Overview
In This Section |
This section contains the following topics:
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1. General Information About Determinations of the Character of a Former Service Member’s Discharge
Introduction |
This topic contains general information about the relevance of the character of a former service member’s discharge, including
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Change Date |
February 19, 2019 |
III.v.1.B.1.a. Thresholds for Benefit Eligibility |
A former service member’s character of discharge (COD) must be under other-than-dishonorable conditions to establish eligibility for Department of Veterans Affairs (VA) benefits based on that individual’s military service.
A dishonorable discharge – or a discharge under conditions for which a statutory bar to benefits exists – for a given period of service renders a claimant ineligible for all VA benefits for any claim based on that period of service.
Exception: A dishonorable discharge or statutory bar is not binding on VA if it is determined that the individual was insane when committing the acts that resulted in the discharge.
Note: A discharge under other-than-honorable (OTH) conditions
References: For more information on
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III.v.1.B.1.b. When DoD’s Characterization of Service Is Binding on VA |
An individual is entitled to full rights and benefits of programs administered by VA unless there is a bar to benefits under 38 U.S.C. 5303(a). Normally, the Department of Defense’s (DoD’s) characterization of service is binding on VA if the discharge is
Note: Any character of service listed above is binding on VA, irrespective of the separation reason, unless the separation reason is one listed as a bar to benefits under 38 U.S.C. 5303(a).
Examples:
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
References: For more information about
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III.v.1.B.1.c. When a COD Determination Is Necessary |
A COD determination is required if a service member received
Important: Before making a COD determination, review
Reference: For more information about preparing COD determinations, see M21-1, Part III, Subpart v, 1.B.1.l.
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III.v.1.B.1.e. Overview of the COD Determination Process |
Follow the steps in the table below when a COD determination is needed.
Important:
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III.v.1.B.1.f. Requirement for Advance Notice |
In any situation that requires a COD determination, including dishonorable discharges, provide the claimant with advance notice containing the elements described in the table below.
Important: Do not solicit a completed application for benefits (such as VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits) from the former service member when preparing the advance notice described in this block.
References: For more information about
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III.v.1.B.1.g. Responsibility for Collecting Evidence, Including Records Containing Facts and Circumstances Surrounding Discharge |
The development activity is responsible for collecting all evidence required to make a COD determination. This includes, in all cases, records detailing the facts and circumstances surrounding a former service member’s discharge.
Request records containing the facts and circumstances surrounding a former service member’s discharge using Personnel Information Exchange System (PIES) or Defense Personnel Records Information Retrieval System (DPRIS), as appropriate.
References: For more information about
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III.v.1.B.1.h. Responsibility for Making COD Determinations |
The responsibility for making a COD determination rests with the development activity.
Notes:
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 |
After making an administrative decision, use the Letter Creator tool (or equivalent Personal Computer Generated Letters notice) to generate a decision notice that meets the requirements expressed in M21-1, Part III, Subpart v, 2.B.1.b. Attach a copy of the administrative decision to the decision notice.
Use the table below to determine what additional information/elements to include in a decision notice of an unfavorable administrative decision regarding COD.
Reference: For more information on the Letter Creator tool, see the Letter Creator User Guide.
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III.v.1.B.1.j. Notifying VA and Non-VA Entities of a Decision |
After making a COD determination at the request of a VA or non-VA entity,
Notes:
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 |
By signing off on an administrative decision regarding the character of a Veteran’s discharge, the signing official implicitly authorizes corresponding updates to the corporate record.
The authorization activity is responsible for updating the corporate record. This is accomplished by making entries in BIRLS.
Unless current entries are accurate, the authorization activity must update the VETERAN IDENTIFICATION DATA (VID) tab on the BIRLS VETERAN IDENTIFICATION screen to reflect the Veteran’s
Follow the instructions in the table below when updating the BIRLS screen’s VID tab to reflect the outcome of an administrative decision regarding the character of a Veteran’s discharge.
Notes:
References: For more information on
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III.v.1.B.1.l. COD Determination Template |
Use the template below to document COD determinations.
The template contains all possible paragraphs and language that may be included in the decision depending on the facts of the particular case. If the claimant is not the former service member, modify the language as necessary, to include replacing references to “you” and “your” with the name of the former service member and third-person personal pronouns.
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2. Statutory Bars to Benefits
Introduction |
This topic contains information on statutory bars to benefits, including
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Change Date |
November 30, 2017 |
III.v.1.B.2.a. Bars Established by 38 CFR 3.12(c) |
A statutory bar to benefits exists when VA determines a former service member’s discharge or release was under any of the conditions discussed in 38 U.S.C. 5303and listed in 38 CFR 3.12(c). These conditions include
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III.v.1.B.2.c. Discharges for Alienage |
If there was a discharge during a period of hostilities that was not changed to honorable prior to January 7, 1957, determine if the records show that the former service member requested the discharge as provided in the table below.
Note: The absence of affirmative evidence in the service department’s reply or in the claims folder showing that the former service member requested the release is a sufficient basis for a favorable decision.
Reference: For more information on discharges for alienage, see 38 CFR 3.7(b).
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III.v.1.B.2.d. Discharges for UA or AWOL |
Follow the steps in the table below to determine the action to take if
Note: When determining whether a claimant had a continuous period of 180 or more days of UA or AWOL, do not rely on the number of days reported as “time lost” on DD Form 214, Certificate of Release or Discharge from Active Duty, because there is typically no indication on the form as to whether or not the time lost was continuous.
Note: If the claimant is statutorily barred from receiving VA benefits under any of the offenses listed in 38 CFR 3.12(c), a rating decision addressing 38 U.S.C. Chapter 17 eligibility is not necessary.
Reference: For more information on identifying upgraded discharges, see M21-1, Part III, Subpart v, 1.B.6.c.
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3. Regulatory Bars to Benefits
Introduction |
This topic contains information on regulatory bars to benefits, including
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Change Date |
March 10, 2016 |
III.v.1.B.3.a. Bars Established by 38 CFR 3.12(d) |
A regulatory bar to benefits is established any time VA determines the discharge or release was issued under any of the conditions listed in 38 CFR 3.12 (d). Some examples of discharges under 38 CFR 3.12 (d) include
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III.v.1.B.3.b. Additional Information on Undesirable Discharges to Escape Trial by GCM |
A bar to benefits exists when the facts indicate the service member agreed to accept an undesirable discharge (often seen on the DD Form 214 as OTH), in order to escape trial by GCM.
Note: The evidence must show that the service member accepted the undesirable discharge to escape a GCM, not a summary court-martial or a special court-martial.
Reference: For more information on identifying upgraded discharges, see M21-1, Part III, Subpart v, 1.B.6.c.
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III.v.1.B.3.d. Additional Information on Discharges for Willful and Persistent Misconduct |
A discharge, including those issued under OTH conditions, for behavior constituting willful and persistent misconduct is considered to have been issued under dishonorable conditions and is a bar to benefits.
Exceptions:
Notes:
References: For more information on
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4. COD Determinations and Health Care Eligibility
Introduction |
This topic contains information on the effect that COD determinations have on health care eligibility, including
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Change Date |
December 20, 2017 |
III.v.1.B.4.a. Health Care Benefits for Former Service Members With Certain OTH Discharges |
Effective October 8, 1977, under PL 95-126, eligibility for health care benefits for any disability incurred or aggravated in the line of duty during active service is extended to any former service member with an OTH discharge, regardless of the date of that discharge. Even service members who are determined to have been discharged under the regulatory bars described in 38 CFR 3.12(d), are eligible for health care.
Eligibility for health care is not extended to
Consider any claim that requires review of a statutory bar or preparation of a COD determination as a claim for health care benefits.
Note: A former service member with an OTH discharge based on UA or AWOL is eligible for health care under 38 CFR 3.360 if VA determines the OTH discharge is HVA.
References: For more information on
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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 |
The table below contains instructions for addressing the issue of health care eligibility in the administrative decision shown in M21-1, Part III, Subpart v, 1.B.1.l, when
Notes:
References: For more information about
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5. Conditional Discharges and Uncharacterized Discharges
Introduction |
This topic contains information on conditional discharges and uncharacterized separations, including
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Change Date |
July 31, 2017 |
III.v.1.B.5.a. Provisions of 38 U.S.C. 101(18) for Reenlistment Prior to Discharge |
38 U.S.C. 101(18) provides that an individual who enlisted or reenlisted before completion of a period of active service may establish eligibility for VA benefits if he/she satisfactorily completed the period of active service for which he/she was obligated at the time of entry. The satisfactory completion of one contracted period of enlistment while serving on a subsequent contracted period of service under a new enlistment is considered a conditional discharge.
The provisions of 38 U.S.C. 101(18) apply even if
Note: VA has the authority to determine the COD for any type of discharge that is not binding on it; therefore, VA has the authority to determine the COD for all periods of service identified in a conditional discharge.
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III.v.1.B.5.d. Determining Whether a Conditional Discharge Determination Is Necessary |
Once development is complete and all available evidence is of record, use the table below to determine whether a conditional discharge determination is necessary.
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III.v.1.B.5.f. Example: Scenario for Determining Dates of Service for a Conditional Discharge |
Scenario:
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III.v.1.B.5.g. Example: Method for Determining Dates of Service for a Conditional Discharge |
The table below shows how dates of service would be determined for the scenario described in M21-1, Part III, Subpart v, 1.B.5.f.
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III.v.1.B.5.h. Example: Alternative View of the Method for Determining Dates of Service for a Conditional Discharge |
The table below shows an alternative view of the method for determining dates of service for the scenario described in M21-1, Part III, Subpart v, 1.B.5.f, using only the dates of entry, periods of obligation, and RAD dates (for VA purposes).
Explanation: Since the claimant did not begin his period of AWOL until February 14, 1991, he completed his initial enlistment and one reenlistment period, ending December 28, 1990, faithfully and meritoriously. The time from December 29, 1990, to December 23, 1991—the date of discharge—cannot be considered honorable service due to the AWOL period of over 180 consecutive days.
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III.v.1.B.5.i. Sample Language for a Conditional Discharge Determination |
The Decision section of an administrative decision in which the issue of a conditional discharge is discussed must
Example (using the scenario described in M21-1, Part III, Subpart v, 1.B.5.f): The claimant’s service from December 29, 1980 to December 28, 1990, included his first two periods of obligation which were UHC; therefore, he is entitled to receive VA benefits, to include health care under 38 U.S.C. Chapter 17, based upon this period of service.
The claimant’s service from December 29, 1990 to December 23, 1991, was OTH; therefore, he is not entitled to receive VA benefits or health care under 38 U.S.C. Chapter 17 based upon this period of service.
Note: The Reasons and Basis section of the administrative decision must include an explanation as to how the dates of service were determined.
Example: A review of the evidence of record shows the claimant originally enlisted on December 29, 1980, for four years with an obligated period of service until December 28, 1984. On April 4, 1984, he reenlisted for another six years with a new obligated period of service until December 28, 1990. On October 31, 1988, hereenlisted again for another six years, with a new obligated period of service until December 28, 1996. He was given an OTH discharge on December 23, 1991.
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III.v.1.B.5.j. Assigning Effective Dates for Claims Based on a Conditional Discharge |
Use the table below to determine the effective dates for claims based on a conditional discharge.
Reference: For more information on effective dates, see
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III.v.1.B.5.k. Categories of Uncharacterized Separations |
For cases in which enlisted personnel are administratively separated from service on the basis of proceedings initiated on or after October 1, 1982, the separation may be classified as one of the following three categories of administrative separation:
Note: Entry-level separation can include separation reasons such as:
Important: Service departments are not required to provide a characterization of service for the aforementioned three categories of separation.
Reference: For more information on uncharacterized separations, see 38 CFR 3.12(k).
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III.v.1.B.5.l. Instructions for Handling Cases Involving a Former Service Member With an Uncharacterized Separation |
The table below contains instructions for handling cases involving a former service member with an uncharacterized administrative separation.
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6. Clemency and Upgraded Discharges, and DRB Decisions
Introduction |
This topic contains information on clemency and upgraded discharges and DRB decisions, including
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Change Date |
August 11, 2016 |
III.v.1.B.6.b. Making a Clemency Discharge Determination |
A clemency discharge does not necessarily entitle or reinstate entitlement to benefits administered by VA, and VA must make a decision on the COD.
Prior to making a determination on service that resulted in a clemency discharge, furnish notification in accordance with M21-1, Part III, Subpart v, 1.B.1.f.
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III.v.1.B.6.d. Decision Made Through a Board for Correction of Military Records or a DRB |
A decision by a service department acting through a board for correction of military records is final and conclusive on VA. This applies
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 |
An honorable or general discharge that a DRB issued on or after the enactment ofPL 95-126 on October 8, 1977 (38 CFR 3.12(g)), does not set aside a statutory bar to benefits under 38 CFR 3.12(c). If a DRB granted such an upgrade, the development activity must make a statutory bar determination if/when the issue of entitlement to VA benefits arises.
Exception: Only favorable action by a board for correction of military records will overcome a bar under 38 CFR 3.12(c).
Note: The policy expressed in this block also applies to those discharges issued prior to October 8, 1977, under the special review program (38 CFR 3.12(h)), even if a later review by a DRB confirms that the upgrade was warranted under the uniform published review criteria.
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III.v.1.B.6.f. Effect of a Substituted Discharge Under 10 U.S.C. 874(b) |
An upgraded discharge issued pursuant to 10 U.S.C. 874(b) does not remove the statutory bar to benefits under 38 U.S.C. 5303(a) for individuals discharged or dismissed by reason of the sentence of a GCM because
Example: The action of the Secretary of a service department under 10 U.S.C. 874(b), substituting an administrative discharge for a discharge or dismissal executed in accordance with the sentence of a GCM, does not remove the statutory bar to benefits under 38 U.S.C. 5303(a).
Reference: For more information, see VAOPGCPREC 10-1996.
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III.v.1.B.6.g. Documenting a Change in a Former Service Member’s COD |
In those instances when VA does recognize a change that a service department makes to a former service member’s COD, do not take action to void a standing COD determination upon receipt of notice of such a change. Instead, annotate the determination to reflect that it has been superseded by a subsequent service department action.
Notes:
Reference: For more information on adding annotations to electronic documents in VBMS, see the VBMS User Guide.
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III.v.1.B.6.h. Guidelines of PL 95-126 |
In addition to a requirement that DoD establish a set of uniform procedures and standards for use by DRBs, PL 95-126 also prohibits payment of VA benefits based solely on a discharge upgraded under
The DRB had to review an upgraded discharge to determine if it could be upheld under the new uniform criteria established by PL 95-126. After the DRB completed its second review and made a decision, the responsibility for determining eligibility to VA benefits rests solely with VA.
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III.v.1.B.6.i. Cases Exempt From PL 95-126 |
Veterans are exempt from the procedures applicable to special upgraded discharges if they had
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7. Second Reviews of DRB Determinations
Introduction |
This topic contains information about second reviews of DRB determinations, including
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Change Date |
August 11, 2016 |
III.v.1.B.7.a. Eligibility for a Second Review of a DRB Determination |
A former service member may request that a DRB perform a second review of a COD determination.
Note: A second review was done automatically for all former service members whose discharges were upgraded under one of the special programs listed in 38 CFR 3.12(h).
To be eligible for a second review, the former service member must have
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III.v.1.B.7.b. Narrative of a DRB Decision on DD Form 215 |
The table below shows the narrative commonly found on DD Form 215 based on the outcome of a second review of a DRB determination.
Important: A copy of DD Form 215 must be of record when a determination as to eligibility for VA benefits is made.
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III.v.1.B.7.c. Favorable DRB Determinations |
If the outcome of a second review of a DRB determination is favorable, carefully review the full service records and determine if the former service member was discharged or released under one of the conditions listed in 38 CFR 3.12(c).
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III.v.1.B.7.d. Favorable DRB Determinations When 38 CFR 3.12(c) Is a Factor |
VA can still deny eligibility to benefits, even though the outcome of a second review of a DRB determination was favorable, if the former service member was discharged or released under one of the conditions listed under 38 CFR 3.12(c).
If a previous administrative decision held that the COD was OTH, and 38 CFR 3.12(c) is a factor, annotate that decision to show the date of the
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III.v.1.B.7.e. Unfavorable DRB Decisions |
If the outcome of a DRB decision is unfavorable, eligibility to VA benefits rests on the merits of the original OTH discharge and corresponding facts and circumstances.
Follow the steps in the table below to process an unfavorable DRB decision, even if the claims folder contains an unfavorable administrative decision made prior to the issuance of the adverse DRB decision.
Notes:
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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 |
When the outcome of a second review of a DRB determination allows for a grant of entitlement to compensation or pension, authorize payments from the later of the following dates:
Important:
Reference: 38 CFR 3.400(b) and (g) govern the assignment of effective dates under the circumstances discussed in this block.
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