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On 4 November 2021, Mr. John R. Spencer, Vietnam veteran, cries tears of joy after he was awarded the Purple Heart, Combat Infantryman Badge, and Vietnam Gallantry Cross with Palm Unit Citation after being wrongfully denied for over fifty years. His OTH discharge was also upgraded to fully honorable. (Credit: Dillon Davis, University of North Carolina)
Practice Notes
Distinction without a Difference
Other than Honorable vs. Bad Conduct Discharge
By Major Eleanor T. Morales
John, a combat-wounded Vietnam veteran, has been fighting to access U.S. Department of Veterans Affairs (VA) healthcare for his service-connected wounds for more than half a century.1 John was drafted into the Army in 1969 at the height of the Vietnam War as an armor reconnaissance specialist.2 While deployed to Vietnam, he was wounded by an enemy rocket that left permanent scars on his neck.3 Not only did John endure physical injuries, but he also suffers from the invisible wounds of post-traumatic stress disorder (PTSD).4
Although he was eligible for a Purple Heart for his combat-sustained injuries and a Combat Infantryman Badge for his contact with the enemy on the battlefield, those awards were never conferred upon John while he was in service.5 Tragically, John served at a time “when racism, homophobia, and a lack of understanding [of PTSD] clouded many discharge decisions.”6 Ultimately, John was separated from service with an other than honorable (OTH) discharge for minor, nonviolent misconduct for which court-martial charges were never preferred.7 Racism undoubtedly played a significant role in John’s discharge.
Today, over fifty years later, John suffers from multiple serious medical conditions that are presumptively service-connected under the relevant VA regulations due to the impact of Agent Orange.8 For decades, John tried on his own to obtain healthcare at VA for these service-connected medical conditions, but VA improperly denied John healthcare due to his OTH discharge.9
John eventually obtained legal counsel at The University of North Carolina (UNC) School of Law’s Military and Veterans Law Clinic, which focuses on his type of case.10 Fortunately, because of the clinic’s efforts, VA finally approved him for healthcare benefits and issued him a letter of eligibility to take to the VA hospital to enroll.11 This approval should have opened the door to lifesaving, cost-free healthcare for which he was never precluded, even with an OTH discharge characterization.12
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CPT Isabelle Stevens (left), Mr. John R. Spencer (center), and LTC (Ret.) John Brooker participate in the Purple Heart ceremony for Mr. James Brown, a ninety-one-year-old Korean War veteran, on 12 November 2022, in front of over 30,000 people at halftime of the University of North Carolina at Wake Forest University football game. (Credit: Lyndsie Schlink, Wake Forest University)
A VA healthcare enrollment official still turned John away when he tried to enroll because of the OTH discharge characterization.13 The enrollment official would not even look at the VA-issued eligibility letter.14 As a result, the UNC clinic continued to work to get John enrolled in healthcare for his service-incurred disabilities, including speaking directly with senior VA officials.15 Today, John is finally receiving healthcare at a VA medical center.16 Additionally, thanks to the UNC clinic’s efforts, the Army Board for Correction of Military Records (ABCMR) corrected John’s military records to reflect a fully honorable discharge and removed all references to his involuntary administrative separation.17 The ABCMR also awarded him a Purple Heart, a Combat Infantryman Badge, and a Vietnam Gallantry Cross with Palm Unit Citation.18 While John’s trust in VA has slowly been restored, he remains somewhat reluctant to use the benefits he rightfully earned.19
Judge advocates (JAs) commonly assume that an OTH discharge, which is administrative, is “better” than a bad conduct discharge (BCD), which is punitive.20 This assumption is often premised on an overriding focus on the criminal record potentially resulting from a BCD and the muddled correlation between the military and civilian sectors distinguishing administrative and punitive discharges versus misdemeanor and felony convictions. Some may even incorrectly believe that an OTH ensures eligibility for limited VA healthcare. In practice, however, the legal distinctions between an OTH and BCD are esoteric, and VA staff—few of whom are attorneys, let alone military justice experts—largely misunderstand and misapply them.21
The Federal conviction that is part and parcel of a BCD is unquestionably a noteworthy distinction between an OTH and a BCD.22 Attorneys should consider that distinction when analyzing and advising commanders and client-Service members.23 Even though John did not receive a Federal conviction prior to his OTH discharge, he still faced a stigma in seeking employment and a feeling of a loss of honor because of his OTH.24 This is a common experience among Service members who receive OTH discharges.25 Both types of less than honorable discharges are captured on the Service member’s DD Form 214, Certificate of Release or Discharge from Active Duty,26 resulting in a permanent record of their misconduct.
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Mr. John Spencer (right), Purple Heart recipient, pins the Purple Heart on Mr. James Brown, during a standing ovation at Wake Forest University football field. (Credit: Lyndsie Schlink, Wake Forest University)
Despite John’s OTH discharge, he has been eligible for healthcare since at least 1978, if not before, for his service-connected health issues.27 Yet, VA improperly turned him away for decades. Sadly, John is not alone. He is one of many former Service members VA turns away despite their legal entitlement to VA healthcare.28 John’s tragic story illustrates how VA improperly treats OTH discharges akin to BCDs.
This article posits that despite the facial and legal distinctions, there is no meaningful difference between an OTH discharge and a BCD within the VA-benefit context. Aside from the Federal conviction that comes with a punitive discharge like a BCD, the OTH characterization of service does not provide the Service member a “break” because VA will likely treat a separating Service member with an OTH discharge and a Service member with a BCD identically.29
This article helps JAs better advise commanders by enabling them to ensure their commander’s intent is properly carried out.30 It describes the background and identifies one of the legal distinctions between the two discharges. It next explains that in the VA healthcare context, there is no meaningful difference between an OTH and BCD characterization in practice. This article then considers reasons why the lack of meaningful difference matters, and finally, it offers suggestions for the way ahead.
Background
The intersection of military law and veterans’ law is so complex that explaining all the legal distinctions between an OTH and a BCD cannot be accomplished in a short article. In fact, there is already a comprehensive resource; Beyond “T.B.D.”: Understanding VA’s Evaluation of a Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive Discharge from the Armed Forces (Beyond “T.B.D.”) is a free, 328-page, book-length article that explains the legal distinctions between discharge characterizations in the VA context.31
That caveat aside, this primer focuses on one of the legal distinctions. Contrary to popular belief, not everyone who serves in the military is a veteran under Federal law. The foundation for all VA benefits is veteran status, which is directly impacted by discharge type and characterization. Congress defines a “veteran” as “a person who served in the active military, naval, air, or space service, and who was discharged or released therefrom under conditions other than dishonorable.”32
The VA definition of “dishonorable” is more broad than the Department of Defense’s (DoD) definition; it generally determines that OTH, BCD, and dishonorable discharge characterizations are all “dishonorable” for veterans’ benefits purposes.33 In the DoD context, a dishonorable discharge is a specific punitive discharge only issued pursuant to a general court-martial and is distinct from a BCD and the administrative OTH discharge.34 Military attorneys and military review board officials should understand that VA does not define “dishonorable” in the same way as the DoD.
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Wake Forest University President, Dr. Susan R. Wente (left), awards Mr. James Brown (center) with the Purple Heart certificate, with Professor Eleanor Morales (right), Director of the Veterans Legal Clinic at Wake Forest University School of Law, by his side. (Credit: Lyndsie Schlink, Wake Forest University)
Put another way, VA uses three proverbial “buckets” to determine whether a former Service member has veteran status: (1) Honorable for VA Purposes; (2) Dishonorable for VA Purposes but Eligible for VA Healthcare for Service-Connected Conditions; and (3) Dishonorable for VA Purposes for All VA Benefits.35
A good rule of thumb is when the term “dishonorable” is mentioned within VA rules or regulations, it is commonly a reference to the third bucket, Dishonorable for VA Purposes for all VA Benefits, rather than the punitive dishonorable discharge given pursuant to a general court-martial.
Bars to VA benefits can be either statutory or regulatory. A statutory bar precludes VA benefits for that period of service.36 In contrast, a regulatory bar precludes gratuitous benefits but does not preclude VA healthcare for service-connected conditions.37
When a former Service member presents a DD Form 214 with an OTH or BCD service characterization as part of a claim for a VA benefit, VA conducts a character of discharge determination.38 This determination requires VA to analyze and decide whether the former Service member was discharged under “dishonorable conditions” or “other than dishonorable conditions” in accordance with the Federal veteran definition.39
During a character of discharge determination, VA is charged with analyzing both statutory and regulatory bars based upon the facts and circumstances of each case.40 If neither a statutory nor regulatory bar applies, that period of service should be placed in the first bucket and deemed Honorable for VA Purposes.41
If none of the statutory bars to benefits apply but a regulatory bar applies, that period of service should be placed in the second bucket, Dishonorable for VA Purposes but Eligible for VA Healthcare for Service-Connected Conditions.42
Finally, if a statutory bar applies (regardless of whether a regulatory bar applies), that period of service should be placed in the third bucket, deemed Dishonorable for VA Purposes for All VA Benefits.43
Returning to John’s case, he filed a claim with VA for a mental health condition in 2017.44 While a statutory bar to benefits did not apply in his case, he faced a regulatory bar to benefits. John did not have a prior period of honorable service.45 The VA determination placed him in the second bucket: Dishonorable for VA Purposes but Eligible for VA Healthcare for Service-Connected Conditions. Thus, he was legally eligible for VA healthcare for service-connected disabilities despite his OTH discharge. As explained further below, despite his legal eligibility for VA healthcare, John tried unsuccessfully nearly a dozen times to access VA healthcare and was turned away every time.
No Meaningful Difference
There are two primary reasons why no practical difference exists between an OTH and BCD in the context of VA benefits. First, VA applies the law incorrectly. Second, even when VA applies the law correctly, VA still improperly turns eligible Service members away.
Misapplication of the Law
First, VA frequently places OTH discharges in the wrong bucket, resulting in a denial of healthcare to former Service members with OTH discharges even though many are legally eligible.46 Despite the law being much more nuanced, VA adjudicators will frequently place honorable, general, and uncharacterized discharge characterizations in the Honorable for VA Purposes bucket and will place most others in the Dishonorable for VA Purposes for All VA Benefits bucket.47
Routine, errant VA determinations are likely due to the complexity of the law as well as “[d]enials [being] rooted in language confusion: []VA and the military have different definitions for what is honorable and dishonorable, which are the linchpins for determining benefit eligibility.”48 These common VA misapplications of the law perpetuate the misconception that an honorable or general discharge is required to access VA benefits.
The law’s complexity in this area requires an experienced chief of military justice’s level of understanding to place the discharge in the proper bucket. However, the VA adjudicators who make the determination are almost universally not attorneys, and few, if any, have received any training in military justice.49 Yet, they are expected to render complex decisions at the intersection of military justice and veteran disability law.
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Mr. John Spencer (standing) and Mr. James Brown (seated) display their Purple Hearts after the ceremony on 12 November 2022. (Credit: Lyndsie Schlink, Wake Forest University)
Even the most well-meaning VA adjudicators are set up for failure when they receive inadequate training; they implement simplifications because the nuances are misunderstood.50 Many experienced attorneys, including JAs, often find it difficult to navigate the bureaucratic VA system and the incredibly complex area of law.51
The fact that this area of law is so complex is the very reason why, practically, no meaningful difference exists between OTH and BCD discharges in the context of VA benefits. The legally erroneous decisions result in bad outcomes and placement of discharges in the wrong bucket.
Practically Barred
In addition to VA’s legally erroneous decisions, no practical difference exists between these two discharge characterizations because obtaining VA healthcare with an OTH discharge characterization can be extraordinarily difficult at best, as John’s story so powerfully illustrates. Even if a Service member is properly placed in the second bucket, Dishonorable for VA Purposes but Eligible for VA Healthcare for Service-Connected Conditions, they will still be practically barred from all benefits because of structural flaws in the healthcare system.52 Put another way, frontline staff will likely turn away Service members even if the initial eligibility determination concludes they are eligible for VA healthcare.53
In John’s case, VA determined he was eligible for healthcare for all service-connected conditions.54 Per the standard VA instruction provided in his notification letter, John went to the closest Veteran Health Administration (VA hospital) to apply for healthcare, but he was turned away at the front desk due to his OTH discharge.55 He tried again nearly a dozen times, and each time, he was turned away.56
After years of trying on his own to get the healthcare he was entitled to, John, with the help of his VA-accredited attorney from the UNC Military and Veterans Law Clinic, received the service-connection determinations from VA that are a prerequisite to obtaining VA healthcare.57 Together, John and his attorney took the documentation of his service-connection determinations to the closest VA hospital to enroll him.
Again, VA turned John and his attorney away. John’s attorney eventually spoke to VA senior leadership.58 Only after several conversations and many months did VA senior leadership fully enroll John in VA healthcare.59 Yet, even after he was enrolled and became entitled to free healthcare for his service-connected conditions, John received approximately $2,000 in improper VA medical bills because the VA billing system is largely incapable of handling his type of case.60 In sum, it required an experienced attorney’s zealous advocacy and nearly nine months to obtain the healthcare John had been entitled to since 1978. Even more egregious is that when his care was secured, the fight against improper bills lasted over a year before they were resolved.61
Why It Matters
Why should a JA care that there is no practical difference between an OTH and BCD discharge in the context of VA benefits? Although there are far more reasons than can be captured in such a short article, below are five reasons it matters.
Effectuating Commander’s Intent
Appreciating the practical reality is essential to fully inform the commander of all relevant information. Without receiving proper advice on an OTH discharge’s impact on VA benefits, military commanders who do not intend to bar a Service member from VA healthcare for minor misconduct may end up doing just that. Legal advisors should ascertain the commander’s intent regarding future access to VA benefits to advise whether an OTH discharge is the appropriate characterization of service. Additionally, commanders should know that even while an OTH discharge may legally enable their intent in a case (placing a claimant’s case into the second bucket and theoretically qualifying the Service member for VA benefits despite an OTH discharge), practical realities may frustrate it. Advising commanders on how these discharges operate in the current environment will avoid unintended or harsh post-service outcomes for separating Service members and effectuate what the commander intended to do.
A group gathers, including (from left to right) CPT Isabelle Stevens, LTC (Ret.) John Brooker, Professor Eleanor Morales, Wiliam Crotty, Dr. Seth Hayden, Mr. James Brown (seated), and Mr. John Spencer, to celebrate after Mr. Brown was awarded the Purple Heart. (Credit: Lyndsie Schlink, Wake Forest University)
While JAs should consider VA implications in all cases, they should be particularly sensitive to them when the separating Service member is a survivor of military sexual trauma or has deployed.62 Understanding and communicating the long-term impact will help JAs inform the commander’s intent and will, in turn, lead to better decision-making.
Widespread Problem
Improper VA benefit denials are widespread. A Harvard study published in 2020 concluded that VA wrongly denying potentially eligible veterans critical healthcare benefits is a “national, persistent, and systemic” problem.63 This study also found that “[v]eterans in more than a dozen states—and at multiple facilities in many states—were improperly told they were ineligible for benefits or were otherwise denied the right to apply.”64
Like in John’s case, veterans were improperly turned away even when a veteran advocate or a VA-accredited attorney accompanied the Service member to a VA facility and explained the individual’s eligibility to the staff.65 While anecdotal evidence and extensive research suggest a pervasive problem, VA does not document cases of veterans with less than honorable discharges who seek healthcare “but were denied the opportunity to apply,” so the definitive magnitude of the problem is truly unknown.66
The large number of military members receiving less than honorable discharges magnifies the problem. In fact, VA estimated over half a million former Service members have received OTH discharges as of March 2017.67 This dilemma is further compounded as VA is now excluding Service members with less than honorable discharges “at a higher rate than at any point in our history. The rate is more than twice the rate for Vietnam era veterans and nearly four times the rate for World War II era veterans.”68
Wrongful exclusion from VA healthcare is further exacerbated for Service members who do not seek legal counsel or the help of a veteran service organization when they are denied healthcare.69 Many may be unaware that the determination made in their case was improper and that help might be available. As a result of this lack of knowledge, the problem of VA healthcare access remains systemic, and Service members continue to be turned away improperly.70
Future Presumptive Conditions
The long-term consequences of this improper denial of VA benefits are sobering, particularly when considering that many service-connected disabilities may not be known at the time of discharge. For that reason, VA identifies conditions presumed to be service-connected for VA healthcare for each modern conflict.71 For example, as applied to John’s case, he had multiple serious medical conditions that are presumptively connected to his service because of the impact of Agent Orange during his combat tour in Vietnam.
Presumptive medical conditions linked to service will continue to be added to the list in the future.72 However, we do not yet know the presumptive conditions for these more recent conflicts. Thus, JAs must understand that an OTH discharge could prevent a Service member from receiving VA healthcare not only for known conditions but also for conditions later determined to be caused by wartime service.
Other Collateral Consequences
Beyond the VA benefit context, the list of collateral consequences that recipients of OTH and BCD service characterizations experience is long and often overlooked.73 Both OTH and BCD characterizations have a lifelong adverse impact on the Service member. These impacts include but are not limited to restricting civilian employment opportunities and, thereby, decreasing financial stability and hindering Service members’ integration into civilian society.74 Other than honorable discharges may even be “the death knell for some, as certain employers blacklist veterans that have them.”75
Some have characterized a less than honorable discharge as “a ticket to America’s underclass [and] a bar to leaving it.”76 Judge Charles H. Tenney of the U.S. District Court for the Southern District of New York described it this way: “There can be no doubt that a military discharge on other than honorable grounds is punitive in nature, since it stigmatizes the [Service member’s] reputation, impedes [their] ability to gain employment and is in life, if not in law, prima facie evidence against the [Service member’s] character, patriotism or loyalty.”77
In addition, Service members who receive an OTH discharge often experience feelings of a loss of honor or moral injury. Though an OTH does not result in a Federal conviction, and that is a notable difference from a BCD, OTH discharge recipients have a permanent record stating that their service was not honorable.78 Service members with OTH discharges often experience feelings of an inability to be redeemed.79 John described the feeling as “almost like being a criminal.”80
Uncertainty of Upgrading Discharge
The only method for recipients of OTH discharges to correct their records post service is through the “long and tedious” discharge upgrade process.81 To correct one’s records, the Service member must apply directly to their former Service branch.82 Each branch (Army, Navy, Air Force, and Coast Guard) has two boards that review applications: a Discharge Review Board and a Board for Correction of Military Records.83 While the DoD has implemented incremental measures to enable recipients of less than honorable discharges to correct their records in a subset of cases over the past decade,84 the process of upgrading a discharge is still a case-by-case determination without any guarantees of success.85
Suggestions Going Forward
There are a few steps that JAs can take to properly advise commanders on a discharge-related decision. First, and most importantly, JAs must be aware that regardless of their legal entitlement, Service members with an OTH will likely be erroneously barred from VA healthcare even for service-connected disabilities. Practitioners must appreciate that this is a complex area of law, and VA will likely get it wrong to the detriment of the former Service member.
The only way to truly guarantee access to VA healthcare and avoid this distinction without a difference is to issue a general discharge for minor misconduct.86 A general discharge will preserve all VA benefits, except the GI Bill, for that period of service (assuming no statutory bars to benefits apply).87
In circumstances where the commander determines an OTH discharge is justified in light of the misconduct, JAs can use the resources already available to them—such as Beyond “T.B.D.”—that provide specific language to use in courts-martial and administrative separation actions to mitigate the risk that the Service member will be improperly barred from VA healthcare.88 Defense counsel can also advise their clients on the legal and practical effects of OTH discharges and inform them of a veterans service organization or other entity trained to assist them post-discharge.89
Practitioners may also use a recent resource to better ensure that this distinction without a difference is accounted for in military justice decision-making.90 Restoring Faith in Military Justice proposes a framework to help incorporate the long-term impact of disposition determinations into practitioners’ legal and practical advice to commanders.91 While these suggestions are not a catch-all solution, they are a first step in ensuring that the commander is appropriately informed in the decision-making process.
Conclusion
Unfortunately, case studies and anecdotal evidence reveal that a Service member separated with an OTH discharge characterization should likely expect VA to err in determining eligibility or providing access to certain benefits. Anticipating this reality, in the absence of systemic changes at VA or clarification regarding its adjudication procedures, JAs and veterans’ law practitioners can help mitigate unintended consequences, particularly in those cases that are Dishonorable for VA Purposes but Eligible for VA Healthcare for Service-Connected Conditions. By utilizing the publicly available resources discussed above to properly inform stakeholders—first during the determination process of the appropriate discharge characterization, then during the claim process seeking VA benefits—knowledgeable legal advisors can better ensure a distinction with a difference between an OTH and a BCD exists. TAL
MAJ Morales is a Judge Advocate in the U.S. Army Reserves and Assistant Clinical Professor of Law and Director of the Veterans Legal Clinic at Wake Forest University School of Law.
Notes
1. This is a recounting of true events. See Brian Gordon, Turning Bad Paper Good: NC Veterans Seek Better Discharges for More Benefits, Honor, Fayetteville Observer (Sept. 22, 2020), https://www.fayobserver.com/story/news/2020/09/22/military-veteran-discharge-status-upgrade-process-goes-nc-unc-law/5856528002.
2. See id.; Kate Murphy, After 50 Years, Vietnam War Veteran Earns Purple Heart with Help of UNC Law Students, News & Observer (Nov. 5, 2021, 4:47 PM), https://www.newsobserver.com/news/local/article255507936.html.
3. Gordon, supra note 1.
4. See id.
5. See id.
6. Id.
7. See id.
8. See id; see also Agent Orange Exposure and VA Disability Compensation, U.S. Dep’t of Veterans Affs. (Aug. 10, 2023), https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange.
9. See Gordon, supra note 1.
10. Id.
11. See id.
12. See id.
13. Interview with John W. Brooker, Clinical Professor, Univ. of N.C. Sch. of L., in Chapel Hill, N.C. (Oct. 22, 2023) [hereinafter 2023 Brooker Interview].
14. Id.
15. Id.
16. Id.
17. Id; see also Gordon, supra note 1.
18. 2023 Brooker Interview, supra note 13.
19. Id.
20. This assertion is based on the author’s thirteen years of professional experience in the Army Judge Advocate General’s Corps.
21. See Veterans Legal Clinic, Legal Servs. Ctr., Harvard L. Sch. et al., Turned Away: How VA Unlawfully Denies Health Care to Veterans with Bad Paper Discharges 17–22 (2020) [hereinafter Turned Away].
22. A bad conduct discharge (BCD) is only available as punishment for a Federal conviction and is not available administratively. See Manual for Courts-Martial, United States, R.C.M. 1003(a), (b)(8)(C) (describing the bad-conduct discharge punishment). This article is not intended to quantify the magnitude of that conviction’s impact, and this distinction is certainly worth considering.
23. An approved guilty finding at a special or general court-martial is a Federal criminal conviction. In contrast, most administrative separations that result in an other than honorable (OTH) discharge characterization will not lead to a Federal conviction. Army Regulation 635-200, paragraph 3-8(e) permits an OTH discharge characterization for the same “serious offense that resulted in a conviction by a court-martial authorized to impose, but not imposing, a punitive discharge,” but such actions are rare given that they require Secretary of the Army approval. See U.S. Dep’t of Army, Reg. 635-200, Enlisted Administrative Separation para. 3-8(e) (28 June 2021). Nonetheless, for such rare cases, the article’s point remains the same—OTH and BCD are a distinction without a difference.
24. 2023 Brooker Interview, supra note 13.
25. Marcy L. Karin, “Other Than Honorable” Discrimination, 67 Case W. Rsrv. L. Rev. 135, 160-61 (2016) (arguing that “an OTH separation significantly impacts employment opportunities”); Hugh McClean, Discharged and Discarded: The Collateral Consequences of a Less-Than-Honorable Military Discharge, 121 Colum. L. Rev. 2203, 2237-41 (2021).
26. U.S. Dep’t of Def., DD Form 214, Certificate of Release or Discharge from Active Duty (1 Aug. 2009).
27. 38 C.F.R. § 3.360 (1978) (stating that Service members in John’s situation (OTH with a regulatory bar) are entitled to healthcare).
28. See Turned Away, supra note 21, at 13–14.
29. See id.
30. The term “commander” is intended to include all decision-makers within the military justice system. In light of the 2022 National Defense Authorization Act, judge advocates (JAs) also make decisions within the military justice system. See generally National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117–81, secs. 531–539G, 135 Stat. 1541, 1692–1698 (2021). The term “commander’s intent” encompasses all decision-makers’ intent within the military justice system.
31. See generally John W. Brooker et al., Beyond “T.B.D.”: Understanding VA’s Evaluation of a Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive Discharge from the Armed Forces, 214 Mil. L. Rev. 1 (2012) [hereinafter Beyond “T.B.D.”]. When reading Beyond “T.B.D.” it is important to Shepardize, as the laws are in the process of changing or may have already changed. For example, for the first time in decades, VA is considering changing its regulatory bars to benefits through the rulemaking process. See Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge, 85 Fed. Reg. 41471 (proposed July 10, 2020) (to be codified at 38 C.F.R. pt. 3).
32. 38 U.S.C. § 101(2) (2022) (emphasis added); accord 38 C.F.R. § 3.1(d) (2023). For an in-depth discussion of the Federal statutory background of the term “veteran,” see Bradford Adams & Dana Montalto, With Malice Toward None: Revisiting the Historical and Legal Basis for Excluding Veterans from “Veteran” Services, 70 Penn St. L. Rev. 69, 105–12 (2017).
33. See generally Turned Away, supra note 21.
34. See Manual for Courts-Martial, United States, R.C.M. 1003(b)(8)(B) (2024) (“A dishonorable discharge should be reserved for those who should be separated under conditions of dishonor, after having been convicted of offenses usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring severe punishment.”); id. R.C.M. 1003(b)(8)(C) (defining a BCD as “less severe than a dishonorable discharge and is designed as a punishment for bad-conduct rather than as a punishment for serious offenses of either civilian or military nature”).
35. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.12 (2023).
36. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c) (2023) (listing these statutory or per se bars to Federal veterans’ benefits including: (1) conscientious objection with refusal to perform duty, (2) sentence issued by a general court-martial, (3) resignation by an officer for the “good of the service” (4) discharge due to desertion conviction; (5) being an alien during a period of hostilities in which the Service member requested release; and (6) discharged with an OTH or BCD for being absent without leave for a continuous period of at least 180 days).
37. See 38 C.F.R. § 3.12(d) (2023). The regulatory or discretionary bars include: (1) acceptance of a discharge to avoid general-court martial; (2) discharge for offenses involving moral turpitude; (3) discharge for willful and persistent misconduct; and (4) discharge for mutiny or spying. Id.
38. A character of discharge determination is required by VA if a Service member received an undesirable discharge, an OTH, a BCD, a dishonorable discharge, or a dismissal. U.S. Dep’t of Veterans Affs., Adjudication Procedures Manual Rewrite, Statutory Bars to Benefits and Character of Discharge (COD), M21-1, pt. III, subpt. v., ch. 1, § B.1.c. (Feb. 19, 2019), https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014217/M21-1-Part-III-Subpart-v-Chapter-1-Section-B-Statutory-Bars-to-Benefits-and-Character-of-Discharge-COD. Additionally, the VA should perform a character of discharge determination when a statutory bar is potentially present. See id.
39. 38 U.S.C. § 101(2); see also Beyond “T.B.D.,” supra note 31, pts. VIII, IX (providing a more in-depth analysis of VA’s character of discharge determination process and decisions).
40. U.S. Dep’t of Veterans Affs., Claims for VA Benefits and Character of Discharge: General Information 1 (2014), https://www.benefits.va.gov/BENEFITS/docs/COD_Factsheet.pdf.
41. See id.
42. See 38 C.F.R. § 3.12(d) (2023).
43. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c) (2023).
44. 2023 Brooker Interview, supra note 13.
45. See Gordon, supra note 1; Beyond “T.B.D.,” supra note 31, at 70-95 (providing a more in-depth discussion about how prior periods of honorable service can serve as an independent basis for veteran benefits).
46. See generally Turned Away, supra note 21.
47. See Veterans Legal Clinic, Legal Servs. Ctr. of Harvard L. Sch. et al., Underserved: How the VA Wrongfully Excludes Veterans with Bad Paper 2–3 (2016) [hereinafter Underserved], https://www.swords-to-plowshares.org/research-publications/underserved (“[M]any VA employees, staff, and volunteers with veteran community organizations, and veterans themselves have the misconception that veterans with bad-paper discharges are categorically ineligible for any VA services. The misconception that veterans without an honorable or general discharge are categorically ineligible is widespread. Sometimes, that misconception is even perpetuated by . . . VA’s own statements.”).
48. Gordon, supra note 1 (citing Turned Away, supra note 21).
49. See Turned Away, supra note 21, at 17-22.
50. See id.
51. See e.g., Trilles v. West, 13 Vet. App. 314, 330 (2000) (Kramer, K., concurring). A Federal judge in the United States Court of Appeals for Veterans Claims has even described this area of the law as “murky.” Id.
52. See Turned Away, supra note 21, at 17–18. The reasons that Service members are turned away are much more complex and are premised on a variety of factors. See e.g., id.
53. Id. at 2.
54. See Gordon, supra note 1.
55. John was not provided with any documentation to support the denial. 2023 Brooker Interview, supra note 13.
56. Id.
57. Id.
58. Id.
59. Id.; see also Turned Away, supra note 21 (highlighting that similar difficulties to what John experienced at VA are “widespread”).
60. 2023 Brooker Interview, supra note 13.
61. Id.
62. See infra Section titled “Future Presumptive Conditions.”
63. Turned Away, supra note 21, at 15; see also Underserved, supra note 47, at 22.
64. Turned Away, supra note 21, at 14.
65. Id. at 15.
66. Id.
67. See Memorandum from Acting Under Sec’y for Health, Dep’t of Veterans Affs. to VISN and VAMC Dirs., subject: Access to Mental Health Services for Other Than Honorable Discharged Servicemembers para. 2 (20 Mar. 2017), https://www.va.gov/VHAPUBLICATIONs/ViewPublication.asp?pub_ID=5350.
68. Underserved, supra note 47, at 2.
69. See Gordon, supra note 1.
70. See Turned Away, supra note 21, at 1.
71. See, e.g., Veterans Benefits Admin., U.S. Dep’t of Veterans Affs., Presumptive Disability Benefits (2022), https://www.benefits.va.gov/BENEFITS/factsheets/serviceconnected/presumption.pdf.
72. For example, in August of 2021, asthma, rhinitis, and sinusitis were designated as presumptive conditions based on “exposures during military service in Southwest Asia and certain other areas.” See VA to Start Processing Disability Claims for Certain Conditions Related to Particulate Matter, Off. of Pub. and Intergovernmental Affs., U.S. Dep’t of Veterans Affs. (Aug. 2, 2021, 3:09 PM), https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5699. As another example, “on April 25, 2022, VA announced that nine rare respiratory cancers are now presumed service-connected disabilities” for “veterans who served any amount of time in the Southwest Asia theater of operations beginning August 2, 1990, to the present, or Afghanistan, Uzbekistan, Syria, or Djibouti beginning September 19, 2001, to the present.” See Airborne Hazards and Burn Pit Exposures, Butler County Pa., https://www.butlercountypa.gov/750/Airborne-Hazards-and-Burn-Pit-Exposures (last visited Nov. 29, 2023). In August 2022, the President signed the Sergeant First Class Heath Robinson Honor our Promise to Address Comprehensive Toxics Act of 2022, Pub. L. No. 117-168, 136 Stat. 1759, which “expands and extends” healthcare to veterans “with toxic exposures” and to veterans “of the Vietnam, Gulf War, and post-9/11 eras.” The PACT Act and Your VA Benefits, U.S. Dep’t of Veterans Affs., https://www.va.gov/resources/the-pact-act-and-your-va-benefits/#whats-the-pact-act-and-how-wil (last visited Nov. 30, 2023).
73. For an in-depth discussion on the collateral consequences of a less than honorable discharge, see generally McClean, supra note 25.
74. See, e.g., Karin, supra note 25, at 156 (discussing the effect of less than honorable discharges on employment); see also Turned Away, supra note 21, at 10-11.
75. Karin, supra note 25, at 161.
76. See Beyond “T.B.D.,” supra note 31, at 12 (quoting Peter Slavin, The Cruelest Discrimination: Vets with Bad Paper Discharges, 14 Bus. & Soc. Rev. 25, 25 (1975)).
77. Stapp v. Resor, 314 F. Supp. 475, 478 (S.D.N.Y. 1970) (citing Kauffman v. Sec’y of the Air Force, 415 F.2d 991, 995 (D.C. Cir. 1969) and Van Bourg v. Nitze, 388 F.2d 557, 559 n.1 (D.C. Cir. 1967)); see also Bland v. Connally, 293 F.2d 852, 858 (D.C. Cir.1961) (“Any discharge characterized as less than honorable will result in serious injury. It not only means the loss of numerous benefits in both the [F]ederal and state systems, but it also results in an unmistakable social stigma which greatly limits the opportunities for both public and private civilian employment.”).
78. See supra note 26 and accompanying text.
79. In contrast, one former Soldier described his discharge upgrade to honorable as “redemption.” Maggie Sandy, “Redemption” for a Wake Forest Law Veterans Legal Clinic Client, Wake Forest L. News & Events (May 24, 2022), http://news.law.wfu.edu/2022/05/redemption-for-a-wake-forest-law-veterans-legal-clinic-client.
80. Murphy, supra note 2.
81. Major Jeremy R. Bedford, Other than Honorable Discharges: Unfair and Unjust Life Sentences of Decreased Earning Capacity, 6 U. Pa. J.L. & Pub. Affs. 687, 725 (2021). Before 1944, the only way a Service member could request their discharge be changed was to appeal to Congress. Comptroller Gen., U.S. Gen. Acct. Off., Military Discharge Policies and Practices Result in Wide Disparities: Congressional Review Is Needed 75 (1980). In 1944, Congress passed the Servicemen’s Readjustment Act, which established discharge review boards to consider separated Service members’ discharge upgrade requests. See id.; Servicemen’s Readjustment Act of 1944 (G.I. Bill of Rights), Pub. L. No. 78-346, 58 Stat. 284 (1944).
82. See U.S. Dep’t of Def., DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552 (1 Jan. 2023).
83. See 10 U.S.C. §§ 1552-1553. For an in-depth discussion on discharge upgrades, see Margaret Kuzma et al., Military Discharge Upgrade: Legal Practice Manual 469 (2021).
84. See, e.g., Memorandum from Anthony Kurta, Acting Under Sec’y of Def., Pers. & Readiness, to Sec’ies of Mil. Dep’ts, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment. (25 Aug. 2017); Memorandum from Robert L. Wilkie, Under Sec’y of Def., to Sec’ies of Mil. Dep’ts, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations (25 July 2018).
85. The overall percentage of separated Soldiers who successfully had their discharge upgraded at the Army Board of Correction for Military Records (ABCMR) in Fiscal Year 2018 was 13 percent. Turned Away, supra note 21, at 8; see also McClean, supra note 25, at 2248 (“Despite DoD’s laudable policy, liberal consideration did not produce the results that veterans’ advocates had hoped to obtain.”). Contra The Redemption of Private Brown, Wake Forest Univ., https://giving.wfu.edu/the-redemption-of-private-brown (last visited Jan. 30, 2024). While difficult and rare, a discharge upgrade from a dishonorable to an honorable discharge is possible, as it was at the ABCMR in the case of Mr. James Brown. See id.
86. A fully honorable discharge would also ensure access to VA healthcare for service-connected conditions for that period of service. Applying for Benefits and Your Character of Discharge, Veterans Benefits Admin., Dep’t of Veterans Affs., https://www.benefits.va.gov/benefits/character_of_discharge.asp (last visited Nov. 30, 2023). However, statutory bars to benefits pursuant to 38 U.S.C. § 5303(a) serve as a bar to all VA benefits regardless of characterization of service. See 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c) (2023).
87. Only veterans with an honorable discharge and thirty-six months of active military service “after September 11, 2001, are eligible for the full amount of the Post-9/11 GI Bill Benefits.” Beyond “T.B.D.,” supra note 31, at 48. There are exceptions to the service requirement length. Id.
88. Beyond “T.B.D.,” supra note 31, app. L.
89. See Beyond “T.B.D.,” supra note 31, app. L-5 (displaying a sample counseling form).
90. Eleanor T. Morales & John W. Brooker, Restoring Faith in Military Justice, 55 Conn. L. Rev. 77 (2022).
91. Id.