Understanding How Your Discharge Status Impacts VA | South Portland, ME

Listen On

Understanding How Your Discharge Status Impacts VA Disability Benefits Eligibility

Atty. Kristian Terison: [00:00:00] Are there other specific scenarios, medical conditions that come up a lot that impact a veteran’s behavior and then subsequently the discharge status?

Atty. Francis Jackson: Yeah, there are five that I can think of. We’ve talked about anxiety sorry, we’ve talked about depression, anxiety is another one. We talked about bipolar disorder. I briefly mentioned PTSD.

And the last one that you wouldn’t think of as being military related is schizophrenia for whatever reasons, and nobody really understands what the reasons are, but for whatever reasons, both bipolar disorder and schizophrenia tend to surface in the late teens or early twenties.

Atty. Francis Jackson: [00:01:00] Welcome to Victory Over VA. This is our podcast that is your guide to. Unlocking your VA disability benefits. So welcome. I’m Francis Jackson. This is Kristian Terison We’re here today to talk about how the nature of your discharge may affect your entitlement to disability benefits from the VA.

So, Welcome to Victory Over. VA is our podcast, talking about VA benefits. We do this every week. And our purpose is to help veterans to get the justice they deserve. We help them to find a way to get [00:02:00] the VA disability benefits that they’re entitled to. And so this podcast is obviously for veterans, but it’s obvious.

It’s also for those folks who are interested in veterans, whether that’s a. Family member a spouse, a relative, a person who is simply trying to be supportive to a particular veteran or groups of veterans. It’s for anybody who’s interested in helping veterans to get justice on their claims.

Atty. Kristian Terison: All right, so as Jack mentioned earlier, today’s episode is focused on, the character of discharge and how that can impact eligibility for benefits and the claims process. So I guess start us off with the 30,000 foot view you know, on how character of discharge can impact a claim for benefits.

Atty. Francis Jackson: Sure. Well, it helps to start by understanding. [00:03:00] Kind of what the possibilities are for military discharge.

Atty. Kristian Terison: Yeah.

Atty. Francis Jackson: Almost everyone who is discharged from the military is discharged either with an honorable discharge or a general discharge under honorable conditions. And each of those discharges is fine. No problem with, service connection for benefits with those discharges, the place it gets more difficult. Is if you have what, is sometimes referred to as a bad paper discharge, meaning a discharge, for bad conduct, a dishonorable discharge, or in the case of an officer, a dismissal for, the good of the service.

And the one other one that usually is okay but can get a little strange is an administrative discharge that is not characterized. And those are usually separation and injury level an enlistment that was, or induction that was later determined to be void or someone has dropped from [00:04:00] the roles. And those, usually are okay. It gets a little complicated sometimes, but those are usually okay. So primarily what we’re talking about in terms of impact on discharge, I. Okay. Are folks who got either a bad conduct discharge or a dishonorable discharge.

Atty. Kristian Terison: Okay.

And I guess start with the, bad conduct, discharges. what is the impact there?

Atty. Francis Jackson: Sure. the, the law says your discharge has to be other than dishonorable. Now, as you can appreciate. An undesirable discharge is undesirable, but what about a bad conduct discharge?

Well, a bad conduct discharge is not specifically honorable or dishonorable, but it tends toward dishonorable. So the VA has developed their own internal process when they look at folks who have a discharge that is a bad conduct discharge. And they make their [00:05:00] own internal determination about the nature of the discharge, whether the conduct was bad enough that it should be treated like an undesirable discharge or not.

And so, it’s a purely internal process within the VA whereby they make that determination and the one specific one that that comes up a fair amount of the time is there’s a, bar to benefits if you have one of these bad discharges.

So bad conduct discharges are the, gray area, if you will, and the VA looks at those based on its internal criteria. Normally they will consider it a, the equivalent of an undesirable discharge and denied benefits. If you accepted an undesirable discharge for the specific purpose of avoiding a trial by a general court Martial there’s also a VA internal regulatory provision that says if you [00:06:00] are discharged from mutiny or spying, then you don’t get benefits.

And fortunately those are extraordinarily rare. There’s also a provision for offenses involving moral turpitude, which is just a legal term for really bad stuff. And the details obviously get looked at each time. And finally, there’s a provision for not granting benefits for persistent and willful misconduct.

And there’s a court case, for example, where a fellow had signed up for a 24 month hitch. He was in for 21 months. Within that period, he was disciplined three times for and possession of drugs, and the VA just said, no, that’s, too much. There is also a specific provision that says that if you are AWOL for.

More than 180 days, consecutive days, then that’s a bar to discharge. Although again, there’s an exception within that in that the VA has to look at the [00:07:00] circumstances. You know, if, the VA finds that the particular circumstances under which the person went AWOL were sufficiently compelling, they can.

Wave, if you will, that particular period of AWOL.

Atty. Kristian Terison: Okay. Are there, I guess, other conditions or circumstances where the VA might overlook or, or reconsider character of discharge?

Atty. Francis Jackson: Well, the, primary one that gets past all of these, including the undesirable discharge, is insanity.

And that sounds like it’s a terrible barrier and would never you’d never be able to prove it. But in practice, the VA definition for insanity is that you had a condition that caused you to behave in a way that you would not otherwise have behaved. And that, as you can appreciate, is somewhat broader than.

The typical conception of insanity. Mm-Hmm. And we have had one case in particular where I thought the VA actually did the right thing. We had a gentleman who served in the [00:08:00] military during his military service. He developed bipolar disorder. And for those not developed, not familiar with the development of bipolar disorder, typically a person will.

I have periods where they’re really perfectly normal and they’ll have other periods where they’re almost high. They’ll be very outgoing talk a lot have lots of energy not sleep much. And typically there will be at the other end of the spectrum periods where they’re very depressed, not very functional irritable.

And just really not able to do normal day-to-day activities. So this gentleman developed bipolar while he was in the service toward the end of his first period of enlistment. And, you know, he would have these short periods where he would behave strangely, but he only had a few of them.

And. He was otherwise a, an exemplary soldier. They liked him. They wanted to keep him. So when he’d have one of these periods and screw [00:09:00] up, essentially they would try to work around it. They, would give him a nonjudicial punishment or you know, they would find ways to, not discharge report. So things go along.

He finishes his first term of three years. He reenlist and. One of the problems with bipolar disorder is it’s manifested in ways that are not consistent over time. So it tends to cause people not to be diagnosed sometimes for long periods of time. ’cause people just don’t understand what’s happening first.

Will go along perfectly fine for quite a while, and then they’ll have this weird episode and then they’ll be fine again. So. that’s what was happening with him and in his second period of of military service, you know, he would have some more of these episodes and because he’d already had prior incidents where they found ways to overlook it or bypass it or give him minimal.

Punishment in the military system. You know, if you get enough non-judicial punishments, eventually they have to give you a judicial [00:10:00] punishment. So it, kinda worked up to the point that about halfway through his second enlistment, I. He ended up getting a general court martial and being discharged as undesirable, but it was really all about his mental health.

And we were able to get a an experienced psychologist to review his records and to explain that these incidents were actually the lead-up to. His more florid symptoms and his ultimate diagnosis of bipolar disorder and they just hadn’t been recognized at the time. So instead of getting mental health treatment during his first period of service, he get these minor punishments and anyway, at all, ultimately led to his getting the undesirable discharge and bless their hearts, the VA folks that handled the case recognized what was going on.

And said, okay, we can apply the insanity provision here, and gave him his benefits. And I thought really handled the case [00:11:00] perfectly. It’s always nice when you see that and he gets benefits to this day.

Atty. Kristian Terison: So what steps should a veteran take if they believe that their discharge status was unjust or, you know, is gonna be a barrier to their, claim?

Atty. Francis Jackson: Well, there are a couple things. Each of the services has a review body that can correct the, nature of the discharge or upgrade the discharge. It’s usually called the blank board of Correction, military records, Fillian, army, whatever. But,

Those processes, take time and can be difficult and it’s, often hard for an individual veteran. To manage that process on his own, particularly the folks who have, mental health issues. But that is one avenue toward fixing the problem. you can go back and ask for a review of, the, character of the [00:12:00] discharge, explain why you think it was inappropriate. And sometimes it’ll be fixed. There have been. Several groups of service members who have had their discharges upgraded as part of a, revision of the, how the military viewed certain behavior. And, those upgrades may or may not make you eligible for veterans’ benefits. They don’t always, so, you should. Look into that if you have an upgraded discharge. But, beyond that, you know, there, are sort of, two approaches and a mixture of those two if you want. One is, the character of discharge can be upgraded. As I said, a, kind of combination of that is to, apply for benefits, and, to seek a discharge upgrade. Once you’ve made the application, I, that’s not necessarily the most effective approach, but it can be done.

The third approach is the one we kind of talked about a minute [00:13:00] ago in the example that I gave. You can ask the VA to overlook or waive, if you will, the. Nature of the discharge based on the underlying circumstances,

arguing that, it falls within their relatively broad definition of insanity. So that’s kind of the, other approach to solving this problem.

Atty. Kristian Terison: And so for other veterans out there who might want to, you know, challenge or, clarify discharge status in the context of a, you know, a claim for, disability benefits, what sorts of, evidence, can they be presenting? I know in that case you had a, mental health specialist weigh in and give their opinion. What other types of evidence though, can be useful there?

Atty. Francis Jackson: Well, it’s really any evidence that, demonstrates that the punishment, which includes the bad discharge was excessive or inappropriate or, unfair based on the circumstances of the. underlying event.

[00:14:00] And so it’s really all about what course of conduct led to the discharge and what, in retrospect might show that, course of conduct was not as bad as the military viewed it at the time. And keep in mind that the different services have, if you will, different standards.

And one of the problems that has

occurred is that a number of folks who were given bad discharges got them following combat. And in circumstances where it is pretty likely that. A, the person has PTSD or some similar problem from combat and B, that wasn’t recognized at the time and c that led to the discharge.

So,

There’s actually,

Been some litigation. The Veterans Law clinic at Yale Law School,

Has filed a suit and I think there’s another one as well, challenging the way some of the [00:15:00] services have.

Approached characterizing the conduct and leading to various undesirable kinds of discharges. So,

There is some litigation about that.

It’s,

proceeding. We’ll see how it comes out. But, and the point in all that is if you have what,

Veterans often refer to as bad paper,

As

a,

less than desirable discharge. It is important to look at the options for improving that or,

Getting it mitigated in some way so that you would be eligible for benefits usually,

Psychological benefits, psychological evidence,

Psychiatric evidence, that sort of thing is,

The most compelling in my experience.

But certainly there are other approaches.

Atty. Kristian Terison: You had mentioned, bipolar disorder, as a, you know, a condition that led to a, a bad discharge. I had worked on a case where, there was a fellow who’s a, a model soldier and then developed depression. Wasn’t able to maintain his [00:16:00] appearance, wasn’t showing up to places on time. It was a very. Sudden change. Are there other, specific scenarios, medical conditions that come up a lot, that, you know, impact a veteran’s behavior and then subsequently the discharge status?

Atty. Francis Jackson: Yeah, there are five that I can think of.

We’ve talked about depression.

Anxiety is another one. We talked about bipolar disorder. I briefly mentioned PTSD, and the last one that you wouldn’t think of as being military related,

Is schizophrenia for whatever reasons, and nobody really understands what the reasons are, but for whatever reasons, both bipolar disorder and schizophrenia tend to surface in the late teens or early twenties.

And as you can appreciate, those are the classic periods for military service. Late teens and early twenties. So what,

Happens in a fair number of cases is that people start to act [00:17:00] strangely, and it’s because of,

Development of either bipolar disorder or schizophrenia.

uh,

certainly,

Anxiety can overwhelm people at any time

and,

depression as you mentioned.

So,

those

are certainly,

all common and is,

Particularly common in the military,

After people have been exposed to combat. But it can come from non-combat situations as well.

We’ve had people who developed PTSD after seeing fellow soldier who,

Mishandled a grenade.

It was literally blown apart.

A fellow,

Soldier committing suicide, a fellow soldier,

Being killed in a,

Vehicle accident.

You know, there are a number of,

Life-threatening conditions that. Qualify as stressors for PTSD

and,

may lead to significant,

Mental health difficulties,

Both based on events happening to the person.

Military sexual trauma

is a,

[00:18:00] common one,

Or,

Events happening to others.

Some of the ones I just mentioned or,

You know,

we’ve had some folks from Vietnam who,

one fellow was a medic who,

Just treated all these gruesome wounds and eventually just developed terrible PTSD. And,

Another one was a fellow who,

Handled bodies,

Just day in, day out, bodies being returned to the U.S after being killed in Vietnam.

And eventually it, really did him in. And so

there are,

there are lots of,

Different things that can come into play, but those five mental health conditions are the most common.

Atty. Kristian Terison: What, I guess resources or supports are out there, for veterans who, who are looking to, you know, address or amend, their discharge status?

Atty. Francis Jackson: Well, the Veterans Pro Bono Consortium in Washington, D.C has a special program where they will try to find volunteer attorneys to help with [00:19:00] discharge upgrades. In fact, one of our attorneys, Mary Bristead, has done several of those beyond that. There are attorneys specifically who specialize in that, and there are non-attorney folks who are in the various veteran service organizations that may be able to help or at least direct a veteran to someone who will be able to help.

And there are resources within the VA itself where. Some of the veteran centers or other folks who provide counseling or, mental health type services can steer veterans to an appropriate resource to help.

Atty. Kristian Terison: Okay. And you had mentioned the, the lawsuit filed by the Yale, veterans Clinic, veterans Legal Clinic. Are there any, other, I guess, policy or legal changes, that you see coming that, could impact, how, discharge status is regarded and handled by the VA or? [00:20:00]

Atty. Francis Jackson: Well, there have been,

Over the past 40 years, there, there have been some various,

It changes in the way that stuff’s looked at.

But I think

The biggest thing going on right now is

These legal challenges to,

the way the various services

Have looked at discharges and,

Those,

the underlying. Argument

in the Yale case as I recall it, is that

conduct that led to the discharge was really a,

Result of service-incurred PTSD and therefore,

The person should have gotten a medical discharge rather than

A punitive,

Discharge as,

Undesirable or bad conduct. So it’s not at all clear to me what future changes may be coming, but it would not surprise me to find that,

this whole discharge issue continues to be in a state of flux and that,

There will be ongoing options

and,

[00:21:00] and perhaps,

Greater options for.

Having a discharge retrospectively corrected.

 

Atty. Kristian Terison: Lastly,

What advice would you give to

a,

a veteran who,

You know, is concerned about filing a claim because of their character of

discharge?

Atty. Francis Jackson: Well, that one’s a little complicated.

My usual advice to people who,

Think they wanna make a claim is go ahead and make it.

And it’ll kind of get sorted out along the way.

Mm-Hmm.

With undesirable discharges in particular, or,

Bad conduct discharges, you know, up front there’s gonna be a problem.

I think what I would recommend to,

Folks with,

A bad conduct discharge is that they sit down with someone who. Handles these cases, whether they go through the pro Bono Consortium or they go somewhere else and just kind of talk through the circumstances that led to the discharge and figure out whether there are some factors there that might justify an [00:22:00] upgrade.

And I think I would do that before I filed. In those cases, if you have just a straight up undesirable discharge. Then you really only have a couple of options.

You can go to the board for correction, but you know that it’s going to take

a powerful presentation,

And probably,

A strong mental health opinion to,

have any chance of moving that.

The other option is to look at this whole,

VA internal definition of insanity. And again,

probably talking about primarily psychological or psychiatric evidence.

Mm-Hmm.

But,

Again, I think that’s the kind of evidence that has the potential to,

move the dial in your direction,

In those cases.

And,

before I filed a claim, I would look very hard at.

Whether it would be possible to get some of that sort of evidence to support,

An insanity argument. You know,

I mean,

you can always,

take the [00:23:00] dartboard approach. Just,

You know, throw the claim in

and,

and,

See what happens.

Sometimes the VA

will

will do the right thing all on its own.

I don’t want to discount that possibility, but.

if you have

a,

a serious claim, and

these,

particularly come up in mental health claims, so,

You know, if you have a serious claim, a mental health claim where the person’s not able to work because of the severity of the problem,

you know, I think I would try

To look at that pretty carefully in advance and see what evidence could be mustered to support a,

Either.

An insanity approach or a change of discharge, character of discharge approach.

Atty. Kristian Terison: Alright,

Well thank you for tuning in. This has been,

Another episode of Victory Over VA.

Please be sure to subscribe and,

Come back next week.

Atty. Francis Jackson: See you then.

[00:24:00]

Welcome back to another informative episode of the Victory Over VA Podcast! In this episode, we tackle a topic that affects countless veterans: understanding how your discharge status can impact your eligibility for VA disability benefits. We are here to shed light on this crucial aspect of accessing the benefits you deserve. Join us as we delve into the different discharge statuses and their implications, providing valuable insights and guidance for veterans and their supporters.

Discharge status is a critical factor when it comes to determining your eligibility for VA disability benefits. It can either open doors or present challenges in your pursuit of the benefits you rightfully deserve. So, let’s dive right in and explore the different discharge statuses and their impact.

1. Honorable Discharge:

An honorable discharge is the most favorable discharge status. It signifies that a veteran has met or exceeded the military’s standards of performance and conduct. Veterans with an honorable discharge generally have no issues when it comes to accessing VA disability benefits. This discharge status ensures that veterans can fully avail themselves of the comprehensive range of benefits and services offered by the VA.

2. General Discharge:

A general discharge is given to veterans who may have had some minor misconduct or performance issues during their service. While a general discharge does not carry the same weight as an honorable discharge, it still allows veterans to access most VA benefits, including disability compensation. However, certain benefits, such as education and GI Bill benefits, may be limited or restricted.

3. Other Than Honorable Discharge:

An other than honorable discharge (OTH) is a more serious discharge status and may be given to veterans who have engaged in significant misconduct or have been convicted of a serious offense. Veterans with an OTH discharge face significant challenges in obtaining VA disability benefits. However, it is not an automatic disqualification, and each case is evaluated individually. It is crucial for veterans with an OTH discharge to seek legal advice and pursue their case with the VA.

4. Bad Conduct Discharge and Dishonorable Discharge:

These are the most severe discharge statuses and are typically reserved for veterans convicted of serious offenses, such as desertion, espionage, or murder. Veterans with bad conduct or dishonorable discharges are generally ineligible for VA disability benefits. However, there are limited circumstances where veterans with a dishonorable discharge can still access benefits, such as mental health care for conditions related to their service.

Understanding how your discharge status impacts your eligibility for VA disability benefits is vital for veterans and their supporters. It can make a significant difference in accessing the benefits and services that veterans have earned through their service to our country. We hope this episode has shed light on this important topic and provided valuable insights for veterans navigating the complexities of VA disability benefits.

Don’t miss out on this informative episode! Tune in now to gain a better understanding of how your discharge status can impact your eligibility for VA disability benefits. Whether you’re a veteran yourself or someone who wants to support our heroes, this episode will provide you with the guidance and knowledge you need to navigate the VA system effectively. Join us on the Victory Over VA Podcast and empower yourself with the information you deserve.

AND MORE TOPICS COVERED IN THE FULL INTERVIEW!!! You can check that out and subscribe to YouTube.

If you want to know more about Attorneys Francis Jackson and Kristian Terison, you may reach out to them at:

Need Legal Assistance?

See How Our Attorneys At Jackson & MacNichol Can Help You

Social Security
Disability


Social Security Disability Insurance payments are available to wage earners who have become disabled. Supplemental Security Income payments are available to those with limited income who are disabled.

We represent SSD cases in Maine, Boston, and the whole of New England.

Veterans Disability
Benefits


As a proud member of the National Association of Veterans' Advocates (NOVA), we offer representation at all stages of the benefits claim process.

We represent Veterans in their disability benefits cases nationwide.

Estate Planning
Services


Estate planning involves more than just writing a will. It’s an active process of evaluating your needs, keeping track of your assets, and determining what legal actions need to be taken to meet your goals and protect your loved ones.

We offer a no obligation, complementary estate planning and asset protection review.

Contact Us Today!   Call toll free (888) 492-2941 or

Get started!