The Department of Veterans Affairs recently posted a final rule amending its character of discharge regulations determination, expanding access to VA care and benefits for some former service members discharged under other than honorable conditions or by special court-martial.
When former service members with other than honorable discharges and bad conduct discharges adjudged at special court-martial apply for VA benefits and services, their records are reviewed to determine if VA can provide them the requested care and benefits. This process helps ensure that VA can provide services to deserving former service members – including certain individuals who faced discrimination, survived sexual assault or harassment, struggled with their mental or physical health, or faced other challenges while serving in the military.
“We encourage former service members with other than honorable discharges to apply for VA care and benefits today,” said VA Secretary Denis McDonough in a statement. “Although VA cannot change your discharge status, we want to provide you with any health care or benefits we can – and we will work with you every step of the way to do exactly that.”
The National Veterans Legal Services Program and Swords to Plowshares sued VA in 2015 to issue the regulations. Earlier this month, they filed a new petition after VA failed to meet a federal court-established deadline to publish the new rule.
“Given VA’s track record, in order for this new regulation to make any difference to service members who have been long denied their benefits, VA needs to outline specific efforts to educate their employees to ensure they properly serve any newly recognized veterans,” NVLSP Director Renee Burbank said in a release.
VA’s new regulation will expand access to care and benefits for certain former service members by eliminating the regulatory bar for “homosexual acts involving aggravating circumstances or other factors affecting the performance of duty” as a bar to benefits.
VA had previously taken steps to ensure full and fair access to benefits for former service members discharged based on homosexual conduct, gender identity, or HIV status.
The new regulation also creates a “compelling circumstances exception” for certain former service members, including those discharged for “willful and persistent misconduct” or an “offense involving moral turpitude.” VA will now consider and determine if a compelling circumstances exception will permit it to provide care and services.
Under the exception, VA will consider the former service member’s length and character of service, mental and cognitive impairment, physical health, combat-related hardship, whether the person was the survivor of sexual abuse/assault or discrimination, and more.
Because of these changes, former service members previously found ineligible for VA services may now be eligible for benefits and are encouraged to re-apply.
“Too often, former service members believe that they cannot come to VA due to their discharge status – but the truth is that many former service members who were not discharged honorably can get health care or benefits from VA,” said Under Secretary for Benefits Josh Jacobs. “When you apply – as with all VA benefits – we will do everything in our power to get to yes.”
VA has conducted extensive outreach to service members with other than honorable and bad conduct discharges adjudged at special court-martial in recent years, increasing the number who applied for VA care or benefits from approximately 1,700 in 2012 to more than 10,000 in 2023.
Reach Julia LeDoux at Julia@connectingvets.com.