As discussed in previous posts, the VA has its own set of rules when it comes to determining whether a veteran’s discharge status qualifies the veteran for benefits. Today we are going to discuss the process that the VA uses to determine whether a discharge was “under conditions other than dishonorable” for VA purposes.
The VA must conduct a formal character of discharge determination if a claimant was discharged under conditions other than honorable, undesirable, or bad conduct. The character of discharge determination is a review of all the circumstances surrounding the person’s discharge, and the VA will also determine if a statutory or regulatory bar to VA benefits exists. As discussed in a prior post, if there is not statutory or regulatory bar to benefits, the person will qualify as a veteran because the VA will categorize the discharge as conditions other than dishonorable.
The character of discharge determination is initially conducted by the VA regional office that is adjudicating the claim, and the decision may be appealed to the Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims (CAVC). Note that a character of discharge determination is considered a factual finding, so the CAVC must defer to that finding unless it is clearly erroneous.
As you may guess, character of discharge determinations are very complex, not just because the laws surrounding them are oftentimes less than clear, but because military records are notoriously incomplete (if they are available at all). Therefore, there are many different resources that can be used in order to attempt to paint a complete picture of the circumstances surrounding the claimant’s discharge. Service personnel records, especially documents related to disciplinary proceedings, are perhaps the most important, but again, they often do not include many details surrounding the event in question.
A claimant should attempt to obtain any other documents that may help fill in any blanks, such as in-service mental health assessments, court martial records, letters or emails to friends or family around the time of the incident leading to discharge, buddy statements from friends or family, and diary or journal entries.
Also remember that the VA character of discharge determination is a separate process from a discharge upgrade by a service department’s Board for Correction of Military Records (BCMR) or a Discharge Review Board (DRB). A discharge upgrade by a BCMR to at least a discharge under honorable conditions is binding on the VA and sets aside any prior statutory or regulatory bars to benefits. In addition, most discharges upgraded by a DRB to at least a general discharge before October 8, 1977 also set aside most regulatory or statutory bars.
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