[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Proposed Rules]
[Pages 41471-41477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14559]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AQ95
Update and Clarify Regulatory Bars to Benefits Based on Character
of Discharge
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulations regarding character of discharge determinations. VA
proposes to modify the regulatory framework for discharges considered
``dishonorable'' for VA benefit eligibility purposes, such as
discharges due to ``willful and persistent misconduct,'' ``an offense
involving moral turpitude,'' and ``homosexual acts involving
aggravating circumstances or other factors affecting the performance of
duty.'' VA also proposes to extend a ``compelling circumstances''
exception to certain regulatory bars to benefits in order to ensure
fair character of discharge determinations in light of all pertinent
factors.
DATES: Comments must be received on or before September 8, 2020.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Office of
Regulation Policy and Management (00REG), Department of Veterans
Affairs, 810 Vermont Avenue NW, Room 1064, Washington, DC 20420; or by
fax to (202) 273-9026. Comments should indicate that they are submitted
in response to ``RIN 2900-AQ95--Update and Clarify Regulatory Bars to
Benefits Based on Character of Discharge.'' Copies of comments received
will be available for public inspection in the Office of Regulation
Policy and Management, Room 1064, between the hours of 8:00 a.m. and
4:30 p.m., Monday through Friday (except holidays). Please call (202)
461-4902 for an appointment. (This is not a toll-free number.) In
addition, during the comment period, comments may be viewed online
through the Federal Docket Management System (FDMS) at
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Olumayowa Famakinwa, Policy Analyst,
Regulations Staff (210), Compensation Service (21C), Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202)
461-9700. (This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION:
I. Existing Character of Discharge Determination Process
Eligibility for most VA benefits requires that a former service
member be a ``veteran.'' ``Veteran'' status is bestowed to former
service members ``who served in the active military, naval, or air
service, and who [were] discharged or released therefrom under
conditions other than dishonorable.'' 38 U.S.C. 101(2). Assuming the
active service requirement is met, VA relies primarily on a former
service member's character of service designated by the Armed Forces to
determine whether a former service member was separated from service
``under conditions other than dishonorable.'' See 38 U.S.C. 101(2),
(18); see also 38 CFR 3.1(a), (d). The Armed Forces characterize
discharge or release from service into one of five categories:
Honorable, under honorable conditions (general), other than honorable
(OTH), bad conduct (adjudicated by a general court or special court-
martial), or dishonorable (or dismissal in the case of commissioned
officers). The Armed Forces also has three categories of
uncharacterized administrative separations: entry-level separation,
void enlistment, or dropped from the rolls.
Section 3.12 of title 38, Code of Federal Regulations (CFR),
provides the criteria used by VA adjudicators to determine character of
discharge for purposes of benefit eligibility for former service
members. First, regardless of the Armed Forces' characterization of
service, there are six statutory bars to benefits noted in 38 U.S.C.
5303(a) and reiterated in paragraph (c) of 38 CFR 3.12. The statutory
bars pertain to former service members discharged or released (1) as a
conscientious objector who refused to perform military duty, wear the
uniform, or comply with lawful orders of competent military
authorities; (2) by reason of the sentence of a general court-martial;
(3) by resignation of an officer for the good of
[[Page 41472]]
the service; (4) as a deserter; (5) as an alien during a period of
hostilities, where it is affirmatively shown that the former service
member requested his or her release; and (6) under OTH conditions as a
result of an absence without official leave (AWOL) for a continuous
period of at least 180 days.
In addition, there are five regulatory bars to benefits provided in
paragraph (d) of 38 CFR 3.12, pertaining to former service members who
were discharged or released based on (1) acceptance of an undesirable
discharge to escape trial by general court-martial; (2) mutiny or
spying; (3) an offense involving moral turpitude, to include generally
conviction of a felony; (4) willful and persistent misconduct; and (5)
homosexual acts involving aggravating circumstances or other factors
affecting the performance of duty.
To determine eligibility for benefits, VA must evaluate the
character of service for each period of active duty service. See 38 CFR
3.12(a). If the Armed Forces characterized the former service member's
service as either ``honorable,'' ``under honorable conditions
(general),'' or as an uncharacterized administrative separation
categorized as ``an entry-level separation,'' VA considers a former
service member to have met the character of discharge requirement,
without further review of his or her service record, unless the
discharge documents show a separation reason that is listed as a bar to
benefits under 38 U.S.C. 5303(a) and 38 CFR 3.12(c). 38 CFR 3.12(a) and
(k)(1).
If the Armed Forces characterized the former service member's
service as dishonorable, the former service member would generally be
deemed ineligible for any VA benefits based on that period of service,
unless the insanity exception applied. See 38 CFR 3.12(b). The insanity
exception applies to situations where the former service member was
found to be insane at the time of the offense leading to his or her
court-martial, discharge or resignation. See 38 CFR 3.354(b).
Generally, a discharge under dishonorable conditions will not bar a
former service member from receiving VA benefits if that service member
has another period of service which ended under honorable conditions
for which the statutory bars would not apply--as VA benefits would be
predicated on that honorable period of service. See 38 CFR 3.12(a); see
also 38 U.S.C. 101(18); VAOPGCPREC 61-1991. In the case of commissioned
or warrant officers who are discharged from an enlistment for the sole
purposes of accepting a commission, VA considers the entire period of
service (i.e., from enlistment through commission period) as one
continuous period of service with entitlement of VA benefits determined
by the character of final termination of such period of active service.
See 38 CFR 3.13.
If the character of service is denoted by the Armed Forces as under
``other than honorable'' conditions, as ``bad conduct,'' or as an
``uncharacterized'' separation (categorized as either ``void
enlistment'' or ``dropped from the rolls''), then VA must
administratively assess eligibility for VA benefits and services and
make a VA character of discharge determination on whether or not the
period of military service is ``under conditions other than
dishonorable'' for VA benefits purposes. See 38 U.S.C. 101(2); see also
38 CFR 3.12(a) and (k)(2) and (3). This VA character of discharge
determination does not change the Armed Forces' characterization of
service and has no effect on the former service member's military
discharge status. Rather, VA's determination is for VA benefits and
services eligibility purposes only.
During VA's administrative review of the service member's character
of discharge, VA examines the facts and circumstances that surround the
Armed Forces' characterization of service and assesses the statutory
and regulatory bars to VA benefits. VA will request all available
records, including service treatment and personnel records from the
relevant military service department. VA will also send advance notice
to the former service member, with an applicable response time limit
for him or her to submit any evidence, contention, or argument
surrounding facts and circumstances that led to the Armed Forces'
characterization of military service. When necessary, VA will resolve
any reasonable doubt in favor of the former service member, including
when the service department provides limited records to VA as to the
nature of the discharge and no statutory or regulatory bar exists.
A. Statutory Bars to Benefits
A former service member must be denied benefits, regardless of the
Armed Forces' characterization of service, if the reason for separation
from the period of service that benefits would be predicated upon falls
within one of the six statutory bars. See 38 U.S.C. 5303(a). In
situations where a former service member did not receive a discharge or
release at the completion of an originally intended period of service
because that individual agreed to an extension, VA looks to the
satisfactory completion of that initial period to assess character of
discharge for that period, even if the extension results in a
dishonorable discharge. See 38 U.S.C. 101(18); see also 38 CFR 3.13(c).
However, a statutory bar to benefits would apply as to a period of
service to any former service member who was discharged or released
under one of the six conditions enumerated in 38 CFR 3.12(c).
The statutory bar involving prolonged unauthorized absence of 180
consecutive days or more is the only conditional statutory bar to
benefits. VA may consider whether ``compelling circumstances'' mitigate
such a prolonged unauthorized absence. See 38 U.S.C. 5303(a). If
compelling circumstances mitigate the absence, then the statutory bar
to benefits would not apply. Congress left the issue of what
constitutes compelling circumstances to VA's discretion. The statute
does not define or give examples of what would rise to a compelling
circumstance. To assist its adjudicators in reviewing compelling
circumstances, VA, through regulation, has provided circumstances to
consider when contemplating compelling circumstances. See 38 CFR
3.12(c)(6)(i)-(iii).
First, VA adjudicators must review the length and quality of the
service exclusive of time spent AWOL. See 38 CFR 3.12(c)(6)(i). Second,
VA adjudicators must consider the reason for going AWOL, including
family emergencies or obligations, similar types of obligations or
duties owed to third parties, a person's age, cultural background,
educational level, judgmental maturity, and how the situation appeared
to the former service member (not how the VA adjudicator might have
reacted). See 38 CFR 3.12(c)(6)(ii). Third, VA adjudicators must
consider any hardships or suffering incurred during overseas service,
or as a result of combat wounds of other service-incurred or aggravated
disability. Id. Finally, VA adjudicators must consider a legal defense
which would have precluded a conviction or valid charge under the
Uniform Code of Military Justice (UCMJ) if the legal defense directly
addresses the substantive issue of absence rather than procedures,
technicalities or formalities. See 38 CFR 3.12(c)(6)(iii).
B. Regulatory Bars to Benefits
Independent of the statutory bars to benefits, VA must also
consider whether a former service member's discharge was ``under
conditions other than dishonorable.'' 38 U.S.C. 101(2); Public Law 78-
346, 1503 (1944). Congress gave VA broad authority to consider
[[Page 41473]]
discharges based on certain conduct as dishonorable. Camarena v. Brown,
6 Vet. App. 565, 568 (1994), aff'd 60 F.3d 843 (1995); 90 Cong. Rec. at
3077 (Mar. 24, 1944) (Sen. Clark) (for certain conduct, ``the Veterans'
Administration will have some discretion with respect to regarding the
discharge from the service as dishonorable''). Over 70 years ago, VA
used this authority to adopt regulatory bars to benefits that are now
enumerated in 38 CFR 3.12(d). See VA Regulations and Procedures (R&PR)
1064(A) (1946). Those regulatory bars were noted above and are further
discussed below.
II. VA's Proposed Regulatory Changes
In January 2016, VA received a petition for rulemaking from Swords
to Plowshares (STP) requesting that VA amend 38 CFR 3.12(a) and (d)
(pertaining to character of discharge), as well as 38 CFR 17.34 and
17.36 (pertaining to health care eligibility and enrollment). Swords to
Plowshares, VA Rulemaking Petition to Amend Regulations Interpreting 38
U.S.C. 101 (2) (December 19, 2015), available at https://www.swords-to-plowshares.org/wp-content/uploads/VA-Rulemaking-Petition-to-amend-regulations-interpreting-38-U.S.C.-10122.pdf. STP argued that VA's
character of discharge determination process lacked consistency and
that the regulatory bars concerning moral turpitude, willful and
persistent misconduct, and aggravating homosexual acts were outdated or
vague.
VA is still considering appropriate changes for 38 CFR 17.34 and
17.36, particularly in light of the 2018 enactment of 38 U.S.C. 1720I.
But VA has reviewed 38 CFR 3.12 and, particularly given that paragraph
(d) has not been updated since 1980, VA is proposing changes. The goal
of VA's review is to ensure an updated as well as consistent approach
in defining which former service members have been discharged ``under
conditions other than dishonorable.'' See 38 U.S.C. 101(2); see also 38
CFR 3.1(d). As a part of its review, VA has researched the evolution of
its current character of discharge policies, current military manuals,
and the legislative intent behind 38 U.S.C. 101(2). In updating its
regulatory framework for bars to benefits, VA proposes the following
regulatory changes.
A. Homosexual Acts Involving Aggravating Circumstances
Though current Sec. 3.12(d)(5) bars benefits for former
servicemembers discharged for homosexual acts involving aggravating
circumstances or other factors affecting the performance of duty, VA
believes that this bar should apply to all sexual acts involving
aggravating circumstances or affecting the performance of duty,
regardless of the former service member's sexual orientation. Thus, VA
will replace the word ``homosexual'' with ``sexual'' throughout this
provision (which will be relocated to Sec. 3.12(d)(2)(iii)).
B. Moral Turpitude and Willful and Persistent Misconduct
VA's Office of General Counsel (OGC) issued an opinion that defines
``moral turpitude'' as ``a willful act committed without justification
or legal excuse which gravely violates accepted moral standards and . .
. would be expected to cause harm or loss to person or property.''
VAOPGC 6-87 (July 27, 1987). OGC stated that a moral turpitude offense
may include conduct that does not result in prosecution or conviction.
Id. To the extent there has been any confusion or inconsistency in
applying the definition of moral turpitude, we propose to incorporate
OGC's explanation into the text of 38 CFR 3.12(d). However, we will
omit the phrase ``without justification or legal excuse'' because any
determination on this matter will have to consider ``compelling
circumstances'' as further discussed below.
As to willful and persistent misconduct, VA regulations already
define ``willful misconduct'' as ``an act involving conscious
wrongdoing or known prohibited action.'' 38 CFR 3.1(n). The act must
involve deliberate or intentional wrongdoing with knowledge of or
wanton and reckless disregard of its probable consequences. 38 CFR
3.1(n)(1). A mere technical violation of police regulations or
ordinances will not per se constitute willful misconduct. 38 CFR
3.1(n)(2).
``Persistent misconduct'' is not defined by statute or regulation;
however, the plain meaning of the term contemplates misconduct that is
ongoing over a period of time, or conduct that recurs on more than one
occasion. Merriam-Webster's Collegiate Dictionary 865 (10th ed. 2000).
VA already recognizes that an isolated offense does not qualify and
that multiple offenses are not automatically deemed ``persistent.'' See
M21-1 Adjudication Procedures Manual, Part III, Subpart v. Chapter 1,
Section B, Topic 3, Block d, ``Additional Information on Discharges for
Willful and Persistent Misconduct, https://www.knowva.ebenefits.va.gov/.
Nevetheless, to improve consistency in adjudications, VA proposes
to provide a regulatory standard in determining ``persistent
misconduct.'' VA would consider instances of minor misconduct occurring
within two years of each other, an instance of minor misconduct
occurring within two years of more serious misconduct, and instances of
more serious misconduct occurring within five years of each other as
``persistent.'' The misconduct would not have to be of a similar
nature, type, or offense to be considered ``persistent.'' (For example,
disrespect toward a sentinel followed four days later by leaving the
scene of a vehicle accident would be considered ``persistent''
misconduct.)
VA already makes a distinction in its regulation between minor and
more serious offenses in Sec. 3.12(d)(4), and accepts that mere
technical violations of police regulations or ordinances are not, by
themselves, willful misconduct, Sec. 3.1(n)(2). But to bring
consistency to the use of that term, ``minor misconduct'' would be
defined as ``minor offense'' is in the Manual for Courts-Martial United
States (MCM): ``[o]rdinarily . . . an offense for which the maximum
sentence imposable would not include a dishonorable discharge or
confinement for longer than 1 year if tried by general court-martial.''
MCM Part V, para.1.e (2019). Beyond that general rule, the MCM states
that determining whether an offense is minor can depend on several
factors (circumstances, age, etc.), but VA will account for those
factors in Sec. 3.12(e), as discussed below. Thus, it would be
consistent with military law for VA to adopt a definition of minor
misconduct based on the MCM's general definition of minor offense
(which, notably, examines the maximum sentence imposable--not the
sentence actually given). We believe that reliance on the MCM will
bring consistency to determinations in this realm and that use of the
MCM is appropriate considering that the offenses and misconduct
considered would have occurred when the former service member was under
the jurisdiction of the military.
The definition of ``persistent'' is derived from the statutes of
limitations for punishment in the MCM and the UCMJ. For nonjudicial
punishment, which is typically imposed for acts or omissions that are
minor offenses, the statute of limitations is generally two years. Id.
at Part V, para. 1.f(4); see also 10 U.S.C. 843(b)(3). For judicial
punishments, the UCMJ generally provides a five year statute of
limitations (though there is no limitation for murder, rape, sexual
assault, AWOL or missing movement in time of war, or any other offense
[[Page 41474]]
punishable by death). See 10 U.S.C. 843(a)-(b). Just as the military
will generally no longer prosecute a minor offense after two years or
other more serious offenses after five years, VA will consider minor
offenses occurring more than two years apart and other more serious
offenses occurring more than five years apart as not meeting the
persistence standard. That said, we note that some more serious
offenses may also meet the standard of ``moral turpitude'' and
therefore warrant a bar of benefits under that provision.
It is important to address how AWOL would relate to this definition
of ``willful and persistent misconduct.'' Again, VA would consider the
MCM, which provides maximum punishments of dishonorable discharge for
certain types of AWOL (e.g., absence from unit for more than 30 days,
whether terminated by apprehension or not), and lesser punishment for
other types of AWOL (e.g., absent from guard or watch, even with intent
to abandon, or absent with intent to avoid maneuvers or field
exercises). See MCM Part IV, para. 10.d (Article 86.d). The following
chart demonstrates how VA will consider AWOL for the purposes of
determining willful and persistent misconduct:
------------------------------------------------------------------------
Minor Serious
Type of AWOL misconduct misconduct
------------------------------------------------------------------------
Failing to go, going from appointed X
place of duty........................
Absence from unit, organization, or
other place of duty:
For not more than 30 days......... X
For more than 30 days............. ............... X
For more than 30 days and ............... X
terminated by apprehension.......
Absence from guard or watch........... X
Absence from guard or watch with X
intent to abandon....................
Absence with intent to avoid maneuvers X
or field exercises...................
------------------------------------------------------------------------
This approach would provide VA with more consistent outcomes in
applying the willful and persistent misconduct bar to cases involving
AWOL.
C. Acceptance of an Undesirable Discharge to Escape Trial by General
Court-Martial
VA proposes to replace the term ``undesirable discharge'' in
current Sec. 3.12(d)(1) with ``a discharge under other than honorable
conditions or its equivalent'' to conform to the terminology that has
been used since 1977. See Public Law 95-126 (1977). VA also proposes to
replace the phrase ``to escape'' in current Sec. 3.12(d)(1) with ``in
lieu of'' to conform to the teminology that service departments
currently use and to avoid ascribing motivation or stigma to a former
service member's decision to accept a discharge rather than to proceed
to trial by a general court-martial.
D. Compelling Circumstances
As noted above, the statutory bar involving prolonged unauthorized
absence of 180 consecutive days or more is the only conditional
statutory bar to benefits. If ``compelling circumstances'' mitigate the
AWOL, then the statutory bar to benefits would not apply.
VA proposes to extend this ``compelling circumstances'' exception
to three current regulatory bars to benefits: Sexual acts involving
aggravating factors, willful and persistent misconduct, and offenses
involving moral turpitude. Thus, VA will move the list of factors for
consideration in a ``compelling circumstances'' analysis (currently
located at Sec. 3.12(c)(6)(i)-(iii)) to Sec. 3.12(e). This list is
not exhaustive, so VA adjudicators will have the necessary flexibility
to deal with unique situations that may arise in reviewing character of
discharge determinations--but many of these factors may not be
pertinent in a given case, depending on the conduct at issue. (For
example, it is difficult to imagine family obligations being used as a
compelling circumstance excusing murder or aggravating sexual acts.)
Compelling circumstances, as applied, will be decided on a case-by-case
basis.
VA will continue to exclude application of the ``compelling
circumstances'' exception to those discharged for mutiny or spying
because of the seriousness of these offenses, which require forfeiture
of all accrued or future gratuitous benefits per 38 U.S.C. 6104.
Likewise, VA will not consider this exception for those who accept an
OTH (or equivalent) discharge in lieu of trial by general court-
martial. Armed Forces procedures ensure that the service member has
full knowledge of the consequences of such a separation, including the
``[l]oss of veterans' benefits.'' See Army Regulation (AR) 635-200,
Chapter 10-2.a(9); Air Force Instruction (AFI) 36-3208, Chapter 4,
Figure 4.1, ] 3; MILPERSMAN 1910-106, 2.a, ] 4; MARCORSEPMAN 1900.16, ]
6419.3.d(3); and COMDTINST M1000.4, 1.A.5.d(1). Armed Forces procedures
ensure that the service member is not coerced into accepting this type
of separation and that the individual is offered an opportunity to
consult legal counsel prior to agreeing to such a separation. See,
e.g., AR 635-200, Chapter 10-2; AFI 36-3208, Chapter 4.3.3; MILPERSMAN
1910-106, 2.a, ] 1-2. In addition, certain military branches provide
medical examinations while processing these applications for discharge,
to ensure that the service member is capable of providing informed
consent to this type of separation. See, e.g., AR 635-200, Chapter 10-
6; AFI 36-3208, Chapter 4.7; MILPERSMAN 1910-106, 2.d; and COMDTINST
M1000.4, 1.A.5.d(3). Moreover, accepting a discharge in lieu of trial
by general court-martial does not always result in an OTH discharge; a
former service member can receive a general discharge, an entry-level
separation, or even an honorable discharge. See, e.g., AR 635-200,
Chapter 10-8; AFI 36-3208, Chapter 4.2; MILPERSMAN 1910-106, 3.a. In
such cases, the regulatory bars to benefits would not even apply. 38
CFR 3.12(a), (k)(1). Finally, this regulatory bar applies only to
former service members who could have been tried by a general court-
martial, not a special court-martial; and since the sentence of a
general court-martial is a statutory bar to benefits, we do not believe
that accepting a discharge in lieu of such a trial should result in the
possibility of a different outcome.
III. Proposed Regulatory Amendments
Pursuant to the above discussion, VA proposes the following
amendments to Sec. 3.12. VA would amend the title to ``Benefit
eligibility based on character of discharge.'' This change would
reflect the fact that VA does not have the authority to alter a
characterization of service issued by the Armed Forces and that VA
utilizes the designation to determine basic VA benefit eligibility.
[[Page 41475]]
VA would amend paragraph (a) by adding the descriptive header
``General rule'' and rewording the section to read in the affirmative.
VA would amend paragraph (b) to add the descriptive header
``Insanity exception,'' add a sentence cross-referencing 38 CFR 3.354's
definition of insanity, and make non-substantive amendments for
clarity.
VA would amend paragraph (c) to add the descriptive header
``Statutory bars to benefits.'' In paragraph (c)(1), VA will make a
minor edit to make ``lawful order'' plural so that it accurately
reflects the text of 38 U.S.C. 5303(a). In paragraph (c)(6), VA will
add a reference to 38 U.S.C. 5303(a) in the first sentence. VA would
also divide the language of current paragraph (c)(6) into two
subparagraphs, with descriptive headers and other non-substantive
changes. VA would move current (c)(6)(i)-(iii) regarding ``compelling
circumstances'' to new paragraph (e).
VA would amend paragraph (d) to add the descriptive header
``Regulatory bars to benefits.'' In addition, VA would add a new format
based on whether the ``compelling circumstances'' exception is or is
not applicable. As noted above, the phrase ``Acceptance of an
undesirable discharge to escape trial'' in current paragraph (d)(1)
will be replaced with ``Acceptance of a discharge under other than
honorable conditions or its equivalent in lieu of trial'' in new
paragraph (d)(1)(i).
New paragraph (d)(2) would contain the updated and clarified
regulatory bars for moral turpitude, willful and persistent misconduct,
and sexual acts involving aggravating circumstances or other factors
affecting performance of duty.
New paragraph (e) would provide guidance concerning the
``compelling circumstances'' exception. The circumstances listed in
(e)(1) and (2) are expansions upon current paragraphs (c)(6)(i) and
(ii), while the circumstances listed in (e)(3) will substantively
replicate current paragraph (c)(6)(iii), with minor wording changes to
reflect the fact that this language can now be applied to misconduct
outside the AWOL context.
The remaining paragraphs of Sec. 3.12 are provided descriptive
headers and updated cross-references after the addition of new
paragraph (e).
Executive Orders 12866, 13563, and 13771
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is a significant regulatory action under Executive Order
12866.
VA's impact analysis can be found as a supporting document at
http://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's website at
http://www.va.gov/orpm/, by following the link for ``VA Regulations
Published From FY 2004 Through Fiscal Year to Date.''
This proposed rule is expected to be an Executive Order 13771
regulatory action. Details on the estimated costs of this proposed rule
can be found in the rule's economic analysis.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule will not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (5
U.S.C. 601-612). The anticipated costs of this regulatory action are
directly and only attributed to VA's internal processing and budgetary
appropriations. There are no small entities involved or impacted by
this regulatory action. Therefore, pursuant to 5 U.S.C. 605(b), the
initial and final regulatory flexibility analysis requirements of 5
U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule will have no such effect
on State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This action contains provisions affecting a collection of
information, at 38 CFR 3.151, under the provisions of the Paperwork
Reduction Act (44 U.S.C. 3501-3521). There are no new collections of
information associated with this rule, but there will be an increase in
the number of respondents associated with an already approved Office of
Management and Budget (OMB) control number. The information requirement
for 38 CFR 3.12 is currently approved by the Office of Management and
Budget (OMB) and has been assigned control numbers 2900-0747 and 2900-
0004. This rulemaking would increase the number of respondents from the
existing information collection requirements associated with 38 CFR
3.12 by increasing the number of claims for benefits submitted under 38
CFR 3.151. Under the provisions of the Paperwork Reduction Act (44
U.S.C. 3501-3521), while the actual OMB control number will remain in
existence due to other information collections on the same OMB control
number that are approved and active, it increases the number of
respondents for the approved OMB control number, 2900-0747. This would
result in an increase of 11,682 estimated annual burden hours and an
annual cost of $121,590.15. As required by the Paperwork Reduction Act
of 1995 (at 44 U.S.C. 3507(d)), VA will submit this information
collection amendment to OMB for its review. Notice of OMB approval for
this information collection will be published in a future Federal
Register document.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.101, Burial Expenses
Allowance for Veterans; 64.104, Pension for Non-Service-Connected
Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses,
and Children; 64.109, Veterans Compensation for Service-Connected
Disability; 64.110, Veterans Dependency and Indemnity Compensation for
Service-Connected Death.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans.
Signing Authority
The Secretary of Veterans Affairs approved this document and
authorized the undersigned to sign and submit the document to the
Office of the Federal Register for publication electronically as an
official document of the Department of Veterans Affairs. Brooks D.
Tucker, Acting Chief of Staff, Department of Veterans Affairs, approved
this
[[Page 41476]]
document on May 21, 2020, for publication.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
the Secretary, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 3 as set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
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1. The authority citation for part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
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2. Amend Sec. 3.12 as follows:
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a. Revise the section heading.
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b. Revise paragraphs (a), (b), (c) introductory text, (c)(6), and
paragraph (d).
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c. Redesignate paragraphs (e) through (k) as paragraphs (f) through
(l).
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d. Revise redesignated paragraphs (f), (g), (h) introductory text, (i)
introductory text, and (j).
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e. Add new paragraph (e).
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f. Add a paragraph heading at the beginning of newly redesignated
paragraph (k).
The revisions and additions read as follows:
Sec. 3.12 Benefit eligibility based on character of discharge.
(a) General rule. If the former service member did not die in
service, then pension, compensation, or dependency and indemnity
compensation is payable for claims based on periods of service that
were terminated by discharge or release under conditions other than
dishonorable. (38 U.S.C. 101(2)). A discharge under honorable
conditions is binding on the Department of Veterans Affairs as to
character of discharge.
(b) Insanity exception. No bar to benefits under this section shall
be applied if VA determines that the former service member was insane
at the time he or she committed the offense(s) leading to the discharge
or release under dishonorable conditions. (38 U.S.C. 5303(b)). Insanity
is defined in Sec. 3.354.
(c) Statutory bars to benefits. Benefits are not payable where the
former service member was discharged or released under one of the
following conditions:
(1) As a conscientious objector who refused to perform military
duty, wear the uniform, or comply with lawful orders of competent
military authorities.
* * * * *
(6) By reason of a discharge under other than honorable conditions
issued as a result of an absence without official leave (AWOL) for a
continuous period of at least 180 days (38 U.S.C. 5303(a)).
(i) Compelling circumstances exception. This bar to benefit
entitlement does not apply if compelling circumstances mitigate the
prolonged unauthorized absence, as discussed in paragraph (e) of this
section.
(ii) Applicability prior to October 8, 1977. This statutory bar
applies to any person awarded an honorable or general discharge prior
to October 8, 1977, under one of the programs listed in paragraph (i)
of this section, and to any person who prior to October 8, 1977, had
not otherwise established basic eligibility to receive Department of
Veterans Affairs benefits. ``Basic eligibility'' for purposes of this
paragraph means either a Department of Veterans Affairs 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 paragraph (i) of this
section. However, if a person was discharged or released by reason of
the sentence of a general court-martial, only a finding of insanity
(paragraph (b) of this section) or a decision of a board of correction
of records established under 10 U.S.C. 1552 can establish basic
eligibility to receive Department of Veterans Affairs benefits.
(d) Regulatory bars to benefits. Benefits are not payable where the
former service member was discharged or released under one of the
following conditions listed in (d)(1) or (2) of this section.
(1) Compelling circumstances exception is not applicable for:
(i) Dischage in lieu of trial. Acceptance of a discharge under
other than honorable conditions or its equivalent in lieu of trial by
general court-martial.
(ii) Mutiny or espionage. Mutiny or spying.
(2) Compelling circumstances exception is applicable for:
(i) An offense involving moral turpitude. For purposes of this
section, ``an offense involving moral turpitude'' means a willful act
that gravely violates accepted moral standards and would be expected to
cause harm or loss to person or property. Minor misconduct, as defined
in paragraph (d)(2)(ii) of this section, will not be considered an
offense involving moral turpitude.
(ii) Willful and persistent misconduct. For purposes of this
section, instances of minor misconduct occurring within two years of
each other are persistent; an instance of minor misconduct occurring
within two years of more serious misconduct is persistent; and
instances of more serious misconduct occurring within five years of
each other are persistent. For purposes of this section, minor
misconduct is misconduct for which the maximum sentence imposable
pursuant to the Manual for Courts-Martial United States would not
include a dishonorable discharge or confinement for longer than one
year if tried by general court-martial.
(iii) Sexual acts involving aggravating circumstances or other
factors affecting the performance of duty. Examples include child
molestation; prostitution or solicitation of 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 a service member has taken advantage of his or her
superior rank, grade, or status.
(e) Compelling circumstances exception. The bar to benefits for
prolonged AWOL under paragraph (c)(6) of this section and the three
types of misconduct described in paragraph (d)(2) of this section will
not be applied if compelling circumstances mitigate the AWOL or
misconduct at issue. The following factors will be considered in a
determination on this matter:
(1) Length and character of service exclusive of the period of
prolonged AWOL or misconduct. Service exclusive of the period of
prolonged AWOL or misconduct should generally be of such quality and
length that it can be characterized as honest, faithful and meritorious
and of benefit to the Nation.
(2) Reasons for prolonged AWOL or misconduct. Factors considered
are as follows:
(i) Mental impairment at the time of the prolonged AWOL or
misconduct, to include a clinical diagnosis of, or evidence that could
later be medically determined to demonstrate existence of,
posttraumatic stress disorder (PTSD), depression, bipolar disorder,
schizophrenia, substance use disorder, attention deficit hyperactivity
disorder (ADHD), impulsive behavior, cognitive disabilities, and co-
morbid conditions (i.e., substance use disorder and other mental
disorders).
(ii) Physical health, to include physical trauma and any side
effects of medication.
(iii) Combat-related or overseas-related hardship.
(iv) Sexual abuse/assault.
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(v) Duress, coercion, or desperation.
(vi) Family obligations or comparable obligations to third-parties.
(vii) Age, education, cultural background, and judgmental maturity.
(3) Whether a valid legal defense would have precluded a conviction
for AWOL or misconduct under the Uniform Code of Military Justice. For
purposes of this paragraph, the defense must go directly to the
substantive issue of absence or misconduct rather than to procedures,
technicalities, or formalities.
(f) Board of corrections upgrade. An honorable discharge or
discharge under honorable conditions issued through a board for
correction of records established under authority of 10 U.S.C. 1552 is
final and conclusive on the Department of Veterans Affairs. The action
of the board sets aside any prior bar to benefits imposed under
paragraph (c) or (d) of this section.
(g) Discharge review board upgrades prior to October 8, 1977. An
honorable or general discharge issued prior to October 8, 1977, under
authority other than that listed in paragraphs (i)(1), (2), and (3) of
this section by a discharge review board established under 10 U.S.C.
1553, sets aside any bar to benefits imposed under paragraph (c) or (d)
of this section except the bar contained in paragraph (c)(2) of this
section.
(h) Discharge review board upgrades on or after October 8, 1977. An
honorable or general discharge issued on or after October 8, 1977, by a
discharge review board established under 10 U.S.C. 1553, sets aside a
bar to benefits imposed under paragraph (d), but not under paragraph
(c) of this section provided that:
* * * * *
(i) Special review board upgrades. Unless a discharge review board
established under 10 U.S.C. 1553 determines on an individual case basis
that the discharge would be upgraded under uniform standards meeting
the requirements set forth in paragraph (h) of this section, an
honorable or general discharge awarded under one of the following
programs does not remove any bar to benefits imposed under this
section:
* * * * *
(j) Overpayments after October 8, 1977, due to discharge review
board upgrades. 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
(i) of this section which would not be awarded under the standards set
forth in paragraph (h) 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
(h) 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.
(k) Overpayments after October 8, 1977, based on application of
AWOL statutory bar.
* * * * *
[FR Doc. 2020-14559 Filed 7-9-20; 8:45 am]
BILLING CODE 8320-01-P