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Updated Nov 25, 2024

In This Section
This section contains the following topics:
Topic
Topic Name
1
2
3

1.  COD Determinations

Introduction

 This topic contains general information about COD determinations, including

Change Date

 November 25, 2024

X.iv.1.A.1.a.  Discharge Character and Basic Eligibility to Benefits

 To establish Veteran status – and basic eligibility to those Department of Veterans Affairs (VA) benefits that require Veteran status – a former service member must have had
  • active military, naval, air, or space service (active service), and
  • a discharge or release from that service under conditions other than dishonorable.
When an administrative decision concludes that a discharge for a period of service was not “under conditions other than dishonorable” using VA statutory and regulatory standards, there will be no basic eligibility to any VA benefits requiring Veteran status based on that service. Notes:
  • Basic eligibility to Chapter 17 health care can be established under 38 CFR 3.360 for certain former service members who do not have Veteran status because of a discharge under other than honorable conditions.  The regulation provides criteria for eligibility for former service members.
  • Eligibility for Chapter 18 benefits is not dependent on the character of a Veteran-parent’s discharge.
References:  For more information on

X.iv.1.A.1.b.  Definition:  COD Determination

 An administrative decision on the statutory and regulatory element of Veteran status, whether a discharge or release from a period of active military, naval, air, or space service was “under conditions other than dishonorable,” is called a character-of-discharge (COD) determination. The determination procedure consists of
  • analyzing the discharge characterization, if any, provided by the service branch for the period of service, and other related facts and circumstances
  • assessing whether the former service member’s conduct for the period of service matches criteria defined by statute and/or regulation, and
  • completing and releasing an approved administrative decision.
Note:  In cases where a prior, binding COD determination was made with respect to a period of service, the definition of COD determination includes a decision on whether
  • evidence submitted and/or obtained after a prior final COD determination was new and relevant
  • new and relevant evidence of record is sufficient to change a prior final COD determination
  • a clear and unmistakable error (CUE) was made in the prior COD determination, or
  • there is a new legal basis for entitlement.
References:  For more information on

X.iv.1.A.1.c.  Development and Rating Activity Involvement in COD Determinations

 The development activity is generally responsible for making COD determinations. Important:  This block’s reference to the development activity is not intended to imply that a specific adjudicative office or division is required to make all COD determinations.  This block does not prohibit assignment of COD development, or preparation of COD determinations, to other activities, staffs, offices, or centers that have capacity and the appropriate staff qualifications, including those outlined in M21-1, Part X, Subpart v, 1.C.2.h. In cases where applicability of 38 CFR 3.354 is claimed or raised by the record, the rating activity is responsible for making an insanity determination for use in the COD determination. References:  For more information on
  • rating activity responsibility for 38 CFR 3.354 determinations, see

X.iv.1.A.1.d.  Procedural Postures Where a COD Determination Is Required

 A COD determination is required when a
  • claim is filed for Veterans Benefit Administration (VBA) benefits, such as compensation or pension and there is a discharge, or discharge circumstances, listed in M21-1, Part X, Subpart iv, 1.A.1.e
  • COD determination is requested by the former service member under 38 U.S.C. 5303B
  • claim for benefits is filed with another VA administration (such as Veterans Health Administration (VHA) or VBA business line such as Loan Guaranty Service), and VBA receives an appropriate VA form request for a COD determination, or
  • former service member or survivor requests, or there are otherwise grounds for consideration of, a revision of a final COD determination based on
    • new and relevant evidence
    • CUE, or
    • a change in legal criteria providing a new basis of entitlement.
Exceptions:
  • If a claim is filed based on a period of service, and a prior COD determination found the discharge for that period of service to have been under conditions other than dishonorable (meaning eligibility to benefits based on Veteran status was previously established for the period), another COD determination is not required.
  • VBA is not required to always issue a COD determination when requested by another VA administration.  VBA will issue a COD determination only if a COD determination for the period of service is not of record.
Notes:
  • If a prior COD determination found the conditions of the discharge from a period of service to constitute a bar to benefits, and the claimant files a subsequent claim based on that period of service, VA must generally make a written determination of whether new and relevant evidence has been submitted, or (depending on the claimant’s contention) whether CUE exists in the prior COD determination.  See Harris v. McDonough, 33 Vet.App. 269 (2021).  However, as noted in M21-1, Part X, Subpart iv, 1.A.1.p, VA is required to issue a COD determination with respect to a period of service without a need for new and relevant evidence if a former service member with a prior unfavorable COD determination prior to June 25, 2024, requests a new COD determination under the revised 38 CFR 3.12.
  • VA may also make a COD determination on its own initiative based on discovery of CUE in a prior COD determination.
  • Public Law 115-141 created 38 U.S.C. 5303B, which permits a former service member to request a COD determination without filing a claim.  There is no prescribed form for a former service member to request the determination.
  • In some cases, particularly with older administrative decisions, a COD determination may appear in the record, but the electronic claims folder (eFolder) may not show advance notice of the COD determination and/or notice that the COD determination was issued.
    • The presumption of administrative regularity dictates that VA followed due process procedures that existed at that time; however, if there was clear evidence of irregularity and due process was not satisfied, corrective action will be required.
    • With respect to decision notice, when VBA makes determinations for another entity, that entity typically provided decision notice.  Presume that notice was sent – unless there is a clear showing to the contrary.
  • Upon receipt of a request, regional offices also make COD determinations for other entities, such as
    • the U.S. Department of Labor
    • the U.S. Railroad Retirement Board, and
    • State agencies.
References:  For more information on

X.iv.1.A.1.e.  Discharge Characterizations and Circumstances That Generally Require a COD Determination

 In certain fact patterns, as listed in M21-1, Part X, Subpart iv, 1.A.1.d, the following service department discharge characterizations require a COD determination:
  • other than honorable (OTH)
  • bad conduct discharge (BCD)
  • dismissal (of an officer), and
  • dishonorable.
The following uncharacterized separation will also require a COD determination:
  • void enlistment or induction, or
  • dropped from the rolls.
Notes:
  • A service discharge that shows resignation of an officer for the good of the service is considered a bar to benefits under 38 CFR 3.12(c) and also requires a COD determination.
  • In older records, what is now called an OTH discharge was called an “undesirable” discharge.
  • Officers only receive dismissals.  They do not receive OTH, BCD, or dishonorable discharges.
Reference:  For more information on assessing COD and related matters when there is an uncharacterized discharge or separation, see M21-1, Part X, Subpart iv, 1.B.3.

X.iv.1.A.1.f.  Discharge Characterizations and Circumstances That Generally Do Not Require a COD Determination

 Normally, if the service branch characterizes service as “honorable” or “general – under honorable conditions” (general-UHC), or issues an entry level separation, VA accepts that there was a discharge or release under conditions other than dishonorable, and a COD determination is not required. Exceptions:
  • A COD determination is necessary, even with an honorable or general-UHC discharge, if the separation reason is listed as a bar to benefits under 38 U.S.C. 5303(a).
  • Development for the facts and circumstances surrounding discharge is required, even if the discharge was honorable or general-UHC, if the reason for separation code shown in the corporate record is
    • T38 (possible Title 38 bar to VA benefits)
    • 953 (clemency discharge)
    • BEO (by executive order), or
    • DRO (discharge review – prior discharge under conditions other than honorable).
Examples:
  • If the character of service is general-UHC, and the separation reason is drug use, a COD determination is not necessary.  The separation reason is not a bar to benefits under 38 U.S.C. 5303(a).
  • If the characterization of service is general-UHC but the separation reason is a conscientious objector who refused to perform military duties, wear the uniform, or otherwise comply with lawful orders of competent military authorities, a formal determination as to whether the separation reason poses a bar to benefits under 38 U.S.C. 5303(a) is necessary.
Notes:
  • 38 CFR 3.14(d) states that an honorable discharge is binding on VA except for cases involving aliens.  38 CFR 3.12(a) provides that a discharge “under honorable conditions” is binding as to character of discharge.
  • A general-UHC discharge may be shown as “general”, “GEN,” “under honorable conditions,” “under honorable conditions (general),” or “UHC.”
Reference:  For more information on handling cases involving conscientious objectors that were discharged under honorable conditions, see VAOPGCPREC 11-1993.

X.iv.1.A.1.g.  Avoiding Premature COD Determinations

 Do not make a COD determination prematurely. If there is a claim, the record shows a discharge listed in M21-1, Part X, Subpart iv, 1.A.1.e, and a COD determination would usually be necessary, do not make a COD determination if there is another period or periods of service establishing Veteran status and basic eligibility for the benefit sought.  It is premature to determine basic eligibility based on a period of service if the benefit sought can be granted based on clear eligibility from a separate period of service. Note:  If there is any question regarding which period of multiple periods of service qualify a claimant for the benefits they are seeking, complete a COD determination for the period of (whichever is applicable) before referring the claim to the rating activity.

X.iv.1.A.1.h.  Procedure for Making a COD Determination
Follow the steps in the table below when a COD determination is needed except in limited circumstances provided in M21-1, Part X, Subpart iv, 1.A.1.q.
Step
Action
1
Conduct development, to the extent possible, for all evidence required to make a COD determination, including records detailing the facts and circumstances surrounding a former service member’s discharge as discussed in M21-1, Part X, Subpart iv, 1.A.1.i.
2
Provide the approved, standard COD determination advance notice.
3
Was there a contention or evidence that the conduct upon which the discharge was based occurred when the individual met the definition of insanity under 38 CFR 3.354?
  • If no, go to the next step.
  • If yes, before going to the next step,
    • refer the case to the rating activity for a determination under 38 CFR 3.354, and
    • wait for that determination to be completed.
References:  For more information on
4
Make a formal determination, using guidance on
Document the decision using the template shown in M21-1, Part X, Subpart iv, 1.A.1.k.
Important:
  • Consider all the evidence in VA’s possession, including the former service member’s credible statements or testimony regarding reasons for the discharge, and resolve any reasonable doubt in favor of the claimant.  As noted in M21-1, Part X, Subpart iv, 1.A.3 it is particularly important to accept the former service member’s credible testimony regarding reasons for discharge and to resolve doubt in their favor in cases involving assertions of a discharge for homosexuality, gender identity, or positive human immunodeficiency virus (HIV) status.  Service records in such cases might not explicitly state that those factors were a basis for discharge.
  • Include a finding on applicability of 38 CFR 3.354.
    • If not raised in Step 3, that must be stated.
    • If at issue, briefly discuss how, and incorporate the rating determination that the former service member did/did not meet the definition in 38 CFR 3.354 when they committed the act(s) that resulted in the discharge.
  • As applicable, the decision must discuss conditional discharges under 38 CFR 3.13 and M21-1, Part X, Subpart iv, 1.B.2.  Address any satisfactorily completed service, as well as unsatisfactory service, in the determination.  Follow the guidance in M21-1, Part X, Subpart iv, 1.B.2.h.
  • When making an unfavorable determination, list favorable findings if applicable as provided in M21-1, Part X, Subpart iv, 1.A.1.l.
  • When completing a COD determination refer to the additional considerations in M21-1, Part X, Subpart iv, 1.A.1.m, and (as applicable) the guidance on compelling circumstances in M21-1, Part X, Subpart iv, 1.A.1.t.
  • Consider the information in M21-1, Part X, Subpart iv, 1.B.4 and 5 before making a making a COD determination that involves a former service member with a Vietnam-Era, special upgraded discharge.
  • When the determination is that there is no statutory or regulatory bar to benefits, and the discharge for the period of service is under conditions other than dishonorable, do not discuss 38 CFR 3.360 or make any determination regarding applicability of the regulation.  Basic eligibility to VA benefits based on Veteran status including health care is established.
Reference:  For more information on whether to address basic eligibility to health care under 38 CFR 3.360, see  M21-1, Part X, Subpart iv, 1.B.1.
5
Refer the determination for approval as specified in M21-1, Part X, Subpart v, 1.C.2.h.
6
Send the correct approved, standard COD decision notice corresponding with the disposition of the COD determination in accordance with M21-1, Part X, Subpart iv, 1.A.1.n.
7
Prepare a record-purpose award to clear any pending end product (EP) 290 established to control the COD determination.
8
Update Share and the Veterans Benefits Management System (VBMS), as discussed in the Entering Character of Discharge (COD) Decisions Job Aid on the Character of Discharge (COD) Information Page.
Important:
  • The procedure in this table applies for COD determinations when a claim for benefits has been filed, as well as to free-standing requests by former service members for COD determinations without a claim, which are permitted pursuant to 38 U.S.C. 5303B.
  • When a claim has been filed and, applying the guidance in this section, a COD determination is necessary, do not send 38 U.S.C. 5103 notice (if applicable) or development letters, or initiate development for an examination or for records (beyond those required relating to facts and circumstances of discharge) unless/until the COD determination concludes that there is basic eligibility to the benefit claimed.
References:  For more information on

X.iv.1.A.1.i.  Developing for Facts and Circumstances Surrounding Discharge

 Collect, to the extent possible, all evidence required to make a COD determination, including records detailing the facts and circumstances surrounding the former service member’s discharge. Occasionally service departments provide only limited records to VA and some types of facts and circumstances evidence may be unobtainable. References:  For more information on

X.iv.1.A.1.j.  Evidentiary Standard of Proof for Bars to Benefits

 The criteria for a statutory or regulatory bar to benefits are met when
  • for each criterion (whether conduct or another fact), the evidence demonstrating it outweighs any evidence tending to disprove it, and
  • conduct and/or other facts comprising the criteria for the bar
    • are clearly supported by military record, and
    • were the basis for the discharge from service.
The criteria for a bar to benefits are not met when
  • the evidence disproving any criterion outweighs the evidence tending to support it
  • evidence disproving and supporting a criterion are approximately balanced as provided in 38 CFR 3.102, or
  • conduct and/or other facts comprising the criteria for the bar are not
    • clearly supported by military record, or
    • the basis for the discharge from service.
Important:  38 CFR 3.102 supports that when a reasonable doubt arises regarding service origin, the degree of disability, or any other point – such as whether any criterion in a bar to benefits is established or whether particular conduct was the basis for the discharge from service – that doubt will be resolved in favor of the individual. References:  For more information on

X.iv.1.A.1.k.  COD Determination Template

 Use of the template below is mandatory to document COD determinations. The template contains all possible paragraphs and language that will potentially need to be included in the decision depending on the facts of the case.  If the decision is being addressed to a person other than the former service member, modify the language as necessary, to include replacing references to “you” and “your” with the name of the former service member and third-person personal pronouns.
DEPARTMENT OF VETERANS AFFAIRS [Designation of VA Office]                                                        [File Number] [Location of VA Office]                           [Former Service Member’s Name]   ADMINISTRATIVE DECISION    ISSUE:  Character of discharge for the period of service [add service dates for the period(s) at issue]. EVIDENCE:  [Use bullets to list all documents and information reviewed in making the decision.  Identify the evidence using the standards in M21-1, Part V, Subpart iv, 1.A.4.]  For example:
  • VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, received September 6, 2023.
  • Response to advance notice that VA will be making a COD determination, received November 9, 2023.
  • STRs received on November 25, 2023, for the period March 2002 to November 2004.
  • Service personnel records received on November 25, 2023, for the period March 2002 to November 2004.
PERTINENT LAWS AND REGULATIONS: [List laws and regulations applicable to the decided issue(s).  Copy and paste only the applicable text from the relevant law(s) and/or regulation(s) that are required to decide the issue(s).] [Include first in every decision.]  According to 38 CFR 3.12(a), if the former service member did not die in service, then pension, compensation, or Dependency and Indemnity Compensation (DIC) is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable (38 U.S.C. 101(2)). [Copy and paste the applicable text from
  • 3.12(c)(1) to (6) if/when the discharge potentially poses a statutory bar to benefits
  • 3.12(d)(1) or (2) if/when the discharge potentially poses a regulatory bar to benefits
  • 3.12(e) for any case where the compelling circumstances exception is at issue, and/or
  • 3.13(c) for any case in which conditional discharge is at issue.
It may be necessary to include other 38 CFR 3.12 subparagraphs for cases involving discharge upgrades or corrections or for uncharacterized separations.  Applicable portions of other regulations such as 38 CFR 3.14, 38 CFR 3.105(c), or 38 CFR 3.354 might also need to be included depending on the facts presented.] [Include the following only in decisions where a bar to benefits applies under 38 CFR 3.12(c) or (d) and therefore the former service member is not eligible to VA benefits requiring Veteran status, but further consideration was given to basic eligibility for certain former service members to health care under 38 CFR 3.360.]  As stated in 38 CFR 3.360(a) and (b), the health care and related benefits authorized by Chapter 17 of Title 38 U.S.C. shall be provided to certain former service members with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty.  With certain exceptions such benefits shall be furnished for any disability incurred or aggravated during period of service terminated by a discharge under other than honorable conditions.  Specifically, they may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 CFR 3.12(c) applies. DECISION:  [Clearly and briefly state the decision here, but not the reasons for it.]  For example: Your discharge from [name of branch of service] for the period of service from [EOD date to RAD date] is [under conditions other than dishonorable/not under conditions other than dishonorable].  You [have/do not have] eligibility to VA benefits. [Only include a second decision on eligibility to Chapter 17 care pursuant to 38 CFR 3.360 with respect to a period of service when the first decision above finds the discharge is not under conditions other than dishonorable and therefore that there is no basic eligibility to benefits requiring Veteran status.] You [meet/do not meet] the eligibility criteria in 38 CFR 3.360 for health care benefits under Chapter 17, Title 38 U.S.C. REASONS AND BASES:  [This section must be prepared in accordance with the guidelines found in M21-1, Part X, Subpart v, 1.C.2.e, and included on all administrative decisions, including favorable ones.]     [Always address that 38 CFR 3.354 was considered.  Include the following statement.]  Whether conduct constituting a bar to benefits occurred when the standard in 38 CFR 3.354 for insanity was met [is/is not] an issue.  [Provide a brief explanation of any contention or facts putting a 38 CFR 3.354 determination at issue or the absence of any such contentions or facts.] [When a 38 CFR 3.354 determination is at issue, discuss the determination made.  Select one of the following statements as applicable]:
  • Based on the facts showing [summarize the facts bearing on the 38 CFR 3.354(a) standard] we have determined that you met VA’s regulatory definition of insanity at the time of the conduct resulting in your discharge and its characterization, we find that you were not at fault, and you are not precluded from VA benefits.
  • Based on the facts showing [summarize the facts bearing on the 38 CFR 3.354(a) standard] we have determined that you did not meet VA’s regulatory definition of insanity at the time of the conduct resulting in your discharge and its characterization.
[When the type of court-martial is relevant to the regulatory finding, for example, see the criteria in 38 CFR 3.12(c)(2), 38 CFR 3.12(c)(6)(ii), and 38 CFR 3.12(d)(1) or (2), include one of the following as applicable]
  • Your [list service branch discharge characterization] discharge was part of a sentence of a general court-martial.
  • Your [list service branch discharge characterization] discharge was part of a sentence of a [summary or special] court-martial.
  • You accepted an [OTH or BCD] to escape trial by a general court-martial.
  • The maximum sentence imposable pursuant to the Manual for Courts-Martial United States for the misconduct at issue, if tried by a general court-martial, would not include a dishonorable discharge or confinement for longer than one year.
[When a bar for prolonged absence without official leave (AWOL) under 38 CFR 3.12(c)(6), willful and persistent misconduct under 38 CFR 3.12(d)(2)(ii), or moral turpitude under 38 CFR 3.12(d)(2)(i) is at issue, include one of the following statements about the compelling circumstances exception in 38 CFR 3.12(e).]
  • Facts show the criteria for [describe applicable bar under 38 CFR 3.12(c)(6), 3.12(d)(2)(i) or 3.12(d)(2)(ii) as further discussed in M21-1, Part X, Subpart iv, 1.A.1.t] apply; however, compelling circumstances mitigate the conduct. [Discuss the facts and the factors that they persuasively demonstrate in 38 CFR 3.12(e).]
  • Facts show the criteria for [describe applicable bar under 38 CFR 3.12(c)(6), 3.12(d)(2)(i) or 3.12(d)(2)(ii)] apply.  The evidence did not persuasively establish that compelling circumstances existed to mitigate the conduct. [Discuss the criteria in 38 CFR 3.12(e) as further discussed in M21-1, Part X, Subpart iv, 1.A.1.t.]
[Always sum up the decision.]  For example:  Based on the evidence listed and discussed above, we conclude that the conduct for which you were discharged from service, and upon which your service characterization was based, [is/is not] a bar to benefits under 38 CFR 3.12(x)(x) [When finding a bar, fill in the 38 CFR 3.12 paragraph and subparagraphs.  When finding that a bar is not met, simply refer to 38 CFR 3.12].  Therefore, the discharge for the period of service [dates of service] [was/was not] under conditions other than dishonorable and basic eligibility to VA benefits [is/is not] established. [When the decision is that there is a bar under 38 CFR 3.12 to VA benefits requiring Veteran status, address basic eligibility to health care for a former service member under 38 CFR 3.360.  Important:  Do not make a secondary determination, or provide reasons and bases related to 38 CFR 3.360 where basic eligibility to benefits based on Veteran status is established.] FAVORABLE FINDINGS:  [When this heading is applicable, list any favorable findings that are made.  See M21-1, Part X, Subpart iv, 1.A.1.l, for more information on when the heading is required.]

X.iv.1.A.1.l.  Favorable Findings in a COD Determination

 The Favorable Findings part of the decision is not required when
  • the decision and all findings (conclusions as to a fact or application of law to facts) are favorable, or
  • in unfavorable determinations, there are no favorable findings.
Note:  Address full favorability of an outcome and findings as specified in M21-1, Part X, Subpart v, 1.C.2.e. When a COD determination is not fully favorable (a bar to benefits is found, the discharge was not under conditions other than dishonorable, and there is either no eligibility to any VA benefits requiring Veteran status, or there is only basic eligibility to health care under 38 CFR 3.360), but favorable findings are made, list those findings under Favorable Findings.
  • When a determination is made that an OTH discharge involved conduct meeting one of the regulatory bars and Veteran status is not established, but eligibility to health care as a former service member was established under 38 CFR 3.360, the fact that no provision of 38 CFR 3.12(c) applies is a favorable finding.
  • When multiple 38 CFR 3.12 bars were considered, and one was proven, the bases for concluding the other bar(s) could not be established are favorable findings.  Example:  The primary bar was for spying.  The record also contained a citation for drug use.  Both offenses were cited as reasons for discharge.  The drug use did not meet the standard for willful and persistent misconduct or moral turpitude.  There would be a favorable finding that the drug use did not constitute a bar to benefits.  Similarly, if one bar applied and another bar did not apply due to  38 CFR 3.354 or 38 CFR 3.12(e) the conclusion on insanity or compelling circumstances would be a favorable finding.

X.iv.1.A.1.m.  Additional Considerations for Completing the COD Determination

 Apply the guidance below when completing the COD determination template.
  • The issue in the determination should always be Character of discharge because the determination required by law is whether there is, or is not, a discharge or release under conditions other than dishonorable.  Do not limit the stated issue to Statutory bar or Regulatory bar or list the two as co-issues.
  • The reasons for the decision must include discussion of the evidence received from the service department, and from the former service member, as it relates to the circumstances of the conduct that formed the basis for the discharge and its characterization.  The decision must adequately discuss whether the facts meet the criteria for any bar(s) to benefits raised by the evidence of record (multiple bars may require discussion), and in doing so, should address facts bearing on any mitigating or equitable considerations within the regulatory criteria to specifically include compelling circumstances when an applicable bar is at issue (38 CFR 3.12(e)).
  • When making a determination that a period of obligated service within a longer period of continuous service involving a conditional discharge was satisfactorily completed (and therefore that there is considered to have been a discharge or release from this period of service under 38 U.S.C. 101(18) and 38 CFR. 3.13) follow the guidance in M21-1, Part X, Subpart iv, 1.A.1.h (Step 4) and M21-1, Part X, Subpart iv, 1.B.2.h.
References:  For more information on

X.iv.1.A.1.n.  Providing Decision Notice of the COD Determination

 After making an administrative decision, generate a decision notice that meets the requirements expressed in M21-1, Part VI, Subpart i, 1.B.  Attach a copy of the administrative decision to the decision notice. Use the table below to determine what additional information/elements to include in a decision notice of an unfavorable administrative decision regarding COD.
If the unfavorable COD decision … Then the decision notice must …
precludes eligibility to all VA benefits address the
  • decision’s effect on entitlement to VA benefits, and
  • procedure for asking the applicable service branch to review it.
  • precludes eligibility to all benefits other than medical treatment under 38 U.S.C. Chapter 17, and
  • was made in connection with a claim for disability compensation benefits
  • address the
    • decision’s effect on entitlement to VA benefits, and
    • procedure for asking the applicable service branch to review it, and
  • inform the claimant that
    • contentions listed on the claim form are being further processed, and
    • a decision will be made on whether the claimed conditions are service connected (SC) for health care purposes.
Important:  Do not invite the claimant to file another VA Form 21-526EZ.
  • precludes eligibility to all benefits other than medical treatment under 38 U.S.C. Chapter 17, and
  • was not made in connection with a claim for disability compensation benefits (such as a claim for Veterans Pension or requests for a COD determination pursuant to 38 U.S.C. 5303B)
  • address the
    • decision’s effect on entitlement to VA benefits, and
    • procedure for asking the applicable service branch to review it
  • enclose VA Form 21-526EZ, and
  • invite the former service member to claim entitlement to SC for treatment purposes for any specific conditions believed to be related to service.
Notes:
  • For all determinations that are not fully favorable, it is critical that the former service member or survivor receives information on applicable options for seeking further review of the decision as provided in M21-1, Part VI, Subpart i, 1.B.1.b.
  • When providing notice to a VA or non-VA entity, complete the applicable form provided.  If a non-VA entity does not furnish a form for reply, send notification via a locally generated letter.
Reference:  For more information issuing COD decision notices see the Character of Discharge (COD) Information Page.

X.iv.1.A.1.o.  Claim Processing After a Determination That Veteran Status Is Established

 When a COD determination issued in connection with a claim for benefits concludes that there is no bar to benefits, and the discharge from active service is under conditions other than dishonorable so that Veteran status is established, after completing all steps of the procedure in M21-1, Part X, Subpart iv, 1.A.1.h, the development activity will
  • send 38 U.S.C. 5103 notice if required
  • accomplish all normal development necessary to ready the case for rating disposition, and
  • refer the case for preparation of a rating decision.
Rating, promulgation, authorization, and notice will proceed in normal fashion. Reference:  For more information on the duty to notify under 38 U.S.C. 5103, see M21-1, Part III, Subpart i, 2.B.

X.iv.1.A.1.p.  Reviewing for Prior Final COD Determinations

 In any procedural posture where a COD determination is required, claims processors must review the file for any prior final COD determination made in accordance with the same criteria and based on the same facts – regardless of whether the filing specifically alludes to a prior COD determination or attaches evidence. Use the table below for guidance on the actions to take to assess whether there is a prior COD determination of record, and if so, what action to take.
If … Then …
  • a claim is received, and
  • there is no previous COD determination of record
 is a COD determination necessary to assess basic eligibility for the current claim under the framework in M21-1, Part X, Subpart iv, 1.A.1.e–g?
  • If yes, follow the procedure for making a COD determination in M21-1, Part X, Subpart iv, 1.A.1.h.
  • If no, then no action is needed under this section.  The claim can be developed and decided under applicable M21-1 policies and procedures.
  • a claim is received, and
  • a prior COD determination found all service to be under conditions other than dishonorable and established eligibility to benefits based on Veteran status
 no action is needed under this section.  The claim can be developed and decided under applicable M21-1 policies and procedures. Important:  Do not change a previous favorable determination that the individual had a discharge under conditions other than dishonorable for a period of service based on application of the revised regulation.  For example, if the prior determination found that there was no willful and persistent misconduct do not reevaluate the conduct today under new standards for willful and persistent misconduct.
  • a prior COD determination found that there was no eligibility to benefits based on Veteran status for a period of service, and
  • the current claim is
    • for a benefit requiring Veteran status, and
    • based on the same period of service
 follow the guidance in M21-1, Part X, Subpart iv, 1.A.1.q to determine whether there is a basis for changing the prior determination. Exception:  When the current claim is submitted after June 25, 2024, based on a period for which an adverse COD determination was made prior to that date, proceed with the determination.  See the last row of this table.
  • a prior COD determination found that there was no eligibility to benefits based on Veteran status for a period of service, but
  • the prior COD determination is not binding on the current claim
Examples:
  • The current claim is for SC compensation but is based on a separate, earlier period of service not addressed in the prior COD determination.
  • The current claim is based on the service covered by the prior COD determination but the prior decision established basic eligibility for treatment under 38 U.S.C. Chapter 17 pursuant to 38 CFR 3.360, and the current claim is expressly for SC for treatment purposes only.
 is a COD determination necessary to assess basic eligibility for the current claim? Explanation:
  • In the first example, basic eligibility to benefits has not been determined for the earlier service period.  If the circumstances do not require a COD determination for the earlier service (for example if there is an honorable discharge for the service at issue) then the new claim can be developed and decided under applicable M21-1 policies and procedures.
  • In the second example, a prior COD determination found the service was not under conditions other than dishonorable.  Therefore, the former service member has no basic eligibility to benefits, such as SC compensation, that require Veteran status.  However, it also found that the former service member had basic eligibility to treatment, and that is what the current claim unambiguously is for.  The claim for SC for treatment purposes can be developed and decided under applicable M21-1 policies and procedures.
Important:  If there is any ambiguity in the claim and the claimant may be seeking readjudication of the issue of COD – considering the form used for the filing, the wording used in the claim, and any evidence attached to, or identified in, the claim – a decision under M21-1, Part X, Subpart iv, 1.A.1.q may be necessary.  When a claimed issue is not clearly identified, ask the claimant and authorized representative (if any) to clarify the claim.
  • a former service member requests a new COD determination under revised 38 CFR 3.12, on or after June 25, 2024, and
  • a prior COD determination adjudicated prior to June 25, 2024, determined that there was no eligibility to benefits based on Veteran status for a period of service
 follow the guidance in M21-1, Part X, Subpart iv, 1.A.1.h. Important:  A prescribed form is not required.  If a claim is not submitted, the request is treated as under 38 U.S.C. 5303B.
   References:  For more information on

X.iv.1.A.1.q.  Making Decisions Involving a Prior Final COD Determination

 Use the table below for guidance on making determinations when
  • a prior COD determination found a discharge or release from a period of service was not under conditions other than dishonorable
  • there is currently a
    • claim for a benefit requiring Veteran status, or
    • another request that requires a COD determination, and
  • the current claim is or other request is based on the same period of service such that the prior COD determination is binding.
If … Then …
a change in the prior COD determination is justified because of
  • new and relevant evidence
  • CUE, or
  • a change in law that provides a new basis for entitlement
Note:  Updates to 38 CFR 3.12  effective June 25, 2024 (89 FR 32361), are considered a liberalizing change of law or VA issue.		 Exception:  If a favorable decision is made on COD without a claim, review for issues that were previously denied because of lack of eligibility due to COD based on the period of service and invite a claim for those issues.  Do not readjudicate the previously adjudicated issues without a claim. Important:
  • A former service member who received an unfavorable COD determination prior to June 25, 2024, and who requested a new COD determination on or after that date under the amended 38 CFR 3.12 is entitled to one review without providing new and relevant evidence as the amendment constitutes a new basis for eligibility.
  • Take the actions specified in M21-1, Part II, Subpart ii, 3.2.c, to ensure any paper records are scanned into VBMS before proceeding with the determination.
  • Where a benefit is awarded after a COD determination finding basic eligibility, refer to M21-1, Part X, Subpart iv, 1.A.1.s, for guidance on assignment of an effective date.
a change in the prior COD determination is not justified Notes:
  • If late flowing evidence is received, or the claimant submits new and relevant evidence, list the evidence, and state that it was considered but did not change the prior COD determination (make sure to specify the date of the prior determination).  The discussion must explain why evidence was not new and relevant and/or why new and relevant evidence did not change the prior decision.
  • If the decision was based on a new legal basis briefly explain why eligibility was not established under the change in law.
  • If a CUE was asserted but not found, briefly explain the determination that no CUE was found.
  • In cases where no change in a prior final COD determination is warranted but the prior COD determination did not address former service member basic eligibility for treatment under 38 U.S.C. Chapter 17 pursuant to 38 CFR 3.360, prepare a new COD determination addressing only that issue.
References:  For more information on

X.iv.1.A.1.r.  Regulatory Changes to 38 CFR 3.12

 On April 26, 2024, VA published a significant revision to 38 CFR 3.12  effective June 25, 2024 (89 FR 32361).  The purpose of the rule was to expand VA benefits eligibility, bring more consistency to adjudications of benefits eligibility, and ensure COD determinations consider all pertinent factors. The rule is applicable to all applications for benefits received by VA on or after June 25, 2024, or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on June 25, 2024. The rule
  • removes the bar for aggravated homosexual acts
  • refines the definition of willful and persistent misconduct for more objective application
  • adds a compelling circumstances exception and outlines factors that can mitigate the regulatory bars of
    • moral turpitude, and
    • willful and persistent misconduct, and
  • provides additional compelling circumstances that can mitigate the statutory bar of AWOL for 180 days or more.
Important:  In addition to the regulatory text, the preamble to the final rule clarifies the following legal and evidentiary considerations:
  • the bars will be applied only
    • when they are clearly supported by the military record, and
    • if they formed the basis for the discharge, and
  • the benefit of the doubt will be resolved in favor of the former service member.

X.iv.1.A.1.s.  Effective Dates and Liberalizing Effect of Changes to 38 CFR 3.12

 Effective dates are not assigned for COD determinations that find eligibility based on establishment of Veteran status.  A benefit can be awarded only if there is eligibility.  Once eligibility is established an effective date is assigned to any benefit awarded. Importantly, the June 25, 2024, revision to 38 CFR 3.12 (89 FR 32361) is considered a liberalizing change of law or VA issue.  There were changes to several regulatory criteria for assessing basic eligibility, and therefore, the rule may provide a basis for changing a previous adverse COD determination or establishing eligibility that would not have been possible under the regulation as it was previously written. When benefits are awarded based on a COD determination completed on or after June 25, 2024, a retroactive effective date under 38 CFR 3.114(a) must be considered.  However, to be eligible for an effective date, the former service member must have been discharged from the period of service at issue prior to June 25, 2024.  A former service member discharged on or after June 25, 2024, is not eligible for an effective date under 38 CFR 3.114(a), because the discharge occurred after the effective date of 38 CFR 3.12.  A retroactive award under 38 CFR 3.114(a) cannot be effective earlier than the effective date of the change of law or VA issue. For those claimants found eligible for benefits pursuant to revised 38 CFR 3.12 and eligible for a retroactive effective date under 38 CFR 3.114(a), the effective date is governed by 38 U.S.C. 5110(g) and 38 CFR 3.114(a) as provided in the following table.
If a claim is received … Then benefits may be authorized …
within one year from the effective date of the law  from that date (June 25, 2024).
more than one year after the effective date of the liberalizing law for a period of one year prior to the date of receipt of such request.
References:  For more information on

X.iv.1.A.1.t.  Exceptions to Certain Bars to Benefits Based on Compelling Circumstances

 The amendments to 38 CFR 3.12, effective June 25, 2024 (89 FR 32361) added 38 CFR 3.12(e), which provides that the bars to benefits for prolonged AWOL under 38 CFR 3.12(c)(6), offenses involving moral turpitude under 38 CFR 3.12(d)(2)(i), and willful and persistent misconduct under 3.12(d)(2)(ii) “will not be applied if compelling circumstances mitigate the AWOL or misconduct at issue.”  This means that compelling circumstances are considered only in cases where one or more of these bars otherwise apply. Compelling circumstances analysis requires consideration of
  • length and character of service exclusive of the period of prolonged AWOL or misconduct
  • reasons for the prolonged AWOL or misconduct, and
  • whether a valid legal defense would have precluded a conviction for AWOL or misconduct under the Uniform Code of Military Justice.
In conducting the analysis of those factors, consider the points below.
  • Service exclusive of the period of prolonged AWOL or misconduct should generally be of such quality and length that it can be characterized as honest, faithful, and meritorious and of benefit to the nation.
  • Reasons for prolonged AWOL or misconduct could include:
    • mental or cognitive impairment at the time of the prolonged AWOL or misconduct, to include but not limited to a clinical diagnosis of (or evidence that could later be medically determined to demonstrate existence of) posttraumatic stress disorder, depression, bipolar disorder, schizophrenia, substance use disorder, attention deficit hyperactivity disorder, impulsive behavior, or cognitive disabilities
    • physical health, to include physical trauma and any side effects of medication
    • combat-related or overseas-related hardship
    • sexual abuse/assault
    • duress, coercion, or desperation
    • family obligations or comparable obligations to third parties, or
    • age, education, cultural background, and judgmental maturity.
  • A valid legal defense that would have precluded a conviction for AWOL or misconduct under the Uniform Code of Military Justice must go directly to absence or misconduct rather than to procedures, technicalities, or formalities such as failure to object to evidentiary findings.
​​​​Important:
  • All lay, medical, and military information relevant to compelling circumstances must be considered.
  • Lay statements do not require corroboration by military records but will be considered together with all evidence of record.  A lay statement alone may be sufficient to prove a compelling circumstance if credible (considering factors such as plausibility on its face, internal consistency, and consistency with other evidence).
  • If the claims processor rejects lay statements or other evidence of compelling circumstances, the reasoning must be documented in the Reasons and Bases of the administrative decision.  Reasoning cannot be conclusory.  For example, if a statement is inconsistent with other evidence the way in which it is inconsistent needs to be explained.
  • Allegations of discrimination must also be considered as potential compelling circumstances.  Although not stated in the regulatory text, the final rule stated that if discrimination, based on factors such as race or sex, was a factor in the discharge and characterization, the compelling circumstances exceptions would allow VA to find that a bar did not apply.
    • It is not necessary for a former service member to specify the category under which alleged discrimination falls.  Broadly consider any such allegations.
    • Actionable discrimination is not limited to race or sex.  Consider allegations of discrimination based on other personal characteristics including, but not limited to, religion, age, sexual orientation, and gender identity.
Notes:
  • Any mental health disability can be relevant, including congenital conditions such as a personality disorder, substance abuse disorder, or a cognitive disability.  To meet the definition of insanity, the condition does not have to be service connected or compensable.
  • Examples of a valid legal defense to substantive issues of absence or misconduct include
    • an alibi for the alleged crime
    • entrapment into committing the alleged crime
    • necessity for committing the alleged crime, or
    • constitutional due process violations.

2.  Statutory Bars to Benefits

Introduction

 This topic contains information on statutory bars to benefits, including

Change Date

 November 25, 2024

X.iv.1.A.2.a.  Bars Established by 38 CFR 3.12(c)

 A statutory bar to benefits exists when VA determines a discharge or release from active military, naval, air, or space service was under any of the conditions discussed in  38 U.S.C. 5303 and 38 CFR 3.12(c).  These conditions are
  • a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful orders of competent military authorities
  • sentence of a general court-martial (GCM)
  • resignation by an officer for the good of the service
  • an alien during a period of hostilities
  • AWOL for continuous period of at least 180 days, and
  • desertion.
Important:  In determining whether the criteria are met for a 38 CFR 3.12(c) bar, apply the evidentiary standards of proof for bars to benefits in M21-1, Part X, Subpart iv, 1.A.1.j. Exceptions:  Even if the conditions listed in the regulation are otherwise met,
  • no bar will be applied if the individual met the definition of insanity under 38 CFR 3.354 at the time of the conduct, and
  • the bar for prolonged AWOL will not be applied if compelling circumstances mitigate the conduct, as provided in 38 CFR 3.12(c)(6) and 38 CFR 3.12(e).

X.iv.1.A.2.b.  Discharge or Dismissal by Sentence of a GCM

 A statutory bar to benefits exists when the facts indicate a former service member was discharged or dismissed from service by the sentence of a GCM. All dishonorable discharges and officer dismissals are by sentence of a GCM.    Note:  The evidence, including that bearing on the facts and circumstances of discharge, must show that the service member was sentenced by GCM, not a summary court-martial or a special court-martial.

X.iv.1.A.2.c.  Discharges for Alienage

 If there was a discharge during a period of hostilities that was not changed to honorable prior to January 7, 1957, determine if the records show that the former service member requested the discharge as provided in the table below.
If the record … Then …
shows that the former service member requested the discharge a bar to benefits exists.
does not show that the former service member requested the discharge make a specific request to the appropriate service department for this information.
  Note:  The lack of affirmative evidence in the service department’s reply or in the eFolder showing that the former service member requested the release is a sufficient basis for a favorable decision. Reference:  For more information on discharges for alienage, see 38 CFR 3.7(b).

X.iv.1.A.2.d.  Discharges for UA or AWOL
Follow the steps in the table below to determine the action to take if
  • a service member received an OTH discharge, and
  • the former service member’s service department confirms there was a continuous period of 180 or more days of either an unauthorized absence (UA) or AWOL (exclusive of periods of imprisonment or confinement) which led to the OTH discharge.
Step Action

1
Review the evidence received from the service department to confirm that it includes the exact dates and nature of the lost time.
Note:  When determining whether a claimant had a continuous period of 180 or more days of UA or AWOL, do not rely on the number of days reported as “time lost” on DD Form 214, Certificate of Uniformed Service, because there is typically no indication on the form as to whether the time lost was continuous or not.
Reference:  For more information on UA or AWOL, see 38 CFR 3.12(c)(6).
2
Did the former service member provide reasons for the prolonged, UA or AWOL?
  • If yes, go to the next step.
  • If no, go to Step 5.
3
Does the evidence of record prove compelling circumstances as defined in 38 CFR 3.12(c)(6)(i) and 38 CFR 3.12(e) and as discussed in M21-1, Part X, Subpart iv, 1.A.1.t?
  • If yes, go to the next step.
  • If no, go to Step 5.
4
  • Prepare an administrative decision using the template shown in M21-1, Part X, Subpart iv, 1.A.1.k.
  • If there are no other bars at issue, in the decision state:  The discharge for the period [date] to [date] is under conditions other than dishonorable.  In Reasons and Bases add: The conduct does not constitute a bar to benefits under the provisions of 38 CFR 3.12(c)(6), 38 CFR 3.12(e), and 38 U.S.C. 5303(a) because there were compelling circumstances to warrant the prolonged absence from duty.
  • Disregard the remaining step in this table.

5
Prepare an administrative decision using the template shown in M21-1, Part X, Subpart iv, 1.A.1.k with the following conclusion:
The discharge for the period [date] to [date] is a bar to VA benefits under the provisions of 38 CFR 3.12(c)(6) and 38 U.S.C. 5303(a).
Reference:  For more information on identifying upgraded discharges, see M21-1, Part X, Subpart iv, 1.B.4.c.

3.  Regulatory Bars to Benefits

Introduction

 This topic contains information on regulatory bars to benefits, including

Change Date

 November 25, 2024

X.iv.1.A.3.a.  Bars Established by 38 CFR 3.12(d)

 A regulatory bar to benefits is established any time the claims processor determines the discharge or release was issued under any of the conditions listed in 38 CFR 3.12 (d).  These consist of
  • discharge in lieu of trial
  • mutiny or espionage
  • an offense involving moral turpitude, and
  • willful and persistent misconduct
Important:  In determining whether the criteria are met for a 38 CFR 3.12(d) bar, apply the evidentiary standards of proof for bars to benefits in M21-1, Part X, Subpart iv, 1.A.1.j. Exception:  Even if the conditions listed in the regulation are otherwise met,
  • no bar will be applied if the individual met the definition of insanity under 38 CFR 3.354 at the time of the conduct, and
  • bars for moral turpitude or willful and persistent misconduct will not be applied if there were compelling circumstances mitigating the conduct as provided in 38 CFR 3.12(d)(2) and 38 CFR 3.12(e).

X.iv.1.A.3.b.  Discharge in Lieu of Trial

 A bar to benefits exists under 38 CFR 3.12(d)(1)(i) when the facts indicate the service member agreed to accept an OTH discharge or its equivalent in lieu of trial by GCM. The bar should only be explored if the discharge reason was “discharge in lieu of court-martial.”  When that condition is met, to find the bar established, there must be evidence in the military records that the former service member accepted the discharge under other than honorable conditions (or equivalent) in lieu of a trial conducted as part of a GCM. Note:  The evidence must show that the discharge was in lieu of a GCM, not a summary court-martial or a special court-martial. Important:
  • If there is any question on any aspect of the standard, including whether the discharge was in lieu of a GCM or a different type of court-martial, consider the available records and apply reasonable doubt as applicable.
  • If the evidence is unclear regarding the type of court martial and this bar is not applied, claims processors should still consider whether the misconduct leading to the discharge falls under another bar, such as willful and persistent misconduct or moral turpitude.
References:  For more information on

X.iv.1.A.3.c.  An Offense Involving Moral Turpitude

 A bar to benefits exists under 38 CFR 3.12(d)(2)(i) when the facts indicate the discharge was for conduct constituting moral turpitude. Office of General Counsel Opinion 6-87 defined moral turpitude as a willful act that
  • has no justification or legal excuse
  • gravely violates accepted moral standards, and
  • would likely cause harm or loss of a person or property.
With respect to the second prong, moral turpitude involves conduct that would shock the public conscience as being inherently base, vile, or depraved and contrary to accepted rules of morality and duties owned between persons or to society in general. Felony convictions are generally consistent with the definition of moral turpitude; however, acts can meet the definition without a felony conviction.
  • Examples of offenses implicating moral turpitude include (but are not limited to)
    • felony conviction from either a state or federal non-military court
    • serious crimes against a person, such as rape or murder, robbery (Article 122), assault with a loaded firearm (Article 128), or illegal drug trafficking, and
    • crimes involving harm or loss to property such as arson, burglary, larceny, or forgery.
  • The following are examples of offenses that do not meet the definition of moral turpitude because they are not listed in the Manual For Courts-Martial United States, or they fall under the 38 CFR 3.12(d)(2)(ii) definition of minor misconduct as discussed in M21-1, Part X, Subpart iv, 1.A.3.d:
    • parking tickets
    • public intoxication without harm to another or the service, including Article 112:  Drunkenness and other incapacitation offenses
    • Article 86:  Failing to go, going from duty station, and
    • Article 86:  Absence from unit, organization etc. 30 days or less.
  • The following are examples of offenses that do not meet the definition of moral turpitude because even though they do not fall under the definition of minor misconduct in 38 CFR 3.12(d)(2)(ii), they do not involve harm to another person or property:
    • one-time marijuana use, and
    • adultery.
  • When determining whether a specific offense constitutes moral turpitude, such as one-time use of drugs other than marijuana, refer to the above definition and guidance in this block, but apply a liberal standard.
The standard of proof in M21-1, Part X, Subpart iv, 1.A.1.j applies for establishment of the moral turpitude bar.  If an offense is established by the record and reasonable doubt does not apply, a claims processor may conclude that the offense was committed even without a criminal conviction or confinement. Exception:  Benefits are not barred under 38 CFR 3.12(d)(2)(i) even when, after applying a liberal standard, the conduct underlying the discharge meets the definition of moral turpitude, if
  • there were compelling circumstances, as defined in 38 CFR 3.12(e) that mitigate the misconduct at issue, or
  • the rating activity determines that the conduct occurred when the former service member met the definition of insanity in 38 CFR 3.354.
Notes:
  • A single incident, or a series of incidents of conduct can constitute moral turpitude.
  • Minor misconduct as defined in the regulation for the purposes of willful and persistent misconduct would generally not meet the definition of moral turpitude.
  • Depending on the facts, conduct that does not meet the regulatory standard could be analyzed under the willful and persistent misconduct standard.
Important:
  • Effective June 25, 2024, 38 CFR 3.12(d)(5) has been rescinded.  Discharge for homosexual conduct, in and of itself, is not a bar to benefits and cannot be appropriately barred under 38 CFR 3.12(d)(2)(i).  However, the final rule discussion of the recission of 38 CFR 3.12(d)(5) states that although a “homosexual acts” bar is outdated and unnecessary, certain sexual acts (whether homosexual or heterosexual) can still meet the criteria for another bar to benefits.  Sexual offenses such as child sexual abuse, rape, and other sexual assault fall under the regulatory definition of moral turpitude and the definition and analysis in Office of General Counsel Opinion 6-87.
  • Discharges based on consensual sexual behavior between service members of equal grade or rank, gender or sexual identity, or positive HIV status are not appropriately barred under 38 CFR 3.12(d)(2)(i).  The discharge document and other service documents may not explicitly mention that a discharge was based on gender or sexual identity or positive HIV status.  In that case, accept the former service member’s credible statements or testimony as sufficient evidence regarding reasons for the discharge.  Where there is conflicting evidence, the claims processor must consider all evidence of record, but as appropriate, may
    • find the former service member’s statement more credible and probative than other evidence of record, and/or
    • resolve any reasonable doubt in favor of the former service member.

X.iv.1.A.3.d.  Willful and Persistent Misconduct

 A bar to benefits exists under 38 CFR 3.12(d)(2)(ii) when the facts establish the discharge from the period of service at issue was for willful and persistent misconduct. Willful misconduct is defined in 38 CFR 3.1(n) as “an act involving conscious wrongdoing or known prohibited action” that must involve “deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.” The misconduct must meet the 38 CFR 3.12(d)(2)(ii) definition of persistent, which is dependent on whether the misconduct is minor or more serious.  Minor misconduct must meet the definition in 38 CFR 3.12(d)(2)(ii). Persistent means:
  • instances of minor misconduct occurring within two years of each other
  • an instance of minor misconduct occurring within two years of more serious misconduct, or
  • instances of more serious misconduct occurring within five years of each other.
Exceptions:
  • Do not apply the willful and persistent misconduct bar if there were compelling circumstances, as defined in 38 CFR 3.12(e) that mitigate the misconduct at issue.
  • Willful and persistent misconduct is not a bar to benefits if the rating activity determines that the conduct occurred when the former service member met the definition of insanity in 38 CFR 3.354.
Notes:
  • Minor misconduct is defined as misconduct (proscribed behavior) for which the maximum sentence imposable under Manual For Courts-Martial United States would not include a dishonorable discharge or confinement for longer than one year if tried by GCM.
    • To determine if an offense meets this standard refer to the Manual for Courts-Martial United States Appendix 12, Maximum Punishment Chart, which lists discharge and confinement requirements for various offenses by title and article number.
    • Claims processors must always use the most current version of the Manual for Court Martial United States.
  • Examples of minor misconduct, include
    • Article 86:  Failure to go, going from appointed place of duty
    • Article 87a:  Resisting apprehension or Flight from apprehension
    • Article 91:  Contempt or disrespect to a warrant officer, superior noncommissioned or petty officer, or other noncommissioned or petty officer
    • Article 95a:  Disrespect toward sentinel or lookout
    • Article 112:  Drunkenness or other incapacitation offenses, and
    • Article 121:  Larceny or wrongful appropriation with property value of $1,000 or less.
  • Conduct that does not fall under the definition of minor misconduct is considered “more serious misconduct” for the purpose of the persistence analysis.
  • Depending on the offense and conduct, more serious misconduct could also be analyzed as moral turpitude.  However minor misconduct would generally not meet the definition of moral turpitude.
Important:
  • No single instance of misconduct may support the application of the willful and persistent misconduct.
  • Multiple offenses that originate from a single event or circumstance (e.g., attempted robbery leading to fleeing and then leading to resisting arrest) are considered one instance of misconduct.
  • The standard of proof in M21-1, Part X, Subpart iv, 1.A.1.j, applies for establishment of the willful and persistent conduct bar.
  • Effective June 25, 2024, 38 CFR 3.12(d)(5) was rescinded.  Discharge for homosexual conduct in and of itself is not an appropriate basis for finding a bar to benefits under 38 CFR 3.12(d)(2)(ii).  However, the final rule discussion of the recission of 38 CFR 3.12(d)(5) states that although a “homosexual acts” bar is outdated and unnecessary, certain sexual acts (whether homosexual or heterosexual) can still meet the criteria for a statutory or regulatory bar.  Sexual conduct of the type previously listed in 38 CFR 3.12(d)(5) can be the grounds for a bar based on willful and persistent misconduct with the caution that the bar must be fully justified in the decision, and appropriate consideration must be given to any compelling circumstances as well as insanity, if claimed or raised by the record.   Discharges based on consensual sexual behavior between service members of equal grade or rank, gender or sexual identity, or positive HIV status are not appropriately barred under 38 CFR 3.12(d)(2)(ii).  The discharge document and other service documents may not explicitly mention that a discharge was based on gender or sexual identity or positive HIV status.  In that case, accept the former service member’s credible statements or testimony as sufficient evidence regarding reasons for the discharge.  Where there is conflicting evidence, the claims processor must consider all evidence of record, but as appropriate, may
    • find the former service member’s statement more credible and probative than other evidence of record, and/or
    • resolve any reasonable doubt in favor of the former service member.
References:  For more information on