The VA Is Seeking Input on Updating Eligibility Rules for Bad Paper Discharges

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In this June 21, 2013, file photo, the seal affixed to the front of the Department of Veterans Affairs building in Washington. (AP Photo/Charles Dharapak)
In this June 21, 2013, file photo, the seal affixed to the front of the Department of Veterans Affairs building in Washington. (AP Photo/Charles Dharapak)

The Department of Veterans Affairs is seeking public comment on updating benefit eligibility for veterans with "bad paper" discharges.

In a notice published in the Federal Register, the VA is proposing updating rules to clarify what is considered a dishonorable discharge for VA benefit eligibility purposes.

This move is necessary because federal law specifically allows only veterans with an "other than dishonorable" discharge to receive VA benefits, but the Defense Department often characterizes discharges as "other than honorable." In these cases, the VA must determine whether the actual reason for discharge is considered "honorable" or "dishonorable."

These determinations can often be applied differently depending on the VA employee making the decision and their understanding of the law. Also, the actual wording of some of the regulations hasn't been updated for more than 40 years, and the VA is attempting to modernize definitions and the decision-making process.

Specifically, the new rules will clear up the definitions of "willful and persistent misconduct," "offenses involving moral turpitude," and "homosexual acts involving aggravating circumstances or other factors affecting the performance of duty," as these types of discharges can often be considered either honorable or dishonorable depending on the severity of the offense.

For instance, in the case of a military member who goes AWOL for more than 180 days, the VA normally characterizes an "other than honorable" discharge as "dishonorable" no matter what the circumstance.The VA is now proposing to consider what caused the member to go AWOL in its decision-making process. Was there a serious family matter, did the member go AWOL to avoid combat, or did the member go AWOL because they were an immature 18 year old, etc.? The new rule seeks to allow the VA to be more responsive to the actual situation.

The VA also wants to clear up confusion on "willful and persistent misconduct" by quantifying exactly what is "persistent" and aligning its definitions with the Manual for Courts-Martial. For instance, disobeying a lawful order one week and leaving the scene of a vehicle accident a week later would be considered "persistent;" however, if the offenses occurred six months apart, they would not, since each offense is minor in nature. But if a service member committed more serious offenses, they would be considered "persistent" even if they occurred as much as five years apart.

To define "offenses involving moral turpitude," the VA will consider whether the service member knew what they were doing when they committed the offense. The VA would adopt language from an earlier legal decision to say that a service member could be charged with moral turpitude if they willfully committed an act that could be expected to cause harm or injury, even if that act wasn't illegal. For instance, if a member failed to perform required maintenance on a piece of machinery and that machinery failed, causing an injury, they would have acted wrongly, and such an offense would prohibit them from receiving any VA benefits. However, if they were doing maintenance and broke the machine because they weren't trained properly, they wouldn't be found with committing a disqualifying offense. The new rule attempts to base an eligibility decision on the service member’s intent rather than the consequences.

The intent of the regulation change is to deny benefits to someone who willfully misbehaves, not someone who unintentionally causes an accident.

Finally, the VA is seeking to simplify the rule that makes "homosexual acts involving aggravating circumstances or other factors affecting the performance of duty" a reason for dishonorable discharge. To this end, the VA wants to change the offense to "sexual acts involving aggravating circumstances or other factors affecting the performance of duty." This basically expands the regulation and makes any act of sexual aggression serious enough to have an effect on good order and discipline an offense that disqualifies a veteran for VA benefits.

There are more detailed explanations and details on the VA's posting to the Federal Register.

Rules regarding discharge types normally apply only to first-term enlistments. If a member receives an honorable discharge from their first period of service and any other type of discharge from a subsequent enlistment, the VA wouldn't have to make any determination, since the first period of honorable service would qualify the veteran for benefits. The exception to this rule is those who are discharged to accept a commission.

Comments will be accepted through Sept. 8, 2020.

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