VA Finalizes New Rules for Character of Discharge Determinations
Having an Other Than Honorable conditions (OTH) Character of Discharge determination (COD) or an Absent Without Leave (AWOL) related discharge may not stop Service Members from eligibility. The Department of Veterans Affairs (VA) has published its Final Rule on proposed amendments to the eligibility of Service Members based on their COD, which have been in the making since July 10, 2020.[1]
One major highlight includes expanding eligibility to Service Members who were discharged with a COD determination of OTH if the Service Member’s reason for discharge was due to prolonged AWOL, an offense involving moral turpitude (generally, a felony conviction), or Willful and Persistent Misconduct, if the Service Member can meet the criteria of the “compelling circumstances exception”. The exception considers:
- length of service exclusive of the AWOL or misconduct; and
- reasons for the AWOL or misconduct including:
- mental or cognitive impairments (e.g. PTSD, Depression, Bipolar Disorder, Substance Abuse Disorder);
- physical health, including physical trauma and side effects of medication used to treat the injury;
- combat-related or overseas hardships;
- sexual abuse or sexual assault;
- duress, coercion, or desperation;
- family obligations or similar obligations to others; and
- age, education, cultural background, and judgment maturity.[2]
The application process appears to now see Service Member applicants as individuals with unique situations and helps decrease the red-tape rejections without considering the totality of the circumstances of their COD.
What this means for Service Members is that there may now be opportunities for otherwise ineligible veterans previously barred from receiving VA benefits to receive those benefits. The new COD amendments expedite the application process for Service Members to receive benefits who would have been ineligible due to their COD being OTH by avoiding the appeal process for upgrading a Service Member’s COD before applying for benefits.
These changes will become effective June 25, 2024, and apply to all applications for VA benefits received by the VA on the effective date and to any pending applications currently under review by the VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit.
[1] https://www.federalregister.gov/documents/2024/04/26/2024-09012/update-and-clarify-regulatory-bars-to-benefits-based-on-character-of-discharge
[2] Id.
Written By: Hayden C.T. Parsons
