Discharge: Character of Service

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1 MLRI & MCLE: State & FederalVeteran Benefits Training Tuesday, January 16, 2018 Evan R. Seamone, Clinic Attorney Veterans Legal Clinic, Legal Services Center of Harvard Law School Discharge: Character of Service 1. Honorable 2. General/Under Honorable Conditions 3. OtherThan Honorable/Undesirable 4. Bad Conduct Discharge 5. Dishonorable Punitive Administrative Uncharacterized

2 Discharge: The Numbers 22 million veterans in the United States and 380,000 veterans in Massachusetts FromWorldWar II to the present, more than 2.36 million veterans received a less-than-fully Honorable discharge General OTH/BCD/DD %General %OTH/BCD/DD World War II 12, , % 1.7% Korean War 122, , % 3.3% Vietnam War 354, , % 3.5% Gulf War ( 91-01) 128, , % 4.9% Post-9/11 ( 02-13) 150, , % 6.8% Discharge: The Numbers Source: Veterans Legal Clinic, Underserved (2016).

3 Ways to Access to Veteran Benefits (1) Military Service Branches: Discharge Upgrade Petitions (2) U.S. Department of Veterans Affairs: Character of Discharge Determinations (3) Massachusetts Chapter 115 Benefits Program: Determination ofveteran Status Discharge Upgrade Application Discharge Review Boards vs. Records Correction Boards Army Discharge Review Board, Naval Discharge Review Board, Air Force Discharge Review Board, Coast Guard Discharge Review Board Army Board for Correction of Military Records, Board for Correction of Naval Records,Air Force Board for Correction of Military Records, Coast Guard Board for Correction of Military Records Legal Standard DRBs = propriety or equity BCMRs = error or injustice Special or liberal consideration for certain veterans who have service-related PTSD/TBI Deadlines DRBs = 15 years from date of discharge BCMRs = 3 years from discovery but can be waived in interest of justice BCMR deadline should be waived for certain veterans who have service-related PTSD/TBI

4 VA Character of Discharge Determination VA definition of veteran : a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable 38 USC101(2), see 38 CFR 3.12 Important! A veteran does not need an Honorable discharge to accessva benefits. OTH/BCD/DD may be eligible. Start the COD process by filing a claim for benefits it s not automatic! Also Important! Even ifva decides a veteran s discharge is dishonorable, the veteran may still be eligible for benefits, for example: A veteran with an OtherThan Honorable discharge is eligible forva health care for any service-connected injuries A veteran who served multiple enlistments may qualify for some or all benefits based on the prior term of service Massachusetts Chapter 115 Eligibility Chapter 115 uses the definition for veteran in MGL c. 4, 7 last discharge or release... was under honorable conditions + 90 days wartime service/180 days active service AND none of the following shall be deemed to be a veteran... (e) Any person whose last discharge or release from the armed forces is dishonorable Importantly, 108 CMR 3.06(2) states: Undesirable Discharge. An applicant who has received an undesirable discharge shall be presumed to be ineligible for benefits. The applicant shall be entitled to challenge that presumption on the ground that the circumstances of the discharge were not dishonorable. The local VSO shall assist the applicant in his or her challenge by helping him or her obtain from the military service in which he or she served either a statement of the circumstances of the discharge or a copy of any court-martial which may have lead to the discharge. A determination of eligibility will be made by the Secretary. Start the process by applying for benefits with city/townvso

5 Resources Stichman & Abrams, Veterans Benefits Manual (LexisNexis 2016) JohnW. Brooker et al., Beyond T.B.D. : UnderstandingVA s Evaluation of a Former Servicemember s Benefit Eligibility Following Involuntary or Punitive Discharge from the Armed Forces, 214 Mil. L. Rev. 1 (2012). ConnecticutVeterans Legal Center, Veterans Discharge Upgrade Manual (2011), Veterans-Legal-Center-Discharge-Upgrade-Manual-November pdf Swords to Plowshares, UpgradingYour Military Discharge & Changing the Reason for Your Discharge (2012), /09/27/upgrading-your-military-discharge-and-changing-thereason-for-your-discharge/ Swords to Plowshares, VA Character of Service Determinations:An Alternative to Discharge Review (2012), /09/27/va-character-of-service-determination-an-alternative-todischarge-review/ YLSVeterans Legal Services Clinic, Applying for a Discharge UpgradeWhenYou Have PTSD (2014), wirac_ptsddischargeupgradesupplement.pdf Veterans Legal Clinic Intake Telephone (617) Walk-In Monday-Friday, Boylston Street Jamaica Plain, MA (next to Stony Brook T Stop on Orange Line) veteranslegalclinic@ law.harvard.edu The Most Important Slide If a veteran has a discharge that is not Honorable, the veteran may be eligible for federal and/or state veteran benefits. (You don t know until you try.)