The Department of Veterans Affairs (VA) has created new rules for Veterans with a character of discharge (COD) determination of Other Than Honorable (OTH) conditions. character of discharge determinations and their impact on benefit eligibility. Having an Other Than Honorable discharge determination or an Absent Without Leave (AWOL) related discharge may no longer stop Service Members from eligibility.
The VA recently published its Final Rule on proposed amendments to the eligibility of Service Members based on their COD. The rules were in the making since July 10, 2020.
Expanded Eligibility
One major highlight includes expanding eligibility to Service Members who were discharged with a COD determination of OTH if the Service Member’s reason for discharge was due to prolonged AWOL, an offense involving moral turpitude (generally, a felony conviction), or Willful and Persistent Misconduct, if the Service Member can meet the criteria of the “compelling circumstances exception”. The exception considers:
- length of service exclusive of the AWOL or misconduct; and
- reasons for the AWOL or misconduct, including:
- mental or cognitive impairments (e.g. PTSD, Depression, Bipolar Disorder, Substance Abuse Disorder);
- physical health, including physical trauma and side effects of medication used to treat the injury;
- combat-related or overseas hardships;
- sexual abuse or sexual assault;
- duress, coercion, or desperation;
- family obligations or similar obligations to others; and
- age, education, cultural background, and judgment maturity.
The application process appears to now see Service Member applicants as individuals with unique situations. This will likely decrease the red-tape rejections caused by a failure in considering the totality of the circumstances of a Veteran’s COD.
What it Means for Veterans
There may now be opportunities for otherwise ineligible Veterans previously barred from receiving VA benefits to receive those benefits. The new COD amendments expedite the application process for Service Members to receive benefits. This specifically applies to Veterans who would have been ineligible due to their COD being OTH, by avoiding the need to file an appeal to upgrade a Service Member’s COD before applying for benefits.
These changes are effective June 25, 2024, and apply to all applications for VA benefits received by the VA on the effective date and to any pending applications previously under review by the VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit.
If you are interested in speaking to an attorney about Veteran’s Benefits, contact us to schedule a consultation.