Articles, Blog

Military Discharge Status, Upgrades, and VA Benefits

November 22, 2019


Emma: Good afternoon and welcome to Facebook
live with Chisholm Chisholm and Kilpatrick. My name is Emma Peterson and I’m joined this
afternoon with Christian McTarnaghan and Dvora Louria and we’re going to be talking
about military discharge statuses and upgrades. If you have any questions during the course
of our discussion today, please feel free to leave it in the comment section on Facebook
or if you view this after the fact we’re happy to try to address them but do let us know
if you have any questions and we’ll try to hit them throughout the course of our discussion. So, with that let’s jump right in and just
as a disclaimer to this sort of entire conversation, we at CCK don’t actually typically do discharge
upgrades. So, it’s not typically a practice that we will go after for our clients but
we did want to provide this information because it is so important to so many veterans in
determining whether they’re going to actually get VA benefits in the first place. So, with
that let’s jump right in and Dvora, why don’t you tell us a little bit about the types
of discharges veterans can get from the military. Dvora: Sure. So the first kind is an honorable discharge and that’s what most veterans get
over 85% of veterans and that means that they either met or exceeded their expectations
and if a veteran receives an honorable discharge that means that they’ll be entitled to all
VA benefits. Emma: So, disability benefits, healthcare benefits, educational benefits, things like
that? Dvora: Right, everything across the board. Emma: Okay, great.
Dvora: And then the next kind of discharge is a general discharge under honorable conditions.
So, this means that they generally met the requirements there may have been some minor
disciplinary infractions. Maybe failure to meet some health standards or fitness standards
but overall they had satisfactory performance in service. Emma: Is there anything that someone that
gets a general discharge might not be able to qualify for? Dvora: So, the only thing that they wouldn’t
be able to qualify for is assistance under the GI Bill. Emma: Okay. Dvora: And then next after that, there’s
the other than honorable discharge. This was formerly known as the undesirable discharge
and this means that there was a serious departure from the set standards or protocol. And in
these cases, VA will conduct a character of service determination to assess eligibility
for benefits. Emma: Okay. So, it doesn’t mean you’re not necessarily going to get benefits. It’s just
that VA has to determine based on the facts of your case whether or not they’re going
to allow you to get benefits based on the statutes and regulations. Devorah: That’s right. Emma: Okay. Devorah: And many veterans say that this
kind of discharge was misused in certain cases where there was a traumatic brain injury,
military sexual trauma or conduct due to PTSD. Emma: Okay. Devorah: And then after that, there’s the
bad conduct discharge. This is a disciplinary discharge and it’s imposed by a court-martial.
So, if a veteran receives a bad conduct discharge by special court-martial then there’ll be
a character of service determination to assess eligibility for benefits. And for general
court martials, the veteran won’t qualify for benefits. Emma: Right, in general court martial’s there’s
a statute that says you can’t get VA disability benefit so it really is a bar if it’s that
higher level of court-martial. Devorah: That’s right. And then finally there’s the dishonorable discharge. So, again this
is punitive, disciplinary imposed by court-martial. And this is reserved mostly for veterans who
committed very serious offenses such as rape or murder. It’s only issued if they’re convicted
in a general court-martial that calls for the dishonorable discharge as part of their
sentence. And veterans in these cases are ineligible for all VA benefits. Emma: Okay. So, there you have it, we have
a wide range of different types of discharges, will usually recorded on your DD 214 or other
separation documents but Christian, Dvora mentioned for a couple of these that aren’t
honorable that VA will make a character of service determination. Can you tell us a little
bit more about that process and what that means? Christian: Yes, absolutely. So excuse my froggy
voice. I’m fighting a bit of a cold. So, if you got an honorable discharge, then you don’t
have to worry about this. If you got anything sort of other than that, there’s going to
be a character of discharge determination. Again, we got to remember that dishonorable
discharge isn’t going to be a part of this because that’s going to be a statutory bar
to benefits but broad strokes if you have one of the other types of discharges there
has to be a determination as to whether you are eligible for VA benefits. It’s not automatic. One of the elements of getting service connection
is veteran status. So, this is just the very first part of all of the adjudications that
go into getting veterans benefits. So, when they get a claim from a veteran, they’re going
to make this determination. Emma: And who’s they? Christian: The regional office will make the determination. They’re going to take a look
at your discharge status. They’re going to take a look at what was on your DD-214 but
they’re also going to look at everything else that’s in the record. And then as you alluded
to before what they’re really going to look for is they’re going to compare what you did
in service to these statutory and regulatory bars. I’m going to go into those a little
bit more in-depth. I just want to hit the process A to Z. Then what they’re going to do is based on
whether there are statutory or regulatory bars. They’re going to make the determination.
They’re going to tell you about it and just like a lot of other processes at VA, you can
appeal that determination. Emma: Okay. So, if you get a character of service determination that tells you you’re
ineligible for veteran status for the RO, you could file a notice of disagreement with
that presumably get up to the board of veterans appeals, maybe under the new system I’m assuming
that the same appeal options would probably be available when you’re picking a lane and so
forth. Christian: I’d imagine, I don’t think we know that for a fact but I think that’s what we’re
assuming. Emma: Something to keep in mind, certainly. Christian: Yeah, absolutely. So, just quickly
to talk about statutory bars and so what we mean by that is that Congress has explicitly
laid out in a statute that veterans that have done these sorts of things are not eligible
for VA benefits. So, one of the ones we touched on discharged by reason or sentence of a general
court-martial, there’s a conscientious objector language in that statute. The statute for
anyone that’s interested is 38 U.S.C. 5303. I had taken some notes on it. There’s an officer that resigned for the good
of the service, desertion and then a big one, I’m going to go into just a little bit more
detail on, its AWOL. So, absent without leave for a period of 180 days or more basically
without good cause. And the reason why I’m singling that one out is because within the
character of discharge determination, there’s another subsection of an adjudication that
needs to happen and it basically looks at the totality of the circumstances. It’s like
why were you absent without leave for more than 180 days? Did you have a good reason?
And they look at your reasons and they compare it to your quality of service, what did you
do as a soldier. Was it a family emergency or obligation or some other obligation to
a third party. So, those are the statutory bars. So, if you have any of that in your
military record or did any of that in the military, that’s going to be a problem to
attaining veteran status. There are also regulatory bars and I’m just going to hit these a little bit more quickly
but for anyone that’s interested. It’s in 38 CFR 3.12(d). So, one of the main ones that
I’ve seen and we don’t do this in practice but there are some cases that get all the
way up to the board that we’re able to work on especially with the insanity exception
to all of these which I’m going to hit next but accepting an undesirable discharge in lieu
of standing for your court-martial, mutiny or spying is another one. So its those
things that are going to keep you from attaining the veteran status. So, what I just noted is a way to get around
all of this. It doesn’t mean that you don’t have a statutory or regulatory bar but it
means that it won’t keep you from attaining VA benefits is the insanity exception. So,
I think when people think of insanity they think of criminally insane. You don’t know
the difference between right and wrong. That’s not what it is in VA. It’s very, very specific
and VA defines insanity as one who, while not mentally defective or constitutionally
psychopathic, and bear with me here, exhibits due to a disease more or less prolonged
deviation from the normal method of behavior. So, there’s a few other ways that you can
show it but essentially at the time you committed one of those bars, you because of the disease
basically weren’t acting as you normally would. So, a deviation from your normal practice
and that’s a way that you can show that the statutory bar shouldn’t keep you from
becoming a veteran. Not becoming a veteran– attaining veteran status and I know that’s really important
to a lot of people who serve to get that veteran status and rightly so. Emma: So, I think what’s important to note
with the character of service determination is that your actual discharge status from
the military is not going to be changed. It’s just that VA is going to, if it’s favorable,
they’re going to allow the benefits claim to proceed whatever benefit it is that you’re
pursuing but just note that your DD 214 is not going to change, your overall discharge
status won’t change and we’ll hit on that later how you actually go about changing
your discharge status but the character of service determination is something different,
something VA does as opposed to something your branch of the military does. Christian: Absolutely. It’s further– for
purposes of benefits not for purposes of your, what actually says on your DD 214. Emma: Now, Dvora, I think people sometimes
get confused on where we often see people reaching out for help and also it getting
confused sometimes at the Board of Veterans Appeals and requiring the appeal to the Court
of Appeals for veterans claims is if a veteran has multiple periods of service because they
might have an honorable period of service something happens they reenlist and then something
further happens and then that second period or third period whatever the case may be is
no longer honorable. Can you tell us a little bit about that and how that process works
I think it can be very confusing for everybody. Dvora: Absolutely, it can be confusing. So, if it’s a neat situation where there’s
two periods of service, the first was honorable and the second was dishonorable, then any
conditions incurred during that first period of service would be covered, any conditions
incurred during the second period of service which was dishonorable would not be covered. But let’s say that the veteran signs up for
four years of service and then reenlist at three years the entire period of service would
be treated as one period. So, if any portion of that would be considered dishonorable the
whole period would be considered dishonorable. Emma: Right and I think it gets even more nuanced when you have more than two periods
and three periods so the takeaway is, if you’re in that situation reach out to a veteran service
officer like our colleagues at DAV, talk to an accredited rep, talk to an attorney that
does do discharge upgrades or works on character of service determinations to figure out how
to best argue that because it gets really tricky about the periods of service, what
your initial service enlistment period was and then what the second period was. So, certainly,
reach out. So, I think we alluded to it before that, all of this is the character of service determination
is just what VA is going to consider for whether you’re going to get benefits or not. Many
people want to actually change their discharge itself which makes sense because that is the
source and there’s certainly a way to do that. Again, it’s not a service that our firm provides
but this is just some information for folks out there interested in looking into this. So, there’s two bodies that you can do this
with. The first is the Discharge Review Board and then there’s also the Board of Corrections
of Military Records and each body has different jurisdictional limitations about what they
can look at. So, the Discharge Review Board can look at your discharge if it’s within
15 years of your discharge from service and they can only look at an upgrade general other
than honorable and special court martial bad conduct discharges. They can’t look at dishonorable
or general court-martial discharges. But then there’s also the Board of Corrections for Military Records, which you certainly
can appeal to if you’re beyond that 15 years. They look at, I think it’s I believe and I
might be wrong with this, three years within the date of discovery of the
error in your discharge but they will generally waive that out of equity and consider especially
if the merits promote changing the discharge. And they can look at really sort of totality
of circumstances. They look at the same things that the character of discharge– service,
excuse me, the VA will look at. They’ll look at your service, the length of service,
what happened what the facts were but you do need to do a little bit advocacy there
and explain why your discharge was wrong factually or legally and so forth. So, again reaching
out to a rep to help you with that process can be really helpful. Christian: I certainly had to re-familiarize
myself with all of these statutes and regulations and there’s weighing within weighing within
weighing and that can be difficult to do on your own. Emma: And I think just know that you are able
to appeal these determinations even the Discharge Review Board and Board of Corrections and
Military records are appealable to other federal courts within the right timeframes. Those
two bodies again are with your branch of military and actually changing your discharge status
as opposed to VA saying, “Okay you have veteran’s status for our benefit purposes”
but just know that both things can be appealed. So, certainly, don’t be disheartened if you
get an unfavorable result to start with. Christian: Yeah and also your branch of service can choose not to change what says what your
DD 214 says but VA can find that your discharge status isn’t a bar to benefits, right? So,
if the goal is benefits or access to VA health care there are two different ways that veterans
can go about trying to get access to those benefits. Emma:Absolutely. Alright, any closing
thoughts Dvora? Devorah: I don’t think I have anything else, I think we’ve covered it all. Emma: Alright, great. Christian? Christian: Yeah just to reiterate that although
CCK doesn’t work on discharge upgrades, there’s a lot of great organizations that do and there’s
a lot going on here and it’s probably a good idea to try to get some help. Emma: Absolutely, alright. If there are no
questions for us we’re going to conclude this discussion and thanks for joining us. Dvora: Thank you.

5 Comments

  • Reply David G. November 15, 2019 at 2:49 pm

    AS A HONORABLY DISCHARGED US MARINE VETERAN….I AM NOT SURE I AGREE WITH ALLOWING OTHER VETERANS TO BE ALLOWED TO UP GRADE. YOU EITHER SERVE HONORABLY OR NOT.

  • Reply M.P. Oliver November 15, 2019 at 3:16 pm

    VERY timely discussion with a broad covering to explore this stigma and ineligibility that has prevented MANY from accessing their potential benefits.
    The C.O. status was a loaded time bomb for anyone filing for such status. AWOL is another area than many gloss over but you have elucidated some of the factors thereof. When AWOL becomes/became Missing a troop Movement it became/ would become very serious.

  • Reply Maine D November 15, 2019 at 10:12 pm

    I served USN from 96-01, capped to e4 in 97 and made e5 in 98. Combat chief found a way to bust me back down to e4 so I wouldn't have a chance at e6 and end of my enlistment. I requested counseling for it . Bothers me to this day. Lost a paygrade, NAM, and I turned down shore duty tracking satellites in Key West. It's why I don't trust any1 now

  • Reply Tom C November 15, 2019 at 10:31 pm

    Thank you for this informative video….it will help out many

  • Reply Hell Rell November 17, 2019 at 2:10 am

    If a soldier paid into the MGIB and later got a general discharge under honorable conditions and wasn't allowed to use your benefits can I get refunded the money I paid for college?

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