You left the military with “bad paper”—a discharge that was less than fully Honorable. Your discharge hasn’t been upgraded. Can you still get VA benefits?
The answer is maybe.
To learn what your chances are, read this memorandum. (If you stayed in the military beyond your original ETS date, you should also read our memorandum on back-to-back and conditional discharges. You’ll find it at www.stp-sf.org/guides/b2b.)
If your discharge was General (Under Honorable Conditions), you’re eligible for most VA benefits. You’re not eligible for education benefits under the G.I. Bill, because they require a fully Honorable discharge. However, you may be able to get limited educational benefits through VA vocational rehabilitation.
In that case, you probably can ask the VA for a Character of Service Determination, or CSD. If the VA rules in your favor, you’ll still have “bad paper”—but you’ll be eligible for most VA benefits, including disability compensation, pension, and health care.
A CSD is an alternative to a discharge upgrade. Discharge upgrade applications go to a Board—a panel of military or civilian officials—that is not part of the VA. The applications often take years to be processed, and the success rate is relatively low. (For more information about discharge upgrades, visit www.stp-sf.org/guides/discharge.)
CSD requests go to the VA. They’re usually processed more quickly than discharge upgrade applications, and favorable CSD rulings are more common than successful discharge upgrade applications.
But not everyone is eligible for a CSD. In some cases, the VA can’t even consider the request. For example, spies and mutineers aren’t eligible for a CSD. Among the others ineligible are:
1. Veterans who receive a Bad Conduct or Dishonorable discharge following a conviction at a General Court-Martial.
3. Veterans discharged for an offense involving moral turpitude. This includes, generally, conviction of a felony.
4. Veterans discharged for willful and persistent misconduct. (“Willful and persistent misconduct” can be a slippery term. If you’re in this category, check with a Veterans Service Organization (VSO). For a list of VSO’s, visit www.stp-sf.org/guides/vsos.)
5. Veterans discharged for “homosexual acts involving aggravating circumstances,” such as “homosexual acts or conduct accompanied by assault or coercion.”
In some other cases, the VA has more leeway. For example, let’s say you received an Other Than Honorable discharge after being AWOL continuously for at least 180 days. By regulation, you’re ineligible for VA benefits—unless the VA finds there were “compelling circumstances to warrant the prolonged unauthorized absence.”
How does the VA decide whether there are “compelling circumstances”? It looks at what was happening at the time you went AWOL. Was there a family emergency? Were you suffering from combat wounds?
It also looks at how well—and for how long—you did your job while you weren’t AWOL. If you had two years of honorable service before you went AWOL, you’re in a better position than if you had only six months of service.
The VA will also take into account your “age, cultural background, educational level and judgmental maturity.” For example, the VA might expect more from a 35-year-old than from an 18-year-old.
When you ask the VA to make a CSD, you’re asking it to consider the complete history of your military service, weighing the pros and cons. The VA needs to decide whether it’s fair to deny benefits, based upon all the facts of your case.
Here’s an example: Say you joined the Army in 1970. You were eager to serve your country. You didn’t wait to be drafted—you enlisted. In Basic Training, you were a Platoon Leader. You completed Advanced Individual Training near the top of your class, and deployed to Vietnam immediately.
Your tour in Vietnam was about to end, and you foolishly decided to take a chance. You packed a stash of marijuana in your duffel bag. When you landed stateside, expecting to go home on leave, your baggage was searched. Three months later, you left the Army with an Undesirable discharge.
In such a case, the VA would weigh your years of creditable service against the discreditable act that led to your discharge, and might well decide to make a favorable CSD.
The simplest way to trigger a CSD is to apply for VA disability compensation or pension. The VA will respond to your application with a letter telling you what information you should submit in support of your request for a favorable CSD.
To respond to the letter, you’ll almost certainly need a copy of your Official Military Personnel File (OMPF). You may also need a court-martial transcript or military investigative records. (For more information about ordering all of these materials, visit www.stp-sf.org/guides/records and www.stp-sf.org/guides/transcripts.) Letters or affidavits from members of your former military unit could also be helpful.
We’ve attached a copy of 38 CFR § 3.12, the regulation governing CSD’s. It’s written in dense legalsese, but you may want to review it before you apply.
There’s a special rule concerning VA health care for veterans with “Other Than Honorable” discharges. In some cases, they can receive VA treatment for conditions that began or became permanently worse during their military service. For additional information visit www.va.gov/healthbenefits/assets/documents/publications/FS16-8.pdf.
This memorandum provides general information only. It does not constitute legal advice, nor does it substitute for the advice of an expert representative or attorney who knows the particulars of your case. Any use you make of the information in this memorandum is at your own risk. We have made every effort to provide reliable, up-to-date information, but we do not guarantee its accuracy. The information in this memorandum is current as of December 2012.
© Copyright Swords to Plowshares 2012. These materials are the property of Swords to Plowshares and are made available at no charge. For parties interested in using or distributing these materials, please note that no alterations are permitted and proper attribution must be given to Swords to Plowshares.
Because our legal staff is small and our resources are limited, Swords to Plowshares can represent only a small number of veterans who seek our assistance with VA claims. Please do not appoint Swords to Plowshares to represent you before the VA without our express consent.