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.
There are two main types of “dishonorable condition” discharges:
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:
Regulatorily defined dishonorable conditions include:
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 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.
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:
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.
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.
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.
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.
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