By Kevin Hill, Spring 2014 CLASV Student Advisor
If you were discharged from active duty with a less than fully Honorable military discharge, you have what is called “bad paper.” Any discharge of less than an Honorable may have implications upon health care and educational benefits once transitioning from combat to community life. Discharge under other than Honorable conditions and Bad Conduct discharges do not automatically disqualify a veteran or his or her dependents from receiving VA benefits.[1] For example, if your discharge was General (under Honorable Conditions), you may be eligible for VA benefits. But what about if you have a discharge that is neither General (under Honorable Conditions) nor Honorable?
Options for Veterans
Veterans may seek a discharge upgrade through their branch of service’s Discharge Review Board (DRB). The DRB has the discretion to amend the reason for discharge if an application is filed within a period of fifteen years after the discharge.[2] However, the DRB is limited because the board is not authorized to amend a Bad Conduct Discharge or Dishonorable Discharge issued from a general court-martial. The DRB is also restricted from changing the re-enlistment code on a veteran’s DD-214 form.[3] Although the reward for a successful discharge is invaluable, the success rate for discharge upgrade applications across the service branches is rather low.[4]
Veterans may also appeal errors in military records to the appropriate branch’s Board for Correction of Military/Naval Records (BCMR). The BCMR for each branch of service has the authority to change, delete, modify, or add to one’s military record in cases of error.[5] However, like the DRBs, the BDMRs are not authorized to review discharges which were a part of a general court-martial conviction. Both the discharge upgrades and requests to have military records corrected have implications on VA benefits, but are not processed by the VA.[6]
Veterans who may have been discharged for other than Honorable conditions have a third option to seek benefits under a process known as a Character of Service Determination. Character of Service Determinations are often processed more quickly than discharge upgrade applications and result in favorable rulings in a higher percentage of cases.[7] If the Department of Veterans Affairs rules in the claimant’s favor, the veteran will still have bad paper, but will be eligible for VA benefits such as disability compensation, pension, and health care.[8]
Character of Service Determinations
A Character of Service Determination is a fact-specific inquiry performed by benefits claims examiners at one of the fifty-six regional VA offices.[9] During this process, the VA regional office reviews the veteran’s entire period of enlistment to assess the quality of service as potentially deserving of an award of veterans’ benefits.[10] Character of Service Determinations can be helpful for veterans with back-to-back enlistments and conditional discharges.[11] For example, the VA will consider claims of exceptional service in a first enlistment that should not be overshadowed by less significant bad acts in a subsequent enlistment leading to an undesirable discharge. In such a case, the VA would weigh the service member’s years of credible service against the discreditable act that lead to an undesirable discharge.[12]
A Character of Service Determination commences when a veteran applies for VA disability compensation or pension at a regional VA office.[13] The VA responds to these applications by requesting that the veteran submit information in support of the request for a favorable Character of Service Determination.[14] Any adverse decisions by the regional office may be appealed to the U.S. Court of Appeals for Veterans Claims.[15]
Standards for Review
VA Claims examiners look to the M21-1MR Manual for guidance in determining what benefits a veteran should receive for a Character of Service Determination.[16] Because the VA is a separate entitiy from the Department of Defense, the VA is not bound by the initial disability rating given by a service branch specifically for medical discharge cases.[17] However, the VA will also not review bad conduct or dishonorable discharges given as part of a general court-martial.[18] Some veterans are barred for particular reasons as listed in the Federal Code of Regulations.[19] Some reasons that make veterans ineligible for a favorable outcome are:
- Veterans who accepted an undesirable discharge to avoid a court-martial,
- Veterans who were mutineers or spies,
- Veterans discharged for an offense involving moral turpitude, including, generally, a felony conviction,
- Veterans discharged for willful and persistent misconduct,
- Veterans discharged for “homosexual acts involving aggravating circumstances,” such as molestation, prostitution, assault, or coercion.[20]
Conclusion
For veterans with bad paper, a VA Character of Service Determination serves as an alternative to a discharge upgrade or correction of military records. In most Character of Service Determination cases, veterans should prepare necessary documentation or evidence to support his or her claim. Because the Department of Veterans Affairs operates separately from the Department of Defense, veterans considering a Character of Service Determination should first request copies of all military medical and administrative records from the branch of service.[21] Prior to filing, veterans can obtain references from commanding officers, investigate the home of record addresses for potential witnesses, and obtain documents such as an Official Military Personnel File (OMPF) or transcripts from any past court-martials.[22] Veterans should also consult with an attorney if possible to ensure legal compliance with any application guidelines.
The views and opinions expressed in this article are those of the author’s only and do not necessarily reflect the official policy or position of CLASV, George Mason University School of Law, George Mason University or any agency of the Commonwealth of Virginia, and are not to be construed as legal advice. The contents of this website are intended to convey general information only and not to provide legal advice or opinions. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. The information presented on this website may not reflect the most current legal developments. An attorney should be contacted for advice on specific legal issues.
[1] Major Samuel M. Morris, A Survey of Military Retirement Benefits, 177 Mil. L. Rev. 133, 139-41 (2003).
[2] Tom Turcotte, Basics of Dscharge Upgrading, Military Law Task Force, at 1; see also Kathleen Gilberd, Discharge Upgrading—An Outline For Beginners, Military Law Task Force, available at www.dd214.us/reference/DischargeUpgrade_Memo.pdf (last visited Mar. 5, 2014).
[3] Id.
[4] Teresa Panepinto, Good Paper Challenging the Narrative Reason for a Discharge Requires Considerable Patience and Paperwork, L.A. Law., November 2012, at 43, 47.
[5] Turcott, supra note 2, at 2.
[6] VA Character of Service Determinations: An Alternative to Discharge Review, Swords to Plowshares Self-Help Materials, at 1, available at http://www.swords-to-plowshares.org/2012/09/27/va-character-of-service-determination-an-alternative-to-discharge-review/ (last visited Mar. 5, 2014); see also Getting a VA Character of Service Determination, Nolo.com, available at http://www.nolo.com/legal-encyclopedia/getting-va-character-service-determination.html (last visited Mar. 5, 2014).
[7] Id.
[8] Id.
[9] Note that this number may have changed since posting. Available at http://www.vba.va.gov/reports/aspiremap.asp (last visited Mar. 5, 2014).
[10] U.S. Veterans’ Administration, VA Adjudication Procedure Manual M21-1, pt. IV, ¶ 11.01-11.06; see also Umar Moulta-Ali, “Who is a Veteran?” Basic Eligibility for Veterans’ Benefits, Congressional Research Service at 4. (January 2014).
[11] Back-to-Back and Conditional Discharges, Swords to Plowshares Self-Help Materials, at 1, available at http://www.swords-to-plowshares.org/2012/09/27/back-to-back-and-conditional-discharges/ (last visited Mar. 5, 2014).
[12] Swords to Plowshares, supra note 6, at 2.
[13] Id.
[14] Id.
[15] Morris, supra note 1, at 139; see also Turcotte, supra note 2, at 4.
[16] See M21-1MR Compensation and Pension Manual, U.S. Department of Veterans Affairs, available at http://www.benefits.va.gov/warms/M21_1MR.asp (last visited Mar. 4, 2014).
[17] Turcotte, supra note 2, at 1.
[18] Tom Turcotte, VA Claims: An Overview, On Watch: Military Law Task Force, at 3 (Vol. XIX, No. 5 (Sept/Oct 2007), available at nlgmltf.org/wp/downloads/onwatch/Onwatch_xix-5.pdf (last visited Mar. 4, 2014).
[19] See 38 C.F.R. §3.12.
[20] 38 C.F.R. §3.12(d)
[21] Turcotte, supra note 2, at 1.
[22] Turcotte, supra note 2, at 1; see also Swords to Plowshares, supra note 6, at 2.