Although the Department of Veterans Affairs (VA) is not party to the lawsuit, in a process known as a character of s ervice determination, the VA plays a separate, but related, role in assessing entitlement to veterans' benefits for individuals whose character of discharge does not automatically meet basic eligibility criteria. The circumstances surrounding a servicemember's discharge from the military have implications for his or her ability to claim entitlement to a wide range of gratuitous benefits administered by the VA, including service-connected disability compensation, health care, education assistance, non-service-connected pension, burial benefits, housing benefits, and vocational rehabilitation, among others. Specifically, the individual must meet certain active duty service requirements and minimum length-of-service requirements, and have a discharge or separation from the military under conditions that are "other than dishonorable." Entitlement to veterans' benefits is generally denied to former servicemembers who do not meet the statutory definition of a veteran. This report discusses the discharge or separation requirement for veteran status or, more specifically, how the VA assesses character of service to determine whether a former servicemember's separation from the military can be considered other than dishonorable. However, if the characterization of discharge may preclude access to veteran's benefits, the VA must develop the case, through an assessment of service records and other evidence related to a claimant's time in the military. In addition, if a claimant has more than one period of service, this may further complicate the determination. See a description of the discharge categories in Appendix A . Servicemembers receiving a bad conduct discharge by a general court-martial or a dishonorable discharge are legally barred from receiving veterans' benefits unless, during the course of developing the character of service, the VA determines that they were insane at the time of the offense that led to the discharge or if eligibility for benefits can be established based on a prior period of other than dishonorable service. In determining potential eligibility for veteran's benefits, the VA adheres to a separate set of statutory and regulatory criteria than the military and considers mitigating factors that may have led to an adverse discharge, such as insanity. §3.13, a former servicemember may be entitled to certain VA benefits based on a prior period of honorable service for the purposes of VA benefits, even if his or her most recent discharge is characterized as dishonorable. However, if the outcome is an unfavorable finding of dishonorable service, the VA is to notify the claimant of the effect on his or her entitlement to VA benefits, which will generally deprive the former servicemember of any VA benefits (except for the SGLI to VGLI conversion), pending the outcome of any subsequent appeals as discussed in the " Appealing an Unfavorable VA Determination " section below. Any notification of an unfavorable determination would also include information on how the former servicemember can seek a review of his or her discharge through the military department. To reiterate, veteran status is established by the former servicemember meeting three primary criteria:
1. full-time active duty (other than active duty for training) military service (i.e., Army, Navy, Air Force, Marine Corps, Coast Guard) or commissioned officers of the Public Health Service, and National Oceanic and Atmospheric Administration or its predecessor, the Environmental Science Services Administration; 2. minimum active duty requirement of 24 months of service or the period called to service if activated for less than 24 months—Reservists and National Guard members called to active duty by a federal order (for other than training purposes) and completing the full call-up period would qualify; 3. discharge or release from active military service under conditions other than dishonorable—VA accepts discharges that are characterized as honorable or general (under honorable conditions), as other than dishonorable for VA benefit purposes. A veteran who does not receive an honorable or general discharge (under honorable conditions) from the military may still receive health care services from the VHA.
The Department of Veterans Affairs (VA) offers a broad range of benefits to veterans of the U.S. Armed Forces and to certain members of their families; however, a claimant must meet the basic eligibility criteria. A benefit claimant must prove that he or she meets the statutory definition of a "veteran," which includes (1) service in the active military (i.e., Army, Navy, Air Force, Marine Corps, Coast Guard) or commissioned officers of the Public Health Service (PHS), and National Oceanic and Atmospheric Administration (NOAA); (2) minimum length of service requirements; and (3) discharge or separation from military service under conditions "other than dishonorable."
This report focuses on the discharge or separation requirement for veteran status or, more specifically, how the VA determines that a former servicemember's military service can be characterized as under conditions other than dishonorable. The conditions surrounding a servicemember's discharge from the military can have important implications for his or her ability to subsequently claim entitlement to a host of benefits provided through the VA. The VA may deny benefits to former servicemembers whose military separation is characterized as "other than honorable" (OTH) or if they have received a punitive discharge adjudicated by a court-martial. In addition, certain types of misconduct could create a legal bar to receiving veterans' benefits.
The VA generally accepts discharges that are characterized as "honorable" or "general" (under honorable conditions) for purposes of veterans' benefits. Such discharges generally do not disqualify a veteran for a wide range of VA benefits, including disability compensation and pension, health care services, educational assistance, vocational rehabilitation and employment services, home loan guaranty, and memorial and burial services. However, for purposes of the Montgomery GI Bill and the Post-9/11 GI Bill, a veteran must have received an honorable discharge. Furthermore, with certain exceptions, VA health care will be furnished for any disability incurred in or aggravated during a period of service terminated by a discharge under OTH conditions.
However, an adverse discharge may preclude a former servicemember from receiving one or more VA benefits based on a complex set of statutory and regulatory restrictions. In these instances, the VA must develop the character of service, through an assessment of facts and other evidence related to a claimant's time in the military, to determine whether his or her military service meets the general statutory and regulatory criteria for entitlement to veterans' benefits.
This report primarily focuses on the VA adjudication process for claimants who—as a result of an adverse discharge—are entitled to a character of service determination resulting in either a favorable finding of "other than dishonorable" service or an unfavorable finding of "dishonorable" service for the purposes of VA benefits. This report does not address Department of Defense (DOD) policy on military discharge procedures aside from descriptions of how military discharges impact the potential receipt of veterans' benefits. Although a former servicemember may also exercise the right to seek redress through the Discharge Review Board (DRB) or the Board for Correction for Military/Naval Records (BCM/NV) of his or her military department, the VA has no involvement in DOD administrative remedies and therefore a discussion of DOD-related discharge issues is outside the scope of this report. Situations where policy or program overlap occurs between the VA and DOD are addressed where appropriate.