branches may have favored
particular types of discharges during particular periods of time,
including different periods of war. It allows VA to determine whether
the misconduct leading to an OTH discharge actually rendered the
service dishonorable, or alternatively was outweighed by otherwise
honorable service or mitigated by the circumstances. Each COD
determination will be made based on each SM's facts and circumstances.
B. Apply Compelling Circumstances To Discharge in Lieu of General
Court-Martial
Several commenters urged VA to apply the compelling circumstances
exception to the regulatory bar of discharge in lieu of GCM, because VA
proposed to apply compelling circumstances to MT offenses, which (they
asserted) are arguably more serious. Other commenters stated that the
GCM process is filled with misinformation and procedural gaps. One
commenter stated SMs were forced into OTH discharges without being
informed of their rights or because they faced retaliation. Another
commenter stated innocent civilians routinely accept plea bargains to
avoid trial, and some innocent SMs accept discharge in lieu of GCM.
Another stated some commanding officers use the SM's acceptance of a
discharge in lieu of trial by GCM as a means to force certain SMs out
of the military. VA thanks the commenters for their comments. Due to
interagency concerns associated with good order and discipline, VA has
decided not to extend the compelling circumstances exception beyond the
scope laid out in the proposed rule.
One commenter recommended that VA remove ``or its equivalent'' from
the text as the commenter was unaware of any equivalent to an OTH
discharge. VA thanks the commenter for this comment; however, VA
included ``or its equivalent'' to account for historic discharges, such
as undesirable discharges. Additionally, DoD may establish new
discharge characterizations. Using this terminology allows VA's
regulations to remain applicable to both past and future character of
discharge determinations.
C. List of Mental and Cognitive Impairments
Several commenters expressed concern that claims adjudicators would
fail to recognize the list of mental impairments in proposed Sec.
3.12(e)(2)(i) was non-exhaustive and that claims adjudicators would
consider only the listed mental impairments. One commenter stated that
the mental impairments contained diagnoses (e.g., bipolar disorder and
posttraumatic stress disorder), symptoms (e.g., depression and
impulsive behavior), and a neurodevelopmental condition (attention
deficit hyperactivity disorder (ADHD)) but stated that the latter is
not subject to service connection under 38 CFR 3.303(c), 4.9, and
4.127. That commenter was further concerned that the rule referenced
redundant co-morbid conditions when mental impairment alone is enough
to trigger consideration. One commenter urged VA to have SMs who suffer
from posttraumatic stress disorder, traumatic brain injury, military
sexual trauma (MST), or other mental illness examined by specialists
prior to being denied benefits.
VA confirms the list of mental and cognitive impairments is non-
exhaustive and the included list was intended only as a guide.
Additionally, VA confirms the mental or cognitive impairment need not
be service connected or subject to service connection to be considered
as a compelling circumstance to excuse the prolonged AWOL or
misconduct. Hence, neurodevelopmental conditions, such as ADHD or
personality disorders, may excuse prolonged AWOL or misconduct even if
no VA benefits can be awarded for the same condition. Further, VA
agrees that including co-morbid conditions is redundant because a
single mental impairment is enough to trigger consideration for
compelling circumstances and, if the comorbidity was both mental and
physical impairments, Sec. 3.12(e)(2)(ii) will now allow consideration
of physical health in any event.
D. Abuses of a Sexual Nature, Discrimination, Disparity Between
Branches, and Military Sexual Trauma
Several commenters requested that VA include additional factors to
consider when evaluating the reason(s) for prolonged AWOL or misconduct
found in proposed Sec. 3.12(e)(2), including sexual harassment and
intimate partner violence (IPV); bereavement; discrimination due to
protected class; disparate discharge outcomes based on military branch;
and ``mistreatment, misdiagnosis, or other intentional or unintentional
injustice.'' One commenter stated VA should include whether the SM
experienced discrimination in service or the discharge was due to a
discriminatory pretextual reason instead of the stated reason(s). Other
commenters requested VA add the terms MST and sexual harassment as a
compelling circumstance. One was concerned application of a regulatory
bar would retraumatize a SM by causing isolation from the military
community.
Multiple commenters commented on the proposed rule's impact on SMs,
who are homeless women and victims of sexual assault and MST. Other
commenters noted disparate racial treatment in the military, including
infractions for certain hairstyles or facial hair. VA thanks these
commenters for their comments.
VA is committed to protecting SMs who are homeless, MST victims,
and victims of harassment, all forms of discrimination and IPV. VA
believes that a compelling circumstances exception--that includes
factors such as mental and cognitive impairment; physical trauma;
sexual abuse/assault; duress, coercion, or desperation; hardships;
abuses of a sexual nature; and the former SM's age, education, cultural
background, and judgmental maturity--when combined with refined
criteria for defining ``willful and persistent misconduct'' will
sufficiently allow victims of MST, discrimination, and misdiagnosis to
receive fairer COD evaluations. VA will consider any records or
attestations from SMs about experiencing these circumstances to be
relevant in their consideration of COD.
Although VA acknowledges that many forms of discrimination exist
and may contribute to or result in former SMs receiving OTH discharges,
VA evaluates each particular SM's COD based on the record before it.
When VA conducts a COD determination, VA reviews the SM's service
personnel and medical treatment records and any other pertinent
records. VA reviews that SM's military units' duty locations and
[[Page 32366]]
combat engagements. Should any given record establish discrimination as
the basis for the OTH discharge, including but not limited to
discrimination based on race or sex, the compelling circumstances
exception would allow VA to adjudicate a favorable COD determination.
And, even if no such record exists, the reforms of this final rule will
ensure a fair COD adjudication, considering all pertinent factors on a
case-by-case basis, for all SMs, including those who are homeless or
victims of MST, IPV or potential discrimination.
E. Compelling Circumstance Unknown to Service Members
One commenter noted that the compelling circumstances factors are
complicated for SMs to understand on their own. This commenter notes
the standard is not helpful to many SMs who apply without assistance.
VA thanks this commenter for these comments. VA encourages all former
SMs and claimants to seek the assistance of qualified Veterans Service
Organizations (VSOs) or other accredited representatives to assist with
the claims process, including COD determinations. Further, assistance
with the claims process, COD determinations, and governing regulations
is available at www.va.gov and at Regional Offices. VA makes every
effort to provide training to its employees to assist former SMs in the
non-adversarial COD process. VA has a duty to assist and will work with
former SMs to ensure appropriate records, including self-attestations,
are well documented in the record being reviewed in the COD process.
Whenever possible, VA aims to review records sympathetically and give
the benefit of the doubt, particularly when records are missing or
incomplete.
F. Include Due Process Errors to Legal Defense Exception
Finally, one commenter requested VA add to its compelling
circumstances exception an additional legal defense for cases when the
prosecution committed due process errors or violations. VA thanks the
commenter for this comment. However, VA believes that due process
errors would be included as a valid legal defense under Sec.
3.12(e)(3). Therefore, no changes are necessary in response to this
comment.
Acceptance of an Undesirable Discharge To Escape General Court-Martial
One commenter opined that the regulatory bar associated with
discharge in lieu of GCM should be clarified. The commenter went on to
state that even though ``undesirable'' is not used anymore as a
discharge characterization, there are still some living veterans with
``undesirable'' discharges that should not be excluded. The commenter
also noted that the proposed rule's phrase ``or its equivalent'' is
vague and that some claims processors may think a ``general'' discharge
is equivalent. The same commenter stated that VA should explicitly
state that this bar does not apply to special CM discharges. Another
commenter stated that the bar for discharge in lieu of GCM should be
limited to cases where charges were referred to a GCM. Another
commenter similarly stated that the regulations should clearly identify
the need for documentation of a GCM charge before applying regulatory
bar. Another commenter stated, ``there should be evidence of a [GCM]
convening.''
VA thanks the commenters for their comments. Per the plain language
of revised Sec. 3.12(d)(1)(i), this regulatory bar requires accepting
an OTH discharge in lieu of trial by GCM; the former SM will receive
the benefit of the doubt in the determination of whether the OTH
discharge was accepted in lieu of trial, and whether that trial would
have been by GCM. Accordingly, VA sees no need to further amend the
regulatory language.
One commenter agreed with the decision to eliminate stigma from a
SM's actions by removing the language of ``undesirable'' and ``escape''
from the regulation. However, the commenter stressed the need for an
in-depth and personalized evaluation of a SM's file, to determine
whether a discharge was received because of coercive pressure from a
commanding officer to ``get rid'' of the SM. A different commenter
stated that VA should require a more thorough analysis of the
conditions and circumstances surrounding a former SM's acceptance of
discharge in lieu of CM, because former SMs may accept this result
without committing an offense, much like civilian plea deals. Another
commenter suggested that excluding former SMs discharged in lieu of
trial misunderstands the nature of the administrative separation and
that systematic misinformation and gaps in those procedures are well
documented. The commenter also stated some SMs are unable to respond
rationally when they are still engaging in misconduct (substance abuse,
AWOL) that is leading to discharge. The commenter continued that it is
difficult for claims processors to determine whether the discharge was
in lieu of GCM or another CM. VA thanks the commenters for the comments
but is not modifying this regulatory bar (beyond what was proposed) due
to concerns raised by the Military Departments that further changes to
this bar would undermine their ability to maintain good order and
discipline within their ranks. That said, again, if there is a question
about whether the discharge was in lieu of GCM or special CM, VA will
consider all appropriate records and the former SM will receive the
benefit of the doubt.
Moral Turpitude
One commenter stated the proposed definition of MT is too broad and
does not adequately put former SMs on notice as to what constitutes an
offense involving MT. The commenter also stated that it is contrary to
fundamental fairness to bar a former SM from their benefits for life
based on commission of an MT crime without a guilty finding in a formal
proceeding with adequate procedural and due process protections. The
commenter noted that the definition also does not contain any reference
to deception, fraud, or depravity by the SM; therefore, a simple
assault or loss of property that does not involve fraud or deceit could
meet this definition.
In addition, many commenters opined that MT is unclearly defined
and vague. One commenter stated that VA should simplify such a
standard. Another commenter asserted that the MT standard is imprecise
and legalistic, lacking definition in civilian and military
jurisprudence. VA thanks the commenters for their comments.
Based on interagency concerns regarding the proposed definition of
MT, VA has decided not to implement the language from the proposed rule
and will maintain the current regulatory language. VAOPGC 6-87 (July
27, 1987), a VA General Counsel Opinion, states ``an offense will, for
veterans' benefit purposes, be considered to involve moral turpitude if
it is willful, gravely violates accepted moral standards, is committed
without justification or legal excuse, and, by reasonable calculation,
would be expected to cause harm or loss to person or property.'' \5\
This precedential opinion continues to govern VA's application of this
bar in COD determinations.
---------------------------------------------------------------------------
\5\ https://www.va.gov/OGC/docs/1987/06-87.pdf.
---------------------------------------------------------------------------
Given that the definition of moral turpitude under VAOPGC 6-87
requires a willful act that gravely violates accepted moral standards,
it is difficult to imagine that minor misconduct--misconduct for which
the maximum punishment is not longer than one year confinement--could
ever meet that definition. This accords with common Federal appellate
court decisions interpreting the term in other contexts.
[[Page 32367]]
Garcia-Martinez v. Barr, 921 F.3d 674, 676 (7th Cir. 2019) (MT ``shocks
the public conscience as being inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed between
persons or to society in general''); Escobar v. Lynch, 846 F.3d 1019,
1023 (9th Cir. 2017) (MT ``is generally a crime that (1) is vile, base,
or depraved and (2) violates accepted moral standards'').
Moreover, VA declines to require a felony conviction for MT,
because the military's choice not to prosecute could be premised on a
desire to protect victims or other reasons, rather than any view that
the conduct was not felonious or dishonorable. Moreover, while
obtaining a final conviction may be necessary for the military to
confine an SM, it is not necessary for VA's purposes of evaluating the
character of a SM's discharge. So long as the offense is clearly
established by the record (after applying the benefit of the doubt to
the advantage of the SM), VA may conclude that offense was committed.
This is also supported by VAOPGC 6-87 which states ``while the
conviction of a felony creates a rebuttable presumption that an offense
involved moral turpitude, the absence of such conviction does not
absolve an offense from the taint of moral turpitude.'' In sum, due to
concerns about changes to this bar that could impact the Military
Departments' ability to maintain good order and discipline, VA makes no
changes to the current regulatory text based on these comments.
Willful and Persistent Misconduct
A. VA's Proposed Definition
Some commenters stated that the definition of willful and
persistent misconduct should be redefined to be more favorable to
former SMs. Others conveyed that minor misconduct should not be a
disqualification. Multiple commenters were concerned that the proposed
rule continued to punish offenders removed from the military for minor
offenses with a maximum sentence of one year. Other commenters
commented on those who received an OTH discharge due to drug possession
or use, including those who became addicted to painkillers after
surgery in the military, and noted such members should not be deprived
of VA benefits for the same. Another was concerned that VA's definition
would result in ``lengthy, complex investigations for rating
officers.'' One commenter stated this regulatory bar allows VA to
exclude former SMs for misconduct that would not lead to a dishonorable
discharge. Other commenters stated that using the maximum punishment
for the offense ignores instances where the offense is adjudicated as
minor by the prosecuting authority. One commenter stated that the only
conduct considered should be that causing harm to a person or property.
VA thanks these commenters for their comments.
VA noted in the preamble to the proposed rule that ``willful
misconduct'' is already defined in 38 CFR 3.1(n) as ``an act involving
conscious wrongdoing or known prohibited action'' that must involve
``deliberate or intentional wrongdoing with knowledge of or wanton and
reckless disregard of its probable consequences.'' Additionally, VA
noted that 38 CFR 3.1(n)(2) states that ``[m]ere technical violations
of police regulations or ordinances will not per se constitute willful
misconduct.'' But the term ``persistent,'' VA explained, was undefined.
Thus, VA proposed a framework for determining ``persistence'' derived
from the statutes of limitations for punishment in the Manual for
Court-Martial United States (MCM) \6\ and UCMJ. This makes sense,
because--if the military will no longer prosecute an offense after a
certain period of time--there is no reason for VA to link that offense
to other misconduct in order to find persistence.
---------------------------------------------------------------------------
\6\ See https://jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20-
%20TOC%20no%20index.pdf?ver=b7JVpxV5rbIHg0ENlCRVKQ%3D%3D.
---------------------------------------------------------------------------
Overall, the proposed rule (and this final rule) brings both
objectivity and liberalization to the ``willful and persistent
misconduct'' standard. The bar only applies if there are (1) instances
of minor misconduct (as defined in reference to the MCM) occurring
within two years of each other; (2) an instance of minor misconduct
occurring within two years of more serious misconduct; or (3) instances
of more serious misconduct occurring within five years of each other.
Moreover, the compelling circumstances exception applies to this bar,
such that even SMs whose misconduct meets the definition of ``willful
and persistent'' will receive an individualized review that considers
whether the misconduct should be considered mitigated or outweighed by
otherwise meritorious service or other factors. To the extent this is
still unsatisfactory to certain commenters, VA declines to make further
amendments due to interagency concerns regarding the Military
Departments' ability to use the loss of VA benefits as a deterrent to
misconduct in order to promote good order and discipline.
B. Minor Misconduct
Several commenters stated that minor misconduct should not be used
as a bar because Congress never intended for former SMs to be barred
from VA benefits due to minor misconduct. One commenter asserted that
almost every UCMJ punitive article is punishable by either one-year
confinement or a dishonorable discharge, rendering almost any SM
subject to a bar to benefits. Instead, the commenter stated, VA should
only bar people for serious misconduct. Others noted that adjudicators
must determine COD on only that which led to discharge, and not prior
misconduct. VA thanks these commenters for these comments.
VA clarifies that, even though it uses the term ``minor'' to
distinguish one type of misconduct from another, this regulatory bar
applies only to former SMs who have not received an Honorable or
General (under honorable conditions) discharge. If a SM has an
Honorable or General discharge, VA does not conduct a COD determination
and this bar is irrelevant. See 38 CFR 3.12(a). Therefore, VA does not
bar former SMs simply because they have minor offenses in their record.
And even for SMs with a BCD or OTH discharge, VA will not bar benefits
for sporadic, minor misconduct, given the definition of ``persistent''
in this final rule. Finally, any misconduct that meets the definition
of ``persistent'' can also be outweighed by otherwise meritorious
service or mitigated by the circumstances in a compelling circumstances
analysis. Accordingly, as a practical matter, VA commits that the only
former SMs who will be barred under the willful and persistent
misconduct standard of this final rule are those that committed
willful, frequent misconduct, which according to documentation in their
military discharge records led to their discharge, outweighed the merit
of their service, and was not mitigated by any relevant factors. To the
extent this is still unsatisfactory to certain commenters, VA declines
to make further amendments due to interagency interest in maintaining
deterrents to misconduct that promote good order and discipline.
C. Definition of Persistent
Several commenters believed VA's use of the term ``persistent'' did
not comport with the dictionary definition of ``persistent.''
Specifically, the commenters felt that the dictionary definition of
persistent would either require three instances of misconduct or be
habitual misconduct. Additionally, some commenters thought that VA
[[Page 32368]]
should consider service members' patterns of offenses instead of the
offenses in succession. Commenters also suggested VA consider multiple
offenses that are committed within a short time period and/or have a
similar origin, such as mental distress, as a single instance of
misconduct. Others were concerned VA adjudicators would consider
actions beyond those considered by the service branch for discharge. VA
thanks these commenters for their comments and clarifies here that VA
will consider multiple offenses that originate from a single event or
circumstance (e.g., attempted robbery leading to fleeing and then
leading to resisting arrest) as one ``instance'' of misconduct.
Moreover, VA cited a dictionary definition in the preamble to its
proposed rule and maintains that it is appropriate to align its
definition of ``persistent'' with military statutes of limitations in
order to exclude earlier misconduct that would not have been considered
in a discharge. To the extent this is unsatisfactory to certain
commenters, VA declines to make further amendments due to interagency
interest in maintaining deterrents to misconduct that promote good
order and discipline within the military.
D. Department of Defense and Congress
One commenter stated the willful and persistent misconduct bar
should apply only if the commanding officer discharges or releases a SM
for such misconduct. The commenter felt that VA should rely on DoD or
the commanding officers to determine the conduct's nature rather than
making its own assessment. Another commenter stated the willful and
persistent misconduct bar was ``unlawful'' and should be removed as
contravening congressional intent. This commenter states any exclusion
should be based on only severe misconduct. VA thanks the commenters for
their comments.
VA agrees that the willful and persistent misconduct bar should be
reserved only for misconduct that is willful and persists and
ultimately renders the service dishonorable. To the extent this bar has
been susceptible to subjectivity, this final rule provides (1) the time
frame in which the misconduct must occur, and (2) a compelling
circumstances analysis, which combine to ensure that this regulatory
bar will be applied only against SMs who willfully and persistently
committed misconduct in service that explicitly led to their discharge,
is not mitigated by any circumstances, and was not outweighed by
otherwise meritorious service. VA believes this is consistent with
congressional intent. Finally, as stated above, VA assures that
misconduct that did not lead to discharge will not be considered--
because conduct that did not concern DoD or the commanding officer in a
dispositive way should similarly not concern VA.
Concerns Over the COD Adjudicatory Process
Multiple commenters expressed concern that the proposed rules will
create an onerous and time-consuming adjudicatory process for VA and
SMs. Some of these commenters also noted that the process left too much
discretion to individual adjudicators. VA thanks these commenters for
these comments. However, VA notes no additional burden is placed on
VA's adjudicators than currently exists. Indeed, the objective criteria
for willful and persistent misconduct should accelerate the COD
process. Moreover, VA has robust training procedures and subregulatory
guidance to ensure consistency among decisionmakers and accordingly
makes no changes based on these comments.
Enforcement of Military Discipline and the Message to Honorable
Veterans
Many commenters stated that they supported this rule but urged VA
to not further liberalize current COD rules. One commenter noted that
additional liberalization of the COD rules would send ``a message to
those [SMs] committing misconduct, that there are few if any
repercussions for doing so.'' Another commenter asserted VA should not
liberalize benefits for OTH SMs unless such discharge is upgraded to at
least a general discharge because the basis for OTH discharges is at
least the violation of a lawful order. The commenter continued that
allowing benefits for such SMs communicated that there were no
``adverse repercussions'' for wrongful actions, and such behavior would
``severely undermine good order and discipline in units. Problem [SMs]
get the message that committing misconduct will have little to no
adverse [e]ffect on their subsequent civilian lives and therefore are
not deterred from continuing misconduct.'' The commenter was concerned
about the demoralization of law-abiding SMs, who would be ``in no
better steed [sic] than the derelicts, malingerers, rule breakers,
malfeasant and criminal amongst them in the ranks.'' This commenter
further asked whether VA wished to send the message that one could be
``a crook in the Army and get VA benefits notwithstanding.''
Another commenter, a former master sergeant, stated ``[t]he VA
should not denigrate our honorable service by changing the rules to
provide care to people who could not, or would not, serve in the same
manner. There are, and must remain to be, consequences for people who
fail to live up to the ideals expected of military service. Treating
those who failed in the same manner as those who succeeded detracts
from the status of all of us who served honorably and will be looked at
as a slap in the face to most of us.'' Another commenter stated that
this rule means ``get discharged with an OTH and get benefits anyway.
This is bad for moral [sic] and dangerous, military people need to have
a form of trust, without this, it will create more poor serving
members.'' That commenter noted that ``[h]onor and honesty saves
lives.''
In contrast, however, other commenters (further discussed below)
requested VA remove all regulatory bars because they are not necessary
to enforce military discipline. As one commenter noted, ``[w]ith such a
robust system in place within the military itself, we doubt that any
commander in the U.S. Military relies on VA's eligibility rules to
maintain good order and discipline within her command.''
VA recognizes the challenging nature of this subject and included
it in the RFI for this very reason. VA thanks all the commenters for
their comments on the issues of military discipline and denigration of
honorable service. After extensive interagency discussion, VA was
advised that Commanders within the Military Departments use the
prospect of VA benefits bars as one tool to enforce good order and
discipline, and that the Military Departments were concerned that any
expansion of VA benefits to former SMs who committed serious misconduct
would have the effect of removing disincentives to misconduct. Thus, VA
is retaining four of the regulatory bars, with modifications. Those
modifications will help distinguish those who committed serious
misconduct that renders their service dishonorable from those whose
misconduct comes with a mitigating circumstance or is outweighed by
otherwise meritorious service. This strikes an appropriate balance: it
expands VA benefits eligibility, but also avoids sending a message that
misconduct has no repercussions. It aligns with the necessary Military
Department incentives for military discipline, while also guaranteeing
a more holistic and equitable COD review for former SMs.
One commenter requested that VA not extend benefits to those with
BCD or OTH discharges. The commenter stated that ``determination of
character of service should reside solely with the
[[Page 32369]]
service department'' and not VA employees. The commenter continued:
``There is already a legal mechanism in place to allow the individual
to appeal the character of discharge with the service department.''
Another commenter stated: ``Getting a BCD, OTH, or dishonorable
discharge is extremely difficult, and the process has numerous layers
to ensure the integrity of the process. Those individuals who receive
these discharges are not worthy of the military and totally undeserving
of veteran benefits . . . Providing hard earned benefits to those who
could not and did not serve honorable [sic] is a slap in the face to
the millions of veterans who did the right things during their
service.'' A commenter stated that ``VA should be prohibited from
deciding why a character of discharge is issued. Allowing this change
disrupts the military process and weakens the authority of the
Secretary of each military branch and within due process. VA employees
do not follow the same regulatory requirements as those who service on
military boards.''
VA thanks the commenters for their comments. It is true that
character of service determinations remain DoD's responsibility, and
upgrades are available from the Military Departments. But VA has both
the authority and responsibility to determine eligibility for veterans'
benefits. It has been performing this function for decades via 38 CFR
3.12 and its predecessors. Even if DoD has a different approach to or
framework for characterizing the service of its former members, VA
maintains its authority to determine COD for purposes of VA benefits
eligibility.
One commenter stated ``I do not believe that anyone who receives a
bad conduct or dishonorable discharge deserves to be treated by VA.
Veterans wait forever for appointments and it's not right to add
another million people to the rolls. We, honorable veterans, will never
be seen. The VA needs to improve its track record before starting to
reclassify people. The VA needs a lot more doctors and a lot more
hospitals already.'' Another added that ``the added patient workload
will also adversely impact the availability and timeliness of care
received by all veterans at VA health care facilities.'' VA thanks the
commenters for their comments and assures the commenters that those who
received a Dishonorable discharge from the military are excluded from
benefits eligibility. That said, VA has determined (after several
rounds of public input) that the current regulatory approach to SMs
with BCD and OTH discharges needs a restructuring to strike the
appropriate balance between bestowing benefits to those who have earned
them, while also limiting benefits for those whose service involved
serious misconduct. This final rule's revision of Sec. 3.12(d)
attempts to strike that balance.
Similarly, a few commenters stated that former SMs with ``Bad
Paper,'' OTH or dishonorable discharges should not be eligible for VA
benefits, do not deserve any VA assistance and that their eligibility
may delay the receipt of care for former SMs with honorable service. VA
thanks these commenters for their comments. As noted above, VA aims to
strike an appropriate balance between bestowing benefits to those who
have earned them and limiting benefits for those whose service involved
serious misconduct. VA believes this final rule does so by eliminating
one of the regulatory bars, refining another, and applying a compelling
circumstances exception to two of the regulatory bars, which provides a
more holistic assessment of all appropriate factors in determining
whether a former SM, despite a BCD or OTH discharge, has nevertheless
earned ``veteran'' status.
Another commenter opined that ``[u]nless a discharge is upgraded,
every OTH, BC[D], and D[ishonorable] D[ischarge] should be barred from
getting any VA benefit. Doing otherwise would teach servicemembers that
misconduct does not have repercussions which undermines good order and
discipline.'' The commenter stated that ``I have experience processing
CODs for VA and every case, the misconduct was severe, not simple
things like eating too much or being late. If we allow these people to
receive benefits, the message to the public will be deleterious. If
there has been a miscarriage of justice in the discharge by the
military, the military has upgrade boards to fix that.'' Still another
commenter cautioned against changes that give people license to behave
badly knowing they can still get benefits. ``The military relies on
trust, and this undermines that. Personal experience of having two
soldiers, under his/her command, get court-martialed out due to drugs
and team remained understaffed. OTH are given to non-conforming or
repeat offenders, or just criminals.''
VA thanks the commenter for this comment. VA has refined the
willful and persistent misconduct bar, as well as implemented a
compelling circumstances exception, to distinguish between serious
misconduct worthy of a ``dishonorable'' determination and misconduct
that is mitigated by the circumstances or outweighed by otherwise
meritorious service. The aim is to provide benefits in the latter
situation, but not the former.
One commenter stated that ``[c]hanges to VA shouldn't be
bureaucratic, they should be legislative. In addition, Veterans should
serve honorably throughout their contract otherwise they shouldn't be
entitled to VA benefits.'' VA thanks the commenter for their comment.
As discussed above, Congress delegated to VA the ability to set
criteria for what constitutes ``other than dishonorable'' service for
purposes of VA benefits eligibility. This rulemaking is necessary to
refine those criteria. VA makes no changes to the regulatory text based
on this comment.
Support Expanding Benefits Eligibility
Some commenters requested that all regulatory bars be removed. They
stated that removing the regulatory bars would not affect military
order and discipline. One commenter stated that, ``having served as a
lower enlisted soldier, I can tell you I had no idea what the
regulatory or statutory bars to VA benefits were. What was most
important to me was . . . the people to my right and my left . . ., and
the idea that [the bars] would have any impact on my behavior [i]s
frankly absurd to me.'' Another commenter, former military defense
counsel, stated ``I've done hundreds of cases. I can tell you very
confidently that when people [commit repeated but minor misconduct],
the last thing on their minds is VA benefits.'' Another commenter, a
former SM, stated that most SMs ``have little or no knowledge of VA
regulations or practice.'' Another commenter noted that misconduct
during service can result in a criminal conviction and concluded that
``it is difficult to believe that the loss of disability compensation
is not dwarfed by the incentive to avoid a criminal conviction.''
Another commenter asserted that ``[a]ny concerns regarding military
order and discipline should be reflected in [DoD's] policies and
regulations,'' and that removal of the regulatory bars would have
``minimal if any affect [sic] on military order and discipline as there
are other remedies readily available to the chain of command.''
Relatedly, some commenters stated that expanding benefits
eligibility would not denigrate other veterans' honorable service. One
commenter in particular, a former SM, stated that ``any argument that
providing a disabled former [SM] with life-saving healthcare, an
ability to eat or an ability to be sheltered somehow denigrates
honorable service is [ ] patently [ ] inhumane.'' Another commenter, a
former SM, stated: ``What would truly
[[Page 32370]]
denigrate my honorable service would be to leave those comrades behind,
to suffer from poverty, homelessness, and the lack of access to
healthcare while I enjoy the benefits of my discharge'' (emphasis
added). Similarly, another commenter, a former SM, stated: ``I'm not
honored by seeing other [SMs] left homeless, by seeing them without
medical care . . . That does not honor me or my service.'' Another
commenter stated that the provision of VA benefits is not about
bestowing or withholding ``honor''; it is about delivering lifesaving
and life-changing benefits to those who served this country. Another
commenter similarly stated that VA should ``leave to the DoD the matter
of conferring or withholding honor'' and focus on its ``top clinical
priority [of] preventing suicide among all Veterans,'' regardless of
discharge status.
VA thanks the commenters for these comments. As noted above, VA
recognizes the challenging nature of this subject and included it in
the RFI for this very reason. Ultimately, after considering the
comments for and against further limitation or removal of the
regulatory bars to benefits, VA has determined that the provisions of
this final rule strike a balance that will better ensure consistency in
VA character of discharge determinations while also respecting the
Military Departments' interest in disincentivizing significant
misconduct prejudicial to good order and discipline. VA recognizes that
the Military Departments use the prospect of VA benefits bars as one
tool to enforce good order and discipline, and, for that reason, VA has
decided not to remove all the regulatory bars, but to remove one and
modify one. In that way, the changes in this final rule expand VA
benefits to more SMs than ever before, but still align with the
necessary incentives for military discipline.
One commenter stated VA should look into the circumstances
underlying a ``bad paper discharge.'' The commenter continued that ``VA
should clear up the definition of willful and persistent misconduct.''
VA thanks the commenter for their comment. In this final rule, VA has
crafted objective criteria to limit willful and persistent misconduct
to specific parameters, and implemented a compelling circumstances
exception that examines potential reasons why the misconduct underlying
an OTH discharge may be mitigated or outweighed by otherwise
meritorious service.
One commenter asked VA to ``[p]lease revise the rules to allow all
who have served our country to receive VA Benefits and Healthcare but
have been denied based on their character of discharge. Cold War
Veterans, and particularly those who served during Vietnam and post-
Vietnam were hit hard with many poor leaders. Many [v]eterans suffered
significantly from mental health issues during a time in which mental
health programs were not readily available, and to those who took
advantage where they were available, were given bad paper.'' VA thanks
the commenter for their comment. Instances of injustice or inequity in
the military about discharges should be addressed to the Boards for
Correction of Military Records and/or the Discharge Review Board. That
said, the compelling circumstances exception is designed to consider
factors like mental impairment and overseas-related hardship, and to
consider whether (notwithstanding misconduct) the service was honest,
faithful, and meritorious.
Other Comments (General)
One commenter noted concerns over the effect of OTH discharges on
homeless former SMs. VA thanks this commenter for this comment, and
notes that VA currently provides certain healthcare and homeless
support benefits to former SMs with OTH, and in some cases, BCD,
discharges. As the commenter offered no regulatory change, VA makes no
changes based on this comment.
One commenter suggested that VA should not use the term
``insanity'' in 38 CFR 3.12(b). VA thanks the commenter for their
comment; however, VA proposed no changes to the definition of insanity,
and solicited no comments on that definition, in the proposed rule.
Further, the regulatory language originates in statute, so VA has a
legal basis for using it. 38 U.S.C. 5303(b). Thus, VA is not changing
the definition in this final rule.
Numerous commenters stated their general opposition to VA-related
matters outside of the scope of COD determinations, such as opposition
to the privatization of VA services and the Choice Act. VA thanks the
commenters for their comments, though they are outside the scope of
this rulemaking and will not be addressed here.
Some commenters requested assistance with VA benefits unrelated to
the rulemaking package. VA thanks these commenters for their comments.
However, as they are not related to the rulemaking, and offer no change
to the regulatory text, VA makes no changes in response to these
comments. These commenters are encouraged to seek out VSOs, other
accredited representatives, or employees at VA Regional Offices to
assist with VA benefits questions.
One commenter noted that the new rule would help that commenter's
case personally. VA thanks the commenter for the comment, but as the
commenter offered no regulatory change, VA makes no changes based on
this comment.
IV. Uncharacterized Discharges and Coast Guard Discharges
VA wishes to clarify the applicability of this rule to
uncharacterized discharges and Coast Guard discharges. Per 38 CFR
3.12(k) (redesignated in this rule to Sec. 3.12(l)), there are three
types of uncharacterized separations: (1) entry level separation; (2)
void enlistment or induction; and (3) dropped from the rolls. An entry
level separation is considered under conditions other than
dishonorable; accordingly, this rulemaking does not apply to this type
of uncharacterized separation. See 38 CFR 3.12(a). Void enlistments are
reviewed under the factors listed in 38 CFR 3.14, and thus are also not
impacted by this rulemaking.
However, when a former SM was dropped from the rolls, the facts and
circumstances surrounding the separation must be reviewed to determine
whether the separation was under conditions other than dishonorable.
These determinations are conducted in the same manner as if such former
SM received an OTH discharge. Accordingly, these former SMs will be
favorably impacted by this rulemaking for the reasons discussed above.
The Coast Guard serves a unique place in the armed Forces. The term
``armed forces'' means the Army, Navy, Air Force, Marine Corps, Space
Force, and Coast Guard. 10 U.S.C. 101(a)(4). The military departments
are the Departments of the Army, Navy, and Air Force. 10 U.S.C.
101(a)(8). The Secretary of the Air Force has authority over the Air
Force and the Space Force, and the Secretary of the Navy has authority
over the Navy and Marine Corps. 10 U.S.C. 101(a)(9)(B), (C). The Coast
Guard serves under the Department of Homeland Security, except upon
Presidential direction to transfer it to the Department of the Navy or
a declaration of war including a direction for its transfer to the
Department of the Navy. 14 U.S.C. 101; 14 U.S.C. 103(a), (b); 10 U.S.C.
101(a)(9)(B). The Coast Guard issues the following discharges for
officers: honorable, general/under honorable conditions, OTH, dismissal
pursuant to GCM or administrative separation. For an enlisted SM, the
discharges are the same as any other SM--honorable, general/under
honorable conditions, OTH, bad conduct or dishonorable. SMs may also
receive uncharacterized
[[Page 32371]]
discharges. As these discharges are identical to any other SM, this
rulemaking will have the same effect on the SMs or officers who receive
a BCD or OTH discharge and apply for VA benefits or health care or seek
a COD determination.
V. Past Denials and Effective Date
In view of the complexity of the law VA administers, a brief
discussion of the effect of prior COD adjudications and how to re-
adjudicate the same is likely to reduce confusion, both by claimants
and by VA adjudicators, and may facilitate timely access to benefits.
When this rule becomes effective, any claimant with a prior
unfavorable COD determination, to include the no longer used
undesirable discharge, may request a new COD determination under new
Sec. 3.12. Cf. Routen v. West, 142 F.3d 1434, 1441 (Fed. Cir. 1998).
For those claimants found eligible for benefits under new Sec. 3.12,
the effective date of such benefits would be governed by 38 U.S.C.
5110(g) and 38 CFR 3.114. In short, if the claim is submitted within
one year of the effective date of this final rule, the effective date
of benefits could be as early as the effective date of this final rule.
38 CFR 3.114(a)(1).
However, VA makes clear this regulatory change is not a ground for
clear and unmistakable error (CUE) in prior COD determinations.
Although this final rule departs from VA's prior approach to COD, that
does not render VA's prior regulation unlawful, Garvey, 972 F.3d at
1339, and, even if it were, a change in law cannot support a claim of
CUE, George v. McDonough, 142 S. Ct. 1953, 1957 (2022). Accordingly,
prior final decisions would not be subject to revision for CUE based on
the new rulemaking. Claims for CUE on bases other than a change in
regulation shall be considered on a case-by-case basis.
VI. Severability
The purpose of this section is to clarify VA's intent with respect
to the severability of provisions of this rule. Each provision of this
rulemaking is capable of operating independently, and VA intends them
to operate independently. If any provision of this rule is determined
by judicial review or operation of law to be invalid, that partial
invalidation will not render the remainder of this rule invalid. For
example, amendments to any given regulatory bar are intended to operate
independently, and are capable of operating independently, from
amendments to other regulatory bars. Likewise, if the application of
any portion of this rule to a particular circumstance is determined to
be invalid, VA intends that the rule remain applicable to all other
circumstances.
VII. Amendment Summary
As noted above, 38 U.S.C. 101(2) defines a ``veteran'' as an
individual ``who served in the active military, naval, air, or space
service, and who was discharged or released therefrom under conditions
other than dishonorable.'' Pursuant to binding judicial precedent, VA
has the discretion to determine who satisfies the ``under conditions
other than dishonorable'' requirement. Moreover, 38 U.S.C. 501(a)
provides that ``[t]he Secretary has authority to prescribe all rules
and regulations which are necessary or appropriate to carry out the
laws administered by [VA] and are consistent with those laws,
including--(1) regulations with respect to the nature and extent of
proof and evidence and the method of taking and furnishing them in
order to establish the right to benefits under such laws.'' These
authorities permitted VA to establish a COD regulation, 38 CFR 3.12,
and to amend that regulation herein.
In this final rule, VA amends the section heading to read ``Benefit
eligibility based on character of discharge'' to reflect the fact that
VA does not have the authority to alter character of service
determinations made by the Armed Forces. Rather, VA utilizes the
characterization to determine basic VA benefit eligibility.
Consistent with the proposed rule, VA amends paragraphs (a) and (b)
by adding descriptive headers and implementing non-substantive changes
for clarity.
VA adds a descriptive header to paragraph (c) and amends paragraph
(c)(1) to make ``lawful order'' plural so that it accurately reflects
the text of 38 U.S.C. 5303(a). VA also amends paragraph (c)(6) by
dividing the language of current paragraph (c)(6) into two subordinate
paragraphs and making edits to that language, as well as moving current
paragraphs (c)(6)(i) through (iii) to new paragraphs (e)(1) through (3)
and making edits to that language.
VA amends paragraph (d) to add a descriptive header ``Regulatory
bars to benefits''; to revise the regulatory bars as discussed above,
and to remove the homosexual acts bar.
New paragraph (e) addresses the ``compelling circumstances''
exception. As noted above, new paragraphs (e)(1) through (3) expand
upon current paragraphs (c)(6)(i) through (iii), with minor wording
changes to reflect the fact that this language will now be applied to
not just prolonged AWOL but also certain misconduct.
Current paragraphs (e) through (k) are redesignated as paragraphs
(f) through (l). Several of these paragraphs are provided descriptive
headers and updated cross-references after the addition of new
paragraph (e). Moreover, the authority citation for redesignated
paragraph (i) has been embedded into that paragraph's text. Finally, VA
is amending the authority citation for the section to clarify the
statutory authorities through which 38 CFR 3.12 is promulgated.
Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
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. Executive Order 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rule is a significant regulatory action under Executive Order 12866,
section 3(f)(1), as amended by Executive Order 14094. 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 anticipated costs of this regulatory action are directly and
only attributed to VA's internal processing and budgetary
appropriations. There are no small entities involved or impacted by
this regulatory action. 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.
[[Page 32372]]
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 the 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 will have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act (PRA)
Although this final rule contains a collection of information under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521), there are no provisions associated with this rulemaking
constituting any new collection of information or any revisions to the
current collection of information. The collection of information for 38
CFR 3.12 is currently approved by the Office of Management and Budget
(OMB) and has valid OMB control numbers of 2900-0747, 2900-0886, 2900-
0002 and 2900-0004.
Congressional Review Act
Under the Congressional Review Act, this regulatory action may
result in an annual effect on the economy of $100 million or more, 5
U.S.C. 804(2), and so is subject to the 60-day delay in effective date
under 5 U.S.C. 801(a)(3). In accordance with 5 U.S.C. 801(a)(1), VA
will submit to the Comptroller General and to Congress a copy of this
regulation and the Regulatory Impact Analysis (RIA) associated with the
regulation.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on April 23, 2024, 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.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 3 as set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A, continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Amend Sec. 3.12 as follows:
0
a. Revise the section heading and paragraphs (a), (b), (c) introductory
text, (c)(1) and (6), and (d).
0
b. Redesignate paragraphs (e) through (k) as paragraphs (f) through
(l).
0
c. Add new paragraph (e).
0
d. Add a heading at the beginning of newly redesignated paragraph (f).
0
e. Revise newly redesignated paragraphs (g), (h) introductory text, and
(i) introductory text.
0
f. Remove the authority citation after newly redesignated paragraph
(i).
0
g. Revise newly redesignated paragraph (j).
0
h. Add a heading at the beginning of newly redesignated paragraph (k).
0
i. Revise the authority citation at the end of the section.
The revisions and additions read as follows:
Sec. 3.12 Benefit eligibility based on character of discharge.
(a) General rule. If the former service member did not die in
service, then pension, compensation, or dependency and indemnity
compensation is payable for claims based on a period of service that
was terminated by discharge or release under conditions other than
dishonorable. (38 U.S.C. 101(2)) A discharge under honorable conditions
is binding on the Department of Veterans Affairs as to character of
discharge.
(b) Insanity exception. No bar to benefits under this section shall
be applied if VA determines that the former service member was insane
at the time he or she committed the offense(s) leading to the discharge
or release under dishonorable conditions. (38 U.S.C. 5303(b)) Insanity
is defined in Sec. 3.354.
(c) Statutory bars to benefits. Benefits are not payable where the
former service member was discharged or released under one of the
following conditions:
(1) As a conscientious objector who refused to perform military
duty, wear the uniform, or comply with lawful orders of competent
military authorities.
* * * * *
(6) By reason of a discharge under other than honorable conditions
issued as a result of an absence without official leave (AWOL) for a
continuous period of at least 180 days (38 U.S.C. 5303(a)).
(i) Compelling circumstances exception. This paragraph (c)(6) does
not apply if compelling circumstances mitigate the prolonged
unauthorized absence, as discussed in paragraph (e) of this section.
(ii) Applicability prior to October 8, 1977. This paragraph (c)(6)
applies to any person awarded an honorable or general discharge prior
to October 8, 1977, under one of the programs listed in paragraph (i)
of this section, and to any person who prior to October 8, 1977, had
not otherwise established basic eligibility to receive Department of
Veterans Affairs benefits. Basic eligibility for purposes of this
paragraph (c)(6)(ii) means either a Department of Veterans Affairs
determination that an other than honorable discharge was issued under
conditions other than dishonorable, or an upgraded honorable or general
discharge issued prior to October 8, 1977, under criteria other than
those prescribed by one of the programs listed in paragraph (i) of this
section. However, if a person was discharged or released by reason of
the sentence of a general court-martial, only a finding of insanity
(paragraph (b) of this section) or a decision of a board of correction
of records established under 10 U.S.C. 1552 can establish basic
eligibility to receive Department of Veterans Affairs benefits.
(d) Regulatory bars to benefits. Benefits are not payable where the
former service member was discharged or released under one of the
conditions listed in paragraph (d)(1) or (2) of this section.
(1) Compelling circumstances exception is not applicable for:
(i) Discharge in lieu of trial. Acceptance of a discharge under
other than honorable conditions or its equivalent in lieu of trial by
general court-martial.
(ii) Mutiny or espionage. Mutiny or spying.
(2) Compelling circumstances exception is applicable for:
(i) An offense involving moral turpitude. This paragraph (d)(2)(i)
includes, generally, conviction of a felony.
(ii) Willful and persistent misconduct. For purposes of this
section, instances of minor misconduct occurring within two years of
each other are persistent; an instance of minor misconduct occurring
within two years of more serious misconduct is persistent; and
instances of more serious misconduct occurring within five years of
each other are persistent. For purposes of this section, minor
misconduct is misconduct for which the maximum sentence imposable
pursuant to the
[[Page 32373]]
Manual for Courts-Martial United States would not include a
dishonorable discharge or confinement for longer than one year if tried
by general court-martial.
(e) Compelling circumstances exception. The bar to benefits for
prolonged AWOL under paragraph (c)(6) of this section and the two types
of misconduct described in paragraph (d)(2) of this section will not be
applied if compelling circumstances mitigate the AWOL or misconduct at
issue. The following factors will be considered in a determination on
this matter:
(1) Length and character of service exclusive of the period of
prolonged AWOL or misconduct. Service exclusive of the period of
prolonged AWOL or misconduct should generally be of such quality and
length that it can be characterized as honest, faithful, and
meritorious and of benefit to the Nation.
(2) Reasons for prolonged AWOL or misconduct. Factors considered
are as follows:
(i) Mental or cognitive impairment at the time of the prolonged
AWOL or misconduct, to include but not limited to a clinical diagnosis
of (or evidence that could later be medically determined to demonstrate
existence of) posttraumatic stress disorder (PTSD), depression, bipolar
disorder, schizophrenia, substance use disorder, attention deficit
hyperactivity disorder (ADHD), impulsive behavior, or cognitive
disabilities.
(ii) Physical health, to include physical trauma and any side
effects of medication.
(iii) Combat-related or overseas-related hardship.
(iv) Sexual abuse/assault.
(v) Duress, coercion, or desperation.
(vi) Family obligations or comparable obligations to third parties.
(vii) Age, education, cultural background, and judgmental maturity.
(3) Whether a valid legal defense would have precluded a conviction
for AWOL or misconduct under the Uniform Code of Military Justice. For
purposes of this paragraph (e)(3), the defense must go directly to the
substantive issue of absence or misconduct rather than to procedures,
technicalities, or formalities.
(f) Board of corrections upgrade. * * *
(g) Discharge review board upgrades prior to October 8, 1977. An
honorable or general discharge issued prior to October 8, 1977, under
authority other than that listed in paragraphs (i)(1) through (3) of
this section by a discharge review board established under 10 U.S.C.
1553, sets aside any bar to benefits imposed under paragraph (c) or (d)
of this section except the bar contained in paragraph (c)(2) of this
section.
(h) Discharge review board upgrades on or after October 8, 1977. An
honorable or general discharge issued on or after October 8, 1977, by a
discharge review board established under 10 U.S.C. 1553, sets aside a
bar to benefits imposed under paragraph (d) of this section, but not
under paragraph (c) of this section, provided that:
* * * * *
(i) Special review board upgrades. Under 38 U.S.C. 5303(e), unless
a discharge review board established under 10 U.S.C. 1553 determines on
an individual case basis that the discharge would be upgraded under
uniform standards meeting the requirements set forth in paragraph (h)
of this section, an honorable or general discharge awarded under one of
the following programs does not remove any bar to benefits imposed
under this section:
* * * * *
(j) Overpayments after October 8, 1977, due to discharge review
board upgrades. No overpayments shall be created as a result of
payments made after October 8, 1977, based on an upgraded honorable or
general discharge issued under one of the programs listed in paragraph
(i) of this section which would not be awarded under the standards set
forth in paragraph (h) of this section. Accounts in payment status on
or after October 8, 1977, shall be terminated the end of the month in
which it is determined that the original other than honorable discharge
was not issued under conditions other than dishonorable following
notice from the appropriate discharge review board that the discharge
would not have been upgraded under the standards set forth in paragraph
(h) of this section, or April 7, 1978, whichever is the earliest.
Accounts in suspense (either before or after October 8, 1977) shall be
terminated on the date of last payment or April 7, 1978, whichever is
the earliest.
(k) Overpayments after October 8, 1977, based on application of
AWOL statutory bar. * * *
(Authority: 38 U.S.C. 101, 501, and 5303)
* * * * *
[FR Doc. 2024-09012 Filed 4-25-24; 8:45 am]
BILLING CODE 8320-01-P