Imagine a scenario where you’ve successfully secured the VA benefits you deserve, allowing you to better provide for and support your family amidst rising costs of housing, food, and gas. Picture yourself maximizing your VA benefits in the shortest amount of time, giving you peace of mind and financial stability. This dream outcome is within reach, especially with the recent changes in VA regulations that have expanded access to benefits for many veterans.

At The National Security Law Firm (NSLF), we know firsthand the struggles you face. Our founder, Brett O’Brien, served in the U.S. Army and U.S. Army Reserves for 16 years and is a disabled veteran himself. Almost all of the attorneys and paralegals at NSLF are disabled vets as well. We have been where you are, and we understand how aggravating and complex the VA benefits process can be.

The good news is that the VA has recently updated its regulations, refining the criteria for benefits eligibility and expanding the compelling circumstances exception. These changes are designed to provide a fairer, more holistic analysis of whether former service members with less-than-honorable discharges still warrant “veteran” status and VA benefits. This is a significant step forward for many veterans who have faced undue barriers in accessing the support they need.

These changes, which went into effect on June 25, 2024, are fully discussed in the following document published by the Federal Registrar: Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge. In this blog, the VA benefits lawyers at NSLF will explain the key changes in the VA regulation and discuss how they may impact you.

Understanding Eligibility for VA Benefits in General

Eligibility for most VA benefits hinges on the classification of a former service member (service members) as a “veteran.” According to 38 U.S.C. 101(2), a “veteran” is defined as an individual who served in the active military, naval, air, or space service and was discharged or released under conditions other than dishonorable. The term “conditions other than dishonorable” was intentionally selected by Congress in 1944 to grant the VA some flexibility in determining eligibility for veteran status and associated benefits. The precedent set in Garvey v. Wilkie, 972 F.3d 1333, 1337, 1339 (Fed. Cir. 2020), highlights the VA’s discretion in these determinations.

Current regulations, encapsulated in 38 CFR 3.12, delineate six statutory bars and four regulatory bars to benefits. In short, these bars define whether a discharge is considered dishonorable for VA benefits eligibility.

Key Changes in the VA Regulation

There are several key changes, each of which is expected to broaden the eligibility for VA benefits, enhance the consistency of benefits adjudications, and ensure that Character of Discharge (COD) determinations take into account all relevant factors.

Understanding Eligibility for VA Benefits in GeneralSome of the key changes include:

  1. Updated Regulatory Bars: The new rule removes the regulatory bar for “homosexual acts involving aggravating circumstances or other factors affecting the performance of duty” as a barrier to receiving benefits. This change builds on previous steps taken by the VA to ensure fair access to benefits for those discharged based on homosexual conduct, gender identity, or HIV status. Thus, under the new rule, there are now four, rather than five, regulatory bars that can disqualify former service members from receiving VA benefits. Those four bars, with the removal of the fifth bar for homosexual acts, are now:
    1. Acceptance of a discharge under conditions other than honorable in lieu of trial by general court-martial (GCM);
    2. Acts of mutiny or espionage;
    3. Offenses involving moral turpitude (with an exception for compelling circumstances, as discussed below); and
    4. Willful and persistent misconduct (with an exception for compelling circumstances, as discussed below).
  2. Compelling Circumstances Exception: The new rule acknowledges that, some service members, despite their discharges, have rendered service that benefited the nation. Many faced high-risk situations that led to injuries or behaviors deemed inappropriate by military standards. For instance, repeated traumatic exposures during combat can result in conditions like posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), and moral injury, which can alter decision-making and behavior. Thus, for veterans discharged due to “willful and persistent misconduct” or an “offense involving moral turpitude,” the VA will now consider a compelling circumstances exception. This means the VA will evaluate factors such as the length and character of service and mitigating factors such as mental and cognitive impairments such as PTSD, moral injury, and TBI, physical health, combat-related hardships, experiences of sexual abuse or discrimination, and factors related to age, education, cultural background, and judgmental maturity. This exception creates a new pathway for deserving veterans to receive the benefits and services they need. This exception, along with the refined criteria for willful and persistent misconduct as discussed below, will ensure that deserving former service memberss can access the benefits they have earned. Moreover, regulatory bars will only be applied when clearly supported by the military record, and any doubt will be resolved in favor of the former service members, in line with 38 U.S.C. 5107(b) and 38 CFR 3.102. This allows the VA to conduct a comprehensive, case-by-case analysis to determine whether former service memberss with Bad Conduct Discharges (BCD) or Other Than Honorable (OTH) discharges might still qualify for veteran status and benefits.
  3. Revision of the Definition of Willful and Persistent Misconduct. The definition of willful and persistent misconduct has been clarified to ensure a more objective application. The final rule brings objectivity and liberalization to the “willful and persistent misconduct” standard. The bar applies only if:
    1. Minor misconduct instances occur within two years of each other.
    2. A minor misconduct instance occurs within two years of more serious misconduct.
    3. Serious misconduct instances occur within five years of each other.

Moreover, even if these criteria are met, the compelling circumstances exception discussed above allows for an individualized review that considers the context of the misconduct and the overall merit of the service members’s service. Consequently, the only service memberss barred under this standard will be those with documented frequent misconduct that led to their discharge and outweighed the merits of their service.

The VA Is Actively Encouraging Reapplications

The VA Is Actively Encouraging ReapplicationsFormer service members who were previously denied VA services are encouraged to reapply. With these changes, they may now be eligible for benefits that were previously out of reach.

The VA is making a concerted effort to reach out to service members with other than honorable discharges and bad conduct discharges adjudged at special court-martial. Over the past decade, the VA has seen an increase in applications for care and benefits, rising from approximately 1,700 in 2012 to over 10,000 in 2023. The eligibility determination rate for these applications has been 75%, providing care or benefits to more than 57,000 former service members.

“We encourage former service members with other than honorable discharges to apply for VA care and benefits today,” said VA Secretary Denis McDonough. “Although VA cannot change your discharge status, we want to provide you with any health care or benefits we can – and we will work with you every step of the way to do exactly that.”

Military Discharge Status

The character of discharge determination by the VA does not alter the Armed Forces’ characterization of service and has no effect on the military discharge status. That can onlybe changed though a Discharge Upgrade. It is solely for determining eligibility for VA benefits and services. Any discharge characterized as “honorable” or “general – under honorable conditions” meets the requirements for most VA benefits. However, those with a dishonorable discharge or those discharged for desertion, mutiny, going AWOL for 180 continuous days, or espionage remain ineligible, barring a ruling of insanity.

Former service members who find themselves ineligible for VA benefits due to their discharge status now have additional avenues to explore. This includes reapplying under the new compelling circumstances exception, which considers mental health conditions, combat-related hardships, and experiences of discrimination or abuse.

What This Means for Veterans: Practical Implications

The recent changes to VA regulations can significantly impact many veterans, especially those with less-than-honorable discharges. Here’s what it means for you in practical terms:

Who Does This Apply To?

  1. Veterans with Less-Than-Honorable Discharges:
    • If you were discharged under conditions other than honorable, this new rule might make you eligible for VA benefits that you were previously denied.
    • Veterans with Bad Conduct Discharges (BCD) or Other Than Honorable (OTH) discharges can now reapply for benefits under the new guidelines.
  2. Veterans Affected by Combat-Related Issues:
    • If your discharge was due to behavior influenced by conditions like PTSD, TBI, or moral injury stemming from combat, the VA will now consider these factors.
    • The new rule recognizes that combat-related hardships can lead to behaviors that were previously disqualifying.
  3. Veterans Who Faced Discrimination or Abuse:
    • If you were discharged due to reasons involving discrimination, such as sexual orientation, gender identity, or experiences of sexual abuse or harassment, the new rules could benefit you.
    • The regulatory bar for “homosexual acts involving aggravating circumstances” has been removed, broadening access for those previously excluded.

Practical Steps and Benefits

  1. Compelling Circumstances Exception:
    • The VA will now look at the context of your service and any mitigating factors before making a benefits decision.
    • This means they will consider your overall service record, mental and physical health issues, and any hardships you faced during your service.
  2. More Inclusive Definitions:
    • The definitions of misconduct have been clarified to ensure fairer assessments.
    • Instances of minor misconduct that occurred close together or more serious misconduct over a longer period will be reviewed more holistically.
  3. Encouragement to Reapply:
    • Veterans who were previously denied benefits are strongly encouraged to reapply.
    • The VA has increased its efforts to reach out to those with less-than-honorable discharges, with a high approval rate for reapplications in recent years.
  4. Objective and Case-by-Case Analysis:
    • The new rules ensure that the VA will conduct a thorough, individualized review of each case.
    • This means your unique circumstances will be taken into account, increasing the chances of a favorable outcome.

Does This Apply to You?

  • If you’ve been denied VA benefits due to your discharge status, these changes provide a new opportunity to secure the benefits you deserve.
  • If you have conditions related to your service, such as PTSD or TBI, or if you faced discrimination or abuse, you may now qualify for benefits under the new guidelines.
  • Even if your discharge was for reasons previously considered disqualifying, the VA will now take a closer look at your overall service and the reasons behind your discharge.

Nationwide VA Benefits Lawyers

At The National Security Law Firm, we are here to support you in navigating these new regulations and securing the VA benefits you deserve. Having lived through similar experiences, we are committed to being with you every step of the way, offering the camaraderie and support of fellow veterans.

If you’re ready to take the next step toward better providing for your family and finding renewed purpose and meaning in life, contact us today. We are nationwide and here to help. Start for free with enough information to represent yourself, or let us guide you through the entire process.

For more information or to schedule a consultation, visit our website or call us at 202-600-4996. The National Security Law Firm is dedicated to helping you secure the benefits you deserve.

Thank you for your service and sacrifice. As fellow veterans, we exist to support you.

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