Does AQ95 Proposed Rule Ban More Veterans from VA Benefits?

Concerns over an already unreliable VA system grew in July 2020 when VA proposed to modify its character of discharge regulations, specifying reasons for discharge that it would consider “dishonorable” and ineligible for VA benefits.

VA’s AQ95 Proposed Rule aims to “update and clarify regulatory bars to benefits based on character of discharge” by expanding on the specific behaviors it will deem dishonorable, including moral turpitude offenses, willful and persistent misconduct, homosexual acts involving aggravating circumstances or other factors affecting duty performance.

While VA proposes to offer exceptions to the new regulatory bars on VA benefits under “compelling circumstances,” many mainstream veterans advocacy groups are offended by the Proposed Rule and speaking out against it.

How VA Determines Character of Discharge

To be eligible for VA benefits, a former service member must have (1) served in the active military, air service, or naval service, and (2) received an “other than dishonorable” discharge (38 U.S.C. 101(2)). The VA uses several criteria to determine a veteran’s character of discharge (COD) and eligibility for benefits (38 C.F.R. 3.12).

VA first evaluates the Armed Forces-assigned character of service for each active-duty service period. The Armed Forces assigns service members one of five characters of service: honorable, general (under honorable), other than honorable (OTH), bad conduct, or dishonorable. The Armed Forces may assign the one of three administrative separation types: entry-level separation, dropped from rolls, or void enlistment.

Honorable Discharge, General Discharge, Or Entry-Level Separation

Those with honorable discharge, general discharge, or entry-level separation automatically meet the character of discharge for veteran’s benefits – unless discharge documents show separation due to one of the following statutory or regulatory bars to benefits:

5 Regulatory Bars to VA Benefits:

• Accepting an undesirable discharge to escape trial by general court-martial;
• Mutiny or spying;
• Offense involving moral turpitude, including felony conviction;
• Willful and persistent misconduct;
• Homosexual acts involving aggravating circumstances or other factors affecting performance of duty.

6 Statutory Bars to VA Benefits:

• Conscientious refusal to perform military duty, wear the uniform, or comply with lawful orders of competent military authorities;
• General court-martial sentence;
• Resignation of officer for the good of service;
• Desertion;
• An alien during hostilities, where veteran requested release;
• Absence without official leave (AWOL) for at least 180 contiguous days (unless “compelling circumstances” mitigate prolonged unauthorized absence).

Note that the statutory bar involving AWOL for 180 days has a “compelling circumstances” exception (38 U.S.C. 5303(a)). Since the statute doesn’t define or give examples of what a compelling circumstance might be, the VA decides this using regulatory guidelines, including:

• Reviewing length and quality of service before AWOL
• Considering reason for going AWOL (family emergency, age, background, education, maturity, how the situation appeared to the service member)
• Considering hardships or suffering incurred during overseas service, from combat wounds, from service-aggravated disability

OTH, Bad Conduct, Void Enlistment, Or Dropped from Rolls

For those veterans who received an Armed Forces assignment of OTH, bad conduct, void enlistment, or dropped from rolls, VA must make their own “character of discharge” (COD) determination and must conclude that the COD is “other than dishonorable” to grant benefit eligibility.

In deciding whether a service member has an “other than dishonorable” COD, VA may examine the statutory and regulatory bars to benefits (listed above) and can also use the facts and circumstances surrounding the Armed Forces character of service assignment. Once VA makes a decision, the veteran will have a chance to submit evidence or arguments disputing the decision.

Dishonorable Character of Service

If the Armed Forces assigned a dishonorable character of service, the VA deems the service member ineligible for VA benefits for that service period. Still, veterans with dishonorable discharges have numerous avenues to collect VA benefits, including the existence of insanity or an “other than dishonorable” character of service for other service periods.

How VA’s Proposed Rule Would Change COD Determination

The VA claims the goal of its AQ95 Proposed Rule is to create a “consistent approach in defining which former service members have been discharged under conditions other than dishonorable.”

Homosexual Acts Involving Aggravating Circumstances

Current regulations bar benefits for veterans discharged for “homosexual acts involving aggravating circumstances or other factors affecting performance of duty.” The Proposed Rule extends this ban to all sexual acts involving aggravating circumstances or other factors affecting performance of duty, regardless of sexual orientation.

Offenses Involving Moral Turpitude

Current regulations bar benefits for veterans discharged for offenses involving “moral turpitude,” defined by the VA’s Office of General Counsel in 1987 as “a willful act committed without justification or legal excuse which gravely violates accepted moral standards and . . . would be expected to cause harm or loss to person or property.” The Proposed Rule aims to omit the phrase “without justification or legal excuse,” claiming instead that this determination must consider “compelling circumstances.”

Willful and Persistent Misconduct

Current regulations bar benefits for veterans discharged for “willful and persistent misconduct,” defining “willful misconduct” as “an act involving conscious wrongdoing or known prohibited action.” However, the regulation does not define “persistent misconduct.” The Proposed Rule aims to create a regulatory standard that would help determine persistent misconduct, giving the following as examples:

• Instances of minor misconduct occurring within two years of each other
• An instance of minor misconduct occurring within two years of more serious misconduct
• Instances of more serious misconduct occurring within five years of each other

The Proposed Rule aims to generally define “minor misconduct” as “an offense for which the maximum sentence imposable would not include a dishonorable discharge or confinement for longer than 1 year if tried by general court-martial,” but will also consider “compelling circumstances.” VA points out that more serious misconduct may meet the “moral turpitude” standard and warrant a bar of benefits for a single incident.

AWOL For Over 30 Days

VA’s Proposed Rule also addresses whether AWOL falls under “willful and persistent misconduct,” stating that it would consider the maximum sentence imposable for certain kinds of AWOL under the Manual for Courts-Martial United States (MCM). For example, cases of AWOL more than 30 days or AWOL more than 30 days, terminated by apprehension, would be considered cases of serious misconduct under the willful and persistent misconduct bar of benefits.

In other words, under the current regulations, if a person goes AWOL for more than 180 consecutive days, they are barred from benefits. Under the Proposed Rule, if a person goes AWOL for more than 30 days and commits any minor offense within two years of that AWOL incident (before or after), they are barred from benefits.

Accepting Undesirable Discharge to Escape Trial by General Court-Martial

In the Proposed Rule, VA aims to change the language of this regulatory bar of benefits to read “Accepting a discharge under other than honorable conditions or its equivalent in lieu of trial by general court-marshal.”

Compelling Circumstances

Of the 11 regulations (listed above) that bar VA benefits, only one offers an exception for “compelling circumstances.” Service members who go AWOL for at least 180 contiguous days may be able to avoid the bar on benefits if “compelling circumstances” mitigate prolonged unauthorized absence.

In the Proposed Rule, VA aims to add the “compelling circumstances” exception to three more regulatory bars of benefits: Moral turpitude offenses, willful and persistent misconduct, and sexual acts involving aggravating factors.

VA states it would use the same guidelines to decide whether something is a compelling circumstance, including the length and quality of service before the offense, the reason for the offense (emergency, age, background, education, maturity, how the situation appeared to the service member), and any hardships or suffering incurred during overseas service, from combat wounds, from service-aggravated disability.

In addition, VA states it “will have the necessary flexibility to deal with unique situations that may arise in reviewing character of discharge determinations—but many of these factors may not be pertinent in a given case, depending on the conduct at issue.”

Veterans’ Groups Argue Against VA’s AQ95 Proposed Rule

Several veterans’ organizations have called the changes in the Proposed Rule unjust and unlawful.

A 321-page joint response from the Legal Services Center of Harvard Law School and Swords to Plowshares argued that the changes were fundamentally flawed and would result in veterans being barred from benefits for even the most minor misconduct, like being late to formation twice in a two-year span.

The responders argue that the proposed willful and persistent misconduct standard goes well beyond Congress’s intent to exclude only those with dishonorable discharges by assigning a dishonorable label to minor misconduct that would never cause a dishonorable discharge.

“A faithful regulatory interpretation would result in bars that exclude only those former service members who committed severe, unmitigated misconduct that should have led—but for a technical or procedural reason did not lead—to a dishonorable discharge,” states the response.

In addition, the joint response argues that the vague and overbroad definition of moral turpitude will cause unjust outcomes by failing to consider the veteran’s state of mind and allowing a VA adjudicator to use their own subjective judgement in denying benefits.

A Yale Law School Clinic responded on behalf of the National Veterans Council for Legal Redress (NVCLR) in strong objection to the proposed changes to COD regulations, stating, “The Proposed Rule continues VA’s unlawful policy of presumptively excluding veterans from basic benefits and services to which they are entitled by law and which Congress expressly granted to them.”

“Not only does the Proposed Rule contravene the governing statute, contradict legislative intent, and violate basic principles of administrative law,” stated Yale, “it worsens an already unworkable administrative system that imposes excessive burdens on veterans and VA adjudicators alike.”

Yale emphasized that the Proposed Rule “perpetuates VA’s longstanding misinterpretation of the governing statute by barring many more veterans from benefits than Congress intended where the veterans’ service was not dishonorable.”

Yale’s response highlighted three major problems:

1. The VA’s current and proposed regulatory bars use language that Congress expressly rejected when enacting the 1944 G.I. Bill – and therefore violate the statute.
2. The Proposed Rule requires COD adjudicators to conduct a costly, time consuming, complex review and come to an independent conclusion about a service member’s misconduct, mitigating factors, and overall “benefit” to the nation, leading to inconsistent and unfair results for veterans.
3. The Proposed Rule “continues VA’s unlawful practice of presumptively excluding veterans who received OTH discharges, rather than giving them the benefit of the doubt as Congress intended.”

The responders suggested that VA adopt a rule that removes the existing regulatory bars “because of their failure to accurately and faithfully identify misconduct that did lead or should have led to a dishonorable discharge.”

Can I Still Get VA Benefits with a Dishonorable Discharge?

Absolutely. Many former service members with dishonorable discharges mistakenly believe they are not eligible for VA benefits. It is critical for veterans to realize that a dishonorable discharge does not automatically remove eligibility for VA benefits. By understanding how the VA decides to grant benefits and how to prepare a compelling claim, veterans with dishonorable discharges may still collect the benefits they deserve.

In general, if the Armed Forces assigned a dishonorable character of service, the VA deems the service member ineligible for VA benefits for that service period, unless the former service member is found to be insane at the time of the offense leading to his or her court-martial, discharge, or resignation.

Insanity is a daunting word, but veterans who understand how it is used in a legal context can see how broadly it applies.

Whether a person knows right from wrong or is responsible for their behavior is not necessary for a determination of insanity within the context of VA regulations. [Gardner v. Shinseki, 22 Vet. App. 415 (2009)]

Briefly, the VA defines an insane individual as one who, due to disease:

• Exhibits a prolonged deviation from their own normal behavior; or
• Interferes with the peace of society; or
• Departs from the accepted standards of the community they grew up in so that they cannot adapt to the social customs of the community in which they currently live (38 C.F.R. 3.354(a)).

Imagine this scenario: A veteran begins having problems in service, using drugs, going AWOL, exhibiting poor performance, so they get a dishonorable discharge for willful and persistent misconduct. Five years later, they are diagnosed with psychiatric illness.

This veteran could argue that the misconduct was a symptom of the psychiatric illness. Many psychiatric illnesses go undetected during service because the disease is in the early stages (prodromal stages) or are simply missed by doctors and physical exams.

Therefore, if the veteran can link their misconduct to early symptoms of their psychiatric illness, they may be able to use the insanity exception to secure VA benefits with a dishonorable discharge.

For example, a veteran may be suffering from major depression during service and not realize it. It may go undetected or be misdiagnosed. Service often aggravated major depression, which can manifest in “improper behavior” that is beyond the service member’s control.

At Gang & Associates, we have used this strategy countless times to obtain benefits for veterans who had an OTH discharge. Recently, we obtained over $515,000 for one Navy veteran who was discharged under other than honorable conditions. Subsequent to service he was diagnosed with Bipolar Disorder, and after litigating his case for 9 years (including three appeals to the U.S. Court of Appeals for Veterans Claims) we finally prevailed. We successfully proved that his “misconduct” during service was the early symptoms of his Bipolar Disorder that went undiagnosed until after service.

Similarly, a veteran’s going AWOL could be an early manifestation of schizophrenia that went undiagnosed until after service. Here, the “misconduct” was really not misconduct but the symptoms of a mental illness, warranting a medical discharge. [Beck v. West, 13 Vet. App. 535, 536 (2000)]

Physical disease can also cause psychiatric illness and behavioral problems. For example, we handled a case of a veteran who received an abnormal chest x-ray and liver biopsy during service, indicating sarcoidosis. However, the service member was allowed to continue his duties as usual. Later, he developed behavioral problems and received an OTH discharge.

Our neurosurgical expert revealed that sarcoidosis can produce brain lesions leading to behavioral abnormalities. Because we were able to establish a scientific link between the in-service sarcoidosis and the veteran’s behavioral problems, we were able to argue that he was “insane” at the time of his offenses that led to his OTH discharge. Thus, his OTH discharge did not bar benefits and he could obtain service-connected compensation.

In many cases, witness statements, military records, and a detailed medical expert opinion stating that the misconduct was beyond the veteran’s control “due to his psychiatric illness” will provide the VA with sufficient evidence to deem the veteran insane at the time of the offense that led to the dishonorable discharge.

To learn more, read our free eBook, VA Disability Claims: An Essential Guide for U.S. Veterans.

Don’t give up. To get VA benefits with a dishonorable discharge isn’t easy, but it is entirely possible. Our veterans’ disability lawyers have succeeded in winning VA benefits and VA appeals for many veterans with OTH discharges in cases where the “misconduct” was actually a symptom of underlying mental illness. If VA has denied your claim because of a dishonorable discharge, contact a veterans disability attorney today and learn your options.