May 11, 2017
Generally, a veteran seeking disability benefits from the Department of Veteran Affairs (VA) must have been discharged from service under conditions other than dishonorable. Therefore, if a veteran is discharged in the following classifications, he or she is likely to receive benefits if otherwise qualified: under honorable conditions, general, and honorable discharge. However, if a servicemember receives an undesirable, bad conduct or other dishonorable discharge, they are unlikely or less likely to receive disability and other benefits.
When a servicemember applies for disability benefits after an unfavorable discharge from service, the VA has to make a determination as to whether or not the servicemember’s discharge was under conditions other than dishonorable. Once the VA makes this determination, it can decide whether or not the servicemember is barred from receiving any benefits. To make this determination, the VA looks at the character of discharge.
However, the VA does not conduct determinations in all cases of discharges. Honorable discharges are considered binding, and there is no review of those kinds of discharges. Additionally, if a servicemember is discharged for certain reasons, the VA cannot make a determination, and as a matter of law, the servicemember cannot receive benefits unless he or she was insane at the time of the conduct that led to the discharge. The VA follows a specific definition of insanity. The reasons are as follows:
- Sentence of a general court martial.
- Being a conscientious objector who declined to perform military duty, including wearing uniform, or otherwise follow lawful competent orders from a military authority.
- Resignation by an officer for the good of the service.
- Absence without official leave (AWOL) for a continuous period of 180 days or more – under certain circumstances determined by the VA.
- Being an alien during a period of hostilities, where it is positively shown that the former servicemember requested his or her release.
The VA also cannot review honorable discharges, as these are considered binding as well.
Determinations Made by the VA
In making a determination as to whether or not a servicemember’s discharge was under conditions other than dishonorable, the VA looks at the servicemember’s military records, any statements and evidence from the servicemember explaining what happened in the incident leading to discharge, supporting evidence from third parties familiar with the circumstances surround the incident, the servicemember’s length of service, accomplishments during service, and the character of service before the incident.
If a servicemember has more than one period of active military service, and was only discharged under other than honorable conditions for one of those periods, the other periods may still qualify him or her for disability benefits. However, any such qualifications would be limited to disabilities sustained by the servicemember during the period that ended in discharge under conditions other than dishonorable.
If you are unfamiliar with the claims process, you should consider using a veterans’ disability attorney to prepare your case, collect and present favorable evidence to the VA, and explain the circumstances surrounding a dishonorable discharge.