M21-1, Part III, Subpart v, Chapter 1, Section B – Statutory Bars to Benefits and Character of Discharge (COD)

In This Section

Introduction

• thresholds for benefit eligibility
• when the Department of Defense’s (DoD) characterization of service is binding on the Department of Veterans Affairs (VA)
• when a COD determination is necessary
• when a COD determination is not necessary
• overview of the COD determination process
• requirement for advance notice
• responsibility for collecting evidence, including records containing facts and circumstances surrounding discharge
• responsibility for making COD determinations
• notifying claimants after making a decision
• notifying VA and non-VA entities of a decision
• updating the corporate record after making a decision, and
• COD determination template.

Change Date

III.v.1.B.1.a.     Thresholds for Benefit Eligibility

• is not the same as a dishonorable discharge, and
• does not necessarily render a claimant ineligible for VA benefits.

• statutory bars to benefits, see M21-1, Part III, Subpart v, 1.B.2
• regulatory bars to benefits, see M21-1, Part III, Subpart v, 1.B.3
• eligibility for health care, see M21-1, Part III, Subpart v, 1.B.4
• how VA determines Veteran status, see
  • 38 CFR 3.1(d), or
  • 38 U.S.C. 101(2)
• how a former service member’s COD affects his/her (or his/her survivors’) eligibility for VA benefits, see
  • 38 CFR 3.12, and
  • 38 CFR 3.13, and
• determinations of insanity, see
  • M21-1, Part III, Subpart v, 1.E, and
  • 38 CFR 3.354 (b).

III.v.1.B.1.b.  When DoD’s Characterization of Service Is Binding on VA

• honorable
• under honorable conditions (UHC), or
• general.

• If the separation reason is drug use but the character of service is UHC, DoD’s characterization of service is still binding on VA; a COD determination is not necessary under these circumstances.
• If the characterization of service is UHC but the separation reason is a conscientious objector who refused to perform military duties, wear the uniform, or otherwise comply with lawful orders of competent military authorities, a formal determination as to whether the separation reason poses a bar to benefits under 38 U.S.C. 5303(a) is necessary.

Exception:  Records added to the Beneficiary Identification Records Locator Subsystem (BIRLS) from the Veterans Assistance Discharge System (VADS) after October 16, 1975, include the reason for separation.  Development for the facts and circumstances surrounding discharge is required, even if there is indication that COD was honorable or general, if the reason code shown in the corporate record is

• T38 (possible Title 38 bar to VA benefits)
• 953 (clemency discharge)
• BEO (by executive order), or
• DRO (discharge review – prior discharge under conditions other than honorable).

References:  For more information about

• COD determinations, see M21-1, Part III, Subpart v, 1.B.1.l, and
• handling cases involving conscientious objectors that were discharged under honorable conditions, see VAOPGCPREC 11-1993.

III.v.1.B.1.c.  When a COD Determination Is Necessary

• an undesirable discharge
• an OTH discharge, or
• a bad conduct discharge (BCD).

• the instructions for determining Veteran status in M21-1, Part III, Subpart ii, 6.A.1, and
• the definition of Veteran in 38 CFR 3.1(d).

III.v.1.B.1.d.  When a COD Determination Is Not Necessary

• before a claimant applies for VA benefits and places the matter at issue, or
• if there is a separate period of honorable service that qualifies the claimant for the benefits he/she is seeking.

III.v.1.B.1.e.  Overview of the COD Determination Process

• Strictly observe the due process provisions listed in 38 CFR 3.103 and M21-1, Part I, 2.
• The process outlined below is not intended for use in connection with Veterans Health Administration (VHA)-initiated eligibility determination requests involving COD.  Procedures for handling determinations of that type are instead found in M21-1, Part III, Subpart v, 7.A.7.

III.v.1.B.1.f.  Requirement for Advance Notice

• preparing advance notice in
  • Modern Award Processing – Development (MAP-D), see theMAP-D User’s Guide, or
  • the Veterans Benefits Management System (VBMS), see theVBMS User Guide, and
• EP control of requests for COD determinations from VHA, see M21-1, Part III, Subpart v, 7.A.7.c.

III.v.1.B.1.g.  Responsibility for Collecting Evidence, Including Records Containing Facts and Circumstances Surrounding Discharge

III.v.1.B.1.h.  Responsibility for Making COD Determinations

• Upon receipt of a request, regional offices (ROs) are responsible for making COD determinations for other entities, such as
  • the U.S. Department of Labor
  • the U.S. Railroad Retirement Board, and
  • State agencies.
• A rating decision that addresses the issue of SC for treatment purposes under 38 U.S.C. Chapter 17 is necessary in all cases in which
  • the former service member has submitted a claim for compensation benefits, and
  • a regulatory bar to the payment of benefits exists under 38 CFR 3.12(d).

Reference:  For more information on handling requests for COD determinations from other Federal and State agencies, see M21-1, Part III, Subpart iii, 4.

III.v.1.B.1.i.  Notifying Claimants After Making a Decision

III.v.1.B.1.j.  Notifying VA and Non-VA Entities of a Decision

• notify the entity of the outcome of the determination, and
• follow the instructions in M21-1, Part III, Subpart v, 1.B.1.i.

• If a non-VA entity furnishes a form for reply, use it; otherwise, send notification via a locally generated letter.
• If a Veteran had multiple periods of service, inform the non-VA entity of the COD determination for each period of service.

Reference:  For more information specific to handling VHA-initiated eligibility determination requests, see M21-1, Part III, Subpart v, 7.A.7.

III.v.1.B.1.k.  Updating the Corporate Record After Making a Decision

• period(s) of service
• whether the Veteran is eligible to receive health care for service-connected (SC) disabilities
• type(s) of discharge, and
• separation reason(s).

• The VID tab contains sufficient fields for the entry of up to three periods of service and the type of discharge and separation reason for each period.
• A record-purpose award must also be generated and authorized to clear the EP associated with the administrative decision.

• the effect of a COD determination on a Veteran’s eligibility to receive health care, see M21-1, Part III, Subpart v, 1.B.4, and
• updating BIRLS and the corporate record, see the Share User’s Guide.

III.v.1.B.1.l.  COD Determination Template

Introduction

• bars established by 38 CFR 3.12(c)
• discharge or dismissal by the sentence of a general court-martial (GCM)
• discharges for alienage, and
• discharges for unauthorized absence (UA) or absence without official leave (AWOL).

Change Date

III.v.1.B.2.a.  Bars Established by 38 CFR 3.12(c)

• a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful orders of competent military authorities
• sentence of a General Court-Martial (GCM)
• resignation by an officer for the good of the service
• an alien during a period of hostilities
• absence without official leave (AWOL) for continuous period of at least 180 days, and
• desertion.

III.v.1.B.2.b.  Discharge or Dismissal by Sentence of a GCM

III.v.1.B.2.c.  Discharges for Alienage

III.v.1.B.2.d.  Discharges for UA or AWOL

• a service member received an OTH discharge, and
• the former service member’s service department confirms there was acontinuous period of 180 or more days of either an unauthorized absence (UA) or AWOL (exclusive of periods of imprisonment or confinement which led to the OTH discharge).

Introduction

• bars established by 38 CFR 3.12(d), and
• additional information on
  • undesirable discharges to escape trial by GCM
  • discharges for moral turpitude, and
  • discharges for willful and persistent misconduct.

Change Date

III.v.1.B.3.a.  Bars Established by 38 CFR 3.12(d)

• mutiny or spying, and
• undesirable discharge to escape trial by GCM.

III.v.1.B.3.b.  Additional Information on Undesirable Discharges to Escape Trial by GCM

III.v.1.B.3.c.  Additional Information on Discharges for Moral Turpitude

• apply a liberal standard, and
• consider the context and any mitigating circumstances, including whether an SC mental or physical condition caused, aggravated, or resulted in the offense.

III.v.1.B.3.d.  Additional Information on Discharges for Willful and Persistent Misconduct

• A minor offense is not considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious.
• Insanity is a defense to willful misconduct.

• A one-time offense or a technical violation of police regulations or ordinances does not necessarily constitute willful and persistent misconduct.
• Multiple offenses are not automatically deemed “persistent.”

• willful and persistent misconduct, see 38 CFR 3.12(d)(4), and
• the effect of a finding of insanity, see
  • 38 CFR 3.12(b)
  • 38 CFR 3.354 (b)
  • M21-1, Part III, Subpart v, 1.E, and
  • Struck v. Brown, 9 Vet.App. 145 (1996).

Introduction

• health care benefits for former service members with certain OTH discharges, and
• addressing the issue of health care eligibility when a statutory bar to benefits exists or a former service member received a BCD.

Change Date

III.v.1.B.4.a.  Health Care Benefits for Former Service Members With Certain OTH Discharges

• former service members with a BCD, or
• former service members that were discharged under one of the conditions listed in 38 CFR 3.12(c).

• health care eligibility for former service members with an OTH discharge, see 38 CFR 3.360
• handling requests from VHA for information required to determine a former service member’s eligibility for health care, see M21-1, Part III, Subpart v, 7.A.7
• the eligibility of former service members for VA benefits, including health care benefits pursuant to a conditional discharge, when the subsequent discharge was under dishonorable or OTH conditions, or when a statutory bar to benefits exists for the later period of service, see M21-1, Part III, Subpart v, 1.B.5.a, and
• the eligibility of former service members for treatment for SC disabilities, see 38 U.S.C. 1710.

III.v.1.B.4.b.  Addressing the Issue of Health Care Eligibility When a Statutory Bar to Benefits Exists or a Former Service Member Received a BCD

• a statutory bar to benefits exists, or
• the former service member received a BCD.

• If an administrative decision that contains neither of the statements referenced in the above table is discovered during routine review of a living Veteran’s claims folder, annotate the decision to reflect whether entitlement to VA health care exists.
• The annotation referenced in the preceding paragraph is for informational purposes only.  It does not represent a new decision, and there is no need to issue notice of proposed adverse action before annotating a decision to reflect that entitlement to VA health care does not exist.

• notifying a claimant of the outcome of an administrative decision, seeM21-1, Part III, Subpart v, 1.A.3.f, and
• adding annotations to electronic documents in VBMS, see the VBMS User Guide.

Introduction

• provisions of 38 U.S.C. 101(18) for reenlistment prior to discharge
• when to undertake development for a possible conditional discharge
• proper development for a possible conditional discharge
• determining whether a conditional discharge determination is necessary
• determining the dates of service for a conditional discharge
• examples:
  • scenario for determining dates of service for a conditional discharge
  • method for determining dates of service for a conditional discharge
  • alternative view of the method for determining dates of service for a conditional discharge
• sample language for a conditional discharge COD determination
• assigning effective dates for claims based on a conditional discharge
• categories of uncharacterized separations, and
• instructions for handling cases involving a former service member with an uncharacterized separation.

Change Date

III.v.1.B.5.a.  Provisions of 38 U.S.C. 101(18) for Reenlistment Prior to Discharge

• the subsequent discharge was under dishonorable or OTH conditions, or
• a statutory bar exists for entitlement to benefits for the later period of service.

III.v.1.B.5.b.  When to Undertake  Development for a Possible Conditional Discharge

• an individual’s period of service exceeded three years, especially if the discharge dates do not line up to an exact number of years or months
• there is any question about how many periods of service an individual enlisted for, or
• an individual’s DD Form 214 shows prior active service.

• first enlisted on February 5, 1969, for three years,
• discharged November 14, 1970, for immediate reenlistment for three years, and
• discharged on July 26, 1971, for immediate reenlistment for three years.

III.v.1.B.5.c.  Proper Development for a Possible Conditional Discharge

III.v.1.B.5.d.    Determining Whether a Conditional Discharge Determination Is Necessary

III.v.1.B.5.e.  Determining the Dates of Service for a Conditional Discharge

• adding the full length of the first enlistment contract to the claimant’s entry into service date, thus calculating the date the individual would have completed his first period of obligation and would have been discharged, then
• adding the full length of the next enlistment contract to the date determined above, thus calculating the next date that the individual would have completed his period of obligation and would have been discharged, then
• continuing to add the full length of each enlistment contract to the date determined above, until no more enlistment contract periods remain.

III.v.1.B.5.f.  Example:  Scenario for Determining Dates of Service for a Conditional Discharge

• A claimant has one DD Form 214 showing dates of service as December 29, 1980, to December 23, 1991, nearly 11 years of service.
• Because enlistment contracts generally range from three to six years, the development activity recognized the need to determine whether the claimant was eligible for complete separation at some point during his period of service.  Accordingly, it undertook the development described inM21-1, Part III, Subpart v, 1.B.5.c.
• The evidence, which included enlistment contracts, shows the claimant actually had three periods of service.  He
  • entered active duty on December 29, 1980, for four years
  • reenlisted for six years on April 4, 1984
  • reenlisted for another six years on October 31, 1988, and
  • began a period of 243 days AWOL on February 14, 1991.

III.v.1.B.5.g.  Example:  Method for Determining Dates of Service for a Conditional Discharge

III.v.1.B.5.h.  Example:  Alternative View of the Method for Determining Dates of Service for a Conditional Discharge

III.v.1.B.5.i.  Sample Language for a Conditional Discharge Determination

• identify the periods of obligation that were honorably completed
• indicate the COD for each period of obligation, and
• address the issue of health care eligibility.

III.v.1.B.5.j.  Assigning Effective Dates for Claims  Based on a Conditional Discharge

• 38 CFR 3.654(b), and
• 38 CFR 3.400.

III.v.1.B.5.k.  Categories of    Uncharacterized Separations

• entry level separation
• void enlistment or induction, or
• dropped from the rolls.

• failure to meet procurement medical fitness standards
• failure to meet retention standards due to a preexisting medical condition
• completion of a period of active duty for training
• hardship discharge, or
• dependency discharge.

III.v.1.B.5.l.  Instructions for Handling Cases Involving a Former Service Member With an Uncharacterized Separation

Introduction

• identifying a clemency discharge
• making a clemency discharge determination
• elements that assist in identifying upgraded discharges
• decisions made through a board for correction of military records or a DRB
• effect of an upgraded discharge by a DRB
• effect of a substituted discharge under 10 U.S.C. 874(b)
• documenting a change in a former service member’s COD
• guidelines of PL 95-126, and
• cases exempt from PL 95-126.

Change Date

III.v.1.B.6.a.  Identifying a Clemency Discharge

III.v.1.B.6.b.  Making a Clemency Discharge Determination

III.v.1.B.6.c.  Elements That Assist in Identifying Upgraded Discharges

III.v.1.B.6.d.  Decision Made Through a Board for Correction of Military Records or a DRB

• even if VA previously made a formal determination concerning a statutory or regulatory bar under 38 CFR 3.12, and/or
• a service department, acting through a DRB, changed the COD  prior to enactment of PL 95-126 on October 8, 1977.

Exception:  A change in COD by a service department through a DRB is not final and conclusive on VA when there is a bar because the discharge was due to the sentence of a GCM per 38 CFR 3.12(c)(6) and 38 CFR 3.12(f).

III.v.1.B.6.e.     Effect of an Upgraded Discharge by a DRB

III.v.1.B.6.f.  Effect of a Substituted Discharge Under 10 U.S.C. 874(b)

• an upgraded discharge issued under 10 U.S.C. 874(b) changes the COD, but not  the reasons for discharge, and
• an upgraded discharge issued pursuant to 10 U.S.C. 874(b) does notremove the statutory bar to benefits under section 38 U.S.C. 5303(a) as to individuals discharged or dismissed by reason of the sentence of a GCM.

III.v.1.B.6.g.  Documenting a Change in a Former Service Member’s COD

III.v.1.B.6.h.  Guidelines of PL 95-126

• the Presidential Proclamation of January 19, 1977, or
• the DoD Special Discharge Review Program.

III.v.1.B.6.i.  Cases Exempt From PL 95-126

• a general or UHC discharge upgraded by the special review program, or
• filed a claim for VA benefits based on an OTH discharge and received a favorable COD determination prior to the enactment of PL 95-126, effective October 8, 1977.

Introduction

• eligibility for a second review of a DRB determination
• narrative of a DRB decision on DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty
• favorable DRB determinations
• favorable DRB determinations when 38 CFR 3.12(c) is a possible factor
• unfavorable DRB decisions, and
• effective date for compensation or pension benefits based on the favorable outcome of a second review of a DRB determination.

Change Date

III.v.1.B.7.a.  Eligibility for a Second Review of a DRB Determination

• served between August 4, 1964, and March 28, 1973
• been released with an OTH (formerly known as “undesirable”) discharge, and
• been issued an upgraded discharge on or after January 19, 1977, under the provisions of the
  • Presidential Proclamation of January 19, 1977, or
  • the DoD Special Discharge Review Program.

III.v.1.B.7.b.  Narrative of a DRB Decision on DD Form 215

III.v.1.B.7.c.  Favorable DRB Determinations

• If he/she was, follow the instructions in M21-1, Part III, Subpart v, 1.B.7.d
• If he/she was not, use the favorable DRB determination as the basis for a finding that a claimant is eligible for VA benefits.

III.v.1.B.7.d.    Favorable DRB Determinations When 38 CFR 3.12(c) Is a Factor

• application for discharge review
• initial DRB upgrade, and
• VA-affirmed previous decision.

III.v.1.B.7.e.  Unfavorable DRB Decisions

• Unless a valid conditional discharge for a separate period of service is established, eligibility to health care under 38 U.S.C. Chapter 17 must be denied if a statutory bar exists.
• A special upgraded discharge that is affirmed by a DRB under PL 95-126is an honorable discharge for purposes of entitlement to unemployment compensation under 5 U.S.C. 85. This is true even if a statutory bar exists under 38 CFR 3.12(c)(6).

III.v.1.B.7.f.  Effective Date for Compensation or Pension Benefits Based on the Favorable Outcome of a Second Review of a DRB Determination

• the date the service department received the application for review of the DRB determination, or
• the date VA received the claim for compensation and/or pension.

• January 19, 1977, is considered the date of application for all discharges upgraded under the Presidential Memorandum of January 19, 1977.
• Use the date the original application was filed with the service department for DoD Special Review Board cases.
• If VA grants entitlement to benefits based on a supplemental claim that a claimant submits following a change in COD, authorize payments from thelater of the following dates:
  • one year prior to the date VA received the supplemental claim
  • the date the service department received the application for review of the DRB determination, or
  • the date VA received the previously denied claim.