Department of Veterans Affairs M21-1, Part III, Subpart v Veterans Benefits Administration November 30, 2017 Washington, DC 20420 Key Changes Changes Included in This Revision The table below describes the changes included in this revision of Veterans Benefits Manual M21-1, Part III, “General Claims Process,” Subpart v, “General Authorization Issues and Claimant Notification.” Notes: M21-1, Part III, Subpart v, Chapter 1, Section A, Topic 4 (III.v.1.A.4) was relocated and incorporated into III.v.1.B.1. Blocks relocated to Topic 1 are not highlighted or shown as a tracked change. However, any edits to the relocated blocks are shown using tracked changes. The term “regional office” (RO) also includes pension management center (PMC) and Appeals Resource Center (ARC), where appropriate. Unless otherwise noted, the term “claims folder” refers to the official, numbered, Department of Veterans Affairs (VA) repository – whether paper or electronic – for all documentation relating to claims that a Veteran and/or his/her survivors file with VA. Instances of the phrases “development activity” and “authorization activity” have been replaced with the more inclusive term “claims processor(s).” Minor editorial changes have also been made to - improve clarity and readability - add references - update incorrect or obsolete references - reassign alphabetical designations to individual blocks, where necessary, to account for new and/or deleted blocks within a topic - update the labels of individual blocks and the titles of topics to more accurately reflect their
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Department of Veterans Affairs M21-1, Part III, Subpart vVeterans Benefits Administration November 30, 2017 Washington, DC 20420
Key Changes
Changes Included in This Revision
The table below describes the changes included in this revision of Veterans Benefits Manual M21-1, Part III, “General Claims Process,” Subpart v, “General Authorization Issues and Claimant Notification.”
Notes: M21-1, Part III, Subpart v, Chapter 1, Section A, Topic 4 (III.v.1.A.4) was
relocated and incorporated into III.v.1.B.1. Blocks relocated to Topic 1 are not highlighted or shown as a tracked change. However, any edits to the relocated blocks are shown using tracked changes.
The term “regional office” (RO) also includes pension management center (PMC) and Appeals Resource Center (ARC), where appropriate.
Unless otherwise noted, the term “claims folder” refers to the official, numbered, Department of Veterans Affairs (VA) repository – whether paper or electronic – for all documentation relating to claims that a Veteran and/or his/her survivors file with VA.
Instances of the phrases “development activity” and “authorization activity” have been replaced with the more inclusive term “claims processor(s).”
Minor editorial changes have also been made to- improve clarity and readability- add references- update incorrect or obsolete references- reassign alphabetical designations to individual blocks, where necessary,
to account for new and/or deleted blocks within a topic- update the labels of individual blocks and the titles of topics to more
accurately reflect their content, and- bring the document into conformance with M21-1 standards.
Reasons for Notable Change CitationTo revise the overview of the character of discharge (COD)/statutory bar determination process in order to
emphasize that separate procedural provisions should be used in processing Veterans Health Administration-initiated eligibility determination requests involving COD, and
more clearly define the expectation for authorization and rating action once a COD determination has been completed.
M21-1, Part III, Subpart v, Chapter 1, Section B, Topic 1, Block e (III.v.1.B.1.e)
To add a new Block f containing guidance relocated from old III.v.1.A.4.a on the requirement for advance notice.
To eliminate the- requirement to solicit a completed application for benefits at the
time of the advance notice’s issuance, and- example used to demonstrate that principle.
III.v.1.B.1.f
To delete old III.v.1.B.1.h and consolidate guidance on development for records containing the facts and circumstances surrounding discharge with information on the responsibility for evidence collection.
III.v.1.B.1.g
To clarify that a rating decision addressing the issue of service connection (SC) for treatment purposes is not warranted unless the former service member has submitted a claim for compensation benefits.
To replace the table outlining COD responsibilities by segmented lane with a cross-reference to equivalent content in III.i.1.3.a.
III.v.1.B.1.h
To add a new Block i containing guidance relocated from old III.v.1.A.4.b on notifying a claimant of an administrative decision’s outcome.
To specify that a former service member deemed eligible to medical treatment under 38 U.S.C. Chapter 17 be forwarded a claim application and invited to claim entitlement to SC for treatment purposes.
III.v.1.B.1.i
To add a new Block j containing guidance relocated from old III.v.1.A.4.c on notifying VA and non-VA entities of a decision.
III.v.1.B.1.j
To add a new Block k containing guidance previously found in old III.v.1.A.4.d and e on updating the corporate record after making an administrative decision.
To eliminate the use of the DVA service indicator in the Beneficiary Identification and Records Locator Subsystem.
III.v.1.B.1.k
Reasons for Change CitationTo modify the COD administrative decision template so as to replace instances of the word “sexual” with “homosexual” in the interest of keeping with associated regulatory language.
III.v.1.B.1.l
To clarify that statutory bars to VA benefits brought about by sentencing of a general court-martial include both discharges and dismissals.
III.v.1.B.2.b
Rescissions None
Authority By Direction of the Under Secretary for Benefits
Signature
Beth Murphy, DirectorCompensation Service
Distribution LOCAL REPRODUCTION AUTHORIZED
Section B. Statutory Bars to Benefits and Character of Discharge (COD)
Overview
In This Section This section contains the following topics:
Topic Topic Name1 General Information About the RelevanceDeterminations of
the Character of a Former Service Member’s Discharge2 Statutory Bars to Benefits3 Regulatory Bars to Benefits4 COD/Statutory Bar Determinations and Health Care Eligibility5 Conditional Discharges and Uncharacterized Discharges6 Clemency and Upgraded Discharges and Discharge Review
Board (DRB) Decisions7 Second Reviews of DRB Determinations
1. General Information About the RelevanceDeterminations of the Character of a Former Service Member’s Discharge
Introduction This topic contains general information about the relevance of the character of a former service member’s discharge, including
thresholds for benefit eligibility when the Department of Defense’s (DoD) characterization of service is
binding on VA when a COD determination is necessary when a COD/statutory bar determination is not necessary overview of the COD determination process requirement for advance notice responsibility for collecting evidence, including records containing facts and
circumstances surrounding discharge responsibility for making COD/statutory bar determinations notifying claimants after making a decision notifying VA and non-VA entities of a decision updating the corporate record after making a decision, and overview of the COD/statutory bar determination process requesting records containing the facts and circumstances surrounding a
former service member’s discharge, and COD/statutory bar determination template.
Change Date July 31, 2017November 30, 2017
a. Thresholds for Benefit Eligibility
A former service member’s character of discharge (COD) must be under other-than-dishonorable conditions to establish eligibility for Department of Veterans Affairs (VA) benefits based on that individual’s military service.
A dishonorable discharge – or a discharge under conditions for which a statutory bar to benefits exists – for a given period of service renders a claimant ineligible for all VA benefits for any claim based on that period of service.
Exception: A dishonorable discharge or statutory bar is not binding on VA if it is determined that the individual was insane when committing the acts that resulted in the discharge.
Note: A discharge under other-than-honorable (OTH) conditions is not the same as a dishonorable discharge, and does not necessarily render a claimant ineligible for VA benefits.
References: For more information on how a former service member’s COD affects his/her (or his/her survivors’)
eligibility for VA benefits, see
- 38 CFR 3.12 , and- 38 CFR 3.13
determinations of insanity, see- M21-1, Part III, Subpart v, 1.E, and- 38 CFR 3.354 (b)
statutory bars to benefits, see M21-1, Part III, Subpart v, 1.B.2 regulatory bars to benefits, see M21-1, Part III, Subpart v, 1.B.3, and how VA determines Veteran status, see- 38 CFR 3.1(d) , or- 38 U.S.C. 101(2) .
b. When DoD’s Characterization of Service is Binding on VA
An individual is entitled to full rights and benefits of programs administered by VA unless there is a bar to benefits under 38 U.S.C. 5303(a). Normally, the Department of Defense’s (DoD’s) characterization of service is binding on VA if the discharge is
honorable under honorable conditions (UHC), or general.
Note: Any character of service listed above is binding on VA, irrespective of the separation reason, unless the separation reason is one listed as a bar to benefits under 38 U.S.C. 5303(a).
Examples: If the separation reason is drug use, but the character of service is UHC,
DoD’s characterization of service is still binding on VA; a COD determination is not necessary under these circumstances.
If the characterization of service is UHC but the separation reason is a conscientious objector who refused to perform military duties, wear the uniform, or otherwise comply with lawful orders of competent military authorities, a formal determination as to whether the separation reason poses a bar to benefits under 38 U.S.C. 5303(a) is necessary.
Exception: Records added to the Beneficiary Identification Records Locator Subsystem (BIRLS) from the Veterans Assistance Discharge System (VADS) after October 16, 1975, include the reason for separation. Development for the facts and circumstances surrounding discharge is required, even if there is indication that COD was honorable or general, if the reason code shown in the corporate record is T38 (possible Title 38 bar to VA benefits) 953 (clemency discharge) BEO (by executive order), or DRO (discharge review—prior discharge under conditions other than
honorable).
References: For more information about COD/statutory bar determinations, see M21-1, Part III, Subpart v, 1.B.1.il,
and handling cases involving conscientious objectors that were discharged under
honorable conditions, see VAOPGCPREC 11-1993.
c. When a COD Determination Is Necessary
A COD determination is required if a service member received
an undesirable discharge an OTH discharge, or a bad conduct discharge (BCD).
Important: Before making a COD determination, review the instructions for determining Veteran status in M21-1, Part III, Subpart ii,
6.A.1, and the definition of Veteran in 38 CFR 3.1(d).
Reference: For more information about preparing COD determinations, see M21-1, Part III, Subpart v, 1.B.1.il.
d. When a COD/Statutory Bar Determination Is Not Necessary
It is not necessary to make a COD or statutory bar determination
before a claimant applies for VA benefits and places the matter at issue, or if there is a separate period of honorable service that qualifies the claimant
for the benefits he/she is seeking.
Note: If there is any question regarding which period of multiple periods of service qualify a claimant for the benefits he/she is seeking, complete a COD or statutory bar determination (whichever is applicable) before referring the claim to the rating activity.
ge. Overview of the COD/Statutory Bar Determination Process
Follow the steps in the table below when a COD/statutory bar determination is needed.
Important: Strictly observe the due process provisions listed in 38 CFR 3.103 and M21-
1, Part I, 2. The process outlined below is not intended for use in connection with
Veterans Health Administration (VHA)-initiated eligibility determination requests involving COD. Procedures for handling determinations of that type are instead found in M21-1, Part III, Subpart v, 7.A.7.
Step Action1 If the discharge at issue is not specifically honorable, UHC, or general, or if there
is evidence that the discharge was upgraded, send a request to the service department for all available records, including service treatment records (STRs), personnel records and records of proceedings pertaining to the discharge.
Reference: For more information on Discharge Review Boards (DRBs), see 38 CFR 3.12(f)-(h) .
2 Make a formal determination and document it using the template shown in M21-1, Part III, Subpart v, 1.B.1.il.
Important: Occasionally service departments provide only limited records to VA. Make a
determination using all the evidence in VA’s possession and resolve any reasonable doubt in favor of the claimant.
In any COD/statutory bar determination, there must be, minimally, a finding that the former service member was not insane when he/she committed the act or acts that resulted in DoD’s characterization of his/her service.
If a former service member had more than one period of consecutive service, include information covering the periods of satisfactory as well as unsatisfactory service in the determination.
Consider the information in M21-1, Part III, Subpart v, 1.B.6 and 7 before making a making a COD/statutory bar determination that involves a former service member with a Vietnam-Era, special upgraded discharge.
Reference: For more information on determinations of insanity, see M21-1, Part III, Subpart v, 1.E, and 38 CFR 3.354 (b) .
3 Refer the determination to the Veterans Service Center Manager or designee for approval, per the instructions in M21-1, Part III, Subpart v, 1.A.1.a.
4 Send the former service member a decision notice communicating the outcome of the administrative decision in accordance with M21-1, Part III, Subpart v, 1.B.1.i
prepare a record-purpose award to clear any pending end product (EP) 290 established to control the COD determination
update the corporate record accordingly, as discussed in M21-1, Part III, Subpart v, 1.B.1.k, and
refer to the table below to determine how to further process the administrative decision.
If the COD determination deems the former service member’s service ...
Then ...
honorable for VA purposes accomplish any and all normal development necessary to ready the case for rating disposition
refer the case for preparation of a rating decision addressing service connection (SC) for specific conditions, and
proceed to the next step. dishonorable for VA
purposes, but eligible to health care benefits
under 38 U.S.C. Chapter 17
accomplish any and all development (to include requesting any medical opinions warranted) necessary to ready the case for rating disposition
decision addressing SC for treatment purposes for specified conditions, and
proceed to the next step. due to a statutory bar to VA
benefits under an offense specified in 38 CFR 3.12(c), or
eligible to neither SC compensation benefits nor health care benefits under 38 U.S.C. Chapter 17
take no further action, and disregard the remaining step in this table.
5 Process the rating decision rendered in response to Step 4, and prepare a corresponding decision notice for the claimant.
af. Requirement for Advance Notice
In any situation that requires a COD determination, including dishonorable discharges, provide the claimant with advance notice containing the elements described in the table below.
Important: Do not solicit a completed application for benefits (i.e. VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits) from the former service member when preparing the advance notice described in this block.Solicit a completed application for benefits (typically a VA Form 21-526EZ) ifno current application for benefits is of recordthe rating activity must determine whether the Veteran has disabilities that were incurred during or aggravated by active military service, andnone of the Veteran’s disabilities have been identified (as expressed in the example at the bottom of this block).Do not solicit an application for benefits if the need for a COD determination is based on a referral for a loan guaranty eligibility determination.
Example: Health care the Veterans Health Administration (VHA) provides to Veterans barred from gratuitous benefits under 38 CFR 3.12(d) is limited to disabilities the rating activity determines are service-connected (SC) for treatment purposes. Sometimes, requests VHA sends to ROs for a determination of service connection for treatment purposes do not identify the specific disability(ies) for which the Veteran is seeking health care. In these situations, the Veteran must identify the disability(ies) by completing and submitting an application for benefits.
Reason for the Decision Explains the reason why a COD determination is necessary.
Note: Basic eligibility for VA benefits is contingent upon a discharge under conditions other than dishonorable.
Criteria Used to Make the Decision
Explains the criteria VA will use to make the decision.
Explains and cites the applicable VA regulations.
Reference: For applicable regulations, see 38 CFR 3.12.
Right of Representation Informs the claimant of the right to be represented, without charge, by an accredited representative of a recognized Veteran’s service organization.
Explains the following to the claimant:
he/she may employ an attorney to assist in prosecuting the claim, and
the attorney may appear with the claimant if a personal hearing is requested.
Reference: For information on powers of attorney, see M21-1, Part I, 3.
Request Placed to Service Department
Explains that VA has asked the Veteran’s service department for service treatment records and all available active duty personnel records.
Claimant’s Right to Submit Evidence
Explains the claimant’s right to submit any evidence, contention, or argument bearing on the issue.
Claimant’s Right to a Hearing Explains the claimant’s right to request a personal hearing before a decision is made.
Note: Inform the claimant that VA will furnish the hearing room, provide hearing officials, and prepare a transcript of the proceedings, but will not pay any other expense connected with the hearing.
60-Day Time Limit Explains that if the claimant does not reply within 60 days, VA will
assume he/she- has no additional evidence to submit,
and- does not desire additional time for
presentation of his/her case, and make a decision based on the evidence
available.
Reference: For more information on granting additional time for presentation of a case, see M21-1, Part I, 2.C.1.d.
Effect of the Decision Fully explains that an unfavorable decision might preclude entitlement to
the benefit claimed, and all other gratuitous VA benefits.
References: For more information about the character of a Veteran’s discharge and the effect it has on benefit
entitlement, see M21-1, Part III, Subpart v, 1.B preparing advance notice in- Modern Award Processing - Development (MAP-D), see the MAP-D
User's Guide, or- the Veterans Benefits Management System (VBMS), see the VBMS User
Guide, orand end product (EP) control of requests for COD determinations from VHA,
see M21-1, Part III, Subpart v, 7.A.7.c.
eg. Responsibility for Collecting Evidence, Including Records Containing Facts and Circumstances Surrounding Discharge
The development activity is responsible for collecting all evidence required to make a COD/statutory bar determination. This includes, in all cases, records detailing the facts and circumstances surrounding a former service member’s discharge.
Request records containing the facts and circumstances surrounding a former service member’s discharge using Personnel Information Exchange System (PIES) or Defense Personnel Records Information Retrieval System (DPRIS), as appropriate.
References: For more information about regarding the actions that must be taken before and after the completion of a COD/statutory bar determination, see M21-1, Part III, Subpart v, 1.A.4. submitting a PIES request, see
- M21-1, Part III, Subpart iii, 2.D, and- the PIES User Guide, and
using DPRIS, select the HELP tab on the DPRIS website. (Registration is
fh. Responsibility for Making COD/Statutory Bar Determinations
The responsibility for making a COD/statutory bar determination rests with the development activity in the lane that has responsibility for processing the claim (or request from an external entity) that triggered the need for the determination.
Use the examples provided in the table below as a guide when determining which lane is responsible for making a COD/statutory bar determination.Notes: Claims processor in the Non-Rating Lane are responsible for making COD
determinations based solely on requests from VHA. Upon receipt of a request, regional offices (ROs) are responsible for making
COD/statutory bar determinations for other entities, such as- the U.S. Department of Labor- the U.S. Railroad Retirement Board, and- State agencies.
A rating decision that addresses the issue of SC for treatment purposes under 38 U.S.C. Chapter 17 is necessary in all cases in which- the former service member has submitted a claim for compensation
benefits, and- a regulatory bar to the payment of benefits exists under 38 CFR 3.12(d) ,
and.- the disabilities for which SC for treatment purposes is asserted are known.
References: For more information on segmented, claim-processing lanes and their responsibilities, see M21-1,
Part III, Subpart i, 1.3.a, and handling requests for COD/statutory bar determinations from other Federal
and State agencies, see M21-1, Part III, Subpart iii, 4.
If the determination is needed ...
Then the development activity in the ...
for a former service member claiming service connection (SC) for bilateral hearing loss and tinnitus
Express Lane is responsible for making the determination.
for a former service member claiming SC for bilateral hearing loss, tinnitus, and posttraumatic stress disorder (PTSD)
Core Lane is responsible for making the determination.
for a former service member claiming SC for PTSD based on military sexual trauma
Spec Ops Lane is responsible for making the determination.
based solely on a request for said determination from the Veterans Health Administration (VHA)
Non-Rating Lane is responsible for making the determination.
h. Requesting Records Containing the Facts and Circumstances Surrounding a Former Service Member’s Discharge
It is always necessary to request the facts and circumstances surrounding a former service member’s discharge prior to making a COD/statutory bar determination.
Request records containing the facts and circumstances surrounding a former service member’s discharge using Personnel Information Exchange System (PIES) or Defense Personnel Records Information Retrieval System (DPRIS), as appropriate.
References: For more information about submitting a PIES request, see
- M21-1, Part III, Subpart iii, 2.D, and- the PIES User Guide, and
using DPRIS, select the HELP tab on the DPRIS website. (Registration is required).
bi. Notifying Claimants After Making a Decision
After making an administrative decision, use the Letter Creator tool (or equivalent Personal Computer Generated Letters notice) to promptly provide notice as discussed in M21-1, Part III, Subpart v, 2.B.1.b.
Use the table below to determine what additional information/elements to include in a notice of an unfavorable administrative decision regarding COD.If the decision is unfavorable, also advise the claimant of the
decision’s effect on his/her entitlement to VA benefits, andprocedure for asking the service department that declared his/her (or the Veteran’s) COD to review it.
Note: As the decision is explained in the notification letter, a copy of the administrative decision need not be provided to the claimant.
If the unfavorable COD decision ... Then ...precludes eligibility to medical treatment under 38 U.S.C. Chapter 17
advise the claimant of the
decision’s effect on his/her entitlement to VA benefits, and
procedure for asking the service department that declared his/her COD to review it.
allows eligibility to medical treatment under 38 U.S.C. Chapter 17
in addition to the actions outlined in the cell above,
enclose VA Form 21-526EZ, and invite the former service member
to claim entitlement to SC for treatment purposes for any specific
conditions believed to be related to his/her service.
Note: As the decision is explained in the notification letter, a copy of the administrative decision need not be provided to the claimant.
Reference: For more information on the Letter Creator tool, see the Letter Creator User Guide.
cj. Notifying VA and Non-VA Entities of a Decision
After making a COD determination at the request of a VA or non-VA entity,
notify the entity of the outcome of the determination, and follow the instructions in M21-1, Part III, Subpart v, 1.AB.14.bi.
Important: If a VA medical facility made the request, provide the results of the decision expeditiously, as entitlement to medical treatment may be at issue.
Notes: If a non-VA entity furnishes a form for reply, use it; otherwise, send
notification via a locally generated letter. If a Veteran had multiple periods of service, inform the non-VA entity of
the COD determination for each period of service.
Reference: For more information specific to handling VHA-initiated eligibility determination requests, see M21-1, Part III, Subpart v, 7.A.7.
k. Updating the Corporate Record After Making a Decision
By signing off on an administrative decision regarding the character of a Veteran’s discharge, the signing official implicitly authorizes corresponding updates to the corporate record.
The authorization activity is responsible for updating the corporate record. This is accomplished by making entries in BIRLS.
Unless current entries are accurate, the authorization activity must update the VETERAN IDENTIFICATION DATA (VID) tab on the BIRLS screen to reflect the Veteran’s
period(s) of service whether the Veteran is eligible to receive health care for SC disabilities type(s) of discharge, and separation reason(s).
Follow the instructions in the table below when updating the BIRLS screen’s VID tab to reflect the outcome of an administrative decision regarding the character of a Veteran’s discharge.
health care, see M21-1, Part III, Subpart v, 1.B.4, and updating BIRLS and the corporate record, see the Share User's Guide.
il. COD/Statutory Bar Determination Template
Use the template below to document COD/statutory bar determinations.
The template contains all possible paragraphs and language that may be included in the decision depending on the facts of the particular case.
DEPARTMENT OF VETERANS AFFAIRS[Designation of VA Office] [File Number][Location of VA Office] [Former Service Member’s Name]
ADMINISTRATIVE DECISION
ISSUE: [State the issue.] For example, Statutory Bar Determination, if the reason for discharge is under 38 CFR 3.12(c), or Character of Discharge Determination, if the reason for the discharge is under 38 CFR 3.12(d).
EVIDENCE: [Use bullets to list all documents and information reviewed in making the decision. Give specific data about each to distinguish it from other evidence, and identify it using the evidentiary labeling conventions discussed in M21-1, Part III, Subpart iv, 6.C.4.c.] For example: VA Form 21-526EZ, Application for Disability Compensation and Related
Compensation Benefits, received September 6, 2015. Response to notice of proposed adverse action, received November 9, 2015. STRs received from the National Personnel Records Center (NPRC) on November 25,
2015, for the period March 2002 to November 2004. Complete active duty personnel records received from NPRC on November 25, 2015,
for the period March 2002 to November 2004.
DECISION: [Clearly and briefly state the decision. Only the decision need be provided here, no explanation.] For example:
[Joe/Jane Q. Former Service Member’s] [Name of branch of service] service from [entered on date (EOD) date to release from active duty (RAD) date] is under [honorable/dishonorable] conditions and [is/is not] a bar to VA benefits under the provisions of [38 CFR 3.12(x)(x)].
[Mr./Ms. Former Service Member] [is/is not] entitled to health care benefits under Chapter 17, Title 38 U.S.C. and 38 CFR 3.360(a) for any disability determined to be service-connected for active service from [EOD date to RAD date].
Always include, in all decisions, whichever of the following statements applies: This discharge was a bad conduct discharge issued by sentence of a general court-
martial. This discharge was a bad conduct discharge issued by sentence of a special court-
This discharge was not the result of a general or special court-martial’s finding of bad conduct.
REASONS AND BASES: [The reasons and bases section must be included on all administrative decisions, including favorable ones. Include the regulations used in the determination. Begin by quoting verbatim from the relevant law or regulation(s) that pertain(s) to the issue at hand. See example text below.]
Part of all decisions: According to 38 CFR 3.12(a), if the former service member did not die in service, then pension, compensation, or Dependency and Indemnity Compensation (DIC) is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable (38 U.S.C. 101(2)).
As stated in 38 CFR 3.360(a) and (b), the health care and related benefits authorized by Chapter 17 of Title 38 U.S.C. shall be provided to certain former service members with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty. With certain exceptions such benefits shall be furnished for any disability incurred or aggravated during period of service terminated by a discharge under other than honorable conditions. Specifically, they may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 CFR 3.12(c) applies.
Only include the following in decisions when the discharge is evaluated under 38 CFR 3.12(c):According to 38 CFR 3.12(c), benefits are not payable where the former service member was discharged or released under one of the following conditions:(1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities.(2) By reason of the sentence of a general court-martial.(3) Resignation by an officer for the good of the service.(4) As a deserter.(5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release. See 38 CFR 3.7(b).(6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. This bar applies to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in paragraph (h) of this section, and to any person who prior to October 8, 1977, had not otherwise established basic eligibility to receive Department of Veterans Affairs benefits. The term established basic eligibility to receive Department of Veterans Affairs benefits means either a Department of Veterans Affairs determination that an other than honorable discharge was issued under conditions other than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977, under criteria other than those prescribed by one of the programs listed in paragraph (h) of this section. However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity (paragraph (b) of this section) or a decision of a board of
correction of records established under 10 U.S.C. 1552 can establish basic eligibility to receive Department of Veterans Affairs benefits. The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence.(i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation.(ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began.(iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph the defense must go directly to the substantive issue of absence rather than to procedures, technicalities, or formalities.
Only include the following in decisions when the discharge is evaluated under 38 CFR 3.12(d):A discharge or release from service under one of the conditions specified in this section is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided (38 U.S.C. 5303(b)). (38 CFR 3.12)
A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions.(1) Acceptance of an undesirable discharge to escape trial by general court-martial.(2) Mutiny or spying.(3) An offense involving moral turpitude. This includes, generally, conviction of a felony.(4) Willful and persistent misconduct. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.(5) HomoSsexual acts involving aggravating circumstances or other factors affecting the performance of duty. Examples of homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank,
grade, or status. (38 CFR 3.12)
With certain exceptions such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions. Specifically, they may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars is listed in 38 CFR 3.12(c) applies. (38 CFR 3.360)
Only include the following in decisions when the discharge is a conditional discharge:According to 38 CFR 3.13(c), despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval, or air service when the following conditions are met:(1) The person served in the active military, naval, or air service for the period of time the person was obligated to serve at the time of entry into service;(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and(3) The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.
[Follow this with a statement of the reasons and bases for the decision in clear, simple, easy-to-understand terms. Fully describe the reasoning that led to the decision. Evaluate all the evidence, including sworn oral testimony and certified statements submitted by the claimant, and clearly explain why that evidence is found to be persuasive or not persuasive. In doing so, explicitly address items of evidence and each of the claimant’s statements or allegations. Cite all evidence, both favorable and unfavorable, impartially. Generally, identify and digest pertinent information from the available evidence instead of quoting from it at length. Conclusions must be supported by analysis and explanation of the credibility and value of the evidence on which they are based. Assertion of unsupported conclusions does not comply with statutory requirements. Acknowledge statements or allegations that argue against the decision, and explain why they did not prevail.]
Always include: Sanity [is/is not] an issue.
Always sum up your decision. For example:The claimant was sent a notice of proposed adverse action on [date of the notice], to which [he/she failed to respond to/responded to on [date of response]]. (If claimant responded, explain why he/she failed to show or did show sufficient reason to overrule 38 CFR 3.12.) The claimant [failed to show/showed] sufficient reason why 38 CFR 3.12 should be overruled in [his/her] favor. In the absence of any additional evidence, it is therefore determined that the claimant’s discharge from the period of service from [dates of service that the decision addresses], was under [honorable/dishonorable] conditions for the purpose of eligibility for VA benefits and is therefore [considered/not considered] a bar to benefits under 38 CFR 3.12 [part of 3.12 being used to support the decision].
The claimant [is/is not] eligible for health care benefits only for medical conditions found to be service-connected under the provisions of Chapter 17, Title 38 U.S.C. for this period
of service.
Submitted by (signature): ___________________________ [Date]Printed Name and Title: _______________________________________
Concurred by (signature): ___________________________ [Date]Printed Name and Title: _______________________________________
Approved by (signature): ___________________________ [Date]Printed Name and Title: _______________________________________
2. Statutory Bars to Benefits
Introduction This topic contains information on statutory bars to benefits, including
bars established by 38 CFR 3.12(c) discharges or dismissal by sentence of a general court-martial (GCM) discharges for alienage, and discharges for unauthorized absence (UA) or AWOL.
Change Date August 11, 2016November 30, 2017
a. Bars Established by 38 CFR 3.12(c)
A statutory bar to benefits exists when VA determines a former service member’s discharge or release was under any of the conditions discussed in 38 U.S.C. 5303 and listed in 38 CFR 3.12 (c) . These conditions include
a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful orders of competent military authorities
sentence of a General Court-Martial (GCM) resignation by an officer for the good of the service an alien during a period of hostilities AWOL for continuous period of at least 180 days, and desertion.
b. Discharges or Dismissal by Sentence of a GCM
A statutory bar to benefits exists when the facts indicate a former service member was discharged or dismissed from service by the sentenced byof a GCM.
Note: The evidence, including that bearing on the facts and circumstances of discharge, must show that the service member was sentenced by a GCM, not a summary court-martial or a special court-martial.
c. Discharges for Alienage
If there was a discharge during a period of hostilities that was not changed to honorable prior to January 7, 1957, determine if the records show that the former service member requested the discharge as provided in the table below.
If the record … Then …shows that the former service member requested the discharge
a bar to benefits exists.
does not show that the former service member requested the discharge
make a specific request to the appropriate service department for this information.
Note: The absence of affirmative evidence in the service department’s reply or in the claims folder showing that the former service member requested the release is a sufficient basis for a favorable decision.
Reference: For more information on discharges for alienage, see 38 CFR 3.7(b) .
d. Discharges for UA or AWOL
Follow the steps in the table below to determine the action to take if
a service member received an OTH discharge, and the former service member’s service department confirms there was a
continuous period of 180 or more days of either an unauthorized absence (UA) or AWOL (exclusive of periods of imprisonment or confinement) which led to the OTH discharge).
Note: When determining whether a claimant had a continuous period of 180 or more days of UA or AWOL, do not rely on the number of days reported as “time lost” on DD Form 214, Certificate of Release or Discharge from Active Duty, because there is typically no indication on the form as to whether or not the time lost was continuous.
Step Action1 As with all COD/statutory bar determinations,
send the claimant a notice of proposed adverse action, and request all active duty personnel and medical records via PIES
or DPRIS, as appropriate.
Reference: For more information about preparing a notice of proposed adverse action, see M21-1 Part I, 2.
2 Review the information collected to confirm that it includes the exact dates and nature of the lost time.
Reference: For more information on UA or AWOL, see 38 CFR 3.12(c)(6).
3 Did the claimant provide reasons for his/her prolonged, unauthorized absence?
If yes, proceed to the next step. If no, proceed to Step 6.
4 Did the claimant describe circumstances surrounding his/her prolonged, unauthorized absence that are sufficiently compelling to have warranted it, according to the provisions of 38 CFR 3.12(c)(6)(i-iii)?
If yes, proceed to the next step. If no, proceed to Step 6.
5 Prepare an administrative decision using the template shown in
M21-1, Part III, Subpart v, 1.B.1.il. Identify Statutory Bar Under 38 U.S.C. 5303(a) as the issue of the decision.
Disregard the remaining step in this table.
Important: Identify Character of Discharge as a co-issue if there are no other bars to benefits under 38 CFR 3.12(c), and a discharge review board did not affirm an upgraded discharge
under Public Law (PL) 95-126.6 Prepare an administrative decision using the template shown in
M21-1, Part III, Subpart v, 1.B.1.il.
Identify the issue as Statutory Bar Under 38 U.S.C. 5303(a) rather than Character of Discharge.
Use the following as the conclusion: The discharge for the period [date] to [date] is a bar to VA benefits under the provisions of 38 CFR 3.12(c)(6) and 38 U.S.C. 5303(a).
Important: Do not make a separate decision concerning COD since 38 CFR 3.12(a) is not an issue.
Note: If the claimant is statutorily barred from receiving VA benefits under any of the offenses listed in 38 CFR 3.12(c), a rating decision addressing 38 U.S.C. Chapter 17 eligibility is not necessary.
Reference: For more information on identifying upgraded discharges, see M21-1, Part III, Subpart v, 1.B.6.c.
Introduction This topic contains information on regulatory bars to benefits, including
bars established by 38 CFR 3.12(d), and additional information on- undesirable discharges to escape trial by GCM- discharges for moral turpitude, and- discharges for willful and persistent misconduct.
Change Date March 10, 2016
a. Bars Established by 38 CFR 3.12(d)
A regulatory bar to benefits is established any time VA determines the discharge or release was issued under any of the conditions listed in 38 CFR 3.12 (d). Some examples of discharges under 38 CFR 3.12 (d) include
mutiny or spying, and undesirable discharge to escape trial by GCM.
b. Additional Information on Undesirable Discharges to Escape Trial by GCM
A bar to benefits exists when the facts indicate the service member agreed to accept an undesirable discharge (often seen on the DD Form 214 as OTH), in order to escape trial by GCM.
Note: The evidence must show that the service member accepted the undesirable discharge to escape a GCM, not a summary court-martial or a special court-martial.
Reference: For more information on identifying upgraded discharges, see M21-1, Part III, Subpart v, 1.B.6.c.
c. Additional Information on Discharges for Moral Turpitude
A bar to benefits exists when the facts indicate the discharge was for moral turpitude, generally including conviction of a felony.
Office of General Counsel Opinion 6-87 defined moral turpitude as a willful act committed without justification or legal excuse that gravely violates accepted moral standards and would likely cause harm or loss of a person or property.
Moral turpitude does not have to be a felony conviction; it can be a single incident, or a series of events.
Note: When determining whether an offense is related to moral turpitude, the development activity must apply a liberal standard, and
consider the context and any mitigating circumstances, including whether a service-connected (SC) mental or physical condition caused, aggravated, or resulted in the offense.
d. Additional Information on Discharges for Willful and Persistent Misconduct
A discharge, including those issued under OTH conditions, for behavior constituting willful and persistent misconduct is considered to have been issued under dishonorable conditions and is a bar to benefits.
Exceptions: A minor offense is not considered willful and persistent misconduct if
service was otherwise honest, faithful, and meritorious. Insanity is a defense to willful of misconduct.
Notes: A one-time offense or a technical violation of police regulations or
ordinances does not necessarily constitute willful and persistent misconduct. Multiple offenses are not automatically deemed “persistent.”
References: For more information on willful and persistent misconduct, see 38 CFR 3.12(d)(4), and the effect of a finding of insanity, see
- 38 CFR 3.12(b) - 38 CFR 3.354 (b) - M21-1, Part III, Subpart v, 1.E, and- Struck v. Brown, 9 Vet.App. 145 (1996).
4. COD/Statutory Bar Determinations and Health Care Eligibility
Introduction This topic contains information on the effect that COD/statutory bar determinations have on health care eligibility, including
health care benefits for former service members with certain OTH discharges, and
addressing the issue of health care eligibility when a statutory bar to benefits exists or a former service member received a BCD.
Change Date August 11, 2016
a. Health Care Benefits for Former Service Members With Certain OTH Discharges
Effective October 8, 1977, under PL 95-126, eligibility for health care benefits for any disability incurred or aggravated in the line of duty during active service is extended to any former service member with an OTH discharge, regardless of the date of that discharge. Even service members who are determined to have been discharged under the regulatory bars described in 38 CFR 3.12(d), are eligible for health care.
Eligibility for health care is not extended to
former service members with a BCD, or former service members that were discharged under one of the conditions
listed in 38 CFR 3.12(c).
Consider any claim that requires review of a statutory bar or preparation of a COD determination as a claim for health care benefits.
Notes: A former service member with an OTH discharge based on UA or AWOL is
eligible for health care under 38 CFR 3.360 if VA determines the OTH discharge is honorable for VA purposes (HVA).
A former service member with a BCD is ineligible for health care, even if VA determines his/her service is HVA. This is the only circumstance under which a former service member may be found to have SC disabilities but not be eligible for health care.
References: For more information on health care eligibility for former service members with an OTH discharge,
see 38 CFR 3.360 handling requests from VHA for information required to determine a former
service member’s eligibility for health care, see M21-1, Part III, Subpart v, 7.A.7
the eligibility of former service members for VA benefits, including health
care benefits pursuant to a conditional discharge, when the subsequent discharge was under dishonorable or OTH conditions, or when a statutory bar to benefits exists for the later period of service, see M21-1, Part III, Subpart v, 1.B.5.a, and
the eligibility of former service members for treatment for SC disabilities, see 38 U.S.C. 1710.
b. Addressing the Issue of Health Care Eligibility When a Statutory Bar to Benefits Exists or a Former Service Member Received a BCD
The table below contains instructions for addressing the issue of health care eligibility in the administrative decision shown in M21-1, Part III, Subpart v, 1.B.1.il, when
a statutory bar to benefits exists, or the former service member received a BCD.
If … Then … a determination is made
that the service member was discharged under one of the conditions listed under 38 CFR 3.12(c), or
the service member received a BCD
in the conclusion of the administrative decision include the following statement: The individual is not entitled to health care under Chapter 17 of Title 38, U.S.C. for any disabilities incurred in service, and
notify the claimant that entitlement to health care is not established.
there is no indication the service member was discharged under one of the conditions listed under 38 CFR 3.12(c), and
the service member did not receive a BCD
in the conclusion of the administrative decision include the following statement: The individual is entitled to health care under Chapter 17 of Title 38, U.S.C. for any disabilities incurred in service.
notify the claimant that entitlement to health care is established, and
explain that, although conditions surrounding his/her discharge generally preclude payment of VA benefits,- he/she is entitled to health care for any
disabilities incurred or aggravated during active service, and
- he/she should apply for health care benefits at the nearest VA medical center.
Note: A rating decision addressing SC for treatment purposes is required after a claim has been received.
Reference: For more information on preparing rating decisions for treatment purposes, see M21-1, Part IX, Subpart ii, 2.4.
Notes: If an administrative decision that contains neither of the statements
referenced in the above table is discovered during routine review of a living Veteran’s claims folder, annotate the decision to reflect whether entitlement to VA health care exists.
The annotation referenced in the preceding paragraph is for informational purposes only. It does not represent a new decision, and there is no need to issue notice of proposed adverse action before annotating a decision to reflect that entitlement to VA health care does not exist.
References: For more information about notifying a claimant of the outcome of an administrative decision, see M21-
1, Part III, Subpart v, 1.A.3.c, and adding annotations to electronic documents in the Veterans Benefits
Management System (VBMS), see the VBMS User Guide.
5. Conditional Discharges and Uncharacterized Discharges
Introduction This topic contains information on conditional discharges and uncharacterized separations, including
provisions of 38 U.S.C. 101(18) for reenlistment prior to discharge when to undertake development for a possible conditional discharge proper development for a possible conditional discharge determining whether a conditional discharge determination is necessary determining the dates of service for a conditional discharge examples:- scenario for determining dates of service for a conditional discharge- method for determining dates of service for a conditional discharge- alternative view of the method for determining dates of service for a
conditional discharge sample language for a conditional discharge determination assigning effective dates for claims based on a conditional discharge categories of uncharacterized separations, and instructions for handling cases involving a former service member with an
uncharacterized separation.
Change Date July 31, 2017
a. Provisions of 38 U.S.C. 101(18) for Reenlistment Prior to Discharge
38 U.S.C. 101(18) provides that an individual who enlisted or reenlisted before completion of a period of active service may establish eligibility for VA benefits if he/she satisfactorily completed the period of active service for which he/she was obligated at the time of entry. The satisfactory completion of one contracted period of enlistment while serving on a subsequent contracted period of service under a new enlistment is considered a conditional discharge.
The provisions of 38 U.S.C. 101(18) apply even if
the subsequent discharge was under dishonorable or OTH conditions, or a statutory bar exists for entitlement to benefits for the later period of
service.
Note: VA has the authority to determine the COD for any type of discharge that is not binding on it; therefore, VA has the authority to determine the COD for all periods of service identified in a conditional discharge.
b. When to Undertake Development for a Possible
A DD Form 214 may show that an individual served one continuous period of service. However, enlistment contracts generally range from three to six years. It is, therefore, necessary to undertake development for a conditional discharge, if
Conditional Discharge an individual’s period of service exceeded three years, especially if the
discharge dates do not line up to an exact number of years or months there is any question about how many periods of service an individual
enlisted for, or an individual’s DD Form 214 shows prior active service.
Example: Claimant served from February 5, 1969, to May 26, 1972. Though this service was only for three years and approximately four months, the actual periods of enlistment were as follows: first enlisted on February 5, 1969, for three years discharged November 14, 1970, for immediate reenlistment for three years,
and discharged on July 26, 1971, for immediate reenlistment for three years.
c. Proper Development for a Possible Conditional Discharge
Proper development for a possible conditional discharge includes the issuing of requests for all available STRs and personnel records.
d. Determining Whether a Conditional Discharge Determination Is Necessary
Once development is complete and all available evidence is of record, use the table below to determine whether a conditional discharge determination is necessary.
If … Then …development discloses a prior and separate period of honorable service that qualifies the claimant for the benefit he/she is seeking
Note: A complete and separate period of service is defined as a break in service greater than one day.
Example: An individual was discharged on September 3, 1975. His next period of service began on September 5, 1975.
adjudicate the claim on that basis, without making a conditional discharge determination.
Note: In order to establish entitlement to disability compensation, the claimed disability(ies) must have been incurred or aggravated during the honorable period of service. If they were not, or if it is unclear during which period of service the disabilities were incurred or aggravated, take the actions described in the next row of this table.
development does not disclose a prior and separate period of honorable service that would qualify the claimant for the benefit he/she is seeking
make a COD or statutory bar determination (whichever is appropriate) and document it according to the instructions in M21-1, Part III, Subpart v, 1.B.1.il.
Note: If a statutory bar to benefits exists, or if the last discharge or release was under dishonorable conditions for VA purposes, discuss the issue of conditional discharge in the administrative decision, giving consideration to whether or not the former service member had faithful and meritorious service through the period of active duty for which he/she was obligated at the time of induction or enlistment.
e. Determining the Dates of Service for a Conditional Discharge
When determining the dates of service for a conditional discharge, it is necessary to know the length of each enlistment contract the claimant signed. Dates of faithful and meritorious service are calculated by
adding the full length of the first enlistment contract to the claimant’s entry into service date, thus calculating the date the individual would have completed his first period of obligation and would have been discharged, then
adding the full length of the next enlistment contract to the date determined above, thus calculating the next date that the individual would have completed his period of obligation and would have been discharged, then
continuing to add the full length of each enlistment contract to the date determined above, until no more enlistment contract periods remain.
e. Determining the Dates of Service for a Conditional Dischargef. Example: Scenario for Determining Dates of Service for a Conditional Discharge
Scenario: A claimant has one DD Form 214 showing dates of service as December 29,
1980, to December 23, 1991, nearly 11 years of service. Because enlistment contracts generally range from three to six years, the
development activity recognized the need to determine whether the claimant was eligible for complete separation at some point during his period of service. Accordingly, it undertook the development described in M21-1, Part III, Subpart v, 1.B.5.c.
The evidence, which included enlistment contracts, shows the claimant actually had three periods of service. He- entered active duty on December 29, 1980, for four years- reenlisted for six years on April 4, 1984- reenlisted for another six years on October 31, 1988, and- began a period of 243 days AWOL on February 14, 1991.
g. Example: Method for Determining Dates of Service
The table below shows how dates of service would be determined for the scenario described in M21-1, Part III, Subpart v, 1.B.5.f.
for a Conditional Discharge
Dates Facts RemarksEntered duty on 12/29/1980
Initial enlistment for four years
Based on the enlistment date, the obligated period of service is considered complete on 12/28/1984.
Obligated period of service would have ended on 12/28/1984
Reenlisted for six years on 04/04/1984
Based on the reenlistment contract, the obligated period of service is considered complete on 12/28/1990.
Note: The six-year enlistment is added to the completion date determined above (12/28/1984).
Obligated period of service would have ended on 12/28/1990
Reenlisted for six years on 10/31/1988
Based on the reenlistment contract, the obligated period of service is considered complete on 12/28/1996.
Note: The six-year enlistment is added to the completion date determined above (12/28/1990).
h. Example: Alternative View of the Method for Determining Dates of Service for a Conditional Discharge
The table below shows an alternative view of the method for determining dates of service for the scenario described in M21-1, Part III, Subpart v, 1.B.5.f, using only the dates of entry, periods of obligation, and RAD dates (for VA purposes).
Date of Entry Period of Obligation RAD Date for VA Purposes12/29/1980 four years 12/28/198412/29/1984 six years 12/28/199012/29/1990 six years would have been 12/28/1996 but
the claimant was given an OTH discharge on 12/23/1991
Explanation: Since the claimant did not begin his period of AWOL until February 14, 1991, he completed his initial enlistment and one reenlistment period, ending December 28, 1990, faithfully and meritoriously. The time from December 29, 1990, to December 23, 1991—the date of discharge—cannot be considered honorable service due to the AWOL period of over 180 consecutive days.
i. Sample Language for a Conditional Discharge Determination
The Decision section of an administrative decision in which the issue of a conditional discharge is discussed must
identify the periods of obligation that were honorably completed indicate the COD for each period of obligation, and address the issue of health care eligibility.
Example (using the scenario described in M21-1, Part III, Subpart v, 1.B.5.f): The claimant's service from December 29, 1980, to December 28, 1990, included his first two periods of obligation which were UHC; therefore, he is entitled to receive VA benefits, to include health care under 38 U.S.C. Chapter 17 , based upon this period of service.
The claimant's service from December 29, 1990, to December 23, 1991, was under OTH; therefore, he is not entitled to receive VA benefits or health care under 38 U.S.C. Chapter 17 based upon this period of service.
Note: The Reasons and Basis section of the administrative decision must include an explanation as to how the dates of service were determined.
Example: A review of the evidence of record shows the claimant originally enlisted on December 29, 1980, for four years with an obligated period of service until December 28, 1984. On April 4, 1984, he reenlisted for another six years with a new obligated period of service until December 28, 1990. On October 31, 1988, he reenlisted again for another six years, with a new obligated period of service until December 28, 1996. He was given an OTH discharge on December 23, 1991.
j. Assigning Effective Dates for Claims Based on a Conditional Discharge
Use the table below to determine the effective dates for claims based on a conditional discharge.
Determining the effective date for …
Procedure
a presumptive period. Treat the conditional discharge date as- certified by the service department, and- authorized by administrative decision as if
the Veteran were actually given a complete and honorable separation, and
measure all presumptive periods, and any other issue that relates to date of discharge or release, from the conditional discharge date.
Ppayment. If a conditional discharge is established, apply the provisions of 38 CFR 3.114(a) to
Note: The effective date may not be earlier than October 8, 1977, per 38 CFR 3.12(c)(6).
administrative decisions with more than one period of service when one period of service is determined to be a bar to VA benefits.
If ... Then ...the claim is received while the claimant is still on active duty during the period of service subsequently determined to be a bar to VA benefits
the effective date is the day following the period of service determined to be a bar to VA benefits.
the claim is received within one year of discharge from a period of service determined to be a bar to VA benefits, but more than one year after the honorable period of service
the effective date is the date of receipt of the claim.
Notes: The claimant cannot have an effective date
falling within any period of service, even if that period of service is determined to be a bar to VA benefits and the benefit(s) sought will be awarded under an acceptable period of service, because the claimant is already receiving payment from DoD while on active duty.
The claimant is not entitled to VA compensation while he or she is receiving active service pay.
The effective date is the date of claim or the date entitlement arose, whichever is later.
Reference: For more information on effective dates, see 38 CFR 3.654(b) , and 38 CFR 3.400 .
k. Categories of Uncharacterized Separations
For cases in which enlisted personnel are administratively separated from service on the basis of proceedings initiated on or after October 1, 1982, the separation may be classified as one of the following three categories of administrative separation:
void enlistment or induction, or dropped from the rolls.
Note: Entry-level separation can include separation reasons such as: failure to meet procurement medical fitness standards failure to meet retention standards due to a preexisting medical condition completion of a period of Active Duty for Training hardship discharge, or dependency discharge.
Important: Service departments are not required to provide a characterization of service for the aforementioned three categories of separation.
Reference: For more information on uncharacterized separations, see 38 CFR 3.12(k).
l. Instructions for Handling Cases Involving a Former Service Member With an Uncharacterized Separation
The table below contains instructions for handling cases involving a former service member with an uncharacterized, administrative separation.
Type of Separation ActionEntry Level Separation Consider uncharacterized separations of
this type to be under conditions other than dishonorable.
Notes: No administrative decision is required. BIRLS should be updated as necessary to
reflect UHC in the CHAR SVC field.
Reference: For information on the effect of an entry-level separation, based on fraudulent enlistment, on an individual’s status as a Veteran, see VAOPGCPREC 16-1999.
Void Enlistment or Induction Review uncharacterized separations of this type based on the facts and circumstances surrounding separation, with reference to the provisions of 38 CFR 3.14 to determine whether separation was under conditions other than dishonorable.
according to the instructions in M21-1, Part III, Subpart v, 1.B.1.il.
Dropped from the Rolls Review uncharacterized administrative separations of this type based on the facts and circumstances surrounding separation to determine whether separation was under conditions other than dishonorable.
Prepare an administrative decision according to the instructions in M21-1, Part III, Subpart v, 1.B.1.il.
6. Clemency and Upgraded Discharges, and DRB Decisions
Introduction This topic contains information on clemency and upgraded discharges and DRB decisions, including
identifying a clemency discharge making a clemency discharge determination elements that assist in identifying upgraded discharges decisions made through a board for correction of military records or a DRB effect of an upgraded discharge by a DRB effect of a substituted discharge under 10 U.S.C. 874(b) documenting a change in a former service member’s COD guidelines of PL 95-126, and cases exempt from PL 95-126.
Change Date August 11, 2016
a. Identifying a Clemency Discharge
All copies of a DD Form 214, Certificate of Release or Discharge From Active Duty, granting clemency issued to military absentees under Presidential Proclamation no. 4313 contain the following statement in the Remarks section: Subject member has agreed to serve months alternate service pursuant to Presidential Proclamation No. 4313.
The VA copy of the DD Form 214 is not provided to the discharged individual and the reason for separation is shown as Separation for the good of the service by reason of a willful and persistent unauthorized absence, pursuant to Presidential Proclamation No. 4313.
The service department also issued a special type of discharge, Clemency Discharge, DD Form 1953, which was a substitute for the previously awarded undesirable discharge.
Note: These clemency discharges were offered to certain individuals who incurred OTH discharges for unauthorized absence or failed to report for ordered military service between August 4, 1964, and March 28, 1973.
b. Making a Clemency Discharge Determination
A clemency discharge does not necessarily entitle or reinstate entitlement to benefits administered by VA, and VA must make a decision on the COD.
Prior to making a determination on service that resulted in a clemency discharge, furnish notification in accordance with M21-1, Part III, Subpart v, 1.A.4B.1.f.
c. Elements Use the table below for descriptions of elements that assist in identifying
That Assist in Identifying Upgraded Discharges
upgraded discharges.
Type of Upgrade Element DescriptionAll Item 9A on DD Form
214Shows Discharge.
Item 9F on DD Form 214
Shows Certificate Issued.
Item 13 (Reserve Obligation) on DD Form 214
Shows NA.
Items 21 and 27 on DD Form 214
Shows 30 days or more time lost.
Item 29 on DD Form 214
Contains no signature of person separated.
Issued as a result of the Presidential Proclamation of January 19, 1977
Item 27 on copy 3 (VA copy) of corrected DD Form 214
Contains a statement to the effect that the discharge was upgraded to “under honorable conditions” by the January 19, 1977, extension of Presidential Proclamation 4313 by virtue of being wounded in combat or decorated for valor in Vietnam.
The BIRLS record Was established or updated to show
the type of discharge as HONORABLE, and
the separation reason as BEO.
Issued as a result of the DoD Special Discharge Review Program
The VA copy (copy 3) of the corrected DD Form 214
Contains the narrative reason for separation as Upgraded under the DoD Discharge Review Program (Special) and also indicates
the date the individual first applied for discharge upgrade
the date the discharge was upgraded, and
the character of service (discharge) prior to upgrade.
The BIRLS record Established or updated to show
the type of discharge as HONORABLE, and
the separation reason as- DRO (Discharge Review –
prior discharge under conditions other than honorable) or
- DRG (Discharge Review—prior discharge under honorable conditions, commonly called “general”).
d. Decision Made Through a Board for Correction of Military Records or a DRB
A decision by a service department acting through a board for correction of military records is final and binding on VA. This applies
even if VA previously made a formal determination concerning a statutory or regulatory bar under 38 CFR 3.12, and/or
a service department, acting through a DRB, changed the COD prior to enactment of PL 95-126 on October 8, 1977.
Exception: A change in COD by a service department through a DRB is not final and binding on VA when there is a bar because the discharge was due to the sentence of a GCM per 38 CFR 3.12(c)(6) and 38 CFR 3.12(f).
e. Effect of an Upgraded Discharge by a DRB
An honorable or general discharge that a DRB issued on or after the enactment of PL 95-126 on October 8, 1977 (38 CFR 3.12(g)), does not set aside a statutory bar to benefits under 38 CFR 3.12(c). If a DRB granted such an upgrade, the development activity must make a statutory bar determination if/when the issue of entitlement to VA benefits arises.
Exception: Only favorable action by a board for correction of military records will overcome a bar under 38 CFR 3.12(c).
Note: The policy expressed in this block also applies to those discharges issued prior to October 8, 1977, under the special review program (38 CFR 3.12(h)), even if a later review by a DRB confirms that the upgrade was warranted under the uniform published review criteria.
f. Effect of a Substituted Discharge Under 10 U.S.C. 874(b)
An upgraded discharge issued pursuant to 10 U.S.C. 874(b) does not remove the statutory bar to benefits under 38 U.S.C. 5303(a) for individuals discharged or dismissed by reason of the sentence of a GCM because
an upgraded discharge issued under 10 U.S.C. 874(b) changes the COD, but not the reasons for discharge, and
an upgraded discharge issued pursuant to 10 U.S.C. 874(b) does not remove the statutory bar to benefits under section 38 U.S.C. 5303(a) as to individuals discharged or dismissed by reason of the sentence of a GCM.
Example: The action of the Secretary of a service department under 10 U.S.C. 874(b), substituting an administrative discharge for a discharge or dismissal executed in accordance with the sentence of a GCM, does not remove the statutory bar to benefits under 38 U.S.C. 5303(a).
Reference: For more information, see VAOPGCPREC 10-1996.
g. Documenting a Change in a Former Service Member’s COD
In those instances when VA does recognize a change that a service department makes to a former service member’s COD, do not take action to void a standing COD/statutory bar determination upon receipt of notice of such a change. Instead, annotate the determination to reflect that it has been superseded by a subsequent service department action.
Notes: If a change in COD results in a grant of entitlement to benefits, apply the
provisions of 38 CFR 3.400(g) when assigning an effective date. It might be necessary to make a new COD/statutory bar determination if the
character of the corrected discharge is OTH.
Reference: For more information on adding annotations to electronic documents in VBMS, see the VBMS User Guide.
h. Guidelines of PL 95-126
In addition to a requirement that DoD establish a set of uniform procedures and standards for use by DRBs, PL 95-126 also prohibits payment of VA benefits based solely on a discharge upgraded under
the Presidential Proclamation of January 19, 1977, or the DoD Special Discharge Review Program.
The DRB had to review an upgraded discharge to determine if it could be upheld under the new uniform criteria established by PL 95-126. After the DRB completed its second review and made a decision, the responsibility for determining eligibility to VA benefits rests solely with VA.
i. Cases Exempt From PL 95-126
Veterans are exempt from the procedures applicable to special upgraded discharges if they had
a general or UHC discharge upgraded by the special review program, or filed a claim for VA benefits based on an OTH discharge and received a
favorable COD determination prior to the enactment of PL 95-126, effective October 8, 1977.
Introduction This topic contains information about second reviews of DRB determinations, including
eligibility for a second review of a DRB determination narrative of a DRB decision on DD Form 215, Correction to DD Form 214,
Certificate of Release or Discharge from Active Duty favorable DRB determinations favorable DRB determinations when 38 CFR 3.12(c) is a factor unfavorable DRB decisions, and effective date for compensation or pension benefits based on the favorable
outcome of a second review of a DRB determination.
Change Date August 11, 2016
a. Eligibility for a Second Review of a DRB Determination
A former service member may request that a DRB perform a second review of a COD determination.
Note: A second review was done automatically for all former service members whose discharges were upgraded under one of the special programs listed in 38 CFR 3.12(h) .
To be eligible for a second review, the former service member must have
served between August 4, 1964, and March 28, 1973 been released with an OTH (formerly known as “undesirable”) discharge,
and been issued an upgraded discharge on or after January 19, 1977, under the
provisions of the- Presidential Proclamation of January 19, 1977, or- the DoD Special Discharge Review Program.
b. Narrative of a DRB Decision on DD Form 215
The table below shows the narrative commonly found on DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, based on the outcome of a second review of a DRB determination.
Outcome of Second Review
Decision Narrative on DD Form 215
Navy/Marine Corps favorable second review
Discharge review under PL 95-126 and a determination has been made that characterization of service is warranted by DOD Directive 1332.28.
Navy/Marine Corps unfavorable
Discharge review under PL 95-126 and a determination has been made that characterization of
second review service is warranted by DOD SDRP 4 Apr 77.Army/Air Force favorable second review
Discharge review under PL 95-126 and a determination has been made that a change in characterization of service is warranted by DOD Directive 1332.28.
Army/Air Force unfavorable second review
Discharge review under PL 95-126 and a determination has been made that characterization of service was warranted by DOD SDRP 4 Apr 77.
Important: A copy of DD Form 215 must be of record when a determination as to eligibility for VA benefits is made.
c. Favorable DRB Determinations
If the outcome of a second review of a DRB determination is favorable, carefully review the full service records and determine if the former service member was discharged or released under one of the conditions listed in 38 CFR 3.12(c).
If he/she was, follow the instructions in M21-1, Part III, Subpart v, 1.B.7.d If he/she was not, use the favorable DRB determination as the basis for a
finding that a claimant is eligible for VA benefits.
d. Favorable DRB Determinations When 38 CFR 3.12(c) Is a Factor
VA can still deny eligibility to benefits, even though the outcome of a second review of a DRB determination was favorable, if the former service member was discharged or released under one of the conditions listed under 38 CFR 3.12(c).
If a previous administrative decision held that the COD was OTH, and 38 CFR 3.12(c) is a factor, annotate that decision to show the date of the
application for discharge review initial DRB upgrade, and VA-affirmed previous decision.
e. Unfavorable DRB Decisions
If the outcome of a DRB decision is unfavorable, eligibility to VA benefits rests on the merits of the original OTH discharge and corresponding facts and circumstances.
Follow the steps in the table below to process an unfavorable DRB decision, even if the claims folder contains an unfavorable administrative decision made prior to the issuance of the adverse DRB decision.
Step Action1 Send the claimant notice of proposed adverse action prior to
making an administrative decision.2 Following receipt of any evidence from the claimant, or after the
claimant has had 65 days to respond (whichever is earlier),
review the evidence of record prepare an administrative decision, and cite 38 CFR 3.12(h) in the administrative decision as the
authority for reexamining a DRB decision.3 If the former service member’s discharge was issued under
conditions that prevent the payment of VA benefits, discuss and resolve in the administrative decision the issues of
a possible conditional discharge, and eligibility for health care under 38 U.S.C. Chapter 17.
References: For more information on addressing health care eligibility in an administrative decision,
see M21-1, Part III, Subpart v, 1.B.4.b, and determining whether a conditional discharge determination is
necessary, see M21-1, Part III, Subpart v, 1.B.5.d.
Notes: Unless a valid conditional discharge for a separate period of service is
established, eligibility to health care under 38 U.S.C. Chapter 17 must be denied if a statutory bar exists.
A special upgraded discharge that is affirmed by a DRB under PL 95-126 is an honorable discharge for purposes of entitlement to unemployment compensation under 5 U.S.C. 85. This is true even if a statutory bar exists under 38 CFR 3.12(c)(6).
f. Effective Date for Compensation or Pension Benefits Based on the Favorable Outcome of a Second Review of a DRB Determination
When the outcome of a second review of a DRB determination allows for a grant of entitlement to compensation or pension, authorize payments from the later of the following dates:
the date the service department received the application for review of the DRB determination, or
the date VA received the claim for compensation and/or pension.
Important: January 19, 1977, is considered the date of application for all discharges
upgraded under the Presidential Memorandum of January 19, 1977. Use the date the original application was filed with the service department
for DoD Special Review Board cases. If VA grants entitlement to benefits based on a reopened claim that a
claimant submits following a change in COD, authorize payments from the later of the following dates:- one year prior to the date VA received the reopened claim- the date the service department received the application for review of the
DRB determination, or- the date VA received the previously denied claim.
