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Updated Feb 03, 2023

In This Section
This section contains the following topics:
Topic
Topic Name
1
2
3
4
5 Second Reviews of DRB Determinations

1.  COD Determinations and Health Care Eligibility

Introduction

 This topic contains information on the effect that COD determinations have on health care eligibility, including

Change Date

 February 2, 2023

X.iv.1.B.1.a.  Health Care Benefits for Former Service Members With Certain OTH Discharges

 Effective October 8, 1977, Public Law (PL) 95-126, amended the law to extend eligibility for health care benefits for any disability incurred or aggravated in the line of duty during active service to former service members with other-than-honorable (OTH) discharges. The Department of Veterans Affairs (VA) incorporated the principles of PL 95-126 on eligibility to health care when character of discharge (COD) would otherwise be a bar to basic eligibility to VA benefits in 38 CFR 3.360. Under the regulation, health care benefits can be paid to former service members when there is an OTH discharge except when
  • the period of service was terminated with a bad conduct discharge (BCD), or
  • one of the bars listed in 38 CFR 3.12(c) applies.
Meaning that, when a former service member with an OTH discharge is found to have had a dishonorable discharge for VA purposes because of conduct constituting a regulatory bar to benefits (one specified in 38 CFR 3.12(d)), the individual will only have basic eligibility to VA health care.

X.iv.1.B.1.b.  When to Make a Determination Under 38 CFR 3.360

 When making a COD determination in response to a claim, and the primary decision reached is that the discharge for the period of service is found to be dishonorable for VA purposes (such that there is no Veteran status and no eligibility to VA benefits requiring Veteran status), a secondary decision must be made on whether the former service member meets basic eligibility for health care under 38 CFR 3.360. A former service member’s contentions on the claim form are deemed to include service connection (SC) for treatment purposes.  Therefore, when basic eligibility to benefits requiring Veteran status is precluded under 38 CFR 3.12, there is still an issue of whether basic eligibility to health care can be established under 38 CFR 3.360.

X.iv.1.B.1.c.  When Not to Make a Determination Under 38 CFR 3.360

 38 CFR 3.360 was promulgated to provide an avenue for basic eligibility for health care for former service members with OTH discharges whose conduct fell under a 38 CFR 3.12(d) bar such that COD would otherwise be a bar to all VA benefits.  It must be read together with 38 CFR 3.12 (as well as 38 CFR 3.13 and 38 CFR 3.354, if applicable).  It must not be used to deny health care under where basic eligibility to benefits based on Veteran status has been established. It is incorrect to find that
  • 38 CFR 3.12(c) and (d) criteria were not met, but that because the discharge was a BCD, the individual is not entitled to health care, or
  • a statutory bar can be negated for 38 CFR 3.12 purposes by a 38 CFR 3.354 determination of insanity, but that the statutory bar applies for 38 CFR 3.360 purposes.
The COD decision must be that the discharge was other than dishonorable (establishing Veteran status, and basic eligibility for all VA benefits including  health care) notwithstanding that the former service member’s conduct meets the criteria for a statutory bar listed in 38 CFR 3.12(c), or the service was terminated with a BCD if
  • insanity is at issue, and
  • a rating determination is made that the person was insane at the time of the conduct resulting in the discharge.
38 CFR 3.12(b) and 38 U.S.C. 5303(b) are clear that bars to benefits are subject to insanity.  As stated in the statute under those circumstances, the individual “shall not be precluded from benefits administered by the Secretary based upon the period of service from which such person was separated.”

X.iv.1.B.1.d.  Making the Correct 38 CFR 3.360 Decision

 The table below contains instructions for addressing the issue of basic eligibility to health care under 38 CFR 3.360 in the administrative decision. Important:  As noted directly above in M21-1, Part X, Subpart iv, 1.B.1.c, do not make a decision on basic eligibility to health care pursuant to 38 CFR 3.360 if basic eligibility to all VA benefits is appropriately established under other regulations applicable to discharges.  This block only applies when making a primary COD decision that there is a statutory or regulatory bar to benefits under 38 CFR 3.12, which puts the issue of basic eligibility to health care under 38 CFR 3.360 at issue.
If …  Then …
  • a determination is made that the period of service was dishonorable for VA purposes
  • there is a bar to benefits under
  • there is no other applicable basis for finding basic eligibility to VA benefits, such as an insanity determination, separate period of service, conditional discharge, upgraded discharge, or clemency
 under the Decision section, state:  You do not meet the basic eligibility criteria in 38 CFR 3.360 for health care benefits under Chapter 17, Title 38, U.S.C.
  • a determination is made that the period of service was dishonorable for VA purposes
  • there is
  • the service discharge was not a BCD
 under the Decision section, state:   You meet the basic eligibility criteria in 38 CFR 3.360 for health care benefits under Chapter 17, Title 38, U.S.C.
  References:  For more information on

X.iv.1.B.1.e.  Health Care Purposes Processing After an Administrative Determination That Service Was Dishonorable

 If eligibility to health care is established based on a determination under 38 CFR 3.360, a rating decision on SC for treatment purposes for each contention is required after the administrative decision is issued. When a COD determination issued in connection with a claim for benefits concludes that there is a 38 CFR 3.12(d) bar to benefits, and that service is dishonorable for VA purposes, but that basic eligibility to health care exists, after completing all steps of the procedure in M21-1, Part X, Subpart iv, 1.A.1.h, the development activity will
  • accomplish any and all development (to include requesting any medical opinions warranted) necessary to ready the case for rating disposition, and
  • refer the case for preparation of a rating decision addressing SC for treatment purposes for any contentions made on the claim form.
Rating, promulgation, authorization, and notice will proceed in normal fashion.

2.  Conditional Discharges and Deemed Discharge Under Other Than Dishonorable Conditions

Introduction

 This topic contains information on conditional discharges and deemed discharge under other than dishonorable conditions, including

Change Date

 February 2, 2023

X.iv.1.B.2.a.  Provisions of 38 U.S.C. 101(18) for Reenlistment Prior to Discharge

 38 U.S.C. 101(18) provides that an individual who enlisted or reenlisted before completion of a period of active service may establish eligibility for VA benefits if he/she satisfactorily completed the period of active service for which he/she was obligated at the time of entry. VA incorporated the statutory concept and principles in 38 CFR 3.13. Under the regulation, specified changes of status (reenlistment, acceptance of an appointment as a commissioned or warrant officer, and change from a Reserve or Regular commission to accept a commission in the other component) are considered a conditional discharge.  After a conditional discharge, the former service member is considered unconditionally discharged or released from the prior period of obligated service when they
  • complete the service obligation, and
  • were eligible for a discharge under other than dishonorable conditions.
The provisions of 38 U.S.C. 101(18) and 38 CFR 3.13 allow a person to maximize other than dishonorable service when they are later discharged for conduct that VA finds to be dishonorable.

X.iv.1.B.2.b.  When to Undertake  Development for a Possible Conditional Discharge

 A DD Form 214, Certificate of Uniformed Service, may show that an individual served one continuous period of service; however, enlistment contracts generally range from three to six years.  It is, therefore, necessary to undertake development for a conditional discharge, if
  • an individual’s period of service exceeded three years, especially if the discharge dates do not line up to an exact number of years or months
  • there is any question about how many periods of service an individual enlisted for
  • an individual’s DD Form 214 shows prior active service, or other indicators such as reenlistment, or
  • other service records or other items of evidence in the claims folder show prior active service, reenlistment, or other indications of continuous active service.
Example:  Claimant submitted a service discharge document showing service from February 5, 1969, to May 26, 1972. Though this service was only for three years and approximately four months, there were indications of prior service.  The actual periods of enlistment were as follows:
  • first enlisted on February 5, 1969, for three years,
  • discharged November 14, 1970, for immediate reenlistment for three years, and
  • discharged on July 26, 1971, for immediate reenlistment for three years.

X.iv.1.B.2.c.  Determining Whether a Conditional Discharge Determination Is Necessary

 Use the table below to determine whether a conditional discharge determination is necessary.
If … Then …
development discloses a prior and separate period of honorable service that qualifies the claimant for the benefit he/she is seeking Note:  A complete and separate period of service is defined as a break in service greater than one day. Example:  A former service member filed a claim.  The individual was honorably discharged from an initial period of active duty on September 3, 1975.  The next period of active duty began on September 5, 1975 and ended with an OTH discharge.  The benefit claim was based on the honorable service and can be granted. adjudicate the claim on that basis.  In such cases a COD determination is un-necessary. Reference:  For more information on avoiding premature COD determinations, see M21-1, Part X, Subpart iv, 1.A.1.g.
development does not disclose a prior and separate period of honorable service that would qualify the claimant for the benefit they are is seeking make a COD determination, apply the provisions of this topic and 38 CFR 3.13, and document it according to the instructions in M21-1, Part X, Subpart iv, 1.A.1.k. Reference:  For more information on completing the reasons and bases for a decision involving conditional discharge analysis, see

X.iv.1.B.2.d.  Determining the Dates of Service for a Conditional Discharge

 When determining the dates of service for a conditional discharge, it is necessary to know the length of each enlistment contract the claimant signed.  Dates of faithful and meritorious service are calculated by
  • adding the full length of the first enlistment contract to the claimant’s entry into service date, thus calculating the date the individual would have completed his first period of obligation and would have been discharged, then
  • adding the full length of the next enlistment contract to the date determined above, thus calculating the next date that the individual would have completed his period of obligation and would have been discharged, then
  • continuing to add the full length of each enlistment contract to the date determined above, until no more enlistment contract periods remain.

X.iv.1.B.2.e.  Scenario for Determining Dates of Service for a Conditional Discharge

 Scenario:
  • A claimant has one DD Form 214 showing dates of service as December 29, 1980, to December 23, 1991, nearly 11 years of service.
  • Because enlistment contracts generally range from three to six years, the development activity recognized potential applicability of 38 CFR 3.13.  Accordingly, it undertook the development described in M21-1, Part X, Subpart iv, 1.B.2.c.
  • The evidence, which included enlistment contracts, shows the claimant actually had three periods of service.  He
    • entered active duty on December 29, 1980, for four years
    • reenlisted for six years on April 4, 1984
    • reenlisted for another six years on October 31, 1988, and
    • began a period of 243 days AWOL on February 14, 1991.

X.iv.1.B.2.f.  Example:  Method for Determining Dates of Service for a Conditional Discharge

 The table below shows how dates of service would be determined for the scenario described in M21-1, Part X, Subpart iv, 1.B.2.e.
Dates Facts Remarks
Entered duty on 12/29/1980 Initial enlistment for four years Based on the enlistment date, the obligated period of service is considered complete on 12/28/1984.
Obligated period of service would have ended on 12/28/1984 Reenlisted for six years on       04/04/1984 Based on the reenlistment contract, the obligated period of service is considered complete on 12/28/1990. Note:  The six-year enlistment is added to the completion date determined above (12/28/1984).
Obligated period of service would have ended on 12/28/1990 Reenlisted for six years on       10/31/1988 Based on the reenlistment contract, the obligated period of service is considered complete on 12/28/1996. Note:  The six-year enlistment is added to the completion date determined above (12/28/1990).

X.iv.1.B.2.g.  Example:  Alternative View of the Method for Determining Dates of Service for a Conditional Discharge

 The table below shows an another way of looking at the same calculation method described in M21-1, Part X, Subpart iv, 1.B.2.d applied to the scenario described in M21-1, Part X, Subpart iv, 1.B.2.e, using only the dates of entry, periods of obligation, and RAD dates (for VA purposes).
Date of Entry Period of Obligation RAD Date for VA Purposes
12/29/1980 four years 12/28/1984
12/29/1984 six years 12/28/1990
12/29/1990 six years would have been 12/28/1996 but the claimant was given an OTH discharge on 12/23/1991
  Explanation:  Since the claimant did not begin his period of AWOL until February 14, 1991, he satisfactorily completed his initial enlistment and one reenlistment period, ending December 28, 1990.  The time from December 29, 1990, to December 23, 1991—the date of discharge—cannot be considered honorable service due to the AWOL period of over 180 consecutive days, which constitutes a statutory bar to benefits.

X.iv.1.B.2.h.  Sample Language for a Conditional Discharge Determination

 When a conditional discharge analysis affects the determination, and results in service not covered by a bar to benefits, the Decision must
  • identify the periods of obligation
  • state which periods of obligation were satisfactorily completed (if any), such that the former service member was eligible for discharge or release under conditions other than dishonorable at that time but for their continued service
  • describe the period of service that is covered by the bar to benefits (if any), and
  • address the issue of health care basic eligibility.
Example (using the scenario described in M21-1, Part X, Subpart iv, 1.B.2.e):  Your service from December 29, 1980, to December 28, 1990, included your first two periods of obligation.  These were satisfactorily completed; therefore, you were considered to have been discharged from that service under conditions other than dishonorable and meet the basic eligibility criteria for VA benefits, to include health care under 38 U.S.C. Chapter 17, based upon this period of service.   Your service from December 29, 1990, to December 23, 1991, was under OTH and was due to conduct that fell under a statutory bar to benefits; therefore, you do not meet the basic eligibility criteria for VA benefits or health care under 38 U.S.C. Chapter 17 based upon this period of service.    Note:  The Reasons and Basis must include an explanation as to how the dates of service were determined. Example:  A review of the evidence of record shows you originally enlisted on December 29, 1980, for four years with an obligated period of service until December 28, 1984.  On April 4, 1984, you reenlisted for another six years with a new obligated period of service until December 28, 1990.  On October 31, 1988, you reenlisted again for another six years, with a new obligated period of service until December 28, 1996.  You received an OTH discharge on December 23, 1991.

X.iv.1.B.2.i.  Assigning Effective Dates for Claims  Based on a Conditional Discharge

 Use the table below to determine the effective dates for claims based on a conditional discharge.
Determining the effective date for … Procedure
a presumptive period.
  • Treat the conditional discharge date as
    • certified by the service department, and
    • authorized by administrative decision as if the Veteran were actually given a complete and honorable separation, and
  • measure all presumptive periods, and any other issue that relates to date of discharge or release, from the conditional discharge date.
payment. If a conditional discharge is established, apply the provisions of 38 CFR 3.114(a) to determine the effective date. Note:  The effective date may not be earlier than October 8, 1977, per 38 CFR 3.12(c)(6).
administrative decisions with more than one period of service when one period of service is determined to be a bar to VA benefits. Use the table below.
If … Then …
the claim is received while the claimant is still on active duty during the period of service subsequently determined to be a bar to VA benefits the effective date is the day following the period of service determined to be a bar to VA benefits.
the claim is received within one year of discharge from a period of service determined to be a bar to VA benefits, but more than one year after the honorable period of service the effective date is the date of receipt of the claim.
  Notes:
  • The claimant cannot have an effective date falling within any period of service, even if that period of service is determined to be a bar to VA benefits and the benefit(s) sought will be awarded under an acceptable period of service, because the claimant is already receiving active service pay.
  • The claimant is not entitled to VA compensation while he or she is receiving active service pay.
  • The effective date is the date of claim or the date entitlement arose, whichever is later.
  Reference:  For more information on effective dates, see

3.  Assessing COD and Related Matters When There Is an Uncharacterized Discharge or Separation

Introduction

 This topic contains information on analyzing COD when there is an uncharacterized discharge, separation or release, including

Change Date

 February 2, 2023

X.iv.1.B.3.a.  Categories of    Uncharacterized Separations

 For cases in which enlisted personnel are administratively separated from service on the basis of proceedings initiated on or after October 1, 1982, the separation may be classified as one of the following three categories of administrative separation:
  • entry level separation
  • void enlistment or induction, or
  • dropped from the rolls.
Note:  Entry-level separation can include separation reasons such as:
  • failure to meet procurement medical fitness standards
  • failure to meet retention standards due to a preexisting medical condition
  • completion of a period of active duty for training
  • hardship discharge, or
  • dependency discharge.
Important:  Service departments are not required to provide a characterization of service for the aforementioned three categories of separation. Reference:  For more information on uncharacterized separations, see 38 CFR 3.12(k).

X.iv.1.B.3.b.  Instructions for Handling Cases Involving a Former Service Member With an Uncharacterized Separation

 The table below contains instructions for handling cases involving a former service member with an uncharacterized administrative separation.
Type of Separation Action
Entry Level Separation Consider uncharacterized separations of this type to be under conditions other than dishonorable. Notes:
  • No administrative decision is required.
  • The corporate record should be updated as necessary to reflect UHC in the CHAR SVC field.
Reference:  For information on the effect of an entry-level separation, based on fraudulent enlistment, on an individual’s status as a Veteran, see VAOPGCPREC 16-1999.
Void Enlistment or Induction
  • Review uncharacterized separations of this type based on the facts and circumstances surrounding separation, with reference to the provisions of 38 CFR 3.14 to determine whether separation was under conditions other than dishonorable.
  • Prepare an administrative decision according to the instructions in M21-1, Part X, Subpart iv, 1.A.1.k.
Dropped from the Rolls
  • Review uncharacterized administrative separations of this type based on the facts and circumstances surrounding separation to determine whether separation was under conditions other than dishonorable.
  • Prepare an administrative decision according to the instructions in M21-1, Part X, Subpart iv, 1.A.1.k.
Important:  An administrative decision should only be issued if dropped from the rolls is
  • the reason for discharge, or
  • there is a pattern of acts that show service has not been faithful and meritorious.
It is important to look at the entire record of service as status may change.  It is possible for a person to be dropped from the rolls without being discharged where they return to military control.

4.  Clemency and Upgraded Discharges, and DRB Decisions

Introduction

 This topic contains information on clemency and upgraded discharges and DRB decisions, including

Change Date

 February 2, 2023

X.iv.1.B.4.a.  Identifying a Clemency Discharge

 All copies of a DD Form 214 granting clemency issued to military absentees under Presidential Proclamation No. 4313 contain the following statement in the Remarks section:  Subject member has agreed to serve _____ months alternate service pursuant to Presidential Proclamation No. 4313. The VA copy of the DD Form 214 is not provided to the discharged individual and the reason for separation is shown as Separation for the good of the service by reason of a willful and persistent unauthorized absence, pursuant to Presidential Proclamation No. 4313. The service department also issued a special type of discharge, Clemency Discharge, DD Form 1953, which was a substitute for the previously awarded undesirable discharge. Note:  These clemency discharges were offered to certain individuals who incurred OTH discharges for unauthorized absence or failed to report for ordered military service between August 4, 1964, and March 28, 1973.

X.iv.1.B.4.b.  Making a Clemency Discharge Determination

 A clemency discharge does not necessarily entitle or reinstate entitlement to benefits administered by VA, and VA must make a decision on the COD.

X.iv.1.B.4.c.  Elements That Assist in Identifying Upgraded Discharges

 Use the table below for descriptions of elements that assist in identifying upgraded discharges.
Type of Upgrade Element Description
All Item 9A on DD Form 214 Shows Discharge.
Item 9F on DD Form 214 Shows Certificate Issued.
Item 13 (Reserve Obligation) on DD Form 214 Shows NA.
Items 21 and 27 on DD Form 214 Shows 30 days or more time lost.
Item 29 on DD Form 214 Contains no signature of person separated.
Issued as a result of the Presidential Proclamation of January 19, 1977 Item 27 on copy 3 (VA copy) of corrected DD Form 214 Contains a statement to the effect that the discharge was upgraded to “under honorable conditions” by the January 19, 1977, extension of Presidential Proclamation 4313 by virtue of being wounded in combat or decorated for valor in Vietnam.
The BIRLS record Was established or updated to show
  • the type of discharge as HONORABLE, and
  • the separation reason as BEO.
Issued as a result of the Department of Defense (DoD) Special Discharge Review Program The VA copy (copy 3) of the corrected DD Form 214 Contains the narrative reason for separation as Upgraded under the DoD Discharge Review Program (Special) and also indicates
  • the date the individual first applied for discharge upgrade
  • the date the discharge was upgraded, and
  • the character of service (discharge) prior to upgrade.
The BIRLS record Established or updated to show
  • the type of discharge as HONORABLE, and
  • the separation reason as
    • DRO (Discharge Review – prior discharge under conditions other than honorable) or
    • DRG (Discharge Review—prior discharge under honorable conditions, commonly called “general”).

X.iv.1.B.4.d.  Decision Made Through a Board for Correction of Military Records or a DRB

 A decision by a service department acting through a board for correction of military records is final and conclusive on VA.  This applies
  • even if VA previously made a formal determination concerning a statutory or regulatory bar under 38 CFR 3.12, and/or
  • a service department, acting through a Discharge Review Board (DRB), changed the COD prior to enactment of PL 95-126 on October 8, 1977.
Exception:  A change in COD by a service department through a Discharge Review Board (DRB) is not final and conclusive on VA when there is a bar because the discharge was due to the sentence of a general court-martial (GCM) per 38 CFR 3.12(c)(6) and 38 CFR 3.12(f).

X.iv.1.B.4.e.  Effect of an Upgraded Discharge by a DRB

 An honorable or general- under honorable conditions (UHC) discharge that a DRB issued on or after the enactment of PL 95-126 on October 8, 1977 (38 CFR 3.12(g)), does not set aside a statutory bar to benefits under 38 CFR 3.12(c).  If a DRB granted such an upgrade, the development activity must make a COD determination if/when the issue of entitlement to VA benefits arises. Exception:  Only favorable action by a board for correction of military records will overcome a bar under 38 CFR 3.12(c). Note:  The policy expressed in this block also applies to those discharges issued prior to October 8, 1977, under the special review program (38 CFR 3.12(h)), even if a later review by a DRB confirms that the upgrade was warranted under the uniform published review criteria.

X.iv.1.B.4.f.  Effect of a Substituted Discharge Under 10 U.S.C. 874(b)

 An upgraded discharge issued pursuant to 10 U.S.C. 874(b) does not remove the statutory bar to benefits under 38 U.S.C. 5303(a) for individuals discharged or dismissed by reason of the sentence of a GCM because
  • an upgraded discharge issued under 10 U.S.C. 874(b) changes the COD, but not  the reasons for discharge, and
  • an upgraded discharge issued pursuant to 10 U.S.C. 874(b) does not remove the statutory bar to benefits under section 38 U.S.C. 5303(a) as to individuals discharged or dismissed by reason of the sentence of a GCM.
Example:  The action of the Secretary of a service department under 10 U.S.C. 874(b), substituting an administrative discharge for a discharge or dismissal executed in accordance with the sentence of a GCM, does not remove the statutory bar to benefits under 38 U.S.C. 5303(a). Reference:  For more information, see VAOPGCPREC 10-1996.

X.iv.1.B.4.g.  Documenting a Change in a Former Service Member’s COD

 In those instances when VA does recognize a change that a service department makes to a former service member’s COD, the action taken depends on the procedural posture. If the service department makes a change in its characterization of service before VA makes its first COD determination regarding the period of service, assess whether a COD determination is required.  If a determination is still required, discuss the service department change in making the COD determination. If the service department makes a change in its characterization of service after VA’s COD determination regarding the period of service, follow the guidance in M21-1, Part X, Subpart iv, 1.A.1.q on changing binding administrative determinations based on new and relevant evidence. Note:  If a change in COD results in a grant of entitlement to benefits, apply the provisions of 38 CFR 3.400(g) when assigning an effective date.

X.iv.1.B.3.h.  Guidelines of PL 95-126

 In addition to a requirement that DoD establish a set of uniform procedures and standards for use by DRBs, PL 95-126 also prohibits payment of VA benefits based solely on a discharge upgraded under
  • the Presidential Proclamation of January 19, 1977, or
  • the DoD Special Discharge Review Program.
The DRB had to review an upgraded discharge to determine if it could be upheld under the new uniform criteria established by PL 95-126.  After the DRB completed its second review and made a decision, the responsibility for determining eligibility to VA benefits rests solely with VA.

X.iv.1.B.4.i.  Cases Exempt From PL 95-126

 Former service members are exempt from the procedures applicable to special upgraded discharges if they had
  • a general or UHC discharge upgraded by the special review program, or
  • filed a claim for VA benefits based on an OTH discharge and received a favorable COD determination prior to the enactment of PL 95-126, effective October 8, 1977.

5.  Second Reviews of DRB Determinations

Introduction

 This topic contains information about second reviews of DRB determinations, including

Change Date

 February 2, 2023

X.iv.1.B.5.a.  Eligibility for a Second Review of a DRB Determination

 A former service member may request that a DRB perform a second review of a service department-issued discharge characterization. Note:  A second review was done automatically for all former service members whose discharges were upgraded under one of the special programs listed in 38 CFR 3.12(h). To be eligible for a second review, the former service member must have
  • served between August 4, 1964, and March 28, 1973
  • been released with an OTH (formerly known as “undesirable”) discharge, and
  • been issued an upgraded discharge on or after January 19, 1977, under the provisions of the
    • Presidential Proclamation of January 19, 1977, or
    • the DoD Special Discharge Review Program.

X.iv.1.B.5.b.  Narrative of a DRB Decision on DD Form 215

 The table below shows the narrative commonly found on DD Form 215 based on the outcome of a second review of a DRB determination.
Outcome of Second Review Decision Narrative on DD Form 215
Navy/Marine Corps favorable second review Discharge review under PL 95-126 and a determination has been made that characterization of service is warranted by DOD Directive 1332.28.
Navy/Marine Corps unfavorable second review Discharge review under PL 95-126 and a determination has been made that characterization of service is warranted by DOD SDRP 4 Apr 77.
Army/Air Force favorable second review Discharge review under PL 95-126 and a determination has been made that a change in characterization of service is warranted by DOD Directive 1332.28.
Army/Air Force unfavorable second review Discharge review under PL 95-126 and a determination has been made that characterization of service was warranted by DOD SDRP 4 Apr 77.
  Important:  A copy of DD Form 215 must be of record when a determination as to eligibility for VA benefits is made.

X.iv.1.B.5.c.  Favorable DRB Determinations

 If the outcome of a second review of a DRB determination is favorable, carefully review the full service records and determine if the former service member was discharged or released under one of the conditions listed in 38 CFR 3.12(c).
  • If so, follow the instructions in M21-1, Part X, Subpart iv, 1.B.5.d
  • If not, use the favorable DRB determination as the basis for a finding that a claimant is eligible for VA benefits.

X.iv.1.B.5.d.  Favorable DRB Determinations When 38 CFR 3.12(c) Is a Factor

 VA can still deny eligibility to benefits, even though the outcome of a second review of a DRB determination was favorable, if the former service member was discharged or released under one of the conditions listed under 38 CFR 3.12(c). If a previous VA administrative COD determination, issued before the favorable DRB determination, held that the COD was OTH, and 38 CFR 3.12(c) is a factor, follow the procedure in M21-1, Part X, Subpart iv, 1.A.1.q.  When documenting no change in the prior determination show the date of the
  • application for discharge review
  • initial DRB upgrade, and
  • VA-affirmed previous decision.

X.iv.1.B.5.e.  Unfavorable DRB Decisions

 If the outcome of a DRB decision is unfavorable, eligibility to VA benefits rests on the merits of the original OTH discharge and corresponding facts and circumstances. Follow the steps in the table below to process an unfavorable DRB decision, even if the claims folder contains an unfavorable administrative decision made prior to the issuance of the adverse DRB decision.
Step Action
1 Send the claimant notice of proposed adverse action prior to making an administrative decision.
2 Following receipt of any evidence from the claimant, or after the claimant has had 65 days to respond (whichever is earlier),
  • review the evidence of record
  • prepare an administrative decision, and
  • cite 38 CFR 3.12(h) in the administrative decision as the authority for reexamining a DRB decision.
3 If the former service member’s discharge was issued under conditions that prevent the payment of VA benefits, discuss and resolve in the administrative decision the issues of References:  For more information on
  Notes:
  • Unless a valid conditional discharge for a separate period of service is established, eligibility to health care under 38 U.S.C. Chapter 17 must be denied if a statutory bar exists.
  • A special upgraded discharge that is affirmed by a DRB under PL 95-126 is an honorable discharge for purposes of entitlement to unemployment compensation under 5 U.S.C. Chapter 85. This is true even if a statutory bar exists under 38 CFR 3.12(c)(6).

X.iv.1.B.5.f.  Effective Date for Compensation or Pension Benefits Based on the Favorable Outcome of a Second Review of a DRB Determination

 When the outcome of a second review of a DRB determination allows for a grant of entitlement to compensation or pension, authorize payments from the later of the following dates:
  • the date the service department received the application for review of the DRB determination, or
  • the date VA received the claim for compensation and/or pension.
Important:
  • January 19, 1977, is considered the date of application for all discharges upgraded under the Presidential Memorandum of January 19, 1977.
  • Use the date the original application was filed with the service department for DoD Special Review Board cases.
  • If VA grants entitlement to benefits based on a supplemental claim that a claimant submits following a change in COD, authorize payments from the later of the following dates:
    • one year prior to the date VA received the supplemental claim
    • the date the service department received the application for review of the DRB determination, or
    • the date VA received the previously denied claim.
Reference:  38 CFR 3.400(b) and (g) govern the assignment of effective dates under the circumstances discussed in this block.