To qualify for VA disability benefits, the individual must be a “veteran” or the dependent or a survivor of a “veteran.” VA defines a veteran as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” There is a lot to unpack in that one sentence.
Military, Naval, or Air Service
This primarily means just how it sounds. An individual must have served in one of the five branches of the US military: Army, Navy, Marine Corps, Air Force, or Coast Guard. It also includes each branch’s reserve components. Cadets at the U.S. Military, Air Force and Coast Guard academies and Midshipmen at the U.S. Naval Academy qualify. Also included are commissioned officers of the National Oceanic and Atmospheric Administration or Environmental Science Services Administration on full-time duty, commissioned officers in the Public Health Service on full-time duty, and service by certain civilians whose work supported military operations and the armed forces during specific periods of conflict or period of war.
If your service qualifies as military, naval, or air service, the next step is to consider whether your service was “active service.”
Active duty service means full-time duty. This includes members of the Reserves or National Guard who are called to full-time active duty for federal purposes. For the National Guard, this is time when they are called into active service by the President or perform specified training activities. Activation by a state governor to assist in hurricane relief efforts is not active service for purposes of VA benefits. But reservists and national guardsmen activated to serve a tour in Afghanistan have “active service.”
Active duty for training qualifies as active service if “the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty” during the period of active duty for training.
Inactive duty for training is considered active service is considered “active” service if the individual was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.
If the individual has active military, naval, or air service, the final consideration is whether the individual was discharged under conditions other than dishonorable.
Discharge Under Conditions Other Than Dishonorable
VA’s use of the phrase “conditions other than dishonorable” does not exactly line up with the military’s five different types of discharge. A dishonorable discharge from the military will always result in a bar to VA benefits because only a general court-martial results in a dishonorable discharge, and a general court-martial is also a statutory bar to VA benefits. VA will always consider an entry-level separation administrative discharge to be “under conditions other than dishonorable,” meaning that service can qualify the individual as a veteran.
Aside from these two examples, an individual cannot determine whether their discharge is “under conditions other than dishonorable” solely by the military’s discharge characterization. Instead, one must consider whether there is a statutory or regulatory bar to VA benefits.
There are six statutory bars to benefits, meaning if one of these six categories apply to a veteran’s discharge, the individual is not a “veteran” for VA disability purposes. They are:
- “discharge “as a conscientious objector who refused to perform military duty or refused to wear the uniform or otherwise refused to comply with lawful orders of a competent military authority;
- discharge or dismissal by reason of a sentence of a general court-martial;
- an officer resigning for the good of the service;
- discharge as an alien during a time of hostility; and
- discharge under other than honorable conditions issued as a result of absence without official leave (“AWOL”) for at least 180 continuous days (there is an exception where VA
There are also several regulatory bars to VA benefits. Note that these regulatory bars do not apply to honorable discharges, general discharges, or discharges under honorable conditions. For other types of discharges, VA will consider discharges to be dishonorable if they are based on conduct which falls into any of the following categories: accepting an undesirable discharge or discharge under other than honorable conditions to escape a trial by general court-martial; mutiny or spying; an offense involving moral turpitude; willful and persistent misconduct; and homosexual acts involving aggravating circumstances or affecting the performance of duty.
Veterans can appeal the VA’s determination of the character of their discharge. Veterans can also have periods of service which fall into different categories of honorable or dishonorable service. You may qualify for veteran status for one period of service but not another. If that is the case, you will have to show that your disability arose out of a period of service characterized as honorable service.
Has VA denied you benefits due to ineligibility?
If you have active military service and and VA denied your claim based on its character of discharge determination, please contact us so we can review VA’s denial. Our attorneys will review VA’s decision to ensure it complies with federal law and regulation. Please call us at (504) 218-2510 or fill out the form on our contact page so we can get a copy of your claim file and review your claim.