Effect of Character of Discharge and Length of Service on Eligibility to Veterans' Benefits

• Author: Harry V. Lerner
• Pages: 05

1. INTRODUCTION

   When .a person enters the military, naval or air service on active duty, it is well know that he or his dependents may become entitled to veterans' benefits after his discharge or release, or on his death. Not so well knom, however, are: (1) the eircumstanees under which benefits may be denied due to the character of the discharge or release, (2) the role of the respective government agencies concerned, and (3) the possible effect of length of aervice on entitlements.

   It is estimated that about 45 percent of the Nation's population consists of men, women and children who are present or potential beneficiaries of the Veterans' Administration under title 38 of the United States Code, "Veterans' Benefits." There are aver 23,000,000 veterans, and there is a constant source of newcomers.' The discharge requirement in relation to veterans' benefits and the effect of length of service may, therefore, be of considerable interest.

   Benefits affected include monthly payment for disability or death; hospitalization, medial care and outpatient treatment; burial allowance and Rag; loan guaranty for home, farm or business: educational benefits; unemployment assistance; and others. The vast extent of these benefits is indicated by the statistics. In the fiscal year ending June 30, 1960, more than $3,000,000,000was paid to veterans and their dependents in disability or death benefits, and $365,000,000 was paid in insurance benefits. The Veterans' Administration has eight percent of the hospital bed capacity of the nation, and care was provided to 114,000 patients each day on the average. About 118,000 loans for home, farm, or business were guaranteed or insured during the year, totaling almost $2,400,000,000. In addition. 28,000 direct

   * The opinions and eonelusions pnaented herein are those of the author m d da not ne~emsril~repieient the Y~DWS of The Judge Advocate General's Sehwl or any other go~emmentd agency.

   *'Attorney and Member of Staff, Office of The General Counsel. Veterans' Administration; Member ai the Bars of Nebraska, the District of Columbia, and Maryland; LL.B.. 1940, University of Omaha Law School; Captain, U.S. Air Force Rerierue.

   I These statistics and those in the subaquent paragraph are taken from the 1061 Annual Report of the Administrator of Veterans Affair$ 14, 64, 69, transmitted to the Congreaa January 9. 1961.

   *EO 604s 121

   loans were made. .4n average of 228,361 veterans of the Koreanconflict were enrolled per month in educational training for readjustment, and 7,491 disabled Korean veterans were enrolled each month in vocational rehabilitation training. %re than 10,000,000 veterans had received readjustment training by the end of the fiscal year, of whom about 2,300,000 were Korean confiict veterans. BY 1975, it is estimated that about one person of every two aged 46 or more will be a veteran, the wife of a veteran, or the widow of a veteran.

   Title 38 of the United States Code was recodified and enacted into positive law, effective generally on January 1, 1959.' Section lOl(2) thereof reads 8s fallows:

   The term 'veteran' means a person uho served I" the active military, naval, 01 sir L / ~ T Y I C ~ , and aha waa discharged or releaned therefrom undw conditions other than dishonorable.

   This definition summarizes various criteria of the farmer title 38, which contained no generally applicable definition of the ward "veteran."

   It will be obsewed from this definition that not every exserviceman is a veteran under the law. There must be a discharge or release of the serviceman "under conditions other than dishonorable." This is true regardless of the length of service. and is now a sine qua *on for entitlement' except for intervening in-surance rights.' The words "discharge or release" include retirement * and death.' The discretion of the Veterans' Administrator to decide whether a discharge or release was under conditions other than dishonorable is limited by the provisions of Section 3103 of title 38 of the United States Code* in certain situations, including cases of discharge by sentence of general court-martlal.

   (Emphasis Supplied )

   212 Stat. 1105 (1953).

   8 It was taken from 8 101 (2) of the Veterans' Benefit3 Act of 1957, Pubile Law 85-56, 71 Stat. 83. 88 (1957) Public Law 85-88 was primarily Bninterim recodification of aome parts of title 38 A definltlon of "veteran" In

   5 2, Woiid War Adjusted Compensation Act, ch. 157, 43 Stat. 121 (19241. nametimes called the "bonus act..' appiled only to claimants under that act

   SOnder mme prior is%%, if a diaabd~ty was incurred in lme of duty, B discharge under dishonorable conditmns was not B bar to penman. See text

   E Sveh rights are largely statutory. See 38 C.S.C. 3 3103(d) (19681, note 8 infro.

   638 U.S.C. 5 lOl(18) (1958). In such eases, no question usually Tile3 a8 to character uf dincharge, hut dvpllcation of benshts is prahiblted. See 38 U.S.C.

   5 3104 (1958).

   I38 U S.C. 5 301 (1958); Administrator's Decision No. 828, August 31, IS48 and No. 861, October 16, 1960.

   8 &&ion 3103. a8 amended by 78 Stat. 262 l1969), reads a3 followa "(a) The discharge or dismiasai by reason of the sentence of general court. maitid of m y person from the Armed Farces. or the dlschsrw of any suchperson on the ground that he was a eanaeientiavs objector who refused to perform military duty or refused to wear the unlform or otherwise to

   *GO IWR

   aeeDmpanying note 10 Infro.

   ELIGIBILITY TO VETERANS' BENEFITS

   11. HISTORY OF VETERANS' BENEFITS

   In the early history of our Federal Government, the Congress itself approved applications for pension, but it abandoned attempts to participate in each claim in 1819.' Section 4 of the act of 1819 gave the Secretary of War the power to take final action. This power related to 8everal prior acts, including the act of April 10, 1806,"' under which "any commissioned or non.com. missioned officer, musician, soldier, marine or seaman, disabled in the actual service of the United States, while in the line of his duty, by known wounds received during the Revolutionary War, and who did not desert the service" could be awarded pension. It will be noted here that desertion was a bar to benefits. It will be further noted that the Secretary of War had final authority as to claims by persons who had naval service in the Revolutionary War, as well as those who had Army service. However, under the Provisions of section 11 of the act of July 1, 1791," and subsequent enactments relating to pension payable for disability incurred in the Navy in line af duty, final authority to make an award was in the Navy Department." These acts are silent as to the effect of the character of a discharge. In the Appropriation Act of March 2, 1833,18 in response to a recommendation by the

   comply wth iawfui orders of competent miiltary authority, 01 88 s. deserter, Or of an officer by the acceptance of his resignation for the goad of the BBrViee, or (except 8s provided in subsection (e)) the discharge of any individual during B period of hostilities 8s an alien, rhail bar sli riqhta of such person under iawi administered by the Veterans' Administrntmn based upon the period of aervice from which diaehsrged or diamirned.

   "(b) Notwithstanding iubaeetion (a), if it 13 established to the sstinfaetion of the Administrator that, s t the time of the commissm of an offenseleading to his emit-martisi, discharge, or reaignatian, any perron wan insane, aueh person ahsil not be precluded from benefits under laws administered by the Vetermi' Administration based upon the period of service from which he was separated.

   "(el Subsection (a) shall not apply to m y slim whose aerviee was honest and faithful, and who was not discharged on his own sppiication or mini-tation as an ehen. No mdmduai shaii be eonmdered as having been dir-charged on his own application m solicitation as 80 alien m the abs?nee of anrmative evidence establishing that he wan io discharged.

   "(d) This seetmn shall not apgly to any war-risk innuranee, Government (converted) or National Sermce Life Insurance poixy."

   Predecessor but not identical pmvisiona appeared m 308 of the War Risk Inivrsnee Act, eh. 106, 40 Stat. 398, 407 (1917) ; aeetion 29 thereof as added by Public Law 175, 65th Coneresa, ch. 104, 40 Stat. 609 (1918): section 23 of the World War Veterans' Act, ch. 320, 43 Stat. 607 (1924) : and aection 200 af the Servicemen's Readjustment Act, eh. 268, 58 Stat. 284, 286 (1944).

   Act of Parch 3, 1819, ch. 99, 3 Stat 526. 1" Ch. 26, 2 Stat. 370 (1806).11 Ch. I, 1 Stat. 523, 525 (1797)

   12 Puriusnt to the set of March 26, 1804, ch. 48, 2 Stat. 293; the act of April 16, 1816, eh. 56, 3 Stat. 287: and the act of July 10, 1832, eh. 184. 4 Stst. 572.

   II Ch. 54, 1 Stat. 619, 622 (1833). 123

   A60 604s

   Secretary of War. there was created in his department B Pension Office under B Commiasioner of Pensions. A subsequent statute" transferred to the Commissioner of Pensions "the pension business heretofore transacted in the Navy Department" and made the Commissioner responsible for executing the various pension laws "under the direction of the Secretary of War and the Secretary of the Navy."

   The Department of Interior was created by statute in 1849,"and the new Department received the responsibility for the sdministratian of pensions. There were then two categories of pensions for persons who served: "invalid pensiondisability which wa8 serviceconnected, i.e.of duty in the active service: and "service pension" which related to disability, age or length of emi ice without regard to service eonneetian."

   The Assistant Secretary of the Interior discussed discharge requirements at length in a decision dated August 17, 1889." This ruling resulted from an appeal from the denial of a claim for invalid pension by an exserviceman of the Civil War. The denial was based on a ruling given September 4, 1886, by an earlier Commiasioner of Pensions barring invalid pension in the event of dishonorable discharge. The...