NLSVCC Opposes VA's Proposed Amendments and Definitions Regarding Character of Discharge Determinations -- By Claudia Marina Velasquez (University of Florida Levin College of Law)

Generally, a veteran’s character of discharge must be categorized under other than dishonorable conditions to be eligible to receive VA benefits and services. A veteran is denied benefits if the reason for separation falls under one of the VA’s statutory or regulatory bars to benefit eligibility.

In early July, the VA proposed to amend its regulations regarding character of discharge determinations under 38 C.F.R. § 3.12. Specifically, the VA proposed to modify its framework for discharges considered “dishonorable” for benefit eligibility purposes and extend a “compelling circumstances” exception to certain regulatory bars. Members of the NLSVCC Government Affairs and Advocacy Committees collaborated to submit a comment addressing the VA’s use of the terms “moral turpitude” and “persistent” in the proposed regulation. The NLSVCC’s comment also addressed the VA’s consideration of mental health issues in adjudicating character of discharge. Committee members Robert Davis, Amy Kretkowski, Judy Clausen, Chad Lennon, Zachary Ross, and Claudia Marina Velasquez drafted the comment on behalf of the NLSVCC.

The VA proposed to define the “moral turpitude” bar as a “willful act that gravely violates accepted moral standards and would be expected to cause harm or loss to person or property.” The NLSVCC committee members argued that this broad definition should exclude misconduct adjudicated as minor during service. While the VA acknowledged that minor misconduct could not amount to moral turpitude, the NLSVCC committee members emphasized that the proposed definition failed to acknowledge the actual adjudication of an offense as minor and linked the evaluation to hypothetical punishments that were not used. The committee members noted that under the proposed rule, a veteran could accept a non-judicial punishment regarding an “unartfully plead offense” based on the representation that the misconduct would be treated as minor, but then have the VA misinterpret what actually occurred. By treating minor misconduct more strictly after service, the NLSVCC committee argued that veterans may be incentivized to challenge minor, easily-resolved offenses during service. This unintended effect threatens to waste the time of experienced advocates and adjudicators.

The VA also proposed to define “persistent” (which is not defined under the existing regulation) under the C.F.R. § 3.12(d) “willful and persistent misconduct” bar. The proposed regulation defined “persistent” as “ongoing over a period of time” or “recur[ring] on more than one occasion.” The NLSVCC committee argued that the proposed definition was overbroad. For example, a veteran who committed an act of minor misconduct more than a year after a completely distinct type of misconduct could be barred from receiving benefits, yet persistence is not shown by two unrelated acts of misconduct. NLSVCC’s comment also pointed out that the proposed definition also removed the discretionary authority to review a veteran’s disciplinary history that allows an adjudicator to determine whether a veteran’s misconduct was actually “persistent.”

Further, the NLSVCC committee cautioned that the list of mental health conditions under the proposed “compelling circumstances exception” for prolonged AWOL and three types of misconduct should not be exclusive. The proposed regulation listed certain mental impairments at the time of prolonged AWOL or misconduct that “will be considered,” but did not expressly state whether other diagnoses that are not listed would also be considered. The NLSVCC comment urged the VA to clarify whether or not the list was exclusive to prevent unnecessary confusion among its adjudicators and to ensure the quality and timely processing of veterans’ claims and appeals.

You can view the proposed comment and other comments submitted here:

https://www.federalregister.gov/documents/2020/07/10/2020-14559/update-and-clarify-regulatory-bars-to-benefits-based-on-character-of-discharge

Claudia Marina Velasquez is a 3L at the University of Florida Levin College of Law and a student clinician at UF’s Veterans and Servicemembers Legal Clinic.