Unlocking VA Disability Benefits for Veterans with Other than Honorable Discharges

 Posted on October 17, 2023 in Uncategorized

Introduction:

Veterans with Other than Honorable (OTH) discharges often find themselves facing barriers to accessing VA disability benefits. While the prevailing wisdom suggests that obtaining a discharge upgrade is the only way to become eligible for these benefits, the reality is more nuanced. Many veterans with an OTH are entitled to VA disability benefits, even if they've been wrongly denied or misinformed. In this article, we will explore when a veteran with an OTH qualifies for disability compensation and what steps to take if you've been unjustly denied.

Understanding VA Disability Compensation Eligibility:

The eligibility for VA disability compensation hinges on the character of a veteran's discharge. Veterans with an honorable, general, or uncharacterized discharge usually have no issues accessing VA benefits unless they fall into specific regulatory and statutory bars. However, for those with an OTH, Bad Conduct discharge from a special court-martial, or some uncharacterized discharges, the VA has the discretion to decide if their service is honorable enough to merit VA benefits. This process is known as a Character of Service Determination, which evaluates whether the veteran's discharge conditions are dishonorable or honorable for VA purposes.

The 11 Factors Considered by the VA:

When assessing a veteran's discharge, the VA considers 11 factors, comprising six statutory bars and five regulatory bars. These factors determine if the discharge is considered dishonorable, barring access to VA benefits. However, the issue often lies in how the VA interprets and applies these factors.

Statutory Bars:

1. Discharged by reason of the sentence of a general court-martial: A conviction in a general court-martial is required for this bar to apply.

2. Discharged as a conscientious objector: Refusal to serve in the military based on moral grounds can trigger this bar.

3. Discharged for being a deserter: A discharge as a deserter, typically involving AWOL for more than 30 days with no intent to return, can lead to this bar.

4. Discharged under other than honorable conditions for being AWOL for over 180 days: A defense is available if compelling circumstances justify the prolonged unauthorized absence.

5. An Officer who resigns for the good of the service: This bar applies to officers only.

6. Discharge of any individual during a period of hostilities as an alien: This bar is seldom applied.

Regulatory Bars:

1. Accepting an undesirable discharge to escape a general court-martial: Pay attention to the type of court-martial; this is discussed further in the article.

2. Mutiny or spying.

3. An offense involving moral turpitude (generally a felony conviction). There is some wiggle room in the definition of moral turpitude that an experienced VA attorney can help you argue.

4. Willful and persistent misconduct. Must be both persistent AND willful. Again, an experienced VA disability attorney can help you argue your misconduct was not willful or persistent.

5. Homosexual acts, typically only applied in cases involving assault or aggravating circumstances.

Common Errors by the VA:

1. Misclassifying service as dishonorable without falling into any statutory or regulatory bars. For example, a one-time drug use incident is not automatically a bar to VA benefits.

2. Failing to distinguish between types of court-martials, particularly when other than general court-martials are involved.

3. Overlooking the insanity defense. If found insane at the time of the offense, this will remove any bars. However, arguing you were insane at the time can be difficult and I encourage you to use an experienced VA disability attorney.

4. Ignoring other honorable periods of service that may outweigh the dishonorable aspects of the discharge.

Conclusion:

In conclusion, veterans with Other than Honorable discharges should not automatically assume they are ineligible for VA disability benefits. Understanding the nuances of the Character of Service Determination and being aware of common VA errors and defenses can be crucial in securing the benefits they rightfully deserve. By taking the necessary steps and seeking professional guidance, veterans can navigate the system more effectively, ensuring they receive the support they need.