Character of Discharge is a court ruling that determines the quality of your military service. It has a direct impact on your eligibility for the benefits offered by the Department of Veterans Affairs (VA). It is not just a reflection of previous behavior but a legal category that affects your eligibility for disability benefits, health services, and funding. This determination is based on federal law, including Title 38 of the Code of Federal Regulations and the U.S. Code, which regulates the process by which the VA examines service records. Significant modifications that took effect in June 2024 introduced new approaches to addressing compelling circumstances, resulting in a notable shift in the assessment of certain discharges. The reforms have increased the possibility for veterans with Other Than Honorable or Bad Conduct discharges to reconsider their cases for benefits. This guide will help you understand how the character of your discharge will affect your eligibility for VA benefits.
Understanding the Difference between Statutory and Regulatory Eligibility
To understand whether you are eligible to receive a benefit, it is essential first to identify the legal difference between the way the military defines your service and the independent definition of that service by the VA. Although your service is the issuer of your DD-214, the VA determines your service to be of the federal legal standard under other than dishonorable conditions. This is one of the criteria established by law that governs eligibility for benefits, and the VA does not adhere to the data on your military discharge form.
To reach this conclusion, the VA has its regulatory framework. The discharge categories of the military are arranged into three major categories, which are:
- Individuals who are automatically entitled to benefits
- Individuals whose discharge is to be considered by an administrative agency
- Individuals whose release is forbidden by law
This difference can be used to explain why the VA may arrive at a different decision than the military regarding your service record.
Honorable Discharge with Full Statutory Entitlement
An Honorable discharge is the highest administrative qualification. It implies that your military service has been up to the required standards, and it provides you with all the statutory benefits of the VA. This discharge does not require any service review character. You automatically qualify, and the VA just has to decide whether your condition, which you claim, is service-connected.
Honorable Discharge veterans are entitled to obtain disability compensation immediately, regardless of the extent of the injury or the date of its occurrence. You are also entitled to the entire VA healthcare system, which includes preventive care, mental health services, surgeries, and specialty treatments.
It is also the sole type of discharge that guarantees access to the Post-9/11 GI Bill, which is strictly limited by law to those veterans whose service was entirely honorable. Any slight diversion, such as receiving a General Discharge, renders one ineligible for this education benefit.
In addition to educational assistance, an Honorable Discharge ensures the right to VA home loan benefits, vocational rehabilitation services, and burial services in a national cemetery. When your DD-214 indicates that you served honorably, your benefits are not at stake, and all that is left is for the VA to connect your disability claim with your military service.
General Discharge Under Honorable Conditions
The second most common type of discharge is a General Discharge Under Honorable Conditions. It represents satisfactory primary service, aside from minor disciplinary or performance concerns. A General Discharge does not block most VA benefits, as many people may think.
In the case of disability compensation and healthcare, the VA considers this discharge nearly equivalent to a discharge under honorable conditions. You are deemed eligible; no special consideration is necessary, and you can be treated and compensated for service-related illnesses.
The most significant restriction concerns education benefits. The Post-9/11 GI Bill does not apply to veterans with a General Discharge, and the VA cannot exercise its discretion in this regard. Although this limitation can be a financial burden for veterans pursuing higher education, it is the primary drawback of this discharge characterization.
Other perks, including VA medical care, home loan guarantees, civil service preference, and burial privileges, are not eliminated. General Discharge veterans have wide access to medical care, meaning that they can obtain treatment for physical injuries or mental illnesses that occur due to service.
Understanding the Regulatory Review of Other Than Honorable (OTH) Discharges
An Other Than Honorable (OTH) discharge is more complicated and misconceived. Although most people believe that an OTH permanently disqualifies a veteran, it is not a statutory bar to benefits. Instead, it initiates a Character of Service Determination, which is an official administrative hearing by the VA.
The VA does this review to assess the circumstances of your discharge to ascertain whether your service is honorable under circumstances other than dishonorable. The VA is based on regulatory standards, which are outlined in Title 38, Code of Federal Regulations, Section 3.12, detailing statutory and regulatory obstacles to benefits.
Some examples of regulatory bars include discharge due to mutiny, spying, certain criminal offenses, or willful and persistent misconduct. The latter is the most common reason why benefits are not granted. But the VA should prove that your misconduct was intentional and habitual. Minor crimes or individual cases do not necessarily disqualify you.
If the VA determines that your service was honorable for VA purposes, you can receive disability compensation and healthcare benefits as a veteran with a General Discharge. This is to allow the VA to judge your service independently rather than merely judging it by the characterization that the military provided to you.
The 2024 Rule Change of Compelling Circumstances
On June 25, 2024, the VA effected major regulatory changes that had a significant effect on veterans with OTH discharges. The new rules formally created an exception for compelling circumstances, which limited the discretion of adjudicators and offered clear protection to veterans whose wrongdoing was the result of extreme suffering.
Under the new rule, the VA would need to determine whether the following factors caused the misconduct:
- Sexual assault
- Military Sexual Trauma (MST)
- Domestic violence
- Combat-related hardship
- Mental illnesses, such as PTSD and TBI
- Other emotional or psychological crises
If you can demonstrate that your misconduct, such as going absent without leave (AWOL), happened when you were in trauma or mentally unstable, the VA needs to consider these circumstances as mitigating factors. The new rule does not focus on the misconduct itself but on the causes of the misconduct, which underscores the totality of the circumstances.
It implies that one bad judgment can no longer be used to tarnish years of good service, particularly when mental illness or trauma was involved. These regulatory changes provide access to benefits that many OTH veterans previously could not access.
Bad Conduct Discharges
A Bad Conduct Discharge (BCD) is a punitive discharge. It is the outcome of a criminal trial in the military court system, commonly referred to as a court-martial. Not every Bad Conduct Discharge, however, has the same legal consequences for VA benefits. To find out whether you are eligible or not, you should find out whether a Special Court-Martial or a General Court-Martial issued your BCD. This procedural fact is what makes the difference in your case.
If a Special Court-Martial caused your Bad Conduct Discharge, the VA considers your claim as one that was caused by an Other Than Honorable discharge. It is not an automatic bar. You have the right to the same Character of Service Determination as outlined above.
The VA will examine the crime that resulted in the court-martial. Even when the offense is not a moral turpitude or does not fit the definition of dishonorable conditions as provided by VA regulations, you can still be determined to be eligible to receive benefits. The same can be said about the compelling circumstances that were mentioned in the case of OTH discharges.
Conversely, a Bad Conduct Discharge that is a consequence of a General Court-Martial establishes a much more stringent obstacle. The most serious offenses are handled by a General Court-Martial, which is equivalent to felonies in the civilian system.
According to 38 U.S.C. 5303(a), a discharge by a General Court-Martial is a statutory benefit bar. This implies that a law has been passed by Congress that prohibits the VA from awarding benefits in such instances. The VA is typically unable to reverse this bar through a standard Character of Service review, as the ban is not imposed by the agency but by federal statute.
Dismissal and Dishonorable Dismissal
The most severe discharge for enlisted personnel is a Dishonourable Discharge, while for commissioned officers it is a Dismissal. These types of discharges always result from a General Court-Martial for serious offenses, which include the following:
- Murder
- Rape
- Desertion
- Sedition
If you receive a Dishonorable Discharge, you are legally barred from receiving VA benefits. This ban is unconditional in nearly all cases. The legislation assumes that your actions were essentially incongruent with the position of a veteran, and thus you lose the right to compensation, health care and burial benefits.
Nevertheless, there exists one thin legal exemption called the insanity exception. This is the sole legal tool that can be used to defeat a statutory bar. According to 38 C.F.R. § 3.12(b), you can receive benefits if you can demonstrate that you were insane when you committed the crime that resulted in your discharge. You should be aware that "insanity" in this context is a legal term, not a medical term.
You should present medical evidence that at the time you committed the crime, you were mentally diseased or defective and could not comprehend what you were doing or what was right and wrong.
You should also demonstrate that your psychological condition prevented you from following the correct course of action. This involves a retrospective medical opinion, typically provided by a forensic psychiatrist or psychologist, who can assess your state of mind at the relevant dates of the misconduct. Although this is a challenging requirement to fulfill, it is the only legal avenue available to a veteran with a Dishonourable Discharge to seek VA benefits.
The Process of Character of Service Determination
The VA does not automatically reject you when you file benefits with a lower-than-General discharge. Instead, they put your claim on hold and issue you a development letter. In this letter, the VA will request that you narrate the events that prompted your discharge. You have the opportunity to share your background, family issues, experiences with bullying, or any unidentified mental health problems.
The VA will also request your Official Military Personnel File (OMPF) to look at your service records. Your statement and medical records will then be compared with the military records by a specific legal team at the VA Regional Office.
They use the rule of compelling circumstances and the regulatory standards to make a decision. Should they determine that your duty was not dishonorable, they will award you honorability under VA. This does not alter your DD-214, but it enables the VA to provide you with disability compensation and treat your medical conditions. It is basically a legal fiction that you are an honorable veteran, as far as benefits are concerned, when your military record has not changed.
The Difference between Discharge Upgrade vs. Character of Service Determination
One of the misconceptions is that a Discharge Upgrade and a VA Character of Service Determination are identical. They are totally different processes. Your military branch manages a Discharge Upgrade either by the Discharge Review Board or the Board of Correction of Military Records. This is done to investigate whether your discharge was unjust or wrong, and in most cases, it takes years.
Your DD-214 is not altered by a VA Character of Service Determination, which is a VA-only affair. It merely ascertains whether or not your service will qualify you to receive VA benefits. This is usually quicker, and you can start receiving pay even when the military declines to upgrade your discharge. This is why you should apply to the VA as soon as possible, rather than waiting for an upgrade to the Army. The VA decision is beneficial in the present, and any subsequent upgrade can open up additional programs, such as the GI Bill.
Building Your Case of Eligibility
To be successful with a less-than-honorable discharge, you have to build solid evidence. The 2024 policies need to be documented to justify your explanation of misconduct. This can involve mental assessments, personal medical history, or even testimonies by relatives and friends on sufferings.
Additionally, you should highlight positive service history awards and company recognition. Commendations and deployments- to demonstrate how an interesting situation, like PTSD, directly contributed to the misconduct. This time-based strategy strengthens your case for eligibility.
Find a Compassionate Disability Claims Attorney Near Me
The VA benefits eligibility regulations can be complicated, particularly when you have a General, Other Than Honorable, or Bad Conduct discharge. Most veterans agree that these discharges are a permanent barrier to disability compensation or healthcare. However, this is no longer true. Under the new 2024 regulatory changes, a veteran who was denied due to willful misconduct can receive the compelling circumstances exception, which permits the VA to consider the trauma, mental health issues, and other adversities that contributed to the conduct resulting in the discharge.
At Leland Law, our disability claims lawyers can help you overcome these legal obstacles and ensure that your service is evaluated fairly and accurately. Your discharge status does not define your worth, and your right to pursue the benefits you earned should never be restricted because of it. Our disability claims attorneys in California are ready to help you determine what you can do and find the assistance you deserve. Contact us today at 866-449-6476 to schedule a consultation and begin the process of claiming your VA benefits.
