By Larry Dandridge
The purpose of this article is threefold. This writer wants to:
- Inform military members, veterans, and their families that the VA allows more former service members to become eligible for VA benefits, regardless of their military discharge.
- Encourage veterans with discharges other than honorable and bad conduct to apply for VA healthcare and benefits today.
- Encourage veterans with incorrect discharges under other than honorable and bad conduct to appeal their discharge and request it be upgraded to honorable, under honorable conditions, or general.
VA news article
According to a VA News article by the Veterans Benefits Administration (VBA) dated Oct. 1, 2024 (https://bit.ly/4eQUwkY) titled “More Service Members Eligible for Benefits after VA Amends Character of Discharge Barriers:”
“VA is implementing a new regulation regarding the character of discharge determinations, allowing more former service members to become eligible for VA benefits, regardless of their military discharge.
Generally, to receive VA benefits and services, a former service member’s character of discharge must be under other than dishonorable conditions (For example, honorable, under honorable conditions, or general). However, while the VA cannot change the discharge status provided by the Department of Defense, the VA must make a ‘determination on eligibility for VA benefits’ for all individuals who receive a dishonorable discharge.
However, depending on a May 2024 VA determination, individuals receiving undesirable, bad conduct and other than honorable discharges may qualify for VA benefits. The VA issued a final rule amending its regulations regarding the character of discharge determinations, expanding access to VA care and benefits for some former service members discharged under less-than-honorable conditions or by special court-martial.”
Learn more about this final rule at “Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge,” found at https://bit.ly/3ZUDzC4.
As stated in the 04/26/2024 rule and Oct. 1, 2024, VA News Release, “There will be only four regulatory bars to VA benefits based on the character of discharge. The bars are:
- Acceptance of a discharge under other than honorable conditions or its equivalent in lieu of trial by GCM;
- Mutiny or spying;
- Moral turpitude; and
- 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 on interagency concerns, VA has decided not to alter the current regulatory bar for MT. This will allow the military to retain a deterrent to misconduct that promotes good order and discipline while also allowing the VA to provide a case-by-case, more holistic analysis of whether a former service member who received a Bad-Conduct Discharge (BCD) or Other Than Honorable (OTH) discharge nevertheless warrants “veteran” status and VA benefits eligibility.
The final rule was effective as of June 25, 2024. The new regulation expands access to care and benefits for certain former service members by:
- Eliminating the regulatory bar for “homosexual acts involving aggravating circumstances or other factors affecting the performance of duty” as a bar to benefits.
- Creating a compelling circumstances exception for certain former service members.
- Opening the door for previously denied service members to reapply for benefits.
VA Determination does not change military characterization of service
The bad news is that the VA’s character of discharge determination does not change the Armed Forces’ characterization of service and has no effect on the former service member’s military discharge status. The VA’s determination is for VA benefits and services eligibility purposes only.
Apply for VA benefits and services
The VA encourages former service members with discharges other than honorable and bad conduct to apply for VA healthcare and benefits today. The VA will carefully consider the circumstances of your discharge and determine if you are eligible.
It is essential to clarify that the regulatory bars shall only be applied when clearly supported by the military record. The benefit of the doubt will be resolved in favor of the former service member. See 38 U.S.C. 5107(b), 38 CFR 3.102. In other words, the bar shall not be applied 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.”
Do your homework
Veterans, service members, and their families should:
- Ask a VA-accredited Veterans Service Officer (VSO) and the VA to help them understand their veterans’ benefits, apply for those benefits, appeal VA bad decisions, and appeal a Department of Defense/Military wrong discharge status.
- Read the information at the Department of Veteran Affairs (DVA) “How to Apply for a Discharge Upgrade” websites at https://bit.ly/3MAjBG8 and https://bit.ly/480OWuk.
- Read The Island News article, dated July 6, 2022, by Larry Dandridge, titled “How can a veteran appeal a less-than-honorable military discharge?” See https://bit.ly/4dFBZar.
Do not stop at VA benefits and services — get discharge upgraded also
Because a less-than-honorable or bad-conduct discharge can prevent a veteran from getting a job with government agencies and many private employers and destroy a veteran’s reputation, mental health, marriage, and self-esteem, veterans interested in applying for a military discharge upgrade should also read the VA webpage “How to Apply for a Discharge Upgrade” at https://bit.ly/3MAjBG8.
All branches of the military consider you to have a strong case for a discharge upgrade if you can show your discharge was connected to any of these categories:
- Mental health conditions, including posttraumatic stress disorder (PTSD);
- Traumatic brain injury (TBI);
- Sexual assault or harassment during military service (at VA, we refer to this as military sexual trauma or MST); or
- Sexual orientation (including under the Don’t Ask, Don’t Tell policy).
The bottom line
Do not miss out on your valuable and hard-earned VA and State Veterans’ benefits. If you are a family member or friend of a veteran who has not applied for their VA benefits or may have been unfairly discharged, please encourage the veteran to apply for their VA benefits and encourage the veteran to request an upgraded discharge by referring him or her to a local VSO.
Larry Dandridge is a Vietnam War wounded warrior, disabled veteran, ex-Enlisted Infantryman, ex-Warrant Officer Pilot, and retired Lt. Colonel. He is a past Veterans Service Officer, a Patient Adviser at the RHJ VA Hospital, the Fisher House Charleston Good Will Ambassador, and the VP for Veteran Affairs for the local Army Association Chapter. Larry is the author of the award-winning book Blades of Thunder and a contributing free-lance writer with the Island News. Contact him at LDandridge@earthlink.net or 843-276-7164.
