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VA Character of Service Determinations: An Alternative to Discharge Review
Some veterans are able to access VA benefits immediately. People with Honorable and General discharges are typically able to access VA benefits without a problem. If you have a different discharge characterization – Other Than Honorable, Undesirable, or Bad Conduct – then it will be harder. But it might be possible.
This guide will show you how.
There is a lot of bad information about this topic. You may have heard from your chain of command, from other veterans, or even from VA employees, that your discharge makes you ineligible for VA benefits. You may have been told that the only way to get eligibility for VA services is to get a discharge upgrade from the military. For most people, this just isn't true.
The truth is that many people with “bad paper” might be able to receive most VA benefits, even without a discharge upgrade. The VA is allowed to grant eligibility to most people in this situation, for all benefits except the GI Bill. This happens if the VA looks at your overall service and decides that it wasn't “under dishonorable conditions.” This is called a Character of Discharge review. This doesn't change your discharge (it won’t change what is written on your DD 214), it just changes how the VA treats you. But most people don’t ever receive a Character of Discharge review because they don't ask the right way.
We typically advise people to apply for a discharge upgrade through the Department of Defense and to ask the VA to do a Character of Discharge review. If successful, either of those will get you eligibility for most VA benefits. And because they are both hard to do, your best bet it to try both. If you want help asking for a discharge upgrade from your service branch, check out our self-help guide on discharge upgrades here: www.stp-sf.org/guides/upgrading-your-military-discharge-and-changing-the-reason-for-your-discharge.
How to get a Character of Discharge review from the VA
The first thing to know is that the VA has probably not done a Character of Discharge decision for you. It doesn't happen automatically. You have to ask for it by applying for a benefit. If you have never applied for a benefit, the VA will assume that you are not eligible.
But if you get a successful Character of Discharge review after applying for one benefit, you will be eligible for other benefits also (healthcare, housing, service connected disability compensation, pension, etc). Your discharge will not stand in the way of you getting VA benefits ever again. (Except the GI Bill. Only people with Honorable discharges are eligible for the GI Bill. If you have a less than Honorable discharge, the only way to get GI Bill eligibility is with a discharge upgrade.)
Here are five steps you can take to maximize your chances of getting a successful Character of Discharge decision.
Step 1: Apply for a benefit
The VA will do a Character of Discharge decision if you apply for a benefit, such as Compensation, Pension, or Home Loan Eligibility. If you have not applied for a benefit, then the VA hasn’t actually reviewed your service to decide if you’re eligible.
Don't be discouraged if a VA hospital eligibility worker told you that you are ineligible. It isn't their decision to make. Apply for one of the benefits below to make sure that the right people evaluate your service. It doesn't matter which one you choose.
- If you have a disability from service, file for Compensation on a VA Form 21-526EZ.
- If you are elderly or disabled, and have low income, file for Pension on a VA Form 21-527EZ.
- If you have no disabilities, but you still want to access VA health care or other benefits, file for a Certificate of Eligibility for a VA Home loan using VA Form 26-1880. You don't have to actually apply for a home loan. Filing this form only acknowledges your ability to obtain a VA home loan. It will trigger the VA to do a Character of Discharge review first.
Do one of the 3 options listed above even if you are really only interested in VA health care, VA housing assistance, or other VA benefits. If you are successful, you will be eligible for those benefits as well.
Step 2: Write a letter explaining why you should be eligible
The VA will see your military record, but that only tells one side of the story, and often only the worst side. When you file for a benefit, attach a letter telling your side of the story.
Here are some things that you should talk about in your letter, if they apply to you:
- Did you have a mental health condition, such as PTSD or TBI, that was starting to affect you while in service?
- Were you experiencing personal problems at that time, such as family problems, or harassment in service?
- Were the conditions of your service stressful in the period leading up to your discharge?
- Did you have commendations for good service before the problems started? How long was your good service before you started having troubles?
Other people can also send in letters to help tell the story of what happened before you were discharged. Are you in touch with any friends from service, or with people in your chain of command, or with family members who knew what was going on at the time? You can ask them to also write letters explaining what was going on at the time.
Step 3: Speak the VA’s language
The rules on Character of Discharge are complicated. But for most people, it’s going to be decided based on just a few questions.
For most people, the VA will say that you are not eligible if there was “willful and persistent misconduct” in service. But the VA will say that you are eligible if any discipline problems were “minor,” if your service was “otherwise honest, faithful, and meritorious,” or if you had a mental health problem that made you act very differently than you normally would, which the VA calls “insanity.”
Here are some things you might want to say in your letter, if it applies to you:
- “My misconduct was not willful.” Were you experiencing a mental health crisis at the time, so that you weren’t really acting deliberately?
- “My misconduct was not persistent.” Were there just one or two misconduct citations? Did they all happen in a short period of time? If you had an AWOL, was it for less than 30 days?
- “My misconduct was minor.” Was the misconduct a small discipline problem, or an off-duty behavior problem that didn’t interfere with your duties?
- “My service was otherwise honest, faithful and meritorious.” Did you have good performance evaluations? Did you receive decorations, or were you deployed in hardship conditions? Can someone in your leadership write a letter about your good service?
- “My mental health at the time met the VA’s definition of “insanity.” If you had a mental health problem at that time, and if it was causing you to act very differently than you normally would, then the VA is not supposed to hold that against you. The VA calls this “insanity”, and you would need to use that word, even though you don’t really need to be insane the way that people usually think of it. Here’s an example: “I was experiencing the first symptoms of PTSD, and it was really affecting my behavior. This was not how I would normally behave. I think that my situation at that time meets the VA’s definition of insanity.” If you were discharged by General Court-Martial, this will be the only way that you can get VA eligibility. It will be very helpful to have letters from family or friends saying how much your behavior had changed.
These are not magic words. They do not guarantee success. But including some of these statements might help the VA employee see how your story fits into the rules that they are supposed to use. The most important thing is to tell your whole story, and to get other people to help tell your story.
Step 4: Request a hearing
When you file your benefits claim, also send in a VA Form 21-4138 with this statement: “I request a hearing on the issue of my Character of Discharge.”
If you do this, the VA will invite you in to talk with the person who will decide your eligibility. You will be able to tell them exactly what happened, and the VA employee will be able to ask you questions about your experience. You will also be able to bring other people with you, like friends or family members. This can make a big difference, because it helps the VA see you as a person and better understand what happened to you.
Step 5: Wait
Unfortunately, the VA can take a long time to make these decisions. But it’s worth the wait. If the VA decides in your favor for one benefit, it opens the door for the other benefits also. You won’t have to deal with that again.
Some special situations
Here is some information about special situations that might apply to you.
Re-enlistment and Multiple Periods of Service
For most VA benefits, you only need one “good” period of service. If you have multiple periods of service, or if you reenlisted, then you can get most VA benefits if you completed the period of time that you initially contracted for without any discipline problems. We have a separate guide that talks about this in more detail. If you had multiple periods of service, or if you re-enlisted or extended an enlistment, see our self-help guide on multiple enlistments here: http://www.swords-to-plowshares.org/2012/09/27/back-to-back-and-conditional-discharges.
The GI Bill
The GI Bill has special eligibility requirements. For the GI Bill, your DD-214 has to actually say “Honorable.” A General discharge isn’t enough, and unlike all other VA benefits, you cannot become eligible for the GI Bill through a successful Character of Discharge decision. If you have a less than Honorable discharge, the only way to get GI Bill eligibility is to get a discharge upgrade from your service department. Check out our self-help guide on discharge upgrades here: www.stp-sf.org/guides/upgrading-your-military-discharge-and-changing-the-reason-for-your-discharge.
Reserve and National Guard discharges
The VA is generally only concerned with periods of active, federal service. If you were mobilized to federal service and received an Honorable discharge, then you should get VA benefits based on that period of service. If you received a discharge from the Reserves or the National Guard later on that is less than Honorable, that does not take away the eligibility you earned during your active, federal service. In order to get benefits based on your active, federal service you can just apply for the benefits as usual. You don't need to request a Character of Discharge review.
Benefits you can get anyway
There are some services that the VA provides to people even if they never requested a Character of Discharge review, or if the Character of Discharge decision was negative.
- Therapy for people who served in a combat theater or who experienced sexual assault. These services are available at VA Vet Centers. To locate a Vet Center near you, visit http://www.va.gov/directory/guide/vetcenter_flsh.asp.
- Medical care related to sexual assault. Ask to speak with the “MST Coordinator” at your local VA hospital.
- Housing services. Homeless shelter services under the Grant Per Diem program, and rental support under the Supportive Services for Veterans and Families programs, are available to people who served in the military unless they received a fully “Dishonorable” discharge. (This may be subject to change).
Less than 2 years of service
If you enlisted after September, 1981, then you can only get VA benefits if you served a certain minimum amount of time. Usually this is 2 years. Some people who were discharged early for misconduct served less than 2 years. Those people might not get VA benefits even if they have a successful Character of Discharge decision.
However, there is an exception to this rule. If you served less than 2 years, you will be eligible for services anyway if you have a service-connected disability. So if you have a misconduct discharge with less than two years of service, you have two hurdles: you have to have a successful Character of Discharge review, and then you have to have a service-connected disability. You should follow the steps above by applying for Compensation for your disability. If the VA decides that your service was eligible, and that your disability is service-connected, then you will be eligible for all VA benefits except the GI Bill.
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 October 2015.
© Copyright Swords to Plowshares 2015. 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.