[Federal Register: January 30, 2004 (Volume 69, Number 20)]
[Proposed Rules]
[Page 4819-4842]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ja04-16]
[[Page 4819]]
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Part VI
Department of Veterans Affairs
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38 CFR Part 5
Service Requirements for Veterans; Proposed Rule
[[Page 4820]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 5
RIN 2900-AL67
Service Requirements for Veterans
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
Compensation and Pension regulations relating to service requirements
for veterans, currently found in part 3 of title 38, Code of Federal
Regulations (CFR), and to relocate them in new part 5. We propose to
reorganize these regulations in a more logical order, add new section
and paragraph headings, rewrite certain sections, and divide certain
sections into one or more separate new sections. VA's principal goals
in rewriting and reorganizing the current regulations are to provide
readers with clearer language and more easily understood regulatory
requirements.
DATES: Comments must be received by VA on or before March 30, 2004.
ADDRESSES: Written comments may be submitted by: mail or hand-delivery
to Director, Regulations Management (00REG1), Department of Veterans
Affairs, 810 Vermont Avenue, NW., Room 1068, Washington, DC 20420; fax
to (202) 273-9026; e-mail to VAregulations@mail.va.gov; or, through
http://www.Regulations.gov. Comments should indicate that they are submitted
in response to ``RIN 2900-AL67.'' All comments received will be
available for public inspection in the Office of Regulation Policy and
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m.,
Monday through Friday (except holidays). Please call (202) 273-9515 for
an appointment.
FOR FURTHER INFORMATION CONTACT: Bill Russo, Chief, C&P Regulations
Rewrite Project (00REG2), Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420, (202) 273-9515.
SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has
established an Office of Regulation Policy and Management (ORPM) to
provide centralized management and coordination of VA's rulemaking
process. One of the major functions of this office is to oversee a
Regulation Rewrite Project (the Project) to improve the clarity and
consistency of existing VA regulations. The Project responds to a
recommendation made in the October 2001 Report to the Secretary of
Veterans Affairs by the VA Claims Processing Task Force. The Task Force
recommended that the Compensation and Pension regulations be rewritten
and reorganized in order to improve VA's claims adjudication process.
Therefore, the Project began its efforts by reviewing, reorganizing and
redrafting the regulations in 38 CFR part 3 governing the Compensation
and Pension (C&P) program of the Veterans Benefits Administration
(VBA). These regulations are among the most difficult VA regulations
for readers to understand and apply. Once rewritten, the proposed
regulations will be published in several portions for public review and
comment. This is the first such portion.
Overview of New Organization
We plan to remove the compensation and pension benefit regulations
from 38 CFR part 3 and relocate them in new part 5. We also plan to
reorganize the regulations so that all provisions governing a specific
benefit are located in the same part, with general provisions
pertaining to all compensation and pension benefits also grouped
together. We believe this reorganization will allow claimants and their
representatives, as well as VA adjudicators, to find information
relating to a specific benefit more quickly.
The first major subdivision is ``Subpart A--General Provisions.''
It would include information regarding the scope of the regulations in
new part 5, delegations of authority, general definitions, and general
policy provisions for this part.
``Subpart B--Service Requirements for Veterans'' would include
information regarding a veteran's military service, including the
minimum service requirement, types of service, periods of war, and
service evidence requirements. This subpart is the subject of this
document.
``Subpart C--Adjudicative Process, General'' would inform readers
about types of claims and filing procedures, VA's duties, rights and
responsibilities of claimants, and general effective dates, as well as
revision of decisions and protection of VA ratings.
``Subpart D--Dependents of Veterans'' would provide information
about how VA determines whether an individual is a dependent and
evidence requirements for such determinations.
``Subpart E--Claims for Service Connection and Disability
Compensation'' would define service-connected compensation, including
direct and secondary service connection. This subpart would inform
readers how VA determines entitlement to service connection. The
subpart would also contain those provisions governing presumptions
related to service connection, rating principles, and effective dates,
as well as several special ratings.
``Subpart F--Nonservice-Connected Disability Pensions and Death
Pensions'' would include information regarding the three types of
nonservice-connected pension: Improved pension, old law pension, and
section 306 pension. This subpart would also include those provisions
that state how to establish entitlement to each pension, and the
effective dates governing each pension.
``Subpart G--Dependency and Indemnity Compensation, Death
Compensation, and Accrued Benefits'' would contain those regulations
governing claims for dependency and indemnity compensation (DIC), death
compensation, accrued benefits, and benefits awarded, but unpaid, at
death. This subpart would also include rules and definitions relating
to these benefits and related effective dates and rates of payment.
``Subpart H--Special Benefits for Veterans, Dependents, and
Survivors'' would pertain to ancillary and special benefits available,
including benefits for children with various birth defects.
``Subpart I--Benefits For Filipino Veterans and Survivors'' would
pertain to the various benefits available to Filipino veterans.
``Subpart J--Burial Benefits'' would pertain to burial allowances.
``Subpart K--Matters Affecting Receipt of Benefits'' would contain
those provisions regarding determinations of willful misconduct,
competency, and insanity, which may affect claimants' entitlement to
benefits. This subpart would also contain information about forfeiture
and renouncement of benefits.
``Subpart L--Payments and Adjustments to Payments'' would include
general rate-setting rules, several adjustment and resumption
regulations, and election of benefit.
The final subpart, ``Subpart M--Apportionments and Payments to
Fiduciaries or Incarcerated Beneficiaries'' would include regulations
governing apportionments, benefits for incarcerated beneficiaries, and
guardianship.
Some of the regulations in this Notice of Proposed Rulemaking
(NPRM) cross-reference other compensation and pension regulations. If
those regulations have been published in this or earlier NPRMs, we cite
the proposed part 5 section. We also cite the Federal
[[Page 4821]]
Register page where a proposed part 5 section published in an earlier
NPRM may be found. However, where a regulation proposed in this NPRM
would cross-reference a proposed part 5 regulation that has not yet
been published, we cite to the current part 3 regulation that deals
with the same subject matter. If there is no part 3 counterpart to a
proposed part 5 regulation that has not yet been published, we have
inserted ``[regulation that will be published in a future Notice of
Proposed Rulemaking]'' in the place where the part 5 regulation
citation would be placed.
The current part 3 section we cite may differ from its eventual
part 5 replacement in some respects, but we believe this method will
assist readers in understanding these proposed regulations where no
part 5 replacement has yet been published. VA will provide a separate
opportunity for public comment on each segment of proposed part 5
regulations before adopting a final version of part 5.
Organization of Proposed Subpart B
This proposed rulemaking pertains to those regulations governing
service requirements for compensation and pension benefits. These
regulations would be contained in proposed subpart B of new 38 CFR part
5. While these regulations have been substantially restructured and
rewritten for greater clarity and ease of use, most of the basic
concepts contained in these proposed regulations are the same as in
their existing counterparts in 38 CFR part 3. However, a few
substantive changes are proposed.
The following table shows the correspondence between the current
regulations in part 3 and those proposed regulations contained in this
proposed rulemaking:
------------------------------------------------------------------------
Based in whole or in part on
Proposed part 5 section or paragraph 38 CFR part 3 section or
paragraph
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5.20...................................... 3.2.
5.21(a)................................... 3.6(a), 3.7(a).
5.21(b)................................... 3.15.
5.22(a)................................... 3.6(b)(1).
5.22(b)................................... 3.6(b)(7).
5.22(c)................................... new (cross reference).
5.23(a)(1)................................ 3.6(b)(1).
5.23(a)(2)................................ 3.6(c)(1).
5.23(a)(3)................................ 3.6(d)(1) & (2).
5.23(b)(1)................................ 3.6(b)(1).
5.23(b)(2)................................ 3.6(c)(3).
5.23(b)(3)................................ 3.6(d)(4).
5.23(c)................................... new (cross reference).
5.24(a)................................... 3.6(b)(4) & (7).
5.24(b)(1)................................ 3.6(b)(5).
5.24(b)(2)................................ 3.6(c)(5).
5.24(c)(1)................................ 3.6(c)(4).
5.24(c)(2)................................ 3.6(d)(3).
5.24(c)(3)................................ 3.700(a)(1)(ii).
5.24(d)................................... new (cross reference).
5.25(a)(1)................................ 3.6(b)(2).
5.25(a)(2)................................ 3.6(c)(2).
5.25(a)(3)................................ 3.6(d)(1) & (2).
5.25(b)................................... 3.6(b)(3).
5.25(c)................................... 3.6(c)(6) & (d)(4)(iii).
5.25(d)................................... new (cross reference).
5.26...................................... 3.7(o).
5.27(a) and (b)........................... 3.7(x).
5.27(c)................................... 3.7(x), 3.400(z).
5.28...................................... 3.7(c)-(e), (h)-(l), (n),
(p), & (s)-(w).
5.29(a)(1)................................ 3.6(b)(6).
5.29(a)(2)................................ 3.6(b)(7).
5.29(a)(3)................................ new (cross reference).
5.29(b)................................... 3.6(e).
5.30(a)................................... 3.12(a) first sentence.
5.30(b)................................... new.
5.30(c)................................... 3.12(a) & (k)(1); 3.14(d).
5.30(d)................................... new.
5.30(e)................................... 3.12(k)(2)-(3).
5.30(f)................................... 3.12(d).
5.31(a)................................... new (purpose provision).
5.31(b)................................... new.
5.31(c)................................... 3.7(b), 3.12(c).
5.31(d)................................... new.
5.31(e)................................... 3.12(j).
5.32...................................... 3.12(c)(6).
5.33...................................... 3.12(b), (c)(6).
5.34(a)................................... new (purpose provision).
5.34(b)................................... new.
5.34(c)................................... 3.12(e).
5.34(d)................................... 3.400(g).
5.35(a)................................... new (purpose provision).
5.35(b)................................... 3.12(f).
5.35(c) & (d)............................. 3.12(g).
5.35(e)................................... 3.400(g).
5.36(a)................................... 3.12(h).
5.36(b) and (c)........................... 3.12(i).
5.37(a)................................... new (purpose provision).
5.37(b)................................... 3.13(a).
5.37(c)................................... 3.13(b).
5.37(d)................................... 3.13(c).
5.38(a)................................... new (purpose provision).
5.38(b)................................... 3.14(a) & (c).
5.38(c)................................... 3.14(b).
5.39(a)................................... 3.12a(b).
5.39(b)(1)................................ 3.12a(c)(1).
5.39(b)(2)................................ 3.12a(c)(2).
5.39(c)(1)................................ 3.12a(a)(1).
5.39(c)(2)................................ 3.203(c) last sentence.
5.39(d)................................... 3.12a(d).
5.39(e)................................... 3.15.
5.39(f)................................... 3.12a(e).
5.40(a)................................... 3.203(a).
5.40(b)................................... 3.203(a)(2).
5.40(c)................................... 3.203(a)(1) & (3).
5.40(d)................................... 3.203(c).
------------------------------------------------------------------------
Readers who use this table to compare existing regulatory
provisions with the proposed provisions, and who observe a substantive
difference between them, should consult the text that appears later in
this document for an explanation of significant changes in each
regulation. Not every paragraph of every current part 3 section
affected by these proposed regulations is accounted for in the table.
In some instances other portions of the part 3 sections that are
contained in these proposed regulations appear in subparts of part 5
that will be published for public comment at a later time. For example,
a reader might find a reference to paragraph (a) of a part 3 section in
the table, but no reference to paragraph (b) of that section because
paragraph (b) will be addressed in a future notice of proposed
rulemaking. The table also does not include material from the current
sections that will be removed from part 3 and not carried forward to
part 5. A listing of material VA proposes to remove from part 3 appears
later in this document.
Periods of War and Types of Military Service
In new Sec. 5.20, we propose revisions to the rules concerning what
periods of service VA recognizes as wartime service, beginning with the
Mexican border period. Most of the information is presented in a table
for easy reference.
Because there are no veterans of the Civil War, the Indian Wars, or
the Spanish-American War on VA's compensation and pension rolls and
most, if not all, dependents with claims based on these earlier periods
of war have already filed them, we propose to delete the provisions
related to these periods of war and refer regulation users to the
applicable statutory provisions concerning these earlier periods of
war. This deletion would not affect benefit entitlement in any way.
Should the occasion arise, VA will adjudicate any new claim using
statutory definitions of earlier periods of war.
A definition of the term ``period of war'' in 38 U.S.C. 1101(2)(A)
extends the period recognized as World War I service for the purpose of
benefits awarded under 38 U.S.C. chapter 11 (for example, disability
compensation, death compensation, and benefits under 38 U.S.C. 1151,
``Benefits for persons disabled by treatment or vocational
rehabilitation''). World War I is similarly extended by 38 U.S.C.
1501(2) for the purpose of non-service-connected pension benefits
awarded under 38 U.S.C. chapter 15. We propose to clarify the nature of
these extensions in Sec. 5.20(b)(2).
Similarly, the definition of the term ``period of war'' in 38
U.S.C. 1101(2)(B) extends the period recognized as World War II service
for benefits awarded under 38 U.S.C. chapter 11. These proposed
amendments would clarify the limited nature of this extension in Sec.
5.20(c).
Next, VA proposes to remove current 38 CFR 3.6, ``Duty periods;''
Sec. 3.7, ``Individuals and groups considered to have performed active
military, naval,
[[Page 4822]]
or air service;'' and Sec. 3.15, ``Computation of service;'' and to
rewrite them as nine separate, new sections that focus on the
individual performing the duty instead of the type of duty performed.
The new sections will be numbered Sec.Sec. 5.21 to 5.29.
We propose in the first section, Sec. 5.21, to state the general
conditions for active military service. Essentially, we propose to use
the term ``active military service'' in lieu of the longer term
``active military, naval, or air service'' in 38 U.S.C. 101(24) and
current part 3 for simplicity and convenience. Note that, as an
equivalent to the longer ``active military, naval, or air service,''
``active military service'' is a broader term than ``active duty.''
Compare 38 U.S.C. 101(21) with 38 U.S.C. 101(24).
Proposed Sec. 5.21(a)(6) includes the provisions from current Sec.
3.7(a) concerning the duty status of active duty and reserve persons
assigned to the Postmaster General for the aerial transportation of
mail from February 10, 1934, through March 26, 1935. This provision
concerns the continuation of active duty for the persons involved and
not persons ``considered to have performed'' active duty, as stated in
Sec. 3.7, and is more appropriately included with the active military
service provisions.
In addition, we propose moving the types of duty not counted as
active military service, such as time on agricultural furlough or time
lost when absent without leave, from current Sec. 3.15, ``Computation
of service,'' to Sec. 5.21(b). One of these provisions is ``time lost
[while] under arrest (without acquittal).'' We propose to expand the
exception for acquittal to include situations where the charges which
led to arrest are dismissed. If charges are dismissed, there would
never be a conviction for the offenses charged to taint the period of
service in question. Further, we propose to clarify that the rule that
time spent serving a court-martial sentence is not active military
service for VA purposes is subject to 10 U.S.C. 875(a) that provides,
under certain circumstances, for the restoration of ``all rights,
privileges, and property affected by an executed part of a court-
martial sentence which has been set aside or disapproved.''
Finally, we propose to remove the sentence in Sec. 3.15 concerning
leave authorized by General Order No. 130, War Department, for claims
based on Spanish-American War service as being included in active
military service. We propose to remove this sentence because according
to VA records, the last veteran of this war died in 1992. Although VA
is paying death benefits to survivors based on this service, we do not
believe we will receive any new claims from veterans who served in the
Spanish-American War. In addition, we believe that the provision is
unnecessary because periods of authorized leave are normally included
as active military service.
We propose to define the periods of duty that count as active duty
in Sec. 5.22, stating that active duty is full-time duty and continues
until midnight of the date of discharge from active duty.
``Special work'' is a category of service performed by Reservists,
normally for limited periods of time. For example, 10 U.S.C. 115,
``Personnel strengths: Requirements for annual authorization,'' refers
at subsection (d)(6) to ``Members of reserve components on active duty
for 180 days or less to perform special work'' and at subsection (d)(9)
to ``members of reserve components * * * on active duty for more than
180 days but less than 271 days to perform special work in support of
the combatant commands.'' We have not addressed whether active duty for
special work is active duty for VA purposes in the text of these
proposed regulations. However, we believe that it may be the case for
at least some special work assignments, particularly those that involve
combat duties. We invite public comment on whether, and to what extent,
VA should recognize military duty for special work as active duty for
VA purposes.
We propose in Sec. 5.23 to state how VA classifies various types of
service performed by Reserve and National Guard personnel. One change
to the current section, Sec. 3.6, will be removal of the provisions for
determining active duty for training for full-time duty performed by
the National Guard of any State while participating in the reenactment
of the Battle of First Manassas in July 1961. We believe all National
Guard members eligible for benefits under this provision have already
applied for benefits and there will be no new applicants. If we receive
a new application for entitlement to benefits under this provision, we
will consider the application under the authorizing public law (Public
Law 87-83, 75 Stat. 200 (1961)). Otherwise, we have simply restructured
the current section and no substantive changes are proposed.
In Sec. 5.24, we propose to include all the provisions applicable
to types of duty for Armed Services Academy cadets, midshipmen,
preparatory school attendees, and Senior Reserve Officers' Training
Corps members. This proposed section includes a provision from current
Sec. 3.700(a)(1)(ii), which states ``Time spent by members of the ROTC
in drills as part of their activities as members of the corps is not
active service.'' We have moved this sentence to this new section
because it relates directly to the topic of this new section.
Likewise, proposed Sec. 5.25 contains all the provisions pertaining
to duty and related service in the Public Health Service, in the Coast
and Geodetic Survey and its successor agencies, and of temporary
members of the Coast Guard Reserves. Under current Sec. 3.6(b)(3)(ii),
one of the ways in which the service of a commissioned officer of the
Coast and Geodetic Survey or of its successor agencies is considered to
be active duty is if the officer was ``(i)n the Philippine Islands on
December 7, 1941, and continuously in such islands thereafter.'' Under
the current regulation and in it's authorizing statute, 38 U.S.C.
101(21)(C), this means continuously thereafter until July 29, 1945. We
propose to make that clearer in Sec. 5.25(b)(1)(iv).
We propose to extract from Sec. 3.7(o) and place in reorganized
Sec. 5.26, ``Circumstances where persons ordered to service, but who
did not serve, are considered to have performed active duty,''
provisions concerning entitlement to VA benefits for certain National
Guard personnel and for persons who volunteer or are drafted for
military service and incur injury or disease while engaged in required
activities before entry into active Federal military duty. This
proposed section explains that persons injured during an induction
examination, or while traveling to an induction processing center, or
National Guard members reporting to a rendezvous, or under other
similar circumstances, are considered to have performed active duty for
purposes of entitlement to VA benefits.
The remainder of current Sec. 3.7 concerns individuals or groups
who are not military personnel in the usual sense, but who have
contributed significantly to the national defense. Because of the
contributions of these individuals and groups, Congress (through
specific statutory enactments), VA (through statutory interpretations
in Administrator's Decisions), courts, and the Secretary of Defense
(exercising authority granted in section 401 of Public Law 95-202) have
determined that their work warrants recognition as active military
service.
VA proposes to include information about these individuals and
groups in two separate proposed sections, Sec. 5.27, ``Individuals and
groups designated by the Secretary of Defense as having performed
active military service,'' and
[[Page 4823]]
Sec. 5.28, ``Other individuals and groups designated as having
performed active military service.'' Both sections list these
individuals and groups in alphabetical order.
In Sec. 5.27, we propose to update the list, currently contained in
38 CFR 3.7(x), of those individuals and groups the Secretary of Defense
(frequently through the Secretary of the Air Force acting as Executive
Agent of the Secretary of Defense) has determined have performed active
military service. Notice of these determinations is given to the public
in Federal Register notices issued by the Department of Defense. These
notices include the date the Secretary of Defense, or the Secretary's
agent, recognized the applicable group(s) as having performed active
military service for the purpose of VA benefits. We propose to include
recognition effective date information for each group listed in Sec.
5.27.
The following table includes a list of the relevant groups (in
alphabetical order) and the recognition effective date for each group,
as well as a citation to the applicable Federal Register notice
describing the decision by the Secretary of Defense. There are two
exceptions with respect to Federal Register citations. One group, the
Women's Air Forces Service Pilots (WASP), was specifically recognized
by Pub. L. 95-202, the statute that authorizes the Secretary of Defense
to make these determinations. In that case, the effective date of
recognition is the effective date specified in the statute. Information
about another group, ``Quartermaster Corps Keswick Crew on Corregidor
(WWII),'' does not appear to have been published in the Federal
Register. In that case, we have cited the Department of Defense
memorandum recognizing the group.
------------------------------------------------------------------------
Individuals and groups Federal Register
designated by the Secretary of Individual or citation or authority
Defense as having performed group recognition recognizing the
active military service date individual or group
------------------------------------------------------------------------
American Merchant Marine in Recognized 53 FR 2775.
oceangoing service, during effective
the Period of Armed Conflict, January 19, 1988.
December 7, 1941, to August
15, 1945.
The approximately 50 Chamorro Recognized 64 FR 56773.
and Carolinian former native effective
policemen who received September 30,
military training in the 1999.
Donnal area of central Saipan
and were placed under the
command of Lt. Casino of the
6th Provisional Military
Police Battalion to accompany
United States Marines on
active, combat-patrol
activity from August 19,
1945, to September 2, 1945.
Civilian Crewmen of the United Recognized 56 FR 23054, 57 FR
States Coast and Geodetic effective April 24600.
Survey (USCGS) vessels, who 8, 1991.
performed their service in
areas of immediate military
hazard while conducting
cooperative operations with
and for the U.S. Armed Forces
within a time frame of
December 7, 1941, to August
15, 1945. Qualifying USCGS
vessels specified by the
Secretary of Defense, or his
or her designee, are the
Derickson, Explorer, Gilbert,
Hilgard, E. Lester Jones,
Lydonia, Patton, Surveyor,
Wainwright, Westdahl,
Oceanographer, Hydrographer,
and the Pathfinder.
Civilian employees of Pacific Recognized 46 FR 11857.
Naval Air Bases who actively effective
participated in Defense of January 22, 1981.
Wake Island during World War
II.
Civilian Navy Identification Recognized 53 FR 32425.
Friend or Foe (IFF) effective August
Technicians, who served in 2, 1988.
the Combat Areas of the
Pacific during World War II
(December 7, 1941, to August
15, 1945).
Civilian personnel assigned to Recognized 48 FR 1532.
the Secret Intelligence effective
Element of the Office of December 27,
Strategic Services (OSS). 1982.
Engineer Field Clerks (WWI)... Recognized 44 FR 55622.
effective August
31, 1979.
Guam Combat Patrol............ Recognized 48 FR 23295.
effective May
10, 1983.
Honorably discharged members Recognized 56 FR 26072.
of the American Volunteer effective May 3,
Group (Flying Tigers), who 1991.
served during the Period
December 7, 1941, to July 18,
1942.
Honorably discharged members Recognized 57 FR 34766.
of the American Volunteer effective June
Guard, Eritrea Service 29, 1992.
Command, who served during
the Period June 21, 1942, to
March 31, 1943.
Male Civilian Ferry Pilots.... Recognized 46 FR 39197.
effective July
17, 1981.
The Operational Analysis Group Recognized 64 FR 53364.
of the Office of Scientific effective August
Research and Development, 27,1999.
Office of Emergency
Management, which served
overseas with the U.S. Army
Air Corps from December 7,
1941, through August 15, 1945.
Quartermaster Corps Female Recognized 46 FR 11857.
Clerical Employees serving effective
with the AEF (American January 22, 1981.
Expeditionary Forces) in
World War I.
[[Page 4824]]
Quartermaster Corps Keswick Recognized Memorandum from the
Crew on Corregidor (WWII). effective Acting Assistant
February 7, 1984. Secretary of the Air
Force (Manpower,
Reserve Affairs and
Installations),
Determination of
Active Military
Service (Feb. 7,
1984) (on file with
DOD Civilian/
Military Service
Review Board)).
Reconstruction Aides and Recognized 46 FR 37306.
Dietitians in World War I. effective July
6, 1981.
Signal Corps Female Telephone Recognized 44 FR 32019.
Operators Unit of World War I. effective May
15, 1979.
Three scouts/guides, Miguel Recognized 64 FR 56773.
Tenorio, Penedicto Taisacan, effective
and Cristino Dela Cruz, who September 30,
assisted the U.S. Marines in 1999.
the offensive operations
against the Japanese on the
Northern Mariana Islands from
June 19, 1944, through
September 2, 1945.
U.S. civilian employees of Recognized 55 FR 46706.
American Airlines, who served effective
overseas as a result of October 5, 1990.
American Airlines' contract
with the Air Transport
Command during the Period
December 14, 1941, through
August 14, 1945.
U.S. civilian female employees Recognized 59 FR 298.
of the U.S. Army Nurse Corps effective
while serving in the defense December 13,
of Bataan and Corregidor 1993.
during the Period January 2,
1942, to February 3, 1945.
U.S. Civilian Flight Crew and Recognized 62 FR 36263.
Aviation Ground Support effective June
Employees of Braniff Airways, 2, 1997.
who served overseas in the
North Atlantic or under the
jurisdiction of the North
Atlantic Wing, Air Transport
Command (ATC), as a result of
a contract with the ATC
during the Period February
26, 1942, through August 14,
1945.
U.S. Civilian Flight Crew and Recognized 57 FR 34765.
Aviation Ground Support effective June
Employees of Consolidated 29, 1992.
Vultree Aircraft Corporation
(Consairway Division), who
served overseas as a result
of a contract with the Air
Transport Command during the
Period December 14, 1941,
through August 14, 1945.
U.S. Civilian Flight Crew and Recognized 62 FR 36263.
Aviation Ground Support effective June
Employees of Northeast 2, 1997.
Airlines Atlantic Division,
who served overseas as a
result of Northeast Airlines'
Contract with the Air
Transport Command during the
Period December 7, 1941,
through August 14, 1945.
U.S. Civilian Flight Crew and Recognized 59 FR 297.
Aviation Ground Support effective
Employees of Northwest December 13,
Airlines, who served overseas 1993.
as a result of Northwest
Airline's contract with the
Air Transport Command during
the Period December 14, 1941,
through August 14, 1945.
U.S. Civilian Flight Crew and Recognized 57 FR 34765.
Aviation Ground Support effective July
Employees of Pan American 16, 1992.
World Airways and Its
Subsidiaries and Affiliates,
who served overseas as a
result of Pan American's
Contract with the Air
Transport Command and Naval
Air Transport Service during
the Period December 14, 1941,
through August 14, 1945.
U.S. Civilian Flight Crew and Recognized 57 FR 24479, 68 FR
Aviation Ground Support effective May 11068.
Employees of Transcontinental 13, 1992.
and Western Air (TWA), Inc.,
who served overseas as a
result of TWA's contract with
the Air Transport Command
during the Period December
14, 1941, through August 14,
1945. The ``Flight Crew''
includes pursers.
U.S. Civilian Flight Crew and Recognized 57 FR 24478.
Aviation Ground Support effective May
Employees of United Air Lines 13, 1992.
(UAL), who served overseas as
a result of UAL's contract
with the Air Transport
Command during the Period
December 14, 1941, through
August 14, 1945.
U.S. civilian volunteers, who Recognized 49 FR 7849.
actively participated in the effective
Defense of Bataan. February 7, 1984.
U.S. civilians of the American Recognized 55 FR 46707.
Field Service (AFS), who effective August
served overseas operationally 30, 1990.
in World War I during the
Period August 31, 1917, to
January 1, 1918.
U.S. civilians of the American Recognized 55 FR 46707.
Field Service (AFS), who effective August
served overseas under U.S. 30, 1990.
Armies and U.S. Army Groups
in World War II during the
Period December 7, 1941,
through May 8, 1945.
[[Page 4825]]
U.S. Merchant Seamen who Recognized 50 FR 46332.
served on blockships in effective
support of Operation Mulberry. October 18, 1985.
Wake Island Defenders from Recognized 47 FR 17324.
Guam. effective April
7, 1982.
Women's Air Forces Service Recognized Sec. 401, Pub. L. 95-
Pilots (WASP). effective 202, 91 Stat. 1433,
November 23, 1449.
1977.
Women's Army Auxiliary Corps Recognized 45 FR 23716, 45 FR
(WAAC). effective March 26115.
18, 1980.
------------------------------------------------------------------------
Proposed Sec. 5.27(a) provides basic information about the
designation of individuals and groups by the Secretary of Defense.
These individuals and groups are listed in Sec. 5.27(b).
We propose to add three additional groups recognized by the
Department of Defense to update the list in proposed Sec. 5.27.
In the Federal Register of October 1, 1999 (64 FR 53364-65), the
Secretary of the Air Force published a notice that he had determined
that the service of the members of the group known as ``The Operational
Analysis Group of the Office of Scientific Research and Development,
Office of Emergency Management, which served overseas with the U.S.
Army Air Corps from December 7, 1941, through August 15, 1945,'' shall
be considered active duty for the purpose of all laws administered by
VA.
In the Federal Register of October 21, 1999 (64 FR 56773-74), the
Secretary of the Air Force published a notice that he had determined
that the service of the members of the groups known as:
[T]hree scouts/guides, Miguel Tenorio, Penedicto Taisacan, and
Cristino Dela Cruz, who assisted the U.S. Marines in the offensive
operations against the Japanese on the Northern Mariana Islands from
June 19, 1944, through September 2, 1945, and * * * ``the
approximately 50 Chamorro and Carolinian former, native policemen
who received military training in the Donnal area of central Saipan
and were placed under the command of Lt. Casino of the 6th
Provisional Military Police Battalion to accompany United States
Marines on active, combat-patrol activity from August 19, 1945, to
September 2, 1945,
shall be considered to be active duty for the purpose of all laws
administered by VA.
We also propose to add additional information concerning three
groups already recognized. The first group is ``[c]ivilian Crewmen of
the United States (U.S.) Coast and Geodetic Survey vessels, who
performed their service in areas of immediate military hazard while
conducting cooperative operations with and for the U.S. Armed Forces
within a time frame of December 7, 1941, to August 15, 1945.'' The
Department of Defense has specifically designated qualifying vessels
upon which members of the group must have served. 57 FR 24600, June 10,
1992. We propose adding this information at Sec. 5.27(b)(3) to assist
claimants and their representatives in identifying service potentially
qualifying for VA benefits.
In proposed Sec. 5.27(b)(7), we have amended the title of the group
``Engineer Field Clerks'' to the more complete ``Engineer Field Clerks
(WWI).'' See 44 FR 55622, September 27, 1979.
The third group is ``U.S. Civilian Flight Crew and Aviation Ground
Support Employees of Transcontinental and Western Air (TWA), Inc., who
served overseas as a result of TWA's contract with the Air Transport
Command during the Period December 14, 1941, through August 14, 1945.''
On February 21, 2003, the Secretary of the Air Force (acting as
Executive Agent of the Secretary of Defense) determined that ``Flight
Crew'' includes pursers. 68 FR 11068, March 7, 2003. This information
has been added at proposed Sec. 5.28(b)(25).
One of the Project's design goals is to associate effective date
rules that concern specific regulations with those regulations so that
related material will be in one place for the convenience of claimants
and their representatives and VA personnel who adjudicate claims.
Therefore, we propose to include rules for determining the effective
date for awarding VA benefits to a member of a group that would be
listed in proposed Sec. 5.27 as proposed Sec. 5.27(c). Proposed Sec.
5.27(c) would replace effective date rules for awards to these groups
currently included in the introduction to Sec. 3.7(x) and in Sec.
3.400(z).
38 U.S.C. 5110(g) provides that:
(g) Subject to the provisions of section 5101 of this title
[concerning the requirement for filing a claim for VA benefits],
where compensation, dependency and indemnity compensation, or
pension is awarded or increased pursuant to any Act or
administrative issue, the effective date of such award or increase
shall be fixed in accordance with the facts found but shall not be
earlier than the effective date of the Act or administrative issue.
In no event shall such award or increase be retroactive for more
than one year from the date of application therefor or the date of
administrative determination of entitlement, whichever is earlier.
Another statutory provision, 38 U.S.C. 1832(b)(2), as amended by
the Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651
(2003), extends Sec. 5110(g) to cover claims for certain benefits for
children of Vietnam veterans and of veterans of covered service in
Korea under 38 U.S.C. chapter 18.
Because each decision of the Department of Defense to include a new
group is a liberalizing change with respect to eligibility for VA
benefits, we propose to treat the decision as a liberalizing
``administrative issue'' under 5110(g). The effective date of
recognition established by the Department of Defense would be the
effective date of the ``administrative issue.''
While neither 38 U.S.C. 5110(g) nor its current implementing
regulation, Sec. 3.114, is specifically cited in current Sec. 3.400(z),
we note that this approach is consistent with the approach used in Sec.
3.400(z). Note, for example, the potential for up to one year in
retroactive benefits under certain circumstances in Sec.
3.400(z)(2)(iii) and in 38 U.S.C. 5110(g). This approach would also
produce a result that appears to be consistent with the view of the
Department of Defense. For example, the Federal Register notice of the
group described at proposed Sec. 5.27(b)(2) states that benefits are
not retroactive. See 64 FR 56773.
In drafting the 38 U.S.C. 5110(g)-based effective date provision in
proposed Sec. 5.27(c), we have substituted ``date entitlement arose''
for ``facts found.'' VA interprets ``facts found'' and another phrase
used in effective date rules, ``date entitlement arose,'' as having the
same basic meaning. We are proposing to use only one of these terms,
``date entitlement arose,'' in all of our proposed regulations to
improve consistency. ``Date entitlement arose'' will be defined in a
later notice of
[[Page 4826]]
proposed rulemaking as part of the project.
The effective date rules in proposed Sec. 5.27(c) are consistent
with relevant portions of another 38 U.S.C. 5110(g)-based regulation,
current Sec. 3.114.
With respect to the individuals and groups described in proposed
Sec. 5.27, current Sec. 3.7(x) provides that ``[t]he effective dates
for an award based upon such service shall be as provided by Sec.
3.400(z) and 38 U.S.C. 5110, except that in no event shall such an
award be made effective earlier than November 23, 1977.'' We have not
included similar information in proposed Sec. 5.27(c). The November 23,
1977, date is the effective date of Pub. L. 95-202, which recognized
the service of the Women's Air Forces Service Pilots (WASP) and
authorized the Secretary of Defense to recognize the service of
similarly situated groups in the future. Thus the only group recognized
effective November 23, 1977, is the WASP group, as noted in proposed
Sec. 5.27(b)(32). The recognition effective date of all other groups is
later, as shown in proposed Sec. 5.27(b).
In Sec. 5.28, we propose to list those individuals and groups
determined specifically by the Congress, or by court or VA decisions
interpreting applicable legislative provisions, to have performed
active military service. These groups are currently listed in various
paragraphs of current Sec. 3.7, as shown on the table presented
earlier.
We propose to update the list of groups and descriptions of the
groups where indicated. Proposed Sec. 5.28(a) would add service in the
Alaska Territorial Guard during World War II to the list of groups and
individuals. See Public Law 106-259, 114 Stat. 656 (2000). We have also
added material to Sec. 5.28(e) to notify readers that the Coast Guard
is now under the jurisdiction of the Department of Homeland Security.
See Public Law 107-296, 116 Stat. 2135 (2002). In addition, we propose
to correct an error in current Sec. 3.7(h), which lists ``[a]ctive
service in Coast Guard on or after January 29, 1915.'' The relevant
date is actually January 28, 1915. See Pub. L. No. 77-182, 55 Stat. 598
(1941). See also 14 U.S.C. 1 (``The Coast Guard as established January
28, 1915, shall be a military service and a branch of the Armed Forces
of the United States at all times.'')
Proposed Sec. 5.29, ``Circumstances under which certain travel
periods may be classified as military service,'' contains the rules
pertaining to when a service member performing authorized travel is
considered to be on active duty, active duty for training, or inactive
duty training. Consistent with the language of current Sec. 3.6(e)(2),
Sec. 5.29(b)(3) restates that the burden of proof is on the claimant to
show that disability or death was incurred while the service member was
going to, or returning from, authorized active duty for training or
inactive duty training. See 38 U.S.C. 106(d)(3). We propose to add a
cross reference to provisions in Sec. 5.26 concerning travel by persons
who were ordered to service but did not serve.
Service Creditable for VA Benefits
Current Sec. 3.12, the rules pertaining to service requirements for
VA benefits, is long and extremely complex. It contains rules
pertaining to several subjects: How VA determines whether discharges
were issued under other than dishonorable conditions; certain statutory
bars to VA benefits; the effect of discharge upgrades by different
armed forces boards on decisions VA makes concerning service members'
discharges; the effect of certain special discharge-upgrade programs in
the 1970s; and various other subjects. We propose to divide Sec. 3.12
by topic into separate sections, which would be numbered Sec.Sec. 5.30
through 5.36.
A requirement for VA benefits is status as a ``veteran,'' which
means that the service member was discharged or released from active
military service under other than dishonorable conditions. See 38
U.S.C. 101(2). Proposed Sec. 5.30 would state the rules pertaining to
VA's determinations of whether a service member's discharge or release
was under other than dishonorable conditions.
Proposed revisions include updating terminology to reflect the
change by the Department of Defense in the term ``undesirable
discharge'' to ``other than honorable discharge.''
VA proposes to clarify, through new Sec.Sec. 5.30(b)(1) and
5.31(b)(1), that a service member's discharge or release from service
under other than honorable conditions, if it bars benefits at all, or a
discharge or dismissal for commission of an act that results in a
statutory bar to VA benefits, bars VA benefits only based on the period
of service for which the relevant discharge, release, or dismissal was
issued. Neither bars the award of benefits based upon other qualifying
periods of service. This would avoid potential confusion in cases where
the veteran has one period of service that ended with a discharge under
dishonorable conditions and one or more other periods of service which
ended with a discharge under other than dishonorable conditions.
This matter was considered by VA's General Counsel in 1991 in
response to a request from the Department of the Air Force for an
opinion as to the effect of a discharge under dishonorable conditions
on a service member's eligibility to receive veterans' benefits based
on another period of service which terminated under honorable
conditions. The General Counsel held that:
Unless the Secretary of Veterans Affairs determines that an
individual is guilty of an offense listed in 38 U.S.C. 6104
(formerly Sec. 3504) (mutiny, treason, sabotage, or rendering
assistance to an enemy of the United States or of its allies) or the
individual is convicted of an offense listed in 38 U.S.C. 6105
(formerly Sec. 3505) (articles 94 (mutiny or sedition), 104 (aiding
the enemy), and 106 (spying) of the Uniform Code of Military
Justice; various provisions of title 18, United States Code,
relating to espionage, treason, rebellion, sedition, subversive
activities, and sabotage; violations of the Atomic Energy Act of
1954 and the Internal Security Act of 1950), a discharge under
dishonorable conditions does not bar that individual from receiving
gratuitous benefits administered by the Department of Veterans
Affairs, including burial in a national cemetery, based on a prior
period of service which terminated under conditions other than
dishonorable. However, if VA determines, subject to the severe
limitations on application of 38 U.S.C. 6104 to U.S. residents and
domiciliaries after September 1, 1959, under 38 U.S.C. 6103(d)(1)
(formerly Sec. 3503(d)(1)), that an individual is guilty of an
offense listed in 38 U.S.C. 6104, or if an individual is convicted
of an offense listed in 38 U.S.C. 6105, such individual is barred
from receiving all accrued or future benefits regardless of whether
the individual may have had a prior period of honorable service.
VAOPGCPREC 61-91.
Proposed Sec.Sec. 5.30(b) and 5.31(b) reflect the general rule that
a discharge or release under dishonorable conditions applies only to
the period of service to which the discharge or release pertains, but
that this general rule does not preclude forfeiture of VA benefits
under 38 U.S.C. 6103 through 6105 or similar statutes governing
forfeiture of VA benefits.
We also note that, while it would be highly unusual, the period of
service terminating under other than dishonorable conditions could
follow as well as precede the period of service terminating under
dishonorable conditions. For example, none of the controlling
authorities discussed in VAOPGCPREC 61-91 requires a sequence. The
issue is whether the period of service on which the claim is based was
terminated by discharge or release under conditions other than
dishonorable.
Proposed Sec. 5.30(c) describes the discharges VA will recognize as
being under other than dishonorable conditions. Proposed Sec. 5.30(d)
lists
[[Page 4827]]
those discharges VA will recognize as being under dishonorable
conditions. Section 5.30(e) lists the discharges for which VA will make
a character of discharge determination. These provisions are based on
the explicit provisions of current Sec. 3.12, as noted in the
derivation table included earlier in this document, or are implicit in
the current regulatory scheme.
Except where the law otherwise specifically provides (such as in
the case of certain discharge upgrade programs treated in proposed Sec.
5.36), VA has long considered itself bound by discharges under
honorable conditions issued by a service department, such as honorable
discharges and general discharges under honorable conditions.
Discharges under honorable conditions are, of course, also discharges
that are under other than dishonorable conditions. In addition, VA
treats uncharacterized entry level separations as being under other
than dishonorable conditions. See current Sec. 3.12(a) and (k)(1), Sec.
3.14(d). These are the discharges described in proposed Sec. 5.30(c).
A dishonorable discharge is, by definition, a discharge under
dishonorable conditions and issuance of such discharges is a matter for
the Department of Defense. This is the subject of proposed Sec.
5.30(d).
Section 5.30(e) describes the types of discharges that lie in a
middle ground, neither clearly honorable nor dishonorable: An other
than honorable discharge (formerly classified as an ``undesirable''
discharge); a bad conduct discharge; and certain uncharacterized
administrative separations. It is in those cases that VA will make the
character of discharge determination because VA must decide whether
they are, or are not, discharges ``under conditions other than
dishonorable'' in order to determine eligibility for VA benefits. See
generally Camarena v. Brown, 6 Vet. App. 565 (1994).
While it does not represent a substantive change, we also propose,
in Sec. 5.30(e)(3), to add a parenthetical explaining what ``dropped
from the rolls'' means. VA understands this expression to mean the
administrative termination of military status and pay. The U.S. Supreme
Court has noted in Clinton v. Goldsmith, 526 U.S. 529 (1999) that:
When a service member is dropped from the rolls, he forfeits his
military pay. See 37 U.S.C. 803. The drop-from-the-rolls remedy
targets a narrow category of service members who are absent without
leave (AWOL) or else have been convicted of serious crimes. Since
1870, the President has had authority to drop from the rolls of the
Army any officer who has been AWOL for at least three months. See
Act of July 15, 1870, Sec. 17, 16 Stat. 319. The power was
subsequently extended to officers confined in prison after final
conviction by a civil court, see Act of Jan. 19, 1911, ch. 22, 36
Stat. 894, and then to ``any armed force'' officer AWOL for at least
three months or else finally sentenced to confinement in a Federal
or State penitentiary or correctional institution, see Act of May 5,
1950, Sec. 10, 64 Stat. 146.
Id. at 532 n.1.
Proposed Sec. 5.30(f) lists the offenses or events leading to a
discharge that VA will recognize as a discharge or separation under
dishonorable conditions. Current Sec. 3.12(d)(3) lists ``An offense
involving moral turpitude. This includes, generally, conviction of a
felony.'' We propose to retain this rule, including the example of
conviction of a felony, but to add a general definition of moral
turpitude. VA believes that such a definition would be helpful to
claimants and to VA employees who adjudicate VA benefit claims.
Claimants ought to be able to know with at least some degree of
certainty whether or not a provision applies to their case. This is
particularly true of provisions that may serve to bar VA benefits.
The phrase ``moral turpitude'' is one commonly used in the law and
has been examined by legal writers in some depth.
There seems to be a common thread running through the majority of
cases concerning misdeeds considered to involve moral turpitude. A
crime involving moral turpitude is a criminal act that is done with the
willful intent to harm another person or entity through harm to their
person or property. In an analysis of more than 100 years of case law
involving courts' struggles to define ``moral turpitude,'' one author
notes the following with respect to the major categories of crimes
found to involve moral turpitude:
Crimes against the person involve moral turpitude when the local
statute defining the crime requires ``malicious intent.'' * * *
Crimes against property involve moral turpitude if the criminal
statute requires an intent to deprive, defraud, or destroy. * * *
Aggravated sexual crimes always involve moral turpitude, but some
sexual offenses do not. Examples of aggravated sexual crimes are:
rape, sexual misconduct with a minor, prostitution, sodomy,
lewdness, and gross indecency. Sexual offenses that do not involve
moral turpitude include vagrancy, maintaining a nuisance, and
fornication. * * * Crimes involving family relationships that courts
have held to be ``crimes involving moral turpitude'' include:
adultery, abortion, bigamy, spousal abuse, and child abuse. * * *
Crimes of fraud against the government or its authority, like all
crimes with an element of fraud, are ``crimes involving moral
turpitude.''
Brian C. Harms, Redefining ``Crimes of Moral Turpitude'': A Proposal to
Congress, 15 Geo. Immigr. L.J. 259, 267-69 (Winter 2001).
An exhaustive analysis of the concept of moral turpitude in
American Law Reports Federal includes the observation that:
The presence or absence of criminal or `evil' intent as an
essential element of the crime under consideration is frequently
considered as a factor indicative of the moral turpitude of the
offense; the `evil' intent may be evidenced by the use of
unjustified violence or the endangerment of human life * * *, or by
the presence of an intent to defraud as a necessary ingredient of
the offense. * * *
Annotation, What Constitutes ``Crime Involving Moral Turpitude'' Within
Meaning of Sec.Sec. 212(a)(9) and 241(a)(4) of Immigration and
Nationality Act (8 USCA Sec.Sec. 1182(a)(9), 1251(a)(4)), and Similar
Predecessor Statutes Providing for Exclusion or Deportation of Aliens
Convicted of Such Crime, 23 A.L.R. Fed. 480, 488 (1975).
VA's proposed definition is: ``an offense involves `moral
turpitude' if it is unlawful, it is willful, it is committed without
justification or legal excuse, and it is an offense which a reasonable
person would expect to cause harm or loss to person or property.''
The basic concept is that VA will look at the facts and
circumstances surrounding the commission of acts leading to discharge
to determine whether they do, or do not, involve moral turpitude under
the proposed definition.
When a discharge or release from service is because of one of
various offenses listed in current Sec. 3.12(d), VA will consider that
discharge or release to be under dishonorable conditions. This list
includes the following at Sec. 3.12(d)(5):
Homosexual acts involving aggravating circumstances or other
factors affecting the performance of duty. Examples of homosexual
acts involving aggravating circumstances or other factors affecting
the performance of duty include child molestation, homosexual
prostitution, homosexual acts or conduct accompanied by assault or
coercion, and homosexual acts or conduct taking place between
service members of disparate rank, grade, or status when a service
member has taken advantage of his or her superior rank, grade, or
status.
Since the time when these words were written in the 1970s,
integration of men and women into almost all military specialties and
every aspect of military life has become common. We believe it is
appropriate for VA to clearly state that all of the sexual offenses
listed in this paragraph are egregious no matter
[[Page 4828]]
who commits them. Therefore, in Sec. 5.30(f)(5), we propose to replace
the word ``homosexual'' with ``sexual,'' in order to make this rule
applicable to all persons.
Proposed Sec. 5.31 describes statutory bars to VA benefits and the
exceptions to those bars. Proposed Sec. 5.31(c)(1) would provide
information concerning 10 U.S.C. 874(b), which grants service
department secretaries the authority to ``substitute an administrative
form of discharge for a discharge or dismissal executed in accordance
with the sentence of a court-martial.'' VA's General Counsel has held
that such a discharge upgrade does not remove the statutory bar to VA
benefits that results from discharge or dismissal by reason of the
sentence of a general court-martial. In VAOPGCPREC 10-96, after
reviewing legislative history and other relevant matters, including the
interpretation of 10 U.S.C. 874(b) by the Department of the Navy, the
VA General Counsel reasoned at paragraph 11 that:
In view of the foregoing, we conclude that an upgraded discharge
awarded pursuant to 10 U.S.C. 874(b) does not alter an individual's
service records to change the fact that the individual was
discharged or dismissed by reason of the sentence of a general
court-martial. In the instant case, the revised DD 214 issued to the
appellant, while reflecting a discharge under honorable conditions,
continues to identify the sentence of the court-martial as the
reason for his discharge. Congress has made clear that a statutory
bar to benefits under 38 U.S.C. 5303(a) will be removed ``[o]nly in
instances when the Board for Correction of Military Records changes
the reasons for discharge.'' H.R. Rep. No. 580, 95th Cong., 1st
Sess. at 11, reprinted at 1977 U.S.C.C.A.N. at 2854. Accordingly,
because an upgraded discharge issued under 10 U.S.C. 874(b) changes
the character of discharge, but not the reasons for discharge, an
upgraded discharge issued pursuant to 10 U.S.C. 874(b) does not
remove the statutory bar to benefits under section 5303(a) as to
individuals discharged or dismissed by reason of the sentence of a
general court-martial.
Proposed Sec. 5.31(c)(2) provides the rules concerning discharge or
dismissal ``[a]s a conscientious objector who refused to perform
military duty, wear the uniform, or comply with lawful orders of
competent military authorities'' as a bar to VA benefits.
Another statutory bar to VA benefits is found in title 38 of the
United States Code, subsections 5303(a) and (c). These subsections bar
the payment of VA benefits to an alien who is discharged because of his
or her status as an alien during a time of hostilities between the
United States and another nation where the discharge is initiated by
the alien's own application or solicitation. Proposed Sec. 5.31(c)(6)
concerns this bar to benefits based on alienage. This proposed revision
eliminates material in current Sec. 3.7(b) concerning discharges for
alienage upgraded to honorable prior to January 7, 1957, by certain
military boards. The material provides that VA accepts such upgrades as
proof that a discharge was not at the alien's request. It was added at
a time when the burden of proof was on the service member to prove that
a discharge for alienage was not based on the service member's
application or solicitation. This material is no longer necessary
because the burden of proving that the discharge was at the service
member's request is now on the government under 38 U.S.C. 5303(c).
Proposed Sec. 5.31(d), explaining that this section concerning
statutory bars to benefits does not apply to certain government
insurance programs, is new. It follows a statutory provision found at
38 U.S.C. 5303(d). Note that this exclusion applies only to statutory
bars to benefits under 38 U.S.C. 5303. It does not affect, for example,
the forfeiture of National Service Life Insurance under 38 U.S.C. 1911,
``Forfeiture.''
Current Sec. 3.12(j) provides that:
(j) No overpayment shall be created as a result of payments made
after October 8, 1977, in cases in which the bar contained in
paragraph (c)(6) of this section [relating to a statutory bar to VA
benefit awards to individuals discharged under other than honorable
conditions for being AWOL for 180 days or more] is for application.
Accounts in payment status on or after October 8, 1977, shall be
terminated at the end of the month in which it is determined that
compelling circumstances do not exist, or April 7, 1978, whichever
is the earliest. Accounts in suspense (either before or after
October 8, 1977) shall be terminated on the date of last payment, or
April 7, 1978, whichever is the earliest.
This material is grounded in provisions of section 5 of Public Law
No. 95-126, 91 Stat. 1106 (1977); the same Public Law which, in section
1, amended what is now 38 U.S.C. 5303(a) to add the referenced
statutory bar to VA benefits because of lengthy AWOLs. The material in
the last two sentences of current Sec. 3.12(j) was important
transitional material at the time Public Law No. 95-126 became
effective but is now obsolete. We propose to replace the Sec. 3.12(j)
material, in Sec. 5.31(e), with simplified award termination provisions
that take into account applicable procedural and notice provisions,
described currently in Sec. 3.105, ``Revision of decisions.'' We
propose to provide, in Sec. 5.31(f), for the bar against overpayment
creation by specifying that awards contrary to the statutory bar for
lengthy AWOLs will be terminated on the date of last payment.
Proposed Sec. 5.32, ``Consideration of mitigating factors in
absence without leave cases,'' deals with cases in which a service
member was separated or discharged because of absence without authority
(referred to here by the more common term ``absence without leave''
(AWOL)). One of the statutory bars to VA benefits under 38 U.S.C.
5303(a) is AWOL for a continuous period of at least 180 days. However,
this subsection of the statute also provides for an exception where a
claimant ``demonstrates to the satisfaction of the Secretary [of
Veterans Affairs] that there are compelling circumstances to warrant
such prolonged unauthorized absence.''
Current Sec. 3.12(c)(6) sets up standards for determining whether
there are ``compelling circumstances'' warranting a prolonged AWOL. It
requires consideration of certain mitigating factors, such as reasons
for being absent, when the service member was AWOL for 180 days or
more. It does not provide for consideration of the same mitigating
circumstances for lesser absences. Because it is illogical to be more
lenient for greater offenses than for lesser ones, VA proposes in new
Sec. 5.32, under its general rulemaking authority in 38 U.S.C. 501(a),
to make this policy applicable to all cases involving AWOL as the
reason for discharge. The effect of this proposed change would be to
explicitly permit consideration of factors mitigating AWOL in the
context of character of discharge determinations as well as in
conjunction with statutory bars to VA benefits. We believe that this is
consistent with current VA practice.
As current Sec. 3.12(c)(6) and proposed Sec. 5.32(b) show, VA will
consider such factors as how the situation appeared to the service
member in light of the service member's age, cultural background,
educational level and judgmental maturity in determining whether there
were compelling circumstances for an unauthorized absence. However, we
wish to be clear that VA does not judge whether compelling
circumstances exist on the basis of a claimant's purely subjective
viewpoint. Rather, VA looks at the record as a whole in evaluating
whether compelling circumstances existed. See Lane v. Principi, 339
F.3d 1331 (Fed. Cir. 2003). Therefore, proposed Sec. 5.32(b) notes that
``VA will evaluate all of the relevant evidence of record in
determining whether there are compelling circumstances to warrant
unauthorized absence(s), including consideration of the following
factors.''
Proposed Sec. 5.33 deals with insanity as a defense to the
commission of acts leading to separation from service. This defense is
available under 38 U.S.C.
[[Page 4829]]
5303(b) in cases involving statutory bars to VA benefits and in
character of discharge determinations by regulation. The definition of
insanity, now contained in Sec. 3.354(a), will be revised and published
for public comment later as part of this Project.
The next two proposed sections, Sec.Sec. 5.34 and 5.35, state the
rules related to the effect of discharge upgrades by boards for the
correction of military records and discharge review boards on VA
benefit eligibility determinations. Specifically, these rules concern
whether VA benefits are barred by the character of a service member's
discharge or because of statutory bars to benefits.
Current Sec.Sec. 3.12 (f) and (g) provide guidance about the effect
of discharge upgrades by discharge review boards on existing VA
determinations based on a previous discharge, but they are not clear
about the effect of such upgrades where VA is making the determination
for the first time after the upgrade. We propose to address that
shortcoming in Sec. 5.35. The proposed section would also provide
information about the effective dates of awards of VA benefits when
benefit eligibility is established on the basis of a discharge upgrade
by a board for the correction of military records or a discharge review
board.
As current Sec. 3.12 does, proposed Sec. 5.35(d) provides that VA
will not consider certain upgraded discharges issued by a discharge
review board on or after October 8, 1977, in making character of
discharge determinations unless certain enumerated statutory conditions
for the board's review were met. (See 38 U.S.C. 5303(e)(1).) Proposed
Sec. 5.35(d)(2)(iii) clarifies that VA will accept a report of the
service department concerned that the discharge review board met those
conditions.
Proposed Sec. 5.36 sets out material now contained in Sec. 3.12(h)
concerning the effect of certain special discharge upgrade programs in
the 1970s. We have rewritten this regulation in an attempt to achieve
greater clarity and to simplify the information concerning award
terminations and a prohibition against the creation of overpayments.
Current Sec. 3.12(i) provides that:
(i) No overpayments shall be created as a result of payments
made after October 8, 1977, based on an upgraded honorable or
general discharge issued under one of the programs listed in
paragraph (h) of this section which would not be awarded under the
standards set forth in paragraph (g) of this section. Accounts in
payment status on or after October 8, 1977, shall be terminated the
end of the month in which it is determined that the original other
than honorable discharge was not issued under conditions other than
dishonorable following notice from the appropriate discharge review
board that the discharge would not have been upgraded under the
standards set forth in paragraph (g) of this section, or April 7,
1978, whichever is the earliest. Accounts in suspense (either before
or after October 8, 1977) shall be terminated on the date of last
payment or April 7, 1978, whichever is the earliest.
This material is grounded in provisions of section 5 of Public Law
No. 95-126, 91 Stat. 1106 (1977); the same Public Law which, in section
1, added what is now 38 U.S.C. 5303(e) concerning the effect of certain
special discharge upgrade programs in the 1970s. The material in the
last two sentences of current Sec. 3.12(i) was important transitional
material at the time Public Law No. 95-126 became effective, but is now
obsolete. We propose to replace the Sec. 3.12(i) material, in Sec.
5.36(b), with simplified award termination provisions that take into
account applicable procedural and notice provisions, described
currently in Sec. 3.105, ``Revision of decisions.'' We propose to
retain, in Sec. 5.36(c), the bar against overpayment creation and
specify that awards contrary to the section will be terminated on the
date of last payment.
Proposed Sec. 5.37, a proposed replacement for current Sec. 3.13,
concerns whether a service member has veteran status. That, in turn,
depends (except for service members who die in service) upon whether
the service member was discharged or released from active military
service under other than dishonorable conditions. See 38 U.S.C. 101(2)
(defining ``veteran'').
More specifically, proposed Sec. 5.37 concerns a subset of the
veteran status question. It typically arises under these circumstances:
(1) A person enters military service for a fixed period of time, for
example, a 4-year enlistment; (2) before the expiration of that fixed
period of time, the person's service obligation is extended due to some
change in military status; for example, an early discharge conditioned
on immediate reenlistment, conversion from enlisted to officer status,
a voluntary extension of service to gain some benefit, or an
involuntary extension due to war or national emergency; (3) the person
continues to serve honorably through the date when the original period
of obligated service would have expired, but is not discharged or
released on that date due to the intervening extension of the service
obligation because of the change in military status; (4) after the date
the period of service would have originally expired, but before
discharge or release from the period of service to which the person
became obligated upon the change in military status, the service member
is involved in some incident that results in separation from service
under dishonorable conditions.
Congress has determined that in such situations service members
should be granted veteran status as though they had been discharged or
released under other than dishonorable conditions at the time when the
period of service they were first obligated to serve expired. The
section implements 38 U.S.C. 101(18)(B), which was added by Sec. 3 of
Public Law 95-126, 91 Stat. 1106 (1977). The legislative history of
this provision shows that Congress was attempting to correct an
inequity caused when a discharge was not issued at the end of a service
member's initial period of service because he or she agreed to extend
their service beyond the initial period of obligation and, in some
cases, decided or was offered the opportunity to change their military
status. See H.R. Rep. No. 95-580, at 18, reprinted in 1977 U.S.C.C.A.N.
2844, 2861.
In drafting proposed Sec. 5.37, we have extensively reorganized
current Sec. 3.13 and revised its language to make it more clearly
reflect 38 U.S.C. 101(18), the statute's legislative history, and
existing VA practice. We propose to title this new section, ``Effect of
extension of service obligation due to change in military status on
eligibility for VA benefits,'' to clarify that the purpose of this
section is to address situations when eligibility for VA benefits may
be affected by a change in military status.
We note that even under the current regulation, there need not have
been a formal discharge or release at the time military status changed;
for example, a change from a Reserve to a Regular commission. The issue
is not whether there was a discharge or release at the time of the
change in military status, but rather due to the change in status,
there was no discharge or release at the time the service member
completed the period of service he or she was obligated to serve when
they entered service.
We propose two definitions in Sec. 5.37(b). The first is ``change
in military status.'' While the end result will be the same as under
the current regulation, VA believes that the ``change in status''
terminology is much clearer and more accurately reflects 38 U.S.C.
101(18) and its legislative history than the ``conditional discharge''
language found in current Sec. 3.13.
We propose to include a non-exclusive list of five examples of
change in military status within this definition. The first four
involve extensions of
[[Page 4830]]
obligated service through reenlistment or acceptance of an appointment
as a commissioned or warrant officer and changes between regular and
reserve commissions. We propose to add voluntary or involuntary
extensions of military service as a fifth example. Service may be
extended on a voluntary or involuntary basis for a variety of reasons.
These range from qualifying for financial incentives based on the
length of certain tours to occurrences, such as suffering an injury at
or near the separation of service date for which military medical care
is required. Periods of service are sometimes involuntarily extended
due to war or other national emergencies.
Because VA will determine the character of a service member's
discharge or release upon the discharge or release from combined
periods of service under certain circumstances, we also propose to
define what we mean by ``combined periods of service'' in the context
of this section. This is the second definition in proposed paragraph
(b).
We propose to eliminate the various rules related to specific
periods of war and peacetime service in current Sec. 3.13(a)(1) through
(3). These rules are based on VA regulations that predate the enactment
of 38 U.S.C. Sec. 101(18)(B) and are no longer necessary.
Proposed paragraph (c) states that VA will determine veteran status
by the character of the final termination of the service member's
combined periods of service if the combined periods of service
terminate under honorable conditions. This is because there is no need
to resort to the liberalizing provisions of 38 U.S.C. 101(18)(B) under
such circumstances. The previously described sequence of events causing
the potential inequity that 38 U.S.C. 101(18)(B) is intended to remedy
would not occur because the service member was not ``involved in some
incident that results in separation from service under dishonorable
conditions.'' If that extended service is terminated by a discharge
under other than honorable conditions, the provisions of proposed
paragraph (d), which implements 38 U.S.C. 101(18)(B), govern.
Further, we propose to omit language in current Sec. 3.13(b)
purporting to list an exception for death pension purposes;
specifically ``except that, for death pension purposes, Sec. 3.3(b)(3)
and (4) is controlling as to basic entitlement when the conditions
prescribed therein are met.'' Proposed Sec. 5.37 concerns veteran
status, not pension eligibility rules, and is not inconsistent with
those rules.
As part of our revision of these regulations we propose to
reorganize current Sec. 3.13(c), which we believe is unnecessarily
confusing. It provides criteria for determining when VA will consider a
service member to have been ``unconditionally discharged or released
from active military, naval or air service'' ``[d]espite the fact that
no unconditional discharge may have been issued.''
The term ``unconditional discharge'' is not one generally used by
the various military departments and is not defined in the current
regulations. Actually, the criteria listed are the criteria VA uses to
determine whether a service member is eligible for VA benefits when he
or she was not discharged or released at the expiration of the time he
or she was obligated to serve at the beginning of a period of service
because of an intervening change in military status that extends the
service member's military obligation. We believe that use of
``unconditional discharge'' in the current regulation adds unnecessary
complexity and have eliminated it in favor of a more accurate
description in Sec. 5.37(d), the proposed replacement for Sec. 3.13(c).
We have also clarified the effective date of the rules described in
Sec. 5.37(d). These rules are effective on and after October 8, 1977,
the effective date of the provisions of Public Law 95-126 amending 38
U.S.C. 101(18).
Proposed new Sec. 5.38, ``Effect of a voided enlistment on
eligibility for VA benefits,'' is based on current Sec. 3.14. The first
sentence of current Sec. 3.14(b) states:
Where an enlistment is voided by the service department because
the person did not have legal capacity to contract for a reason
other than minority (as in the case of an insane person) or because
the enlistment was prohibited by statute (a deserter or person
convicted of a felony), benefits may not be paid based on that
service even though a disability was incurred during such service.
We propose to replace the example of ``an insane person,'' in
proposed Sec. 5.38(b), with ``a lack of mental capacity to contract.''
``A lack of mental capacity to contract'' is the more customary way to
describe this concept in contract law.
The test for lack of capacity is generally said to be whether an
individual lacks sufficient mental capacity to understand in a
reasonable manner the nature of the transaction in which he or she
is engaging, and to understand its consequences and effect upon his
or her rights and interests.
53 Am. Jur. 2d Mentally Impaired Persons Sec. 156 (1996).
This proposal also includes removal of sentences two and three of
current Sec. 3.14(a) and all of Sec. 3.14(d). The second sentence of
current Sec. 3.14(a), ``Benefits may not be paid, however, unless the
discharge is held to have been under conditions other than
dishonorable,'' is redundant. That concept is addressed in current Sec.
3.12(a) and its proposed replacement, Sec. 5.30.
The third sentence of current Sec. 3.14(a) provides that:
``Generally discharge for concealment of a physical or mental defect
except incompetency or insanity which would have prevented enlistment
will be held to be under dishonorable conditions.'' In our view, this
provision is too rigid. Not every such concealment is with an intent to
defraud the government. For example, an individual may conceal defects
out of a strong desire to serve one's country in a time of war or other
national crisis. Such an act may be misguided, but in VA's view it does
not warrant the harsh results flowing from the current regulation. In
other cases, a service member might serve with some distinction before
a disqualifying preexisting physical or mental defect is discovered.
The current regulation leaves VA with little flexibility to consider
mitigating circumstances. VA believes that it can address this
situation adequately under other provisions and has not included the
quoted material in these proposed regulations.
The concept in current Sec. 3.14(d) that VA is bound by a service
department's determination that a discharge is honorable is included in
the text of proposed Sec. 5.30(c). The remaining material in current
Sec. 3.14(d) concerning aliens is, in substance, a cross reference to
material in Sec. 3.7(b) concerning certain veterans discharged for
alienage whose service may be recognized for VA purposes (as opposed to
the service of certain others so discharged who are statutorily barred
from receiving VA benefits--see current Sec. 3.12(c)(5) and proposed
Sec. 5.31(c)(6)). We do not believe that it is necessary to retain this
reference, inasmuch as the referenced material is neither an exception
to nor an amplification of the rule that VA is bound by a service
department's determination that a discharge is honorable.
Minimum Service and Evidence of Service
The next portion of VA's service package includes removing current
Sec. 3.12a, ``Minimum active-duty service requirement,'' and adding a
proposed equivalent section, Sec. 5.39, ``Minimum active duty service
requirement for VA benefits.''
Paragraphs (d)(1) through (6) provide exclusions from the minimum
active duty service requirement. One of these exclusions is based on 38
U.S.C. 5303A(b)(3)(C), which excludes ``a
[[Page 4831]]
person who has a disability that the Secretary has determined to be
compensable under chapter 11 of this title.'' In paragraph 5.39(d)(4),
we propose to clarify that a ``compensable'' disability means a
service-connected disability evaluated as 10 percent or more disabling
under 38 CFR part 4, Schedule for Rating Disabilities; a disability for
which special monthly compensation is payable; or a disability that,
together with one or more other disabilities, is compensable under
current Sec. 3.324, ``Multiple noncompensable service-connected
disabilities.''
We believe that clarifying ``compensable'' disability to include
veterans receiving special monthly compensation and those receiving a
10 percent evaluation for multiple noncompensable disabilities is fair
to claimants and consistent with the Congressional intent of Sec.
5303A. Although the legislative history regarding this issue is sparse,
it speaks of including language similar to that in current Sec.
3.12a(d)(3) in Sec. 5303A(b)(3)(C) in order to distinguish Sec. 5303A
from a parallel statute of the Department of Defense. It appears that
Congress intended to make sure that the minimum service requirement
only applies to individuals with disabilities ``so slight as to be
rated as zero-percent disabling, and for which no compensation is
payable.'' S.R. Rep. No. 97-153, 97th Cong., 1st Sess., at 41-42,
reprinted in 1981 U.S.S.C.A.N. 1595, 1626. Therefore, consistent with
Congressional intent, we propose to make it clear in Sec. 5.39(d)(4)
that veterans receiving compensation would be excluded from meeting the
minimum service requirement.
Current Sec. 3.12a(a)(1)(i), in discussing a requirement of 24-
months of continuous active duty for eligibility for VA benefits,
provides that ``[n]on-duty periods that are excludable in determining
the Department of Veterans Affairs benefit entitlement (e.g., see Sec.
3.15) are not considered as a break in service for continuity purposes
but are to be subtracted from total time served.'' We propose in
paragraph (e) to state the provisions regarding temporary breaks in
service, currently found in Sec. 3.15. However, because the minimum
active duty service requirement in current Sec. 3.12a, and its proposed
replacement, only apply to persons who entered service in the early
1980's and thereafter, we are not including breaks that pertain to
earlier time periods. We also propose to provide the same
clarifications concerning time lost while under arrest and while
serving a court martial sentence that appear in proposed Sec. 5.21(b).
See the discussion concerning proposed changes to Sec. 5.21 for
additional information.
Under current Sec. 3.12a(e) and 38 U.S.C. 5303A(c), the dependents
and survivors of a veteran who does not meet the minimum service
requirement are also disqualified from VA benefits, except for benefits
under chapter 19 (insurance) and chapter 37 (housing and small business
loans) of 38 U.S.C. We propose to further clarify these exceptions in
paragraph (f)(2) of proposed Sec. 5.39. As specified in proposed Sec.
5.39(d)(5), and 38 U.S.C. 5303A(b)(3)(D), the minimum service
requirement does not bar certain non-compensation VA benefits for a
service-connected disability, condition or death. We note this
exception through a cross-reference to Sec. 5.39(d)(5).
We also propose to state that the minimum service requirement does
not bar an award of DIC based on the veteran's death in service. This
is because, under 38 U.S.C. 5303A(b), the minimum service requirement
applies only if a person is ``discharged or released'' before
completing the required period of active duty. A veteran who dies in
service never has the opportunity to be ``discharged or released,'' so
the requirements should not be applied in such a case. Of course the
fact that an in-service death is not subject to the minimum service
requirement of 38 U.S.C. 5303A does not mean that DIC may not be
awarded for a service-connected death that occurs after service.
However, 38 U.S.C. 5303A(c), and its proposed implementing regulation
at Sec. 5.39(f), would be considered in determining eligibility for DIC
based on post-service death whereas an in-service death does not fall
under 38 U.S.C. 5303A's minimum service requirement.
The final regulation in this proposed rulemaking is proposed Sec.
5.40, ``Service records as evidence of service and character of
discharge that qualify for VA benefits.'' This is a reorganization of
current Sec. 3.203, written more concisely to make it more
understandable and easier to apply.
VA now has a statutory duty to assist claimants in obtaining
evidence to substantiate their claims. Among other things, 38 U.S.C.
5103A(c)(1) provides, with respect to a claim for disability
compensation, that VA's assistance will include obtaining ``[t]he
claimant's service medical records and, if the claimant has furnished
the Secretary information sufficient to locate such records, other
relevant records pertaining to the claimant's active military, naval,
or air service that are held or maintained by a governmental entity.''
The specifics of how VA implements its duty to assist are currently
located in 38 CFR 3.159. However, we wish to make the regulations we
are updating and revising compatible with that duty. As an example,
current Sec. 3.203(a) is entitled ``Evidence submitted by a claimant.''
This, or similar wording, could be taken to imply that VA will not
grant a claim if the claimant does not submit evidence of his or her
service. We do not wish to imply that VA will not assist in obtaining
service records, nor do we wish to imply that claimants may not submit
those records with their claims. Therefore, we propose to use more
neutral language in this section and to shift the focus from who must
submit the evidence of service to what kind of evidence of service VA
will accept, whether submitted by or for a claimant or obtained by VA.
Because paragraph (b) and the second sentence of paragraph (c) of
current Sec. 3.203 address additional requirements for eligibility for
pension or burial benefits, we propose to move these provisions to the
appropriate portions of new part 5 dealing with those benefits and to
omit this information from this proposed new section.
Proposed paragraphs (a) and (b) state the rules pertaining to what
evidence of service is acceptable to VA and the kinds of information
that evidence must contain. Paragraph (a) also clarifies that the list
of acceptable documents is not all-inclusive. Currently, Sec. 3.203
indicates that the evidence should contain ``needed information as to
length, time and character of service.'' In this revision, we propose
to change ``time'' of service to the more specific ``dates of
service.''
We propose to clarify this regulation by specifying in paragraph
(c) when verification by the service department is not required.
Proposed paragraph (d) would include circumstances when verification
from the service department is required. Along with the circumstances
listed in current Sec. 3.203(c), we propose to add paragraph (d)(3),
which provides that VA will verify service if there is a material
discrepancy in the evidence of record. This would, for example, cover
situations in which documents concerning service are in conflict or
there is credible testimony concerning service that conflicts with
other evidence of record.
Endnote Regarding Removals (Deletions) From Part 3 of 38 CFR
This is an advance notice of our intention to remove current
Sec.Sec. 3.2, 3.6,
[[Page 4832]]
3.7, 3.12, 3.12a, and 3.13 through 3.15 and portions of Sec.Sec. 3.203
and 3.400. We are not proposing these changes in part 3 at this time.
Readers, however, are invited to comment on these removals at this
time. We will propose these part 3 changes and the removal of all of
part 3, in the last NPRM concerning the proposed part 5 compensation
and pension regulations. VA plans to publish all of the subparts of
part 5 for public comment over time. After public comments for all of
the proposed subparts have been reviewed and considered, VA intends to
remove all of part 3, concurrent with the implementation of part 5.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (RFA), 5
U.S.C. 601-612. This amendment would not affect any small entities.
Only VA beneficiaries could be directly affected. Therefore, pursuant
to 5 U.S.C. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
Executive Order 12866
This document has been reviewed by the Office of Management and
Budget under Executive Order 12866.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector of
$100 million or more in any given year. This rule would have no such
effect on State, local, or tribal governments, or the private sector.
Catalog of Federal Domestic Assistance Numbers
The catalog of Federal Domestic Assistance program numbers for this
proposal are 64.100-102, 64.104-110, 64.115, and 64.127.
List of Subjects in 38 CFR Part 5
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: November 6, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 38
CFR chapter I by adding part 5 to read as follows:
PART 5 COMPENSATION, PENSION, BURIAL AND RELATED BENEFITS
Subpart A--[Reserved]
Subpart B--Service Requirements for Veterans
Periods of War and Types of Military Service
5.20 Dates of periods of war.
5.21 Service VA recognizes as active military service.
5.22 Service VA recognizes as active duty.
5.23 How VA classifies Reserve and National Guard duty.
5.24 How VA classifies duty performed by Armed Services Academy
cadets, midshipmen, attendees at the preparatory schools of the
Armed Services Academies, and Senior Reserve Officers' Training
Corps members.
5.25 How VA classifies service in the Public Health Service, in the
Coast and Geodetic Survey and its successor agencies, and of
temporary members of the Coast Guard Reserve.
5.26 Circumstances where persons ordered to service, but who did not
serve, are considered to have performed active duty.
5.27 Individuals and groups designated by the Secretary of Defense
as having performed active military service.
5.28 Other individuals and groups designated as having performed
active military service.
5.29 Circumstances under which certain travel periods may be
classified as military service.
Service Creditable for VA Benefits
5.30 How VA determines if service qualifies for VA benefits.
5.31 Statutory bars to VA benefits.
5.32 Consideration of mitigating factors in absence without leave
cases.
5.33 Insanity as a defense to acts leading to a discharge or
dismissal from the service that might be disqualifying for VA
benefits.
5.34 Effect of discharge upgrades by Armed Forces boards for the
correction of military records (10 U.S.C. 1552) on eligibility for
VA benefits.
5.35 Effect of discharge upgrades by Armed Forces discharge review
boards (10 U.S.C. 1553) on eligibility for VA benefits.
5.36 Effect of certain special discharge upgrade programs on
eligibility for VA benefits.
5.37 Effect of extension of service obligation due to change in
military status on eligibility for VA benefits.
5.38 Effect of a voided enlistment on eligibility for VA benefits.
Minimum Service and Evidence of Service
5.39 Minimum active duty service requirement for VA benefits.
5.40 Service records as evidence of service and character of
discharge that qualify for VA benefits.
5.41-5.49 [Reserved]
Authority: 38 U.S.C. 501(a) and as noted in specific sections.
Subpart A--[Reserved]
Subpart B--Service Requirements for Veterans
Periods of War and Types of Military Service
Sec. 5.20 Dates of periods of war.
This section explains what periods of service VA recognizes as
wartime service, beginning with the Mexican border period. See 38
U.S.C. 101 for information concerning earlier periods of war.
----------------------------------------------------------------------------------------------------------------
Period Dates Exceptions/special rules Authority
----------------------------------------------------------------------------------------------------------------
(a) Mexican Border Period......... May 9, 1916, through April Applies to a veteran who 38 U.S.C. 101(30).
5, 1917. served in Mexico, or on
the borders of Mexico, or
in the waters adjacent to
Mexico during the stated
period.
(b) World War I................... April 6, 1917, through (1) April 6, 1917, through 38 U.S.C. 101(7),
November 11, 1918. April 1, 1920, for United 1101(2)(A),
States armed forces 1501(2).
serving in Russia.
[[Page 4833]]
(2) April 6, 1917, through
July 1, 1921, for
veterans who served in
the active military,
naval, or air service
after April 5, 1917, and
before November 12, 1918.
This extension is limited
to matters concerning
benefits under 38 U.S.C.
chapter 11 (service-
connected disability
compensation, death
compensation, and
benefits for persons
disabled by VA medical
treatment or during VA
vocational rehabilitation
or compensated work
therapy) and benefits
under 38 U.S.C. chapter
15 (``Pension for Non-
Service-Connected
Disability or Death or
for Service'').
(c) World War II.................. December 7, 1941, through World War II service also 38 U.S.C. 101(8),
December 31, 1946. includes any period of 1101(2)(B).
continuous service after
December 31, 1946, and
before July 26, 1947, if
that period of service
began before January 1,
1947. This extension is
limited to matters
concerning benefits under
38 U.S.C. chapter 11
(service-connected
disability compensation,
death compensation, and
benefits for persons
disabled by VA medical
treatment or during VA
vocational
rehabilitation, or
compensated work therapy).
(d) Korean Conflict............... June 27, 1950, through None...................... 38 U.S.C. 101(9).
January 31, 1955.
(e) Vietnam Era................... August 5, 1964, through The Vietnam Era also 38 U.S.C. 101(29).
May 7, 1975. includes February 28,
1961, through August 4,
1964, in the case of a
veteran who served in the
Republic of Vietnam
during that period.
(f) Persian Gulf War.............. August 2, 1990, through a .......................... 38 U.S.C. 101(33).
date to be prescribed by
Presidential proclamation
or by law.
(g) Future periods of war......... Beginning on the date of .......................... 38 U.S.C. 101(11).
any future declaration of
war by the Congress and
ending on a date
prescribed by
Presidential proclamation
or concurrent resolution
of the Congress.
----------------------------------------------------------------------------------------------------------------
Sec. 5.21 Service VA recognizes as active military service.
(a) Active military service includes:
(1) Active duty. See Sec. 5.22, ``Service VA recognizes as active
duty.''
(2) The service of individuals certified by the Secretary of
Defense as serving on active military service. See Sec. 5.27.
(3) The service of individuals and groups listed in Sec. 5.28.
(4) Active duty for training during which the individual was
disabled or died from a disease or injury incurred or aggravated in
line of duty.
(5) Inactive duty training during which the individual was disabled
or died from an injury incurred or aggravated in line of duty or from
an acute myocardial infarction, a cardiac arrest, or a cerebrovascular
accident.
(6) Active or Reserve duty for persons who were injured or died
while assigned to the Postmaster General for the aerial transportation
of mail from February 10, 1934, through March 26, 1935.
(b) In determining the period of active military service for
service-connected or nonservice-connected benefits, VA will not count:
(1) Time spent on industrial, agricultural, or indefinite furlough;
(2) Time lost when absent without leave and without pay;
(3) Time while under arrest without a subsequent acquittal or
dismissal of charges;
(4) Time during desertion; or
(5) Subject to 10 U.S.C. 875 (concerning the restoration of rights,
privileges, and property affected by certain court-marital sentences
that are set aside or disapproved), time while serving a sentence of
confinement imposed by a court-martial.
(Authority: 38 U.S.C. 101(24), 501(a). Section 5.21(a)(6) also
issued under Pub. L. No. 73-140, 48 Stat. 508 (1934))
Sec. 5.22 Service VA recognizes as active duty.
(a) Active duty means:
(1) Full-time duty in the Armed Forces, other than active duty for
training.
(2) Certain duty performed by:
(i) Reserve and National Guard members. See Sec. 5.23.
(ii) Armed Services Academy cadets, midshipmen, attendees at the
preparatory schools of the Armed Services Academies, and Senior Reserve
Officers' Training Corps members. See Sec. 5.24.
(iii) Commissioned officers of the Public Health Service, Coast and
Geodetic Survey and its successor agencies, and temporary members of
the Coast Guard Reserves. See Sec. 5.25.
(3) Certain service of individuals ordered to service but who did
not serve. See Sec. 5.26.
(b) Active duty continues until midnight of the date of discharge
or release from active duty.
(c) Active duty includes certain travel as provided in Sec. 5.29,
``Circumstances under which certain travel periods may be classified as
military service.''
(Authority: 38 U.S.C. 101(21))
Sec. 5.23 How VA classifies Reserve and National Guard duty.
(a) Reserves. (1) Active duty. Full-time duty in the Armed Forces
performed by a Reservist, other than active duty for training, is
active duty.
(2) Active duty for training. Full-time duty in the Armed Forces
performed by
[[Page 4834]]
a Reservist for training purposes is active duty for training.
(3) Inactive duty training. Duty that is not full-time duty and
that the Secretary concerned prescribes for a Reservist to participate
in as a regular period of instruction or appropriate duty is inactive
duty training. (See 37 U.S.C. 206, ``Reserves; members of National
Guard: inactive-duty training.'') Special additional duties authorized
for a Reservist by an authority designated by the Secretary concerned
and performed on a voluntary basis in connection with prescribed
training maintenance activities of the unit to which the Reservist is
assigned is also inactive duty training.
(b) National Guard. (1) Active duty. Full-time duty in the Armed
Forces performed by a member of the National Guard serving under title
10, United States Code, other than active duty for training, is active
duty.
(2) Active duty for training. Full-time duty performed by a member
of the National Guard of any State under any of the following six
circumstances is active duty for training:
(i) When detailed as a rifle instructor for civilians (See 32
U.S.C. 316);
(ii) During required drills and field exercises (See 32 U.S.C.
502);
(iii) While participating in field exercises as directed by the
Secretary of the Army or the Secretary of the Air Force (See 32 U.S.C.
503);
(iv) While attending schools or small arms competitions as
prescribed by the Secretary of the Army or the Secretary of the Air
Force (See 32 U.S.C. 504);
(v) While attending any service school (except the United States
Military Academy or the United States Air Force Academy), or attached
to an organization of the Army or the Air Force for routine practical
instruction during field training or other outdoor exercise. (See 32
U.S.C. 505); or
(vi) When performed under prior provisions of law that correspond
to 32 U.S.C. 316, 502, 503, 504, or 505, for each of paragraphs
(b)(2)(i) through (v) of this section.
(3) Inactive duty training. Duty, other than full-time duty,
performed by a member of the National Guard of any State under any of
the following six circumstances is inactive duty training:
(i) When detailed as a rifle instructor for civilians (See 32
U.S.C. 316);
(ii) During required drills and field exercises (See 32 U.S.C.
502);
(iii) While participating in field exercises as directed by the
Secretary of the Army or the Secretary of the Air Force (See 32 U.S.C.
503);
(iv) While attending schools or small arms competitions as
prescribed by the Secretary of the Army or the Secretary of the Air
Force (See 32 U.S.C. 504);
(v) While attending any service school (except the United States
Military Academy or the United States Air Force Academy), or attached
to an organization of the Army or the Air Force for routine practical
instruction during field training or other outdoor exercise (See 32
U.S.C. 505); or
(vi) When performed under prior provisions of law that correspond
to 32 U.S.C. 316, 502, 503, 504, or 505, for each of paragraphs
(b)(3)(i) through (v) of this section.
(4) Exception. Inactive duty training does not include work or
study performed in connection with correspondence courses, or
attendance at an educational institution in an inactive status.
(c) Certain travel periods. For issues involving travel of a
reservist or member of the National Guard, see Sec. 5.29,
``Circumstances under which certain travel periods may be classified as
military service.''
(Authority: 38 U.S.C. 101(21)-(23), 106, and 501(a))
Sec. 5.24 How VA classifies duty performed by Armed Services Academy
cadets, midshipmen, attendees at the preparatory schools of the Armed
Services Academies, and Senior Reserve Officers' Training Corps
members.
(a) Service as a cadet or midshipman. Service as a cadet at the
United States Air Force Academy, United States Military Academy, or
United States Coast Guard Academy, or as a midshipman at the United
States Naval Academy qualifies as active duty. The period of such duty
continues until midnight of the date of discharge or release from the
respective service academy.
(b) Preparatory school attendance. (1) Active duty. Attendance at
the preparatory schools of the United States Air Force Academy, the
United States Military Academy, or the United States Naval Academy is
considered active duty if:
(i) The individual was an enlisted active-duty member who was
reassigned to a preparatory school without a release from active duty;
or
(ii) The individual has a commitment to perform active duty in the
Armed Forces that would be binding upon disenrollment from the
preparatory school.
(2) Active duty for training. Except as provided in paragraph
(b)(1)(ii) of this section, attendance at the preparatory schools of
the United States Air Force Academy, the United States Military
Academy, or the United States Naval Academy by an individual who enters
the preparatory school directly from the Reserves, National Guard, or
civilian life is active duty for training.
(c) Senior Reserve Officers' Training Corps. (1) Active duty for
training. Duty performed by a member of a Senior Reserve Officers'
Training Corps program when ordered to duty for the purpose of training
or a practice cruise under statutes and regulations governing the Armed
Forces conduct of the Senior Reserve Officers' Training Corps is active
duty for training.
(Authority: 10 U.S.C. chapter 103)
(i) This paragraph (c)(1) is effective October 1, 1982, for death
or disability resulting from disease or injury that occurred on or
after October 1, 1982.
(ii) This paragraph (c)(1) is effective October 1, 1983, for death
or disability resulting from disease or injury that occurred on or
before September 30, 1982.
(iii) For duty on or after October 1, 1988, the duty must be a
prerequisite to the member being commissioned and must be at least four
continuous weeks long.
(2) Inactive duty training. Training by a member of, or applicant
for membership (a student enrolled, during a semester or other
enrollment term, in a course that is part of Reserve Officers' Training
Corps instruction at an educational institution) in the Senior Reserve
Officers' Training Corps prescribed under 10 U.S.C. Chapter 103
(``Senior Reserve Officers' Training Corps'') is inactive duty
training.
(3) Drills. Time spent by members of the Senior Reserve Officers'
Training Corps in drills as part of their activities as members of the
corps is not active military service.
(d) Travel. For issues involving travel under this section, see
Sec. 5.29, ``Circumstances under which certain travel periods may be
classified as military service.''
(Authority: 38 U.S.C. 101, 106, and 501(a))
Sec. 5.25 How VA classifies service in the Public Health Service, in
the Coast and Geodetic Survey and its successor agencies, and of
temporary members of the Coast Guard Reserve.
(a) Public Health Service. (1) Active duty. (i) Full-time duty,
other than for training purposes, as a commissioned officer of the
Regular or Reserve Corps of the Public Health Service is active duty if
performed:
(A) On or after July 29, 1945;
(B) Before July 29, 1945, under circumstances affording entitlement
to full military benefits; or
[[Page 4835]]
(C) At any time, for the purposes of dependency and indemnity
compensation.
(ii) Such active duty continues until midnight of the date of
discharge or release from active duty.
(2) Active duty for training. Full-time duty for training purposes
performed as a commissioned officer of the Reserve Corps of the Public
Health Service is active duty for training if performed:
(i) On or after July 29, 1945;
(ii) Before July 29, 1945, under circumstances affording
entitlement to full military benefits, as determined by the Secretary
of the Department of Defense; or
(iii) At any time, for the purposes of dependency and indemnity
compensation.
(3) Inactive duty training. Either of the following kinds of
service is inactive duty training:
(i) Duty, other than full-time duty, prescribed for commissioned
officers of the Reserve Corps of the Public Health Service by the
Secretary of Health and Human Services under 37 U.S.C. 206 (Reserves;
members of National Guard: Inactive-duty training) or any other
provision of law; or
(ii) Special additional duties authorized for commissioned officers
of the Reserve Corps of the Public Health Service by an authority
designated by the Secretary of Health and Human Services and performed
by them on a voluntary basis in connection with the prescribed training
or maintenance activities of the units to which they are assigned.
(b) Coast and Geodetic Survey and successor agencies. (1) Active
duty. Full-time duty as a commissioned officer in the Coast and
Geodetic Survey and its successor agencies, the Environmental Science
Services Administration and the National Oceanic and Atmospheric
Administration, is active duty if performed:
(i) On or after July 29, 1945;
(ii) Before July 29, 1945, while on transfer to one of the Armed
Forces;
(iii) Before July 29, 1945, in time of war or National emergency
declared by the President, while assigned to duty on a project for one
of the Armed Forces in an area that the Secretary of Defense has
determined to be of immediate military hazard;
(iv) In the Philippine Islands on December 7, 1941, and
continuously in such islands thereafter until July 29, 1945; or
(v) At any time for purposes of dependency and indemnity
compensation.
(2) Such active duty continues until midnight of the date of
discharge or release from active duty.
(c) Temporary member of the Coast Guard Reserve. Duty performed as
a temporary member of the Coast Guard Reserve is not active duty for
training or inactive duty training.
(d) Travel. For issues involving travel by members of the Public
Health Service, members of the Coast and Geodetic Survey and its
successor agencies, or reservists under this section, see Sec. 5.29,
``Circumstances under which certain travel periods may be classified as
military service.''
(Authority: 38 U.S.C. 101, 106, and 501(a))
Sec. 5.26 Circumstances where persons ordered to service, but who did
not serve, are considered to have performed active duty.
(a) Persons included. The persons described in paragraph (a) of
this section who meet the requirements of paragraphs (a) and (b) of
this section will be considered to have performed active duty for
entitlement to VA benefits.
(1) Volunteers. Volunteers are included, provided they have applied
for enlistment or enrollment in the active military service and have
been provisionally accepted and directed or ordered to report to a
place for final acceptance into the service.
(2) Draftees. Persons selected or drafted for enrollment in the
active military service are included if they report, before being
rejected for service, according to a call from their local draft board.
(3) National Guard. Members of the National Guard are included when
they have been called into Federal active service, but have not yet
been enrolled in such service, and when reporting to a designated
rendezvous.
(b) Injury or disease. This section applies only if a person
described in paragraph (a) of this section suffers an injury, or
contracts a disease, in line of duty while going to, coming from, or at
a place designated for final acceptance or entry upon active duty. This
applies to a draftee or selectee when reporting for preinduction
examination or for final induction on active duty. This section does
not apply to an injury or disease suffered during a period of inactive
duty status or period of waiting after a final physical examination and
prior to beginning the trip to report for induction. The injury or
disease must be due to some factor relating to compliance with proper
orders.
(Authority: 38 U.S.C. 106(b))
Sec. 5.27 Individuals and groups designated by the Secretary of
Defense as having performed active military service.
(a) Designation by the Secretary of Defense. Service performed by
certain persons and groups that served the Armed Forces of the United
States in a capacity that was considered civilian employment or
contractual service under Public Law 95-202, is active military service
for the purpose of VA benefits provided that the Secretary of Defense,
or his or her designee, certifies this as active military service and
issues a discharge under honorable conditions.
(b) Individuals and groups included. The Secretary of Defense, or
his or her designee, has certified as active military service the
service of the following individuals and groups:
(1) American Merchant Marine in oceangoing service, during the
Period of Armed Conflict, December 7, 1941, to August 15, 1945.
Recognized effective January 19, 1988.
(2) The approximately 50 Chamorro and Carolinian former native
policemen who received military training in the Donnal area of central
Saipan and were placed under the command of Lt. Casino of the 6th
Provisional Military Police Battalion to accompany United States
Marines on active, combat-patrol activity from August 19, 1945, to
September 2, 1945. Recognized effective September 30, 1999.
(3) Civilian Crewmen of the United States Coast and Geodetic Survey
(USCGS) vessels, who performed their service in areas of immediate
military hazard while conducting cooperative operations with and for
the U.S. Armed Forces within a time frame of December 7, 1941, to
August 15, 1945. Qualifying USCGS vessels specified by the Secretary of
Defense, or his or her designee, are the Derickson, Explorer, Gilbert,
Hilgard, E. Lester Jones, Lydonia, Patton, Surveyor, Wainwright,
Westdahl, Oceanographer, Hydrographer, and Pathfinder. Recognized
effective April 8, 1991.
(4) Civilian employees of Pacific Naval Air Bases who actively
participated in Defense of Wake Island during World War II. Recognized
effective January 22, 1981.
(5) Civilian Navy Identification Friend or Foe (IFF) Technicians,
who served in the Combat Areas of the Pacific during World War II
(December 7, 1941, to August 15, 1945). Recognized effective August 2,
1988.
(6) Civilian personnel assigned to the Secret Intelligence Element
of the Office of Strategic Services (OSS). Recognized effective
December 27, 1982.
(7) Engineer Field Clerks (WWI). Recognized effective August 31,
1979.
[[Page 4836]]
(8) Guam Combat Patrol. Recognized effective May 10, 1983.
(9) Honorably discharged members of the American Volunteer Group
(Flying Tigers), who served during the Period December 7, 1941, to July
18, 1942. Recognized effective May 3, 1991.
(10) Honorably discharged members of the American Volunteer Guard,
Eritrea Service Command, who served during the Period June 21, 1942, to
March 31, 1943. Recognized effective June 29, 1992.
(11) Male Civilian Ferry Pilots. Recognized effective July 17,
1981.
(12) The Operational Analysis Group of the Office of Scientific
Research and Development, Office of Emergency Management, which served
overseas with the U.S. Army Air Corps from December 7, 1941, through
August 15, 1945. Recognized effective August 27,1999.
(13) Quartermaster Corps Female Clerical Employees serving with the
AEF (American Expeditionary Forces) in World War I. Recognized
effective January 22, 1981.
(14) Quartermaster Corps Keswick Crew on Corregidor (WWII).
Recognized effective February 7, 1984.
(15) Reconstruction Aides and Dietitians in World War I. Recognized
effective July 6, 1981.
(16) Signal Corps Female Telephone Operators Unit of World War I.
Recognized effective May 15, 1979.
(17) Three scouts/guides, Miguel Tenorio, Penedicto Taisacan, and
Cristino Dela Cruz, who assisted the U.S. Marines in the offensive
operations against the Japanese on the Northern Mariana Islands from
June 19, 1944, through September 2, 1945. Recognized effective
September 30, 1999.
(18) U.S. civilian employees of American Airlines, who served
overseas as a result of American Airlines' contract with the Air
Transport Command during the Period December 14, 1941, through August
14, 1945. Recognized effective October 5, 1990.
(19) U.S. civilian female employees of the U.S. Army Nurse Corps
while serving in the defense of Bataan and Corregidor during the Period
January 2, 1942, to February 3, 1945. Recognized effective December 13,
1993.
(20) U.S. Civilian Flight Crew and Aviation Ground Support
Employees of Braniff Airways, who served overseas in the North Atlantic
or under the jurisdiction of the North Atlantic Wing, Air Transport
Command (ATC), as a result of a contract with the ATC during the Period
February 26, 1942, through August 14, 1945. Recognized effective June
2, 1997.
(21) U.S. Civilian Flight Crew and Aviation Ground Support
Employees of Consolidated Vultree Aircraft Corporation (Consairway
Division), who served overseas as a result of a contract with the Air
Transport Command during the Period December 14, 1941, through August
14, 1945. Recognized effective June 29, 1992.
(22) U.S. Civilian Flight Crew and Aviation Ground Support
Employees of Northeast Airlines Atlantic Division, who served overseas
as a result of Northeast Airlines' Contract with the Air Transport
Command during the Period December 7, 1941, through August 14, 1945.
Recognized effective June 2, 1997.
(23) U.S. Civilian Flight Crew and Aviation Ground Support
Employees of Northwest Airlines, who served overseas as a result of
Northwest Airline's contract with the Air Transport Command during the
Period December 14, 1941, through August 14, 1945. Recognized effective
December 13, 1993.
(24) U.S. Civilian Flight Crew and Aviation Ground Support
Employees of Pan American World Airways and Its Subsidiaries and
Affiliates, who served overseas as a result of Pan American's Contract
with the Air Transport Command and Naval Air Transport Service during
the Period December 14, 1941, through August 14, 1945. Recognized
effective July 16, 1992.
(25) U.S. Civilian Flight Crew and Aviation Ground Support
Employees of Transcontinental and Western Air (TWA), Inc., who served
overseas as a result of TWA's contract with the Air Transport Command
during the Period December 14, 1941, through August 14, 1945. The
``Flight Crew'' includes pursers. Recognized effective May 13, 1992.
(26) U.S. Civilian Flight Crew and Aviation Ground Support
Employees of United Air Lines (UAL), who served overseas as a result of
UAL's contract with the Air Transport Command during the Period
December 14, 1941, through August 14, 1945. Recognized effective May
13, 1992.
(27) U.S. civilian volunteers, who actively participated in the
Defense of Bataan. Recognized effective February 7, 1984.
(28) U.S. civilians of the American Field Service (AFS), who served
overseas operationally in World War I during the Period August 31,
1917, to January 1, 1918. Recognized effective August 30, 1990.
(29) U.S. civilians of the American Field Service (AFS), who served
overseas under U.S. Armies and U.S. Army Groups in World War II during
the Period December 7, 1941, through May 8, 1945. Recognized effective
August 30, 1990.
(30) U.S. Merchant Seamen who served on blockships in support of
Operation Mulberry. Recognized effective October 18, 1985.
(31) Wake Island Defenders from Guam. Recognized effective April 7,
1982.
(32) Women's Air Forces Service Pilots (WASP). Recognized effective
November 23, 1977.
(33) Women's Army Auxiliary Corps (WAAC). Recognized effective
March 18, 1980.
(c) Effective dates of awards. (1) Scope. Paragraph (c) of this
section establishes the effective date of an award of any of the
following benefits based on service in a group listed in this section:
(i) Pension;
(ii) Compensation;
(iii) Dependency and indemnity compensation; and
(iv) Monetary allowances for a child of:
(A) A Vietnam veteran under Sec. 3.814 of this chapter, ``Monetary
allowance under 38 U.S.C. chapter 18 for an individual suffering from
spina bifida whose biological father or mother is or was a Vietnam
veteran;''
(B) A Vietnam veteran under Sec. 3.815 of this chapter, ``Monetary
allowance under 38 U.S.C. chapter 18 for an individual with disability
from covered birth defects whose biological mother is or was a Vietnam
veteran; identification of covered birth defects;''
(C) A veteran of covered service in Korea under 38 U.S.C. 1821,
``Benefits for children of certain Korea service veterans born with
spina bifida.''
(2) Claim received one year or less after the effective date of
recognition. If VA receives the claim within one year of the effective
date of recognition, then the effective date of the award is the later
of:
(i) The date entitlement arose, as defined in [regulation that will
be published in a future Notice of Proposed Rulemaking concerning
proposed subpart C of this part] of this part, or
(ii) The effective date of recognition.
(3) Claim received more than one year after the effective date of
recognition. If VA receives the claim more than one year after the
effective date of recognition, the effective date of the award or
increase is the later of:
(i) The date entitlement arose, as defined in [regulation that will
be published in a future Notice of Proposed Rulemaking concerning
proposed subpart C of this part] of this part, or
(ii) One year prior to the date of receipt of the claim.
[[Page 4837]]
(4) Effective dates for awards based on a review on VA's initiative
one year or less after the effective date of recognition. If VA awards
benefits one year or less after the effective date of recognition, the
effective date of the award is the later of:
(i) The date entitlement arose, as defined in [regulation that will
be published in a future Notice of Proposed Rulemaking concerning
proposed subpart C of this part] of this part, or
(ii) The effective date of recognition.
(5) Effective dates for awards based on a review on VA's initiative
more than one year after the effective date of the change. If VA awards
benefits more than one year after the effective date of recognition,
the effective date of the award is the later of:
(i) The date entitlement arose, as defined in [regulation that will
be published in a future Notice of Proposed Rulemaking concerning
proposed subpart C of this part] of this part, or
(ii) One year prior to the date of the VA rating decision awarding
the benefit, or if no rating decision is required, one year prior to
the date VA otherwise determines that the claimant is entitled to the
benefit.
(Authority: 38 U.S.C. 501(a), 1832(b)(2), 5110(g); Sec. 401, Pub. L.
95-202, 91 Stat. 1449, 1450)
Sec. 5.28 Other individuals and groups designated as having performed
active military service.
The following individuals and groups are considered to have
performed active military service:
(a) Alaska Territorial Guard during World War II. (1) Service in
the Alaska Territorial Guard during World War II for any individual who
was honorably discharged as determined by the Secretary of Defense is
included.
(2) Benefits cannot be paid for this service for any period prior
to August 9, 2000.
(b) Army field clerks. Army field clerks are included as enlisted
men.
(c) Army Nurse Corps, Navy Nurse Corps, and female dietetic and
physical therapy personnel. Army Nurse Corps, Navy Nurse Corps, and
female dietetic and physical therapy personnel are included, as
follows:
(1) Nurse Corps. Female Army and Navy nurses on active service
under order of the service department; or
(2) Female dietetic and physical therapy personnel. Female dietetic
and physical therapy personnel, excluding students and apprentices,
appointed with relative rank on or after December 22, 1942, or
commissioned on or after June 22, 1944.
(d) Aviation camps. Students who were enlisted men in Aviation
camps during World War I are included.
(e) Coast Guard. Active service in the Coast Guard on or after
January 28, 1915, while under the jurisdiction of the Treasury
Department, the Navy Department, the Department of Transportation, or
the Department of Homeland Security is included. This does not include
temporary members of the Coast Guard Reserves.
(f) Contract surgeons. Contract surgeons are included for
compensation and DIC, if the disability or death was the result of
disease or injury contracted in line of duty during a period of war
while actually performing the duties of assistant surgeon or acting
assistant surgeon with any military force in the field, or in transit,
or in a hospital.
(g) Field clerks, Quartermaster Corps. Field clerks of the
Quartermaster Corps are included as enlisted personnel.
(h) Lighthouse service personnel. Lighthouse service personnel who
were transferred to the service and jurisdiction of the War or Navy
Departments by Executive order under the Act of August 29, 1916, are
included. Effective July 1, 1939, service was consolidated with the
Coast Guard.
(i) Male nurses. Male nurses who were enlisted in a Medical Corps
are included.
(j) Persons previously having a pensionable or compensable status.
Persons having a pensionable or compensable status prior to January 1,
1959, are included.
(Authority: 38 U.S.C. 1152, 1504)
(k) Philippine Scouts and others. See Sec. 3.40.
(l) Revenue Cutter Service. The Revenue Cutter Service is included
while serving under direction of the Secretary of the Navy in
cooperation with the Navy. Effective January 28, 1915, the Revenue
Cutter Service was merged into the Coast Guard.
(m) Russian Railway Service Corps. Service during World War I in
the Russian Railway Service Corps as certified by the Secretary of the
Army is included.
(n) Training camps. Members of training camps authorized by section
54 of the National Defense Act (Pub. L. No. 64-85), are included,
except for members of Student Army Training Corps Camps at the Presidio
of San Francisco; Plattsburg, New York; Fort Sheridan, Illinois; Howard
University, Washington, DC; Camp Perry, Ohio; and Camp Hancock,
Georgia, from July 18, 1918, to September 16, 1918.
(o) Women's Army Corps (WAC). Service in the WAC on or after July
1, 1943, is included.
(p) Women's Reserve of Navy, Marine Corps, and Coast Guard. Service
in the Women's Reserve of the Navy, Marine Corps, and Coast Guard is
included and provides the same benefits as members of the Officers
Reserve Corps or enlisted men of the United States Navy, Marine Corps,
or Coast Guard.
(Authority: 38 U.S.C. 101, 106, and 501(a))
Sec. 5.29 Circumstances under which certain travel periods may be
classified as military service.
(a) Active duty. (1) Travel time to and from active duty. Travel to
or from any period of active duty is active duty if the travel is
authorized by the Secretary concerned.
(2) Travel on discharge or release. Travel time consisting of the
period between the date of discharge or release and arrival home by the
most direct route is active duty.
(3) Persons ordered to service but who did not serve. For
information about the travel of certain persons ordered to service who
did not serve, see Sec. 5.26(b).
(b) Active duty for training or inactive duty training--(1) Travel
time for active duty for training or inactive duty training. Any
individual proceeding directly to, or returning directly from, a period
of active duty for training or inactive duty training will be
considered to be on active duty for training or inactive duty training
if the individual was:
(i) Authorized or required by competent authority designated by the
Secretary concerned to perform such duty, and
(ii) Disabled or died from an injury, an acute myocardial
infarction, a cardiac arrest, or a cerebrovascular accident incurred
during that travel.
(2) Determination of status. VA will determine whether such an
individual was authorized or required to perform such duty and whether
the individual was disabled or died from an injury, an acute myocardial
infarction, a cardiac arrest, or a cerebrovascular accident incurred
during that travel. In making these determinations, VA will take into
consideration:
(i) The hour at which the individual began to proceed to or return
from the duty;
(ii) The hour at which the individual was scheduled to arrive for,
or at which the individual ceased to perform, such duty;
(iii) The method of travel employed;
(iv) The itinerary;
(v) The manner in which the travel was performed; and
[[Page 4838]]
(vi) The immediate cause of disability or death.
(3) Burden of proof. Whenever any claim is filed alleging that the
claimant is entitled to benefits by reason of travel for active duty
for training or inactive duty training, the burden of proof shall be on
the claimant.
(Authority: 38 U.S.C. 101(21) and (22), 106(c) and (d))
Service Creditable for VA Benefits
Sec. 5.30 How VA determines if service qualifies for VA benefits.
(a) Purpose. Except for service members who died in service, a
requirement for veteran status is discharge or release under other than
dishonorable conditions. See Sec. 3.1(d) (defining ``veteran''). This
section sets out how VA determines whether the service member's
discharge or release was under other than dishonorable conditions.
(b) Limitation to period of service concerned. (1) General rule. A
determination under this section that a service member was discharged
or released under dishonorable conditions applies only to the period of
service to which the discharge or release applies. It does not preclude
veteran status with respect to other periods of service from which the
service member was discharged or released under other than dishonorable
conditions. See also Sec. 5.37 (concerning certain cases where a
service member was not discharged or released at the end of the period
of time for which he or she was obligated to serve when entering a
period of service because of a change in his or her military status
during that period of service).
(2) Forfeiture not precluded. The provisions of paragraph (b)(1) of
this section do not preclude forfeiture of VA benefits under 38 U.S.C.
6103, ``Forfeiture for fraud,'' under 38 U.S.C. 6104, ``Forfeiture for
treason,'' under 38 U.S.C. 6105, ``Forfeiture for subversive
activities,'' or under similar statutes governing forfeiture of VA
benefits.
(c) Discharges and releases VA recognizes as being under other than
dishonorable conditions. For purposes of making determinations
concerning character of discharge for VA purposes, a military discharge
that is characterized by the service department as being either
honorable or under honorable conditions is binding on VA. Subject to
Sec. 5.36 (concerning certain special 1970s-era discharge upgrades),
any of the following is a discharge or release under other than
dishonorable conditions for VA purposes:
(1) An honorable discharge.
(2) A general discharge under honorable conditions.
(3) An uncharacterized administrative entry level separation in the
case of separation of enlisted personnel based on administrative
proceedings begun on or after October 1, 1982.
(d) Discharges VA recognizes as being under dishonorable
conditions. A dishonorable discharge is a discharge under dishonorable
conditions for VA purposes, except as provided in Sec. 5.33, ``Insanity
as a defense to acts leading to a discharge or dismissal from the
service which might be disqualifying for VA benefits.''
(e) Discharges and releases for which VA will make the character of
discharge determination. Subject to Sec. 5.36 (concerning certain
special 1970s-era discharge upgrades), VA will determine whether the
following types of discharges are discharges under other than
dishonorable conditions for VA purposes, based on the facts and
circumstances surrounding separation:
(1) An other than honorable discharge (formerly an ``undesirable''
discharge).
(2) A bad conduct discharge.
(3) In the case of separation of enlisted personnel based on
administrative proceedings begun on or after October 1, 1982,
uncharacterized administrative separations for:
(i) A void enlistment or induction, or
(ii) Dropped from the rolls (that is, administrative termination of
military status and pay).
(f) Offenses or events leading to discharge or release being
recognized as a discharge under dishonorable conditions. For purposes
of VA's character of discharge determination under paragraph (e) of
this section, a discharge or release because of one or more of the
offenses or events specified in paragraph (f) of this section is a
discharge or release under dishonorable conditions for VA purposes:
(1) Acceptance of an other than honorable discharge (formerly an
``undesirable'' discharge) to avoid trial by general court-martial.
(2) Mutiny or spying.
(3) Commission of one or more offenses involving moral turpitude.
For purposes of this section, an offense involves ``moral turpitude''
if it is unlawful, it is willful, it is committed without justification
or legal excuse, and it is an offense which a reasonable person would
expect to cause harm or loss to person or property. This includes,
generally, conviction of a felony.
(4) Engaging in willful and persistent misconduct during military
service. A discharge because of a minor offense will not be considered
willful and persistent misconduct if service was otherwise honest,
faithful, and meritorious. If the misconduct includes absences without
leave, see also Sec. 5.32 (concerning mitigating factors in absence
without leave cases).
(5) Sexual acts involving aggravating circumstances or other
factors affecting the performance of duty. Examples of sexual acts
involving aggravating circumstances or other factors affecting the
performance of duty include child molestation, prostitution, sexual
acts or conduct accompanied by assault or coercion, and sexual acts or
conduct taking place between service members of disparate rank, grade,
or status when the service member has taken advantage of his or her
superior rank, grade, or status.
(Authority: 38 U.S.C. 101(2), 501, 1301)
Sec. 5.31 Statutory bars to VA benefits.
(a) Purpose. By Federal statute, commission of certain acts leading
to discharge or dismissal from the Armed Forces bars the award of VA
benefits (statutory bars). This section describes those acts and
exceptions to the statutory bars.
(b) Limitation to period of service concerned. (1) General rule. A
determination under this section that veterans benefits are statutorily
barred applies only to the period of service to which the relevant
discharge or dismissal applies. It does not preclude the award of
benefits based upon other periods of service. See also Sec. 5.37
(concerning certain cases where a service member was not discharged or
released at the end of the period of time for which he or she was
obligated to serve when entering a period of service because of a
change in his or her military status during that period of service).
(2) Forfeiture not precluded. The provisions of paragraph (b)(1) of
this section do not preclude forfeiture of VA benefits under 38 U.S.C.
6103, ``Forfeiture for fraud,'' under 38 U.S.C. 6104, ``Forfeiture for
treason,'' under 38 U.S.C. 6105, ``Forfeiture for subversive
activities,'' or under similar statutes governing forfeiture of VA
benefits.
(c) Acts barring benefits. Benefits are not payable based upon a
period of service from which the service member was discharged or
dismissed from the Armed Forces under one or more of the following
conditions:
(1) By reason of the sentence of a general court-martial.
Substitution of an administrative form of discharge for a discharge or
dismissal executed in accordance with the sentence of a court-martial
under 10 U.S.C. 874(b) (granting
[[Page 4839]]
the authority for such substitutions) does not remove this bar to VA
benefits.
(2) As a conscientious objector who refused to perform military
duty, wear the uniform, or comply with lawful orders of competent
military authorities.
(3) As a deserter.
(4) By reason of an absence without official leave (AWOL) for a
continuous period of at least 180 days. This bar is subject to Sec.
5.32 (concerning mitigating factors in AWOL cases) and to paragraph (f)
of this section (concerning limitations on the creation of
overpayments). It applies to any person so discharged who was awarded a
discharge under other than honorable conditions and who:
(i) Was awarded an honorable or general discharge under one of the
programs listed in Sec. 5.36(a) (concerning certain special 1970s-era
discharge upgrades) prior to October 8, 1977; or
(ii) Had not otherwise established basic eligibility to receive VA
benefits prior to October 8, 1977. For purposes of paragraph (c)(4)(ii)
of this section, the term ``established basic eligibility to receive VA
benefits'' means either a VA determination that an other than honorable
discharge was issued under conditions other than dishonorable, or an
upgraded honorable or general discharge issued prior to October 8,
1977, under criteria other than those prescribed by one of the programs
listed in Sec. 5.36. However, if a person was discharged or released by
reason of the sentence of a general court-martial, only a finding of
insanity (see Sec. 5.33) or a decision of a board of correction of
records established under 10 U.S.C. 1552 (see Sec. 5.34) can establish
basic eligibility to receive VA benefits.
(5) By reason of resignation by an officer for the good of the
service.
(6) By reason of discharge due to alienage during a period of
hostilities based on the request of a service member. However, benefits
will not be barred in the absence of affirmative evidence establishing
such a request.
(d) Bars inapplicable to certain insurance. This section does not
apply to war-risk insurance, Government (converted) or National Service
Life Insurance policies.
(e) Termination of awards. Subject to the provisions of Sec. 3.105
of this chapter, ``Revision of decisions,'' any award contrary to the
provisions of paragraph (c) of this section will be terminated.
(f) Limitation on creation of overpayments in AWOL cases. Awards
made after October 8, 1977, in cases in which the bar contained in
paragraph (c)(4) of this section applies, will be terminated on the
date of last payment.
(Authority: 38 U.S.C. 501, 5303; Pub. L. 95-126, 91 Stat. 1106, as
amended by Pub. L. 102-40, 105 Stat. 239)
Sec. 5.32 Consideration of mitigating factors in absence without leave
cases.
(a) Compelling circumstances considered. Separation for absence
without leave (AWOL) will not preclude veteran status under Sec. 5.30
(concerning character of discharge determinations) and will not bar
benefit entitlement under Sec. 5.31(c)(4) (concerning AWOL as a
statutory bar to VA benefits) if there are compelling circumstances to
warrant unauthorized absence(s).
(b) Factors considered. VA will evaluate all of the relevant
evidence of record in determining whether there are compelling
circumstances to warrant unauthorized absence(s), including
consideration of the following factors:
(1) Length of AWOL and character of service. VA will consider the
length of the period(s) of AWOL in comparison to the length and
character of service exclusive of the period(s) of AWOL. Service
exclusive of the period(s) of AWOL should be of such quality and length
that it can be characterized as honest, faithful, meritorious, and of
benefit to the nation.
(2) Examples of circumstances VA will consider. Reasons offered for
being AWOL that VA will consider include family emergencies, compelling
family obligations, or similar types of compelling obligations or
duties owed to third parties. In evaluating the reasons for being AWOL,
VA will consider how the situation appeared to the service member in
light of the service member's age, cultural background, educational
level and judgmental maturity. VA will also consider evidence showing
that the service member's state of mind at the time AWOL began was
adversely affected by hardship or suffering during overseas service, or
by combat wounds or other service-incurred or aggravated disability.
(3) Valid legal defense. VA may find that compelling circumstances
exist if the absence could not validly be charged as, or lead to a
conviction of, an offense under the Uniform Code of Military Justice.
(Authority: 38 U.S.C. 501, 5303(a))
Sec. 5.33 Insanity as a defense to acts leading to a discharge or
dismissal from the service that might be disqualifying for VA benefits.
If VA determines that a service member was insane at the time of
the commission of an act, or acts, leading to separation from the
service, the commission of such act(s) will not be a basis for denying
status as a veteran under Sec. 5.30 (concerning character of discharge
determinations) or for barring the payment of VA benefits under Sec.
5.31 (concerning statutory bars to benefits). For the definition of
``insanity,'' see Sec. 3.354.
(Authority: 38 U.S.C. 501(a), 5303(b))
Sec. 5.34 Effect of discharge upgrades by Armed Forces boards for the
correction of military records (10 U.S.C. 1552) on eligibility for VA
benefits.
(a) Purpose. This section describes the effect of discharge
upgrades by a board established under 10 U.S.C. 1552 (board for
correction of military records) on VA determinations that a service
member's discharge or dismissal was under dishonorable conditions or
that the service member is statutorily barred from receiving VA
benefits.
(b) Definitions. For purposes of this section, ``any applicable new
determination'' means a determination under Sec. 5.30 (concerning
character of discharge determinations) or Sec. 5.31 (concerning
statutory bars to VA benefits). ``Applicable previous VA discharge
findings'' means findings by VA, based upon a previous discharge issued
for the same period of service, that a service member's discharge or
dismissal was under dishonorable conditions or that the service member
is statutorily barred from receiving VA benefits.
(c) Effect of discharge upgrades. An honorable discharge, or
discharge under honorable conditions, issued through a board for
correction of military records is final and conclusive and is binding
on VA as to characterization based on the period covered by such
service. Such a discharge supersedes a previous discharge issued for
the same period of service. It will be the basis for making any
applicable new determination and sets aside any applicable previous VA
discharge findings.
(d) Effective date. If entitlement to benefits is established
because of the change, modification, or correction of a discharge or
dismissal by a board for the correction of military records, the award
of such benefits will be effective from the latest of these dates:
(1) The date of filing with the service department of the
application for change, modification, or correction of the discharge or
dismissal in the case of either an original claim filed with VA or a
previously disallowed claim filed with VA;
(2) The date VA received a previously disallowed claim; or
(3) One year prior to the date of reopening of the previously
disallowed VA claim.
[[Page 4840]]
(Authority: 10 U.S.C. 1552(a)(4); 38 U.S.C. 501, 5110(i))
Sec. 5.35 Effect of discharge upgrades by Armed Forces discharge
review boards (10 U.S.C. 1553) on eligibility for VA benefits.
(a) Purpose. This section describes the effect of discharge
upgrades by a board established under 10 U.S.C. 1553 (discharge review
board) on VA determinations that a service member's discharge or
dismissal was under dishonorable conditions or that the service member
is statutorily barred from receiving VA benefits.
(b) Upgrades issued before October 8, 1977. Paragraph (b) of this
section concerns the effect of an honorable or general discharge
(upgraded discharge) issued by a discharge review board before October
8, 1977.
(1) General rule. The upgraded discharge will be the basis for
making any new determination under Sec. 5.30 (concerning character of
discharge determinations) or Sec. 5.31 (concerning statutory bars to VA
benefits). The upgraded discharge will also set aside any VA findings,
based upon a previous discharge issued for the same period of service,
that a service member's discharge or dismissal was under dishonorable
conditions or that the service member is statutorily barred from
receiving VA benefits.
(2) Exception. The rule in paragraph (b)(1) of this section does
not apply if:
(i) The previous discharge was executed by reason of the sentence
of a general court-martial, or
(ii) The discharge review board was acting under the authority of
one of the programs specified in Sec. 5.36 (concerning certain special
1970s-era discharge upgrades).
(c) Upgrades issued on or after October 8, 1977--effect on
statutory bars. Any new determinations VA makes under Sec. 5.31
(concerning statutory bars to VA benefits) will be made without regard
to an honorable or general discharge (upgraded discharge) issued by a
discharge review board on or after October 8, 1977. The upgraded
discharge will not set aside any VA findings, based upon a previous
discharge issued for the same period of service, that a service member
is statutorily barred from receiving VA benefits.
(d) Upgrades issued on or after October 8, 1977--effect on
character of discharge determinations. (1) General rule. Any new
determinations VA makes under Sec. 5.30 (concerning character of
discharge determinations) will be made without regard to an honorable
or general discharge (upgraded discharge) issued by a discharge review
board on or after October 8, 1977. The upgraded discharge will not set
aside any VA findings, based upon a previous discharge issued for the
same period of service, that a service member's discharge or dismissal
was under dishonorable conditions.
(2) Exceptions. The rule in paragraph (d)(1) of this section does
not apply if all of the following conditions are met:
(i) The discharge was upgraded as a result of an individual case
review;
(ii) The discharge was upgraded under uniform published standards
and procedures that generally apply to all persons administratively
discharged or released from active service under conditions other than
honorable; and
(iii) Such published standards are consistent with standards for
determining honorable service historically used by the service
department concerned and do not contain any provision for automatically
granting or denying an upgraded discharge. VA will accept a report of
the service department concerned that the discharge review board
proceeding met these conditions.
(e) Effective date. If entitlement to benefits is established
because of the change, modification, or correction of a discharge or
dismissal by a discharge review board, the award of such benefits will
be effective from the latest of these dates:
(1) The date of filing with the service department of the
application for change, modification, or correction of the discharge or
dismissal in the case of either an original claim filed with VA or a
previously disallowed claim filed with VA;
(2) The date VA received a previously disallowed claim; or
(3) One year prior to the date of reopening of the previously
disallowed VA claim.
(Authority: 38 U.S.C. 501, 5110(i), 5303(e))
Sec. 5.36 Effect of certain special discharge upgrade programs on
eligibility for VA benefits.
(a) Programs involved. Except as provided in Sec. 5.35(d)(2)
(pertaining to discharge upgrades based on individual case review under
certain published standards), an honorable or general discharge awarded
by a discharge review board under one of the following programs does
not remove any bar to benefits imposed under Sec. 5.30 (concerning
character of discharge determinations) or under Sec. 5.31 (concerning
statutory bars to VA benefits):
(1) The President's directive of January 19, 1977, implementing
Presidential Proclamation 4313 of September 16, 1974;
(2) The Department of Defense's special discharge review program
effective April 5, 1977; or
(3) Any discharge review program implemented after April 5, 1977,
that does not apply to all persons administratively discharged or
released from active service under other than honorable conditions.
(b) Termination of awards. Subject to the provisions of Sec. 3.105
of this chapter, ``Revision of decisions,'' any award of VA benefits
made contrary to paragraph (a) of this section will be terminated.
(c) No overpayments to be created. No overpayments will be created
as a result of payments made after October 8, 1977, based on an
upgraded honorable or general discharge issued under one of the
programs listed in paragraph (a) of this section which would not be
awarded under the standards set forth in Sec. 5.35(d)(2). Such payments
will be terminated effective the date of last payment.
(Authority: Pub. L. 95-126, 91 Stat. 1106)
(Authority: 38 U.S.C. 5303(e))
Sec. 5.37 Effect of extension of service obligation due to change in
military status on eligibility for VA benefits.
(a) Purpose. Except for persons who die in military service, status
as a veteran requires that an individual be discharged or released from
active military service under conditions other than dishonorable. See
Sec. 3.1(d) (defining ``veteran''). This section describes how VA will
determine whether this requirement has been met when, because of a
change in his or her military status, a service member was not
discharged or released at the end of the period of time for which he or
she was obligated to serve when entering a period of service.
(b) Definitions: (1) Change in military status. For purposes of
this section, a change in military status means a change in status that
extends the period of time that a service member is obligated to serve.
Examples of such a change in military status include, but are not
limited to:
(i) A discharge for acceptance of an appointment as a commissioned
officer or warrant officer;
(ii) Change from a Reserve commission to a Regular commission;
(iii) Change from a Regular commission to a Reserve commission;
(iv) Reenlistment; or
(v) Voluntary or involuntary extensions of a period of obligated
service.
(2) Combined periods of service. For purposes of this section,
combined
[[Page 4841]]
periods of service means the period of service immediately prior to the
change in military status combined with the period of service
immediately following the change in military status.
(c) Combined periods of service terminating with discharge or
release under honorable conditions. VA will determine veteran status by
the character of the final termination of the service member's combined
periods of service if the combined periods of service terminate under
honorable conditions. Otherwise, the provisions of paragraph (d) of
this section apply.
(d) Combined periods of service terminating with discharge or
release under other than honorable conditions. When a service member
was not discharged or released at the end of the period of time he or
she was obligated to serve when entering a period of service, he or she
is eligible to receive VA benefits based upon that period of service if
that service member:
(1) Completed active military service for the period of time he or
she was obligated to serve at the time of entry into that period of
service; and
(2) Due to an intervening change in military status was not
discharged or released at the end of that period of time; but
(3) Would have been eligible for a discharge or release under
conditions other than dishonorable at the end of that period of time
except for the intervening change in military status.
(Authority: 38 U.S.C. 101(18))
Sec. 5.38 Effect of a voided enlistment on eligibility for VA
benefits.
(a) Purpose. This section describes whether a claimant is eligible
for VA benefits if the service department has voided the service
member's enlistment.
(b) Service considered valid for establishing eligibility for
benefits. A service member's enlistment that is voided by the service
department for reasons other than those stated in paragraph (c) of this
section is valid from the date of entry upon active duty to the date of
voidance by the service department. In the case of an enlistment voided
for concealment of age or misrepresentation of age, service is valid
from the date of entry upon active duty to the date of discharge.
(c) Service considered not valid for establishing eligibility for
benefits. A service member's enlistment that is voided by the service
department for any of the reasons specified in paragraph (c) of this
section is void from the date of entry. A service member is not
eligible for VA benefits based on this period of service, if enlistment
was voided for any of the following reasons:
(1) Lack of legal capacity to contract, other than on the basis of
minority, such as a lack of mental capacity to contract.
(2) A statutory prohibition to enlistment, such as, but not limited
to:
(i) Desertion; or
(ii) Conviction of a felony.
(Authority: 10 U.S.C. 501, 505; 38 U.S.C. 101(2), 501(a))
Minimum Service and Evidence of Service
Sec. 5.39 Minimum active duty service requirement for VA benefits.
(a) Requirement. Any individual listed in paragraph (b) of this
section will not be eligible for VA benefits unless he or she has
completed a minimum period of active duty described in paragraph (c) of
this section upon discharge or release from service, or qualifies for
an exclusion under paragraph (d) of this section.
(b) Applicability. The minimum active duty service requirement
applies to:
(1) Any person who originally enlisted in a regular component of
the Armed Forces and entered on active duty after September 7, 1980
(time spent during temporary assignment to a reserve component awaiting
entrance on active duty because of a delayed entry enlistment contract
does not count; this section applies if the actual date of entry on
active duty is after September 7, 1980); and
(2) Any other person (enlisted or officer) who entered on active
duty after October 16, 1981, who had not previously completed a
continuous period of active duty of at least 24 months.
(c) Minimum active duty service requirement. (1) Except for
veterans excluded in paragraph (d) of this section, a veteran must have
served the shorter of:
(i) 24 months of continuous active duty; or
(ii) The full period of service for which the veteran was called or
ordered to active duty.
(2) If it appears that the length of service requirement may not be
met, VA will request a complete statement of service to determine if
there are any periods of active service that are required to be
excluded under paragraph (e) of this section.
(d) Exclusions. The minimum active duty service requirement of this
section does not apply to:
(1) Any person who was discharged under an early out program
described in 10 U.S.C. 1171 (Armed Forces, ``Regular enlisted members:
early discharge'').
(2) Any person who was discharged because of a hardship as
described in 10 U.S.C. 1173 (Armed Forces, ``Enlisted members:
discharge for hardship'').
(3) Any person who was discharged or released from active duty
because of a disability incurred or aggravated in line of duty,
(i) That, at the time of discharge or release, was determined to be
service-connected without presumptive provisions of law, or
(ii) That person had such a disability documented in official
service records at the time of discharge that, in VA's medical
judgment, would have justified a discharge for the disability.
(4) Any person who has any disability that VA determines to be
compensable under 38 U.S.C. chapter 11 because:
(i) VA evaluates the disability as 10 percent or more disabling
according to 38 CFR part 4, ``Schedule for Rating Disabilities;''
(ii) Special monthly compensation is payable for the disability; or
(iii) The disability, together with one or more other disabilities,
is compensable under Sec. 3.324 of this chapter.
(5) The provision of a benefit for or in connection with a service-
connected disability, condition, or death.
(6) Insurance benefits under 38 U.S.C. chapter 19.
(e) Temporary breaks in service. Temporary breaks in active duty
service for any of the reasons listed below will not be considered to
have interrupted the ``continuous service'' requirement of paragraph
(c)(1)(i) of this section; however, time lost due to these breaks must
be subtracted from the total service time because these times do not
count towards the minimum active duty service requirement:
(1) Time lost due to an industrial, agricultural, or indefinite
furlough;
(2) Time lost while absent without leave;
(3) Time lost while under arrest (without acquittal or a dismissal
of charges);
(4) Time lost while a deserter; or
(5) Subject to 10 U.S.C. 875(a), (concerning the restoration under
certain circumstances of ``all rights, privileges, and property
affected by an executed part of a court-martial sentence which has been
set aside or disapproved''), time lost while serving a court martial
sentence.
(f) Effect on eligibility for benefits for survivors and
dependents. (1) General rule. If a veteran is ineligible for VA
benefits because he or she did not meet the minimum active duty service
requirement, the veteran's dependents and survivors are ineligible for
benefits based on that service.
(2) Exceptions. Paragraph (f)(1) of this section does not bar
entitlement to any
[[Page 4842]]
of the following VA benefits to which a dependent or survivor may
otherwise be entitled:
(i) Insurance benefits under 38 U.S.C. chapter 19,
(ii) Housing or small business loans under 38 U.S.C. chapter 37,
(iv) Benefits described in paragraph (d)(5) of this section,
(v) DIC based on the veteran's death in service.
(Authority: 38 U.S.C. 5303A)
Sec. 5.40 Service records as evidence of service and character of
discharge that qualify for VA benefits.
(a) Acceptable evidence of service. To establish entitlement to
pension, compensation, DIC or burial benefits, VA must have evidence of
qualifying service and character of discharge from the service
department concerned. Documents VA will accept as evidence of service
and character of discharge include, but are not limited to, the
following:
(1) A DD Form 214; or
(2) A Certificate of Release or Discharge from Active Duty.
(b) Content of documents. The document establishing service must
contain information which demonstrates:
(1) The length of service;
(2) The dates of service; and
(3) The character of discharge or release.
(c) When service department verification is not required. VA will
accept one or more documents issued by a U.S. service department as
evidence of service and character of discharge without verifying their
authenticity, provided that VA determines that the document is genuine
and accurate. The document can be a copy of an original document if the
copy:
(1) Was issued by a service department;
(2) Is certified by a public custodian of records as a true and
exact copy of a document in the custodian's possession; or
(3) Is certified by an accredited agent, attorney, or service
organization representative as a true and exact copy of either an
original document or of a copy issued by the service department or a
public custodian of records. This accredited agent, attorney, or
service organization representative must have successfully completed
VA-prescribed training on military records.
(d) When service department verification is required. VA will
request verification of service from the appropriate service department
if:
(1) The record does not include satisfactory evidence showing the
information described in paragraph (b) of this section;
(2) The evidence of record does not meet the requirements of
paragraph (c) of this section; or
(3) There is a material discrepancy in the evidence of record.
(Authority: 38 U.S.C. 501(a))
Sec.Sec. 5.41-5.49 [Reserved]
[FR Doc. 04-1895 Filed 1-29-04; 8:45 am]
BILLING CODE 8320-01-P