Military Discharge Status, Upgrades, and Entitlement to VA Benefits

Emma: Good afternoon and welcome to Facebook live with Chisholm Chisholm and Kilpatrick. My name is Emma Peterson and I’m joined this afternoon with Christian McTarnaghan and Dvora Louria and we’re going to be talking about military discharge statuses and upgrades. If you have any questions during the course of our discussion today, please feel free to leave it in the comment section on Facebook or if you view this after the fact we’re happy to try to address them but do let us know if you have any questions and we’ll try to hit them throughout the course of our discussion.

So, with that let’s jump right in and just as a disclaimer to this sort of entire conversation, we at CCK don’t actually typically do discharge upgrades. So, it’s not typically a practice that we will go after for our clients but we did want to provide this information because it is so important to so many veterans in determining whether they’re going to actually get VA benefits in the first place. So, with that let’s jump right in and Dvora, why don’t you tell us a little bit about the types of discharges veterans can get from the military.

Dvora: Sure. So the first kind is an honorable discharge and that’s what most veterans get over 85% of veterans and that means that they either met or exceeded their expectations and if a veteran receives an honorable discharge that means that they’ll be entitled to all VA benefits.

Emma: So, disability benefits, healthcare benefits, educational benefits, things like that?

Dvora: Right, everything across the board.

Emma: Okay, great.

Dvora: And then the next kind of discharge is a general discharge under honorable conditions. So, this means that they generally met the requirements there may have been some minor disciplinary infractions. Maybe failure to meet some health standards or fitness standards but overall they had satisfactory performance in service.

Emma: Is there anything that someone that gets a general discharge might not be able to qualify for?

Dvora: So, the only thing that they wouldn’t be able to qualify for is assistance under the GI Bill.

Emma: Okay.

Dvora: And then next after that, there’s the other than honorable discharge. This was formerly known as the undesirable discharge and this means that there was a serious departure from the set standards or protocol. And in these cases, VA will conduct a character of service determination to assess eligibility for benefits.

Emma: Okay. So, it doesn’t mean you’re not necessarily going to get benefits. It’s just that VA has to determine based on the facts of your case whether or not they’re going to allow you to get benefits based on the statutes and regulations.

Dvora: That’s right.

Emma: Okay.

Dvora: And many veterans say that this kind of discharge was misused in certain cases where there was a traumatic brain injury, military sexual trauma or conduct due to PTSD.

Emma: Okay.

Dvora: And then after that, there’s the bad conduct discharge. This is a disciplinary discharge and it’s imposed by a court-martial. So, if a veteran receives a bad conduct discharge by special court-martial then there’ll be a character of service determination to assess eligibility for benefits. And for general court martial’s, the veteran won’t qualify for benefits.

Emma: Right, in general court martials there’s a statute that says you can’t get VA disability benefit so it really is a bar if it’s that higher level of court-martial.

Dvora: That’s right. And then finally there’s the dishonorable discharge. So, again this is punitive, disciplinary imposed by court-martial. And this is reserved mostly for veterans who committed very serious offenses such as rape or murder. It’s only issued if they’re convicted in a general court-martial that calls for the dishonorable discharge as part of their sentence. And veterans in these cases are ineligible for all VA benefits.

Emma: Okay. So, there you have it, we have a wide range of different types of discharges, will usually recorded on your DD 214 or other separation documents but Christian, Dvora mentioned for a couple of these that aren’t honorable that VA will make a character of service determination. Can you tell us a little bit more about that process and what that means?

Christian: Yes, absolutely. So excuse my froggy voice. I’m sighting a bit of a cold. So, if you got an honorable discharge, then you don’t have to worry about this. If you got anything sort of other than that, there’s going to be a character of discharge determination. Again, we got to remember that dishonorable discharge isn’t going to be a part of this because that’s going to be a statutory bar to benefits but broad strokes if you have one of the other types of discharges there has to be a determination as to whether you are eligible for VA benefits. It’s not automatic.

One of the elements of getting service connection is veteran status. So, this is just the very first part of all of the adjudications that go into getting veterans benefits. So, when they get a claim from a veteran, they’re going to make this determination.

Emma: And who’s they?

Christian: The regional office will make the determination. They’re going to take a look at your discharge status. They’re going to take a look at what was on your DD-214 but they’re also going to look at everything else that’s in the record. And then as you alluded to before what they’re really going to look for is they’re going to compare what you did in service to these statutory and regulatory bars. I’m going to go into those a little bit more in-depth. I just want to hit the process A to Z.

Then what they’re going to do is based on whether there are statutory or regulatory bars. They’re going to make the determination. They’re going to tell you about it and just like a lot of other processes at VA, you can appeal that determination.

Emma: Okay. So, if you get a character of service determination that tells you you’re ineligible for veteran status for the RO, you could file a notice of disagreement with that presumably get up to the board of veterans appeals, maybe under the new system I’m assuming that the same appeal options would probably be available when you’re picking a lane and so forth.

Christian: I’d imagine, I don’t think we know that for a fact but I think that’s what we’re assuming.

Emma: Something to keep in mind, certainly.

Christian: Yeah, absolutely. So, just quickly to talk about statutory bars and so what we mean by that is that Congress has explicitly laid out in a statute that veterans that have done these sorts of things are not eligible for VA benefits. So, one of the ones we touched on discharged by reason or sentence of a general court-martial, there’s a conscientious objector language in that statute. The statute for anyone that’s interested is 38 U.S.C. 5303. I had taken some notes on it.

There’s an officer that resigned for the good of the service, desertion and then a big one, I’m going to go into just a little bit more detail on, its AWOL. So, absent without leave for a period of 180 days or more basically without good cause. And the reason why I’m singling that one out is because within the character of discharge determination, there’s another subsection of an adjudication that needs to happen and it basically looks at the totality of the circumstances. It’s like why were you absent without leave for more than 180 days? Did you have a good reason? And they look at your reasons and they compare it to your quality of service, what did you do as a soldier. Was it a family emergency or obligation or some other obligation to a third party. So, those are the statutory bars. So, if you have any of that in your military record or did any of that in the military, that’s going to be a problem to attaining veteran status.

There are also regulatory bars and I’m just going to hit these a little bit more quickly but for anyone that’s interested. It’s in 38 CFR 3.12(d). So, one of the main ones that I’ve seen and we don’t do this in practice but there are some cases that get all the way up to the board that we’re able to work on especially with the insanity exception to all of these which I’m going to hit next but accepting an undesirable discharge in lieu of standing for your court-martial, mutiny or spying is another one. So it’s those things that are going to keep you from attaining the veteran status.

So, what I just noted is a way to get around all of this. It doesn’t mean that you don’t have a statutory or regulatory bar but it means that it won’t keep you from attaining VA benefits is the insanity exception. So, I think when people think of insanity they think of criminally insane. You don’t know the difference between right and wrong. That’s not what it is in VA. It’s very, very specific and VA defines insanity as one who, while not mentally defective or constitutionally psychopathic, and bear with me here, exhibits due to a disease more or less prolonged deviation from the normal method of behavior. So, there’s a few other ways that you can show it but essentially at the time you committed one of those bars, you because of the disease basically weren’t acting as you normally would. So, a deviation from your normal practice and that’s a way that you can show that a statutory bar shouldn’t keep you from becoming a veteran. Not becoming a veteran– attaining veteran status and I know that’s really important to a lot of people who serve to get that veteran status and rightly so.

Emma: So, I think what’s important to note with the character of service determination is that your actual discharge status from the military is not going to be changed. It’s just that VA is going to, if it’s favorable, they’re going to allow the benefits claim to proceed whatever benefit it is that you’re pursuing but just note that your DD 214 is not going to change, your overall discharge status won’t change and we’ll hit on that later how you actually go about changing your discharge status but the character of service determination is something different, something VA does as opposed to something your branch of the military does.

Christian: Absolutely. It’s further– for purposes of benefits not for purposes of your, what actually says on your DD 214.

Emma: Now, Dvora, I think people sometimes get confused on where we often see people reaching out for help and also it getting confused sometimes at the Board of Veterans Appeals and requiring the appeal to the Court of Appeals for veterans claims is if a veteran has multiple periods of service because they might have an honorable period of service something happens they reenlist and then something further happens and then that second period or third period whatever the case may be is no longer honorable. Can you tell us a little bit about that and how that process works I think it can be very confusing for everybody.

Dvora: Absolutely, it can be confusing. So, if it’s a neat situation where there’s two periods of service, the first was honorable and the second was dishonorable, then any conditions incurred during that first period of service would be covered, any conditions incurred during the second period of service which was dishonorable would not be covered.

But let’s say that the veteran signs up for four years of service and then reenlist at three years the entire period of service would be treated as one period. So, if any portion of that would be considered dishonorable the whole period would be considered dishonorable.

Emma: Right and I think it gets even more nuanced when you have more than two periods and three periods so the takeaway is, if you’re in that situation reach out to a veteran service officer like our colleagues at DAV, talk to an accredited rep, talk to an attorney that does do discharge upgrades or works on character of service determinations to figure out how to best argue that because it gets really tricky about the periods of service, what your initial service enlistment period was and then what the second period was. So, certainly, reach out.

So, I think we alluded to it before that, all of this is the character of service determination is just what VA is going to consider for whether you’re going to get benefits or not. Many people want to actually change their discharge itself which makes sense because that is the source and there’s certainly a way to do that. Again, it’s not a service that our firm provides but this is just some information for folks out there interested in looking into this.

So, there’s two bodies that you can do this with. The first is the Discharge Review Board and then there’s also the Board of Corrections of Military Records and each body has different jurisdictional limitations about what they can look at. So, the Discharge Review Board can look at your discharge if it’s within 15 years of your discharge from service and they can only look at an upgrade general other than honorable and special court martial bad conduct discharges. They can’t look at dishonorable or general court-martial discharges.

But then there’s also the Board of Corrections for Military Records, which you certainly can appeal to if you’re beyond that 15 years. They look at, I think it’s I believe and I might be wrong with this, three years within the date of discovery of the error in your discharge but they will generally waive that out of equity and consider especially if the merits promote changing the discharge. And they can look at really sort of totality of circumstances. They look at the same things that the character of discharge–service, excuse me, the VA will look at. They’ll look at your service, the length of service, what happened what the facts were but you do need to do a little bit advocacy there and explain why your discharge was wrong factually or legally and so forth. So, again reaching out to a rep to help you with that process can be really helpful.

Christian: I certainly had to re-familiarize myself with all of these statutes and regulations and there’s weighing within weighing within weighing and that can be difficult to do on your own.

Emma: And I think just know that you are able to appeal these determinations even the Discharge Review Board and Board of Corrections and Military records are appealable to other federal courts within the right timeframes. Those two bodies again are with your branch of military and actually changing your discharge status as opposed to VA saying, “Okay you have veteran’s status for our benefit purposes” but just know that both things can be appealed. So, certainly, don’t be disheartened if you get an unfavorable result to start with.

Christian: Yeah and also your branch of service can choose not to change what says what your DD 214 says but VA can find that your discharge status isn’t a bar to benefits, right? So, if the goal is benefits or access to VA health care there are two different ways that veterans can go about trying to get access to those benefits.

Emma: Absolutely. Alright, any closing thoughts Dvora?

Dvora: I don’t think I have anything else, I think we’ve covered it all.

Emma: Alright, great. Christian?

Christian: Yeah just to reiterate that although CCK doesn’t work on discharge upgrades, there’s a lot of great organizations that do and there’s a lot going on here and it’s probably a good idea to try to get some help.

Emma: Absolutely, alright. If there are no questions for us we’re going to conclude this discussion and thanks for joining us.

Dvora: Thank you.