Character of Discharge

Texas Veterans Commission

Fall Conference 2008

Overview

• Types of Discharges– Characterization of Service– Uncharacterized Separations– Conditional Discharges– Upgraded Discharges

• Conditions Prohibiting Entitlement to Benefits– Under Dishonorable Conditions– Statutory Bars

Overview (Cont.)

• VA’s Responsibilities

– Notifications Prior to Decision

– Right of Representation

– Effect of Determination

– Statement of Policy

• References

Types of Discharges

Characterization of service • Discharges binding on the VA:

– Honorable

– Under Honorable Conditions (UHC)

– General

• Discharges requiring development & decision:– Undesirable

– Other than Honorable Conditions (OTH)

– Bad Conduct

– Dishonorable

Types of Discharges (Cont.)

Uncharacterized Separations

• Entry level - Considered by VA to be UHC

• Void enlistment or induction - may be either UHC or OTH - VA develops and decides

• Dropped from rolls - may be either UHC or OTH - VA develops and decides

Types of Discharges (Cont.)

Conditional Discharges

• Appointment as Commissioned / Warrant Officer

• Change Commission from one branch to another

• To reenlist

Types of Discharges (Cont.)

Conditional Discharges (Cont.)

Eligibility Requirements for Benefits

1. Served entire period of enlistment, and

2. Not discharged at end of requirement due to reenlistment, and

3. Would have been eligible for good discharge if not for the reenlistment

Types of Discharges (Cont.)

Upgraded Discharges

Some are binding for benefits, some are not

Are Binding:

• Honorable or UHC from Board of Corrections

Types of Discharges (Cont.)

Upgraded Discharges (Cont.):

Are Not Binding:

• Presidential Proclamation 4313

• DoD special discharge review program of April 5, 1977

• Any discharge review program after April 5, 1977 not applying to all persons.

Conditions Prohibiting Entitlement to Benefits

Dishonorable due to:

• Escape trial by General Court Martial, or

• Mutiny or spying, or

• Willful & persistent misconduct, or

• Homosexual acts involving aggressive circumstances, or

• “Moral Turpitude”

Conditions Prohibiting Entitlement to Benefits (Cont.)Statutory Bar Legal requirements not met & no benefits if

discharged due to:• Conscientious objector, or• Discharged by General Court Martial, or• Officer resign for good of service, or• Deserter, or• Alien, at their request, during war, or• OTH due to AWOL at least 180 days

Conditions Prohibiting Entitlement to Benefits (Cont.)Statutory Bar (Cont.)

OTH due to AWOL at least 180 days

Special Circumstances:

• Service excluding period of AWOL

• Reason(s) for going AWOL

• A valid legal defense

VA’s Responsibilities

• Notifications Prior to decision:

– Why a determination is necessary

– Criteria used

– Request report from service

– Veteran can submit evidence

– Veteran can request a hearing

VA’s Responsibilities (Cont.)

• Right of Representation

– Accredited veterans organization

– Private attorney

• Effect of Determination

• Statement of Policy

Discharge Review BoardAuthority

Can Do: Upgrade a DischargeCan’t Do:– Grant Disability Retirement– Revoke a Discharge– Reinstate back into Service– Recall to Active Duty– Change Re-enlistment code– Review General Court-Martial Discharge– Address Medical Discharges

Discharge Review Board

Standard for review: Properly & Equitably Discharged

Properly– No Error of Fact, Law, Procedure or Prejudice– No change of Policy

Equitable– No materially different Policy / Procedure– Discharge consistent with Standards of

discipline– Overall evidence doesn’t warrant a change

Discharge Review Board

Application:Less than 15 years from discharge

DD Form 293More than 15 years from Discharge

DD Form 149May be submitted by:

– Veteran– Surviving Spouse– Next-Of-Kin– Legal Representative

Review

• Types of Discharges– Characterization of Service– Uncharacterized Separations– Conditional Discharges– Upgraded Discharges

• Conditions Prohibiting Entitlement to Benefits– Under Dishonorable Conditions– Statutory Bars

Review (Cont.)

• VA’s Responsibilities

– Notifications Prior to Decision

– Right of Representation

– Effect of Determination

– Statement of Policy

Review (Cont.)

• Discharge Review Board

– Authority; Can Do & Can’t Do

– Standard for review; Properly & Equitably

– Application

– Who can Apply

• References

References

• 38 CFR 3.1(d)

• 38 CFR 3.12

• 38 CFR 3.13

• 38 CFR 3.14

• M21-1, Part IV, Chap 11

QUESTIONS?