Dishonorable Discharge VA Benefits

Dishonorable Discharge VA Benefits

The character of discharge plays a large role in a Veterans eligibility for disability benefits. A Veteran is prohibited from receiving VA compensation and benefits if he or she has a military discharge under dishonorable conditions. However, there are exceptions to this rule. In this article, we will give an overview of how a Veteran can qualify for dishonorable discharge VA benefits.

Types of Dishonorable Discharge

There are two main types of “dishonorable condition” discharges:

  1. Statutory rules created by Congress
  2. Regulatory rules created by the VA

Generally speaking, the statutory bar to compensation also prohibits access to VA health care, while regulatory bar does not. Thus, a Veteran may be barred from receiving compensation benefits but not VA health care.

Statutorily defined dishonorable conditions include:

  • A dishonorable discharge or dismissal as an officer
  • Discharge as a conscientious objector who refused to perform military duties, wear the uniform, or comply with lawful orders
  • Discharge or dismissal as a result of a general court-martial
  • An officer resigning for the good of the service
  • Desertion
  • Discharge as an alien during a time of hostility
  • Discharge as a result of being absent without leave (AWOL) for at least 180 continuous days

Regulatorily defined dishonorable conditions include:

  • A VA determination that the discharge was accepted in order to escape a trial by general court-martial
  • Mutiny or spying
  • An offense involving moral turpitude; willful and persistent misconduct
  • Homosexual acts involving aggravating circumstances or affecting the performance of duty
    • There has been no case law addressing this regulation since the “don’t ask, don’t tell” prohibition was lifted in 2011

Exceptions to Dishonorable Discharge VA Benefits

The strongest exception regarding benefits is when the Veteran has more than one period of duty. For example, if the Veteran has a good period of service for VA compensation purposes and a bad period of service, then any disabilities that arose during the good period of service are eligible for compensation.

As for exceptions to the “willful misconduct” and “moral turpitude” regulation, minor offenses are not considered willful misconduct if the Veteran’s service was otherwise honest, faithful, and meritorious.  Mere technical violation of police regulation or ordinances does not constitute willful misconduct. Also, VA regulations state that moral turpitude “generally” includes a felony conviction. If the Veteran’s service is generally good, with no felony convictions, he or she may be entitled to benefits. Therefore, a Veteran may still be eligible for VA benefits.

Entry level separation administrative discharges does not prohibit a Veteran from receiving benefits. However, a voided enlistment or induction may be a bar to benefits. An exception to this is termination of active duty service solely on a person’s misrepresentation of their age.

Insanity as an Exception

Insanity is another exception to VA rules and regulations. If the VA establishes that the Veteran was insane at the time of the offense leading to the discharge, then the Veteran is not barred from benefits.  The insanity does not have to be a cause of the misconduct. It is worth noting that the VA’s definition of insanity is broader than what is used in the criminal defense context.

Absent Without Leave

A Veteran may also be barred from benefits if the cause of the disability arose when the Veteran was AWOL. However, it is not enough for the VA to bar benefits just because a Veteran was AWOL. The VA also must decide as to whether the Veteran’s absence materially interfered with the performance of military duties. If the VA denies dishonorable discharge VA benefits without making this determination, the decision is likely incorrect. This gives the Veteran an opportunity to appeal the VA’s decision. Evidence showing that absence may not have interfered with military duties include:

  • No evidence of pay being docketed
  • An honorable discharge
  • An award of the Good Conduct Medal covering the period of absence
  • Subsequent awards or decorations showing good service

However, periods of AWOL that exceed 180 continuous days, absent compelling circumstances to warrant the prolonged unauthorized absence, will result in your benefits being denied.

Court-Martial Forgiveness

As for discharges accepted in exchange for the military’s promise not to try the Veteran in a court-martial, the bar only applies if the trial was a general court-martial. The law does not say that threat with a trial by special court-martial would inhibit the Veteran from receiving benefits. If the record is not clear as to whether the court-martial would be general or special, the Veteran may be able to argue that the benefit of the doubt is in his favor.

Presidential Pardon

A presidential pardon for a court-martial conviction allows the VA to consider the conduct that led to the conviction when determining eligibility for dishonorable discharge VA benefits.

Military Sexual Trauma

If the veteran is a victim of military sexual trauma (MST), the VA must provide free care for all physical and mental conditions related to the trauma. This entitlement to free care should apply regardless of the characterization of the Veteran’s service.

Berry Law

The attorneys at Berry Law Firm are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

This material is for informational purposes only. It does not create an attorney-client relationship between the Firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this blog are not a substitute for legal counsel.

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