Overcoming Other Than Honorable (OTH) Discharge

 Posted on December 10, 2024 in Uncategorized

Facing a discharge categorized as Other Than Honorable (OTH) can be a challenging experience for veterans, often leaving them uncertain about their eligibility for VA benefits, particularly disability compensation. Contrary to popular belief, an OTH discharge does not automatically disqualify you from receiving VA benefits. It’s essential to look deeper into how the VA evaluates such cases and what exceptions and arguments can be made to counteract disqualifications.

Understanding the Misconceptions and Missteps in VA Evaluations

Many veterans with OTH discharges are misinformed either through word of mouth, organizations like the American Legion, or even initial VA decision letters that mistakenly state ineligibility for benefits. The reality is, the VA often makes errors in these evaluations, not thoroughly examining the statutory and regulatory bars that govern eligibility.

The VA is supposed to review eleven specific factors to determine whether your service qualifies as honorable for the purpose of obtaining VA disability benefits. These factors, or bars, as they are referred to, outline various disqualifications but also provide room for exceptions and defenses.

Exploring the Eleven Disqualifying Factors

Here’s a brief overview of the factors that the VA considers:

1. Conviction by General Court-Martial: This bar applies only if you were convicted by a general court-martial. Special or summary court-martials do not count.
2. Conscientious Objector Discharge: Typically not common post-Vietnam era but applicable if you refused service on moral grounds without other redeeming defense factors.
3. Deserter: Being discharged as a deserter, meaning prolonged absence with no intent to return, bars you from VA benefits.
4. AWOL for 180 Days: Absence Without Leave for over 180 continuous days generally disqualifies you unless compelling circumstances like family emergencies can justify your absence.
5. Officer Resignation for Good of Service: Only officers who resign for the good of service are barred, not enlisted personnel.
6. Discharge During Hostilities as an Alien: An uncommon and poorly defined bar, where specifics are still vague and open to interpretation.
7. Accepting Undesirable Discharge to Avoid General Court-Martial: Pay attention to the type of court-martial indicated in your records.
8. Mutiny or Spying: If applicable, disqualification is likely difficult to contest.
9. Offense Involving Moral Turpitude: Typically involves a felony conviction; interpretations can vary significantly by regional offices.
10. Willful and Persistent Misconduct: Both persistence and willfulness must be proven; contestable if mental health issues were present at the time.
11. Homosexual Acts (without aggravating circumstances): Currently a non-valid reason except if combined with other serious misconduct.

Navigating Possible Exceptions

One significant exception to these bars is the insanity defense. Unlike its criminal counterpart, the VA's definition of insanity includes broader criteria. If a veteran had a mental health condition at the time of the offense, they might qualify under the insanity exception, potentially removing the bar to benefits.

Additional Periods of Service and Discharge Upgrades

It’s crucial to note that if you have multiple periods of service, the VA must evaluate each one individually. Overlooking periods of honorable service is a common mistake. Moreover, pursuing a discharge upgrade can be a complex but worthwhile endeavor, offering the possibility of requalifying for benefits.

Advocating for Your Rights 

An Other Than Honorable discharge does not spell the end of your eligibility for VA benefits. Armed with the right information and perhaps the support of a VA accredited representative or attorney, you have avenues to appeal and argue against disqualifications. The key is not to give up and seek professional guidance when needed. The VA system may seem daunting, but with the right approach and persistence, achieving a favorable outcome is possible. Remember, you hold the power to change your VA claim.

Questions? Schedule a free call with the team at https://calendly.com/vetlawoffice