ARE YOU A VETERAN?
Many eligible individuals are unaware that they are "veterans" entitled to VA benefits. Contrary to some beliefs, it is not necessary that a service member has been in combat or has retired from the military to be eligible for VA benefits.
To qualify for VA benefits, a claimant [must be] a 'veteran.'" Cropper v. Brown, 6 Vet. App. 450, 452 (1994); D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000). A veteran is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the United States Armed Forces. 38 U.S.C. §§ 101(10), 101(21)(C), 101(24), 107; 38 C.F.R. § 3.40(b).
A couple of conditions may prevent Veterans from qualifying for benefits. These include:
Dishonorable discharge. A Veteran who has met the active service requirement still won't be eligible for benefits if they have received a dishonorable discharge. However, Veterans with other discharges, including honorable discharges, discharges under honorable conditions, and general discharges, will still qualify.
Willful misconduct. Willful misconduct is behavior that involves conscious wrongdoing or a known prohibited action. Veterans seeking VA benefits due to a disability created by their willful misconduct will be ineligible to qualify for those benefits. However, the burden of proof is on the VA to show that the Veteran's willful misconduct led to the disability.
CHARACTER OF DISCHARGE
VA benefits are restricted to veterans discharged or released "under conditions other than is honorable." The military services each have several categories of discharge, one of which is "dishonorable." These categories are not what VA bases a character of service determination on: VA has its own unique system.
VA generally accepts "honorable" discharges and discharges "under honorable conditions" as qualifying discharges without further investigation. VA has also determined that a "dishonorable" discharge is not an "other than dishonorable" discharge and so will disqualify a claimant from any VA benefits unless a narrow insanity exception applies. If an individual received a discharge under "other than honorable conditions" or a "bad conduct" discharge, VA will make a special "character of service determination" before further processing a claim. In making this determination VA is supposed to consider the veteran's entire period of service not just the specific type of discharge. If VA determines that the individual was separated from service under a disqualifying condition, the veteran will be ineligible for compensation benefits, although he or she may still qualify for certain healthcare benefits. A character of service determination can be appealed if unfavorable.
A veteran with a discharge that does not qualify him or her for compensation benefits may try to "upgrade" the character of the discharge. VA does not change the character of discharge assigned by the service branch. Each service branch has a "Discharge Review Board" ("DRB") and a "Board for Correction of Military Records" ("BCMR"). Both of these Boards have their own procedures for reviewing cases of veterans looking to change an unfavorable character of discharge and it is beyond the scope of this KNOWLEDGE BOOK to describe the processes. Veterans who believe that their character of discharge was improper or unfair are encouraged to contact an advocate or attorney experienced in the upgrade process.
Regardless of the character of discharge, individuals are not eligible for VA benefits for conditions that result from "willful misconduct" or substance abuse. Willful misconduct includes intentional acts such as self-inflicted injuries to avoid duty or deployment. Health conditions arising from the abuse of illegal drugs or alcohol abuse are also excluded. As questions of willful misconduct are very fact-specific, claimants potentially affected by this requirement are encouraged to discuss the matter with an experienced advocate. There is one very important exception to the substance abuse exclusion. An individual is eligible for VA benefits for conditions related to drug or alcohol abuse arising from another allowable service-connected condition. For example, an individual suffering from post-traumatic stress disorder ("PTSD") as a result of an incident during service can receive benefits for the adverse health effects of alcoholism if the alcoholism is determined to be a result of the PTSD. Alcoholism unrelated to another service-connected condition would not be eligible for compensation.
If you have questions about your discharge status please contact Andrea Jelks, our discharge specialist, she accepts clients on a case by case basis. Please contact her for her fees at Andrea.Jelks@vadisabilityadvocate.com Phone: 702-879-4603
The VA Disability Advocates Main Office is Located in Las Vegas, NV. We Represent Veterans throughout the United States. 702-209-5722