VA Calls for More Comments Regarding Regulatory Bars to Benefits (by Jennifer Morrell, Delaware Law School Veterans Law Clinic)

In July 2020 the VA issued a proposed amendment to 38 CFR 3.12 which would update and clarify the regulatory bars to benefits.  Over 70 comments were submitted from both individuals and organizations--including the American Psychological Association, Vietnam Veterans of America, and the National Law School Veterans Clinic Consortium.  However, the comments apparently varied substantially enough that VA is asking for further feedback with regard to specific questions. 

The proposed rule would change the law with regard to VA character of discharge determinations based on "willful and persistent misconduct," "moral turpitude," and "homosexual acts involving aggravating circumstances or other factors affecting the performance of duty."  Additionally, the rule would create an exception for certain regulatory bars for "compelling circumstances."

For compelling circumstances, VA proposed that the impact of mental impairment be considered as a factor in this exception to the regulatory bar.  For this round of comments, VA is asking commenters to list specific conditions, symptoms, and circumstances that should be taken into account.  VA also has requested comment on whether their proposed "Sexual abuse/assault" language should be replaced with "Military Sexual Trauma" or some other terminology and whether adjudicators should be reminded to look beyond service records for corroboration of such trauma.  

For willful and persistent misconduct, VA is seeking additional comment on whether the rule should draw a distinction between "minor misconduct" and "more serious misconduct" as well as whether a particular number of incidents of misconduct should be delineated.  

For moral turpitude, VA is seeking further comment on its proposed definition, which seeks to provide more clarity than the existing definition.  

Finally, for benefit eligibility, some commenters suggested that VA only apply statutory bars to benefits.  However, others voiced concern that doing so might affect military order and discipline and denigrate others' honorable service. VA has asked commenters to explain how military order and discipline could be affected as well as how such denigration could occur.  VA also specifically asked for comments on what changes could be made to ensure fair adjudication for historically disadvantaged and vulnerable populations.

Comments must be received by the VA on or before October 12, 2021. VA will hold virtual listening sessions on October 5 and October 6, 2021.