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

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4
5
6
7

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

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
  • is not the same as a dishonorable discharge, and
  • does not necessarily render a claimant ineligible for VA benefits.
References:  For more information on

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

  • honorable
  • under honorable conditions (UHC), or
  • general.
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:
  • 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 (bexecutive order), or
  • DRO (discharge review – prior discharge under conditions other than honorable).

References:  For more information about


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

A COD determination is required if a service member received
  • an undesirable discharge
  • an OTH discharge, or
  • a bad conduct discharge (BCD).
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.

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

It is not necessary to make a COD determination
  • 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.
Note:  If there is any question regarding which period of multiple periods of service qualify a claimant for the benefits he/she is seeking, complete a COD determination (whichever is applicable) before referring the claim to the rating activity.

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:
  • 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.
Step Action

1

If the discharge at issue is not specifically honorable, UHC, or general, or if there is evidence that the discharge was upgraded, send a request to the service department for all available records, including service treatment records (STRs), personnel records and records of proceedings pertaining to the discharge.
 
Reference:  For more information on Discharge Review Boards (DRBs), see 38 CFR 3.12(f)-(h).
2
Make a formal determination and document it using the template shown in M21-1, Part III, Subpart v, 1.B.1.l.
 
Important:
  • Occasionally service departments provide only limited records to VA.  Make a determination using all the evidence in VA’s possession and resolve any reasonable doubt in favor of the claimant.
  • In any COD determination, there must be, minimally, a finding that the former service member was not insane when he/she committed the act or acts that resulted in DoD’s characterization of his/her service.
  • If a former service member had more than one period of consecutive service, include information covering the periods of satisfactory as well as unsatisfactory service in the determination.
  • Consider the information in M21-1, Part III, Subpart v, 1.B.6 and 7 before making a making a COD determination that involves a former service member with a Vietnam-Era, special upgraded discharge.
Reference:  For more information on determinations of insanity, see
3
Refer the determination to the Veterans Service Center Manager or designee for approval, per instructions in M21-1, Part III, Subpart v, 1.A.1.b.
4
  • Send the former service member a decision notice communicating the outcome of the administrative decision in accordance with M21-1, Part III, Subpart v, 1.B.1.i
  • prepare a record-purpose award to clear any pending end product (EP) 290 established to control the COD determination
  • update the corporate record accordingly, as discussed in M21-1, Part III, Subpart v, 1.B.1.k, and
  • refer to the table below to determine how to further process the administrative decision.
If conclusion reached in the administrative decision is that …
Then …
the former service member’s service is honorable for VA purposes
  • accomplish any and all normal development necessary to ready the case for rating disposition
  • refer the case for preparation of a rating decision addressing service connection (SC) for specific conditions, and
  • proceed to the next step.
the former service member’s service
  • is dishonorable for VA purposes, but
  • does not adversely affect his/her eligibility for health care benefits under 38 U.S.C. Chapter 17
  • accomplish any and all development (to include requesting any medical opinions warranted) necessary to ready the case for rating disposition
  • refer the case for preparation of a rating decision addressing SC for treatment purposes for specified conditions, and
  • proceed to the next step.
  • a statutory bar to VA benefits exists based on an offense specified in 38 CFR 3.12(c), or
  • the former service member is eligible for neither disability compensation nor health care benefits under 38 U.S.C. Chapter 17
  • take no further action, and
  • disregard the remaining step in this table.
5 Process the rating decision rendered in response to Step 4, and prepare a corresponding decision notice for the claimant.

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.
Element
Purpose and Description
Reason for the Decision
Explains the reason why a COD determination is necessary.
Note:  Basic eligibility for VA benefits is contingent upon a discharge under conditions other than dishonorable.
Criteria Used to Make the Decision
  • Explains the criteria VA will use to make the decision.
  • Explains and cites the applicable VA regulations.
Reference:  For applicable regulations, see 38 CFR 3.12.
Right of Representation
Informs the claimant of the right to be represented, without charge, by an accredited representative of a recognized Veteran’s service organization.
Explains the following to the claimant:
  • he/she may employ an attorney to assist in prosecuting the claim, and
  • the attorney may appear with the claimant if a personal hearing is requested.
Reference:  For information on powers of attorney, see M21-1, Part I, 3.
Request Placed to Service Department
Explains that VA has asked the Veteran’s service department for STRs and all available active duty personnel records.
Claimant’s Right to Submit Evidence
Explains the claimant’s right to submit any evidence, contention, or argument bearing on the issue.
Claimant’s Right to a Hearing
Explains the claimant’s right to request a personal hearing before a decision is made.
Note:  Inform the claimant that VA will furnish the hearing room, provide hearing officials, and prepare a transcript of the proceedings, but will not pay any other expense connected with the hearing.
60-Day Time Limit
Explains that if the claimant does not reply within 60 days, VA will
  • assume he/she
    • has no additional evidence to submit, and
    • does not desire additional time for presentation of his/her case, and
  • make a decision based on the evidence available.
Reference:  For more information on granting additional time for presentation of a case, seeM21-1, Part I, 2.C.1.d.
Effect of the Decision
Fully explains that an unfavorable decision might preclude entitlement to
  • the benefit claimed, and
  • all other gratuitous VA benefits.
 
References:  For more information about

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

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

The responsibility for making a COD determination rests with the development activity.
 
Notes:
  • 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

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.
If the unfavorable COD decision …
Then …
precludes eligibility to medical treatment under 38 U.S.C. Chapter 17
advise the claimant of the
  • decision’s effect on his/her entitlement to VA benefits, and
  • procedure for asking the service department that declared his/her COD to review it.
allows eligibility to medical treatment under 38 U.S.C. Chapter 17
in addition to the actions outlined in the cell above,
  • enclose VA Form 21-526EZ, and
  • invite the former service member to claim entitlement to SC for treatment purposes for any specific conditions believed to be related to his/her service.
 
Reference:  For more information on the Letter Creator tool, see the Letter Creator User Guide.

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:
  • 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

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
  • 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).
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.
If the administrative decision indicates …
Then identify the column containing service data for the period at issue and enter …
the character of the entire period of service at issue bars the Veteran from receiving anybenefits per 38 CFR 3.12(c)
  • 12C in the CHAR SVC (character ofservice) field, and
  • ADM (administrative decision) in the SEP REAS (separation reason) field.
the character of the entire period of service at issue bars the Veteran from receiving gratuitousbenefits per 38 CFR 3.12(d)
  • 12D in the CHAR SVC field, and
  • ADM in the SEP REAS field.
the entire period of service at issue was other than dishonorablefor VA purposes
  • HVA (honorable for VA purposes) in the CHAR SVC field, and
  • ADM in the SEP REAS field.
the Veteran was
  • discharged under circumstances involving a bar specified in 38 CFR 3.12(c), but
  • eligible for complete separation at an earlier date
  • the date the Veteran was eligible for complete separation in the RAD (released from active duty) field
  • HVA in the CHAR SVC field
  • the beginning and ending dates of the remainder of the Veteran’s period of service in the EOD (entryoduty) and RAD fields, respectively, of the next column of service data
  • 12C in the CHAR SVC field of the next column of service data, and
  • ADM in the SEP REAS field of bothcolumns of service data.
the Veteran was
  • discharged under circumstances involving a bar specified in 38 CFR 3.12(d), but
  • eligible for complete separation at an earlier date
  • the date the Veteran was eligible for complete separation in the RAD field
  • HVA in the CHAR SVC field
  • the beginning and ending dates of the remainder of the Veteran’s period of service in the EOD and RAD fields, respectively, of the nextcolumn of service data
  • 12D in the CHAR SVC field of the next column of service data, and
  • ADM in the SEP REAS field of bothcolumns of service data.
 
Notes:
  • 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.
References:  For more information on

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.
DEPARTMENT OF VETERANS AFFAIRS
[Designation of VA Office]                                                        [File Number]
[Location of VA Office]                           [Former Service Member’s Name]
 
ADMINISTRATIVE DECISION
  
ISSUE [State the issue.]  For example: Statutory Bar Determination, if the reason for discharge is under 38 CFR 3.12(c), or Character of Discharge Determination, if the reason for the discharge is under 38 CFR 3.12(d).
EVIDENCE:  [Use bullets to list all documents and information reviewed in making the decision.  Give specific data about each to distinguish it from other evidence, and identify it using the evidentiary labeling conventions discussed in M21-1, Part III, Subpart iv, 6.C.4.c.]  For example:
  • VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, received September 6, 2015.
  • Response to notice of proposed adverse action, received November 9, 2015.
  • STRs received from the National Personnel Records Center (NPRC) on November 25, 2015, for the period March 2002 to November 2004.
  • Complete active duty personnel records received from NPRC on November 25, 2015, for the period March 2002 to November 2004.
DECISION:  [Clearly and briefly state the decision.  Only the decision need be provided here, no explanation.]  For example:
Your [name of branch of service] service from [EOD date to RAD date] is under [honorable/dishonorable] conditions and [is/is not] a bar to VA benefits under the provisions of [38 CFR 3.12(x)(x)].
You [are/are not] entitled to health care benefits under Chapter 17, Title 38 U.S.C. and 38 CFR 3.360(a) for any disability determined to be service-connected for active service from [EOD date to RAD date].
[Always include, in all decisions, whichever of the statements  below applies.]
  • This discharge was a bad conduct discharge issued by sentence of a general court-martial.
  • This discharge was a bad conduct discharge issued by sentence of a special court-martial.
  • This discharge was not the result of a general or special court-martial’s finding of bad conduct.
REASONS AND BASES [The reasons and bases section must be included on alladministrative decisions, including favorable ones.  Include the regulations used in the determination.  Include passages from the relevant law or regulation(s) that pertain(s) to the issue at hand.  See example text below.]
  
[Include in all decisions.]  According to 38 CFR 3.12(a), if the former service member did not die in service, then pension, compensation, or Dependency and Indemnity Compensation (DIC) is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable (38 U.S.C. 101(2)).
As stated in 38 CFR 3.360(a) and (b), the health care and related benefits authorized by Chapter 17 of Title 38 U.S.C. shall be provided to certain former service members with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty.  With certain exceptions such benefits shall be furnished for any disability incurred or aggravated during period of service terminated by a discharge under other than honorable conditions.  Specifically, they may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 CFR 3.12(c) applies.
[Quote directly from relevant passages of 38 CFR
  • 3.12(c) if/when the discharge potentially poses a statutory bar to benefits
  • 3.12(d) if/when the discharge potentially poses a regulatory bar to benefits, and/or
  • 3.13(c) for conditional discharges.]
[Follow this with a statement of the reasons and bases for the decision, prepared in accordance with the guidelines found in M21-1, Part III, Subpart v, 1.A.3.d.  Note that, by their very nature, most unfavorable COD decisions will not involve any findings favorable to the claimant.]
 
[Always include the following statement.]  Sanity [is/is not] an issue.
[Always sum up the decision.]  For example:
You were sent a notice of proposed adverse action on [date of the notice], to which you[failed to respond/responded on [date of response]].  [If claimant responded, explain why he/she failed to show or did show sufficient reason to set aside any bar to benefits imposed under 38 CFR 3.12.]  You [failed to show/showed] sufficient reason why the bars to benefits imposed under 38 CFR 3.12 should be set aside in your favor.  In the absence of any additional evidence, it is therefore determined that your discharge from the period of service from [dates of service that the decision addresses], was under [honorable/dishonorable]conditions for the purpose of eligibility for VA benefits and is therefore [considered/not considered] a bar to benefits under 38 CFR 3.12(x)(x) [part of 38 CFR 3.12 being used to support the decision].
You [are/are not] eligible for health care benefits only for medical conditions found to be service-connected under the provisions of Chapter 17, Title 38 U.S.C. for this period of service.

2.  Statutory Bars to Benefits


Introduction

This topic contains information on statutory bars to benefits, including

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
  • 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

A statutory bar to benefits exists when the facts indicate a former service member was discharged or dismissed from service by the sentence of a GCM.
 
Note:  The evidence, including that bearing on the facts and circumstances of discharge, must show that the service member was sentenced by GCM, not asummary court-martial or a special court-martial.

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.
If the record …
Then …
shows that the former service member requested the discharge
a bar to benefits exists.
does not show that the former service member requested the discharge
make a specific request to the appropriate service department for this information.
 
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).

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

  • 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).
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 214Certificate 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.
Step Action

1

As with all COD determinations,
  • send the claimant a notice of proposed adverse action, and
  • request all active duty and personnel records via PIES or DPRIS, as appropriate.
Reference:  For more information about preparing a notice of proposed adverse action, see M21-1, Part I, 2.

2

Review the information collected to confirm that it includes the exact dates and nature of the lost time.
Reference:  For more information on UA or AWOL, see 38 CFR 3.12(c)(6).
3
Did the claimant provide reasons for his/her prolonged, unauthorized absence?
  • If yes, proceed to the next step.
  • If no, proceed to Step 6
4
Did the claimant describe circumstances surrounding his/her prolonged, unauthorized absence that are sufficiently compelling to have warranted it, according to the provisions of 38 CFR 3.12(c)(6)(i-iii)?
  • If yes, proceed to the next step.
  • If no, proceed to Step 6.
5
  • Prepare an administrative decision using the template shown in M21-1, Part III, Subpart v, 1.B.1.l.  Identify Statutory Bar Under 38 U.S.C. 5303(a) as the issue of the decision.
  • Disregard the remaining step in this table.

Important:  Identify Character of Discharge as a co-issue if

  • there are no other bars to benefits under 38 CFR 3.12(c), and
  • a discharge review board did not affirm an upgraded discharge under Public Law (PL) 95-126.

6

Prepare an administrative decision using the template shown in M21-1, Part III, Subpart v, 1.B.1.l.
  • Identify the issue as Statutory Bar Under 38 U.S.C. 5303(a)rather than Character of Discharge.
  • Use the following as the conclusion: The discharge for the period [date] to [date] is a bar to VA benefits under the provisions of 38 CFR 3.12(c)(6) and 38 U.S.C. 5303(a).
Important:  Do not make a separate decision concerning COD since38 CFR 3.12(a) is not an issue.
 
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.

3.  Regulatory Bars to Benefits


Introduction

This topic contains information on regulatory bars to benefits, including

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

  • 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

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.

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

A bar to benefits exists when the facts indicate the discharge was for moral turpitude, generally including conviction of a felony.
Office of General Counsel Opinion 6-87 defined moral turpitude as a willful act committed without justification or legal excuse that gravely violates accepted moral standards and would likely cause harm or loss of a person or property.
Moral turpitude does not have to be a felony conviction; it can be a single incident, or a series of events.
Note:  When determining whether an offense is related to moral turpitude, the development activity must
  • 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 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:
  • 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.
Notes:
  • 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.”
References:  For more information on

4.  COD Determinations and Health Care Eligibility


Introduction

This topic contains information on the effect that COD determinations have on health care eligibility, including

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
  • 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).
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
  • 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

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
  • a statutory bar to benefits exists, or
  • the former service member received a BCD.
If … 
Then …
  • a determination is made that the service member was discharged under one of the conditions listed under 38 CFR 3.12 (c), or
  • the service member received a BCD
  • in the conclusion of the administrative decision include the following statement:The individual is not entitled to health care under Chapter 17 of Title 38, U.S.C. for any disabilities incurred in service, and
  • notify the claimant that entitlement to health care is not established.
  • there is no indication the service member was discharged under one of the conditions listed under 38 CFR 3.12 (c), and
  • the service member did not receive a BCD
  • in the conclusion of the administrative decision include the following statement:The individual is entitled to health care under Chapter 17 of Title 38, U.S.C. for any disabilities incurred in service
  • notify the claimant that entitlement to health care is established, and
  • explain that, although conditions surrounding his/her discharge generally preclude payment of VA benefits,
    • he/she is entitled to health care for any disabilities incurred or aggravated during active service, and
    • he/she should apply for health care benefits at the nearest VA medical center.
Note:  A rating decision addressing SC for treatment purposes is required after a claim has been received.
Reference:  For more information on preparingrating decisions for treatment purposes, see M21-1, Part IX, Subpart ii, 2.4.
 
Notes:
  • 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.
References:  For more information about

5.  Conditional Discharges and Uncharacterized Discharges


Introduction

This topic contains information on conditional discharges and uncharacterized separations, including

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

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

DD Form 214 may show that an individual served one continuous period of service.  However, enlistment contracts generally range from three to six years.  It is, therefore, necessary to undertake development for a conditional discharge, if
  • 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.
Example:  Claimant served from February 5, 1969, to May 26, 1972. Though this service was only for three years and approximately four months, the actual periods of enlistment were as follows:
  • 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

Proper development for a possible conditional discharge includes the issuing of requests for all available STRs and personnel records.

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.
If … Then …
development discloses a prior and separate period of honorable service that qualifies the claimant for the benefit he/she is seeking
Note:  A complete and separate period of service is defined as a break in service greater than one day.
Example:  An individual was discharged on September 3, 1975. His next period of service began on September 5, 1975.
adjudicate the claim on that basis, without making a conditional discharge determination.
Note:  In order to establish entitlement to disability compensation, the claimed disability(ies) must have been incurred or aggravated during the honorable period of service.  If they were not, or if it is unclear during which period of service the disabilities were incurred or aggravated, take the actions described in the next row of this table.
development does not disclose a prior and separate period of honorable service that would qualify the claimant for the benefit he/she is seeking
make a COD determination (whichever is appropriate) and document it according to the instructions in M21-1, Part III, Subpart v, 1.B.1.l.
Note:  If a statutory bar to benefits exists, or if the last disharge or release was under dishonorable conditions for VA purposes, discuss the issue of conditional discharge in the administrative decision, giving consideration to whether or not the former service member had faithful and meritorious service through the period of active duty for which he/she was obligated at the time of induction or enlistment.

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

When determining the dates of service for a conditional discharge, it is necessary to know the length of each enlistment contract the claimant signed.  Dates of faithful and meritorious service are calculated by
  • 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

Scenario:
  • 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

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.
Dates Facts Remarks
Entered duty on 12/29/1980
Initial enlistment for four years
Based on the enlistment date, the obligated period of service is considered complete on 12/28/1984.
Obligated period of service would have ended on 12/28/1984
Reenlisted for six years on       04/04/1984
Based on the reenlistment contract, the obligated period of service is considered complete on 12/28/1990.
Note:  The six-year enlistment is added to the completion date determined above (12/28/1984).
Obligated period of service would have ended on 12/28/1990
Reenlisted for six years on       10/31/1988
Based on the reenlistment contract, the obligated period of service is considered complete on 12/28/1996.
Note:  The six-year enlistment is added to the completion date determined above (12/28/1990).

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).
Date of Entry
Period of Obligation
RAD Date for VA Purposes
12/29/1980
four years
12/28/1984
12/29/1984
six years
12/28/1990
12/29/1990
six years
would have been 12/28/1996 but the claimant was given an OTH discharge on 12/23/1991
 
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.

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
  • 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.
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.

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.
Determining the effective date for …
Procedure
a presumptive period.
  • Treat the conditional discharge date as
    • certified by the service department, and
    • authorized by administrative decision as if the Veteran were actually given a complete and honorable separation, and
  • measure all presumptive periods, and any other issue that relates to date of discharge or release, from the conditional discharge date.
payment.
If a conditional discharge is established, apply the provisions of 38 CFR 3.114(a) to determine the effective date.
Note:  The effective date may not be earlier than October 8, 1977, per 38 CFR 3.12(c)(6).
administrative decisions with more than one period of service when one period of service is determined to be a bar to VA benefits.
If …
Then …
the claim is received while the claimant is still on active duty during the period of service subsequently determined to be a bar to VA benefits
the effective date is the day following the period of service determined to be a bar to VA benefits.
the claim is received within one year of discharge from a period of service determined to be a bar to VA benefits, but more than one year after the honorable period of service
the effective date is the date of receipt of the claim.
 
Notes:
  • The claimant cannot have an effective date falling within any period of service, even if that period of service is determined to be a bar to VA benefits and the benefit(s) sought will be awarded under an acceptable period of service, because the claimant is already receiving payment from DoD while on active duty.
  • The claimant is not entitled to VA compensation while he or she is receiving active service pay.
  • The effective date is the date of claim or the date entitlement arose, whichever is later.
 
Reference:  For more information on effective dates, see

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:
  • entry level separation
  • void enlistment or induction, or
  • dropped from the rolls.
Note:  Entry-level separation can include separation reasons such as:
  • 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.
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).

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.
Type of Separation
Action
Entry Level Separation
Consider uncharacterized separations of this type to be under conditions other than dishonorable.
Notes:
  • No administrative decision is required.
  • BIRLS should be updated as necessary to reflect UHC in the CHAR SVC field.
Reference:  For information on the effect of an entry-level separation, based on fraudulent enlistment, on an individual’s status as a Veteran, see VAOPGCPREC 16-1999.
Void Enlistment or Induction
  • Review uncharacterized separations of this type based on the facts and circumstances surrounding separation, with reference to the provisions of 38 CFR 3.14 to determine whether separation was under conditions other than dishonorable.
  • Prepare an administrative decision according to the instructions in M21-1, Part III, Subpart v, 1.B.1.l.
Dropped from the Rolls
  • Review uncharacterized administrative separations of this type based on the facts and circumstances surrounding separation to determine whether separation was under conditions other than dishonorable.
  • Prepare an administrative decisionaccording to the instructions in M21-1, Part III, Subpart v, 1.B.1.l.

6.  Clemency and Upgraded Discharges, and DRB Decisions


Introduction

This topic contains information on clemency and upgraded discharges and DRB decisions, including

Change Date

August 11, 2016

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

All copies of a DD Form 214 granting clemency issued to military absentees underPresidential Proclamation No. 4313 contain the following statement in the Remarks section:  Subject member has agreed to serve _____ months alternate service pursuant to Presidential Proclamation No. 4313.
The VA copy of the DD Form 214 is not provided to the discharged individual and the reason for separation is shown as Separation for the good of the service by reason of a willful and persistent unauthorized absence, pursuant to Presidential Proclamation No. 4313.
The service department also issued a special type of discharge, Clemency Discharge, DD Form 1953, which was a substitute for the previously awarded undesirable discharge.
Note:  These clemency discharges were offered to certain individuals who incurred OTH discharges for unauthorized absence or failed to report for ordered military service between August 4, 1964, and March 28, 1973.

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.

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

Use the table below for descriptions of elements that assist in identifying upgraded discharges.
Type of Upgrade
Element
Description
All
Item 9A on DD Form 214
Shows Discharge.
Item 9F on DD Form 214
Shows Certificate Issued.
Item 13 (Reserve Obligation) on DD Form 214
Shows NA.
Items 21 and 27 on DD Form 214
Shows 30 days or more time lost.
Item 29 on DD Form 214
Contains no signature of person separated.
Issued as a result of the Presidential Proclamation of January 19, 1977
Item 27 on copy 3 (VA copy) of corrected DD Form 214
Contains a statement to the effect that the discharge was upgraded to “under honorable conditions” by the January 19, 1977, extension of Presidential Proclamation 4313 by virtue of being wounded in combat or decorated for valor in Vietnam.
The BIRLS record
Was established or updated to show
  • the type of discharge asHONORABLE, and
  • the separation reason as BEO.
Issued as a result of the DoD Special Discharge Review Program
The VA copy (copy 3) of the corrected DD Form 214
Contains the narrative reason for separation as Upgraded under the DoD Discharge Review Program (Special) and also indicates
  • the date the individual first applied for discharge upgrade
  • the date the discharge was upgraded, and
  • the character of service (discharge) prior to upgrade.
The BIRLS record
Established or updated to show
  • the type of discharge asHONORABLE, and
  • the separation reason as
    • DRO(DischargeReview – prior discharge under conditionsother than honorable) or
    • DRG(DischargeReview—prior discharge under honorable conditions, commonly called “general”).

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

  • 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

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 upgradethe 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.

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
  • 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.
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.

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:
  • If a change in COD results in a grant of entitlement to benefits, apply the provisions of 38 CFR 3.400(g) when assigning an effective date.
  • It might be necessary to make a new COD determination if the character of the corrected discharge is OTH.
Reference:  For more information on adding annotations to electronic documents in VBMS, see the VBMS User Guide.

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

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

  • 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.

7.  Second Reviews of DRB Determinations


Introduction

This topic contains information about second reviews of DRB determinations, including

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
  • 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

The table below shows the narrative commonly found on DD Form 215 based on the outcome of a second review of a DRB determination.
Outcome of Second Review
Decision Narrative on DD Form 215
Navy/Marine Corps favorable second review
Discharge review under PL 95-126 and a determination has been made that characterization of service is warranted by DOD Directive 1332.28.
Navy/Marine Corps unfavorable second review
Discharge review under PL 95-126 and a determination has been made that characterization of service is warranted by DOD SDRP 4 Apr 77.
Army/Air Force favorable second review
Discharge review under PL 95-126 and a determination has been made that a change in characterization of service is warranted by DOD Directive 1332.28.
Army/Air Force unfavorable second review
Discharge review under PL 95-126 and a determination has been made that characterization of service was warranted by DOD SDRP 4 Apr 77.
 
Important:  A copy of DD Form 215 must be of record when a determination as to eligibility for VA benefits is made.

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).

  • 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

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

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.
Step
Action

1

Send the claimant notice of proposed adverse action prior to making an administrative decision.

2

Following receipt of any evidence from the claimant, or after the claimant has had 65 days to respond (whichever is earlier),

  • review the evidence of record
  • prepare an administrative decision, and
  • cite 38 CFR 3.12(h) in the administrative decision as the authority for reexamining a DRB decision.

3

If the former service member’s discharge was issued under conditions that prevent the payment of VA benefits, discuss and resolve in the administrative decision the issues of

References:  For more information on
 
Notes:
  • 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

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:

  • 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.
Important:
  • 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.
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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