What Is the difference between Discharge Upgrade vs. VA’s Character of Discharge Determination
Very simply put, if a person is dissatisfied with their discharge characterization from the military, they have the option to apply for a discharge upgrade with their Discharge Review Board (DRB) or with their Board for Corrections of Military/Naval Records (BCMR or BCNR). If these applications fail to result in an upgrade that can provide VA health benefits, the applicant may have another way to get VA Health benefits through a Department of Veteran Affairs’ character of discharge determination.
What is a discharge characterization?
It is the description of the discharge the person received when separating from the military. The discharge characterization is printed on the DD-214 form. This characterization may prohibit the person from getting VA Health Benefits if the discharge is described as “under other than honorable,” “uncharacterized,” “bad conduct,” or “dishonorable.”
This characterization is where the VA begins in deciding if the person applying for health benefits meets the requirements to receive the health benefits under Title 38 of the United States Code. The requirements usually look at whether the person is a veteran and the dates when the person was in the military.
If you are a person with an “honorable” discharge, this characterization on the DD-214 is binding on the VA under Title 38 C.F.R. §3.12(a). The VA will usually determine that an honorable discharge entitles a person to health benefits. Those with less than honorable or general discharges may have a more difficult time proving eligibility to VA health benefits.
What are the types of discharge characterization?
The usual discharge characterizations are honorable, general (or under honorable conditions), under other than honorable (and uncharacterized), bad conduct, and dishonorable.
There are additional types of discharge characterizations for officers, but we will be discussing the more common characterizations.
Why can’t a person with a discharge “below” honorable or general get VA health benefits?
A person with a character of discharge that is not honorable or general may not be entitled to health benefits because of an issue the person had while in the military – whether criminal, civil, or behavioral – which probably resulted in separation from the military. However, the VA may decide to grant health benefits to a person who applies for such health benefits, proves they are in fact a veteran, and also proves there are no statutory or regulatory bars that would stop the VA from doing so. See the Military Separation Guide for Active Duty Personnel, the government’s military eBenefits web site, and the VA’s Health Benefits web site.
What does “statutory” bar mean?
A “statutory” bar is something a veteran cannot usually overcome to qualify for health benefits with the VA. It is an act the veteran engaged in while in the military which probably resulted in the discharge of the veteran. Some examples of statutory bars are:
- If the veteran was a conscientious objector – refused to serve, wear the uniform, or comply with lawful orders from a competent military authority
- Discharged by a sentence of a general court-martial
- Officer resigned for “the good of the service”
What does “regulatory” bar mean?
A “regulatory” bar is one that results in “under other than honorable conditions,” bad conduct, or dishonorable discharges. It is an act the person engaged in while in the military which most likely resulted in the person’s discharge from the military. Some examples of regulatory bars are:
- Mutiny or spying
- An offense of moral turpitude (usually a conviction for a felony)
- Accepting an undesirable discharge to escape a trial by general court-martial
- Willful and persistent misconduct
How does a veteran begin the process of a character of discharge determination by the VA?
There is no form that says “application for character of discharge determination.” However, the process is very simple. All the applicant does is request medical treatment in-person at a local VA medical hospital or clinic by filing a VA Form 10-10EZ. The person can also apply for these health benefits online using the VA web site, print and fill out the forms manually and apply by mail, or apply over the telephone.
The person can also apply for these benefits if the applicant chooses to file a claim for compensation or pension at a VA regional office. We are not discussing this process in this article.
Once the application for health benefits is filed with the VA, what happens?
The VA investigates the person’s military records and makes a determination regarding the person’s character of discharge. Sometimes the facts are not written in the record regarding a discharge characterization. However, the VA is not always bound to the service department records. The VA examines all of the circumstances surrounding the discharge and evidence presented to it, including the evidence provided by the person. Usually, the VA will send a letter to the applicant requesting additional evidence. The person can also request a hearing to present additional evidence or to provide statements that have to do with the discharge.
What can the VA decide and how does it affect the applying veteran?
The VA may decide the person is “honorable” for the purpose of granting the requested VA health benefits once it has examined all of the evidence in its possession. As long as there are no statutory or regulatory bars, health benefits may be granted. This favorable finding does not upgrade the discharge characterization of the person’s separation from the military. The VA gives the veteran notice of its findings in writing. Please see M21-1, Part III, Subpart v, 1.B.4.a and b.
Can the veteran apply for a discharge upgrade with the Discharge Review Board or Board for Corrections of Military/Naval Records while applying for a characterization of discharge from the VA?
Yes! In fact, if the discharge upgrade is successful, the decision is binding on the Department of Veteran Affairs. If the upgrade is honorable or general, even if there were statutory or regulatory bars prior to the person’s discharge upgrade, the VA must accept the upgrade – to honorable or general – and provide health benefits. See M21-1, Part III, Subpart v, 1.B.6.d.
What if the person applying for VA health benefits was a victim of Military Sexual Trauma but has a less than honorable discharge?
Can a person appeal the VA’s decision if they are unhappy with it?
Absolutely. The person can appeal to the Board of Veterans Appeals through a Notice of Disagreement.
Where can I get more information?
M21-1 Adjudication Procedures Manual
Veterans Benefits Manual, National Veterans Legal Service Program, Lexis Nexis, 2016 Edition
Form: VA Form 10-10EZ - https://www.va.gov/vaforms/medical/pdf/1010EZ-fillable.pdf