Eligibility for VA Disability Compensation and Health Care Benefits for Army National Guardsmen Discharged with an Other than Honorable Discharge
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Eligibility for VA Disability Compensation and Health Care Benefits for Army National Guardsmen Discharged with
an Other Than Honorable Discharge
Captain Jeremy R. Bedford
II. Eligibility for VA Benefits and AR 135-178
While deployed to Iraq, Sergeant (SGT) Jane Smith, a
Guardsman, is afflicted with post-traumatic stress disorder
(PTSD). She receives an honorable discharge from this
deployment. Upon returning home, SGT Smith resumes
inactive duty for training (drilling) status and fails an Army
National Guard (ARNG) urinalysis for marijuana use.
Subsequently, the ARNG unit seeks to separate her in an
ARNG administrative separation board with a service
characterization of other than honorable (OTH) based on the
failed urinalysis. Referencing Army Regulation (AR) 135-
178, Army National Guard and Army Reserve Enlisted
Administrative Separations, which states that a separation
characterized as under other than honorable conditions could
deprive the Soldier of veterans' benefits,' defense counsel
passionately argues for a general discharge so that SGT
Smith can receive the necessary Veteran Affairs (VA)
benefits to treat her PTSD. Concerned for SGT Smith, the
board asks the legal advisor whether an ARNG OTH bars
SGT Smith's eligibility for VA disability compensation and
health care benefits. How should the legal advisor to the
board respond?
There is a widespread belief within the ARNG
community that a Guardsman becomes ineligible for VA
disability compensation and health care benefits when he
receives a discharge under OTH conditions from the ARNG.
Defense counsel will commonly seek a general discharge for
Guardsmen at ARNG separation boards, arguing that
Guardsmen will lose their VA benefits if they receive an
OTH discharge. This notion, however, is incorrect. The
misconception stems from AR 135-178 interpreting the
applicable VA laws incorrectly by mirroring the language in
AR 635-200, the active duty separation regulation, and
failing to account for the difference between an active
service discharge and an ARNG discharge.
This article explains how AR 135-178 incorrectly
interprets the applicable VA laws, demonstrating that a
Guardsman who is injured during a Title 10 deployment and
receives an honorable or general discharge for that
deployment remains eligible for VA disability compensation
and health care benefits, even if he subsequently receives an
OTH separation based on misconduct that occurred while on
Title 32 status.
* Judge Advocate, Pennsylvania Army National Guard. Presently assigned
as Trial Counsel, 56th Stryker Brigade Combat Team, 28th Infantry
Division.
1 U.S. DEP'T OF ARMY, REG. 135-178, ENLISTED ADMINISTRATIVE
SEPARATIONS para. 2-8(a) (13 Sept. 2011) [hereinafter AR 135-178].
To understand the error in AR 135-178's interpretation
of VA benefits, it is necessary to understand the current VA
laws regarding disability compensation and health care
benefits.
A. Eligibility for VA Benefits in General
To receive VA benefits, one must first be a veteran
under Title 38 of the U.S. Code, and such veteran must be
disabled as a result of an active service-related personal
injury or disease. The first threshold issue of whether the
individual is considered a veteran depends on whether one
served in active service without receiving a dishonorable
discharge. The VA law states that a veteran is a person
who served in the active military, naval, or air service and
who was discharged or released under conditions other than
dishonorable.,2 So any servicemember who served in the
active military and does not receive a dishonorable discharge
may be eligible for VA benefits. In the case where a veteran
receives an OTH discharge, the Department of Veteran
Affairs (DVA) must make a formal finding . . . to
determine the effect of an OTH discharge on a veteran's
benefits.3 Once one qualifies as a veteran for VA purposes,
then the issue is whether the veteran is eligible for such
benefits. The VA regulations state that basic entitlement
for a veteran exists if the veteran is disabled as the result of a
personal injury or disease (including aggravation of a
condition existing prior to service) while in active service if
the injury or the disease was incurred or aggravated in the
line of duty.4
The application of this rule is fairly simple for active
duty Soldiers as correctly reflected in its separation
regulation, AR 635-200, Active Duty Enlisted Administrative
Separations. Army Regulation 635-200 states that
[d]ischarge under other than honorable conditions may or
may not deprive the Soldier of veterans' benefits
administered by the Department of Veterans Affairs; a
determination by that agency is required in each case.'
This is a correct statement of law as an OTH discharge with
2 38 U.S.C. § 101(2) (2012).
' U.S. DEP'T OF VETERANS AFFAIRS, M21-1 ADJUDICATION PROCEDURES
MANUAL REWRITE pt. 3, subpt. V, ch. 1, sec. B, para. 5(c) (23 Feb. 2012)
[hereinafter DVA M21-1MR] (Formal Findings Required for OTH
Discharges).
4 Pensions, Bonuses, and Veterans' Relief, 38 C.F.R. § 3.4(b)(1) (2012).
5 U.S. DEP'T OF ARMY, REG. 635-200, ENLISTED ADMINISTRATIVE
SEPARATIONS para. 3-6(b) (6 Sept. 2011) [hereinafter AR 635-200].
JULY 2014 • THE ARMY LAWYER • DA PAM 27-50-494
I. Introduction](ViewImageLocal?handle=hein.journals/armylaw2014&div=79&collection=&method=preview&ext=.png&size=3)
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