To qualify for veterans benefits, whether for a veteran or a survivor, the eligibility criteria stipulate that the applicant, or the deceased spouse of a survivor, or the parent of a dependent child must fulfill the definition of a veteran.
The definition of a veteran is outlined in Title 38 of the U.S. Code, Chapter 101. According to this statute, “the term ‘veteran’ refers to ‘a person who has served in the active military, naval, or air service, and who was discharged or released from such service under conditions other than dishonorable.'” (38 U.S.C. §101(2)). Active military service encompasses the Army, Navy, Marines, Air Force, and Coast Guard.
Members of the National Guard and Reserve are not classified as veterans unless they have been activated to active duty by the President of the United States and have served the requisite duration to qualify for benefits, or they have honorably fulfilled their service obligation, or they have served as Guard or Reserve members for a minimum of 20 years.
Disability Compensation and Dependency and Indemnity Compensation (DIC) are accessible to Reserve and Guard members who were not on active duty but suffered injuries or developed specific medical conditions during active duty for training or while engaged in inactive duty for training.
Title 38 USC Chapter 101 provides a specific definition of what constitutes a veteran. As we will explore further, this definition is relatively narrow, and there are numerous groups of individuals who have served the nation but are not recognized as veterans for benefits purposes. Regrettably, National Guard and Reserve members who have completed fewer than 20 years of service only qualify as veterans if they were activated under Title 10 of the U.S. Code by the President for active duty. Since the Gulf War began in 1990, 64% of the 1.2 million National Guard and Reserve personnel have been called to active duty, with many being activated multiple times. Between 2001 and 2003, President Bush alone called up over 300,000 Guard and Reserve members.
To be eligible for veterans benefits, members of the Guard or Reserves must have either completed their duty obligation or served at least 24 months on active duty, whichever is shorter. There is an additional exception to the continuous 20-year rule that allows Reserve and Guard members to access veterans benefits regardless of whether their service occurred before or after the Gulf War. If these individuals were injured or developed certain illnesses while participating in training for the Guard or Reserve, they may qualify for Disability Compensation or Dependency and Indemnity Compensation (DIC) due to those injuries or illnesses. This is one instance where they do not need to be classified as veterans to receive benefits.
The training for Guard and Reserve members is categorized as active duty for training or inactive duty for training, and we will delve deeper into this topic later.
Other Categories of Individuals Recognized as Veterans for VA Benefits
It may come as a surprise to many that a significant number of non-U.S. citizens have served honorably in the active military. Provided these servicemembers did not request discharge during wartime and received a discharge that is not dishonorable, they are eligible for veterans benefits.
Since the establishment of an all-volunteer military service and the discontinuation of the draft in 1973, there has been a concerted effort to recruit non-citizens to fill gaps in military personnel needs. Many of these individuals are green card holders who have resided in the United States for an extended period. By enlisting in the military, they gain the opportunity to become naturalized citizens.
In addition to the active military branches, which include the Army, Navy, Marines, Air Force, and Coast Guard, there are two other uniformed services in the United States, making a total of seven uniformed services. These additional services are the commissioned officer corps of the Public Health Service and the commissioned officer corps of the National Oceanic and Atmospheric Administration (NOAA). Members of these services are also recognized as veterans for the purposes of VA benefits.
Lastly, Title 38 CFR Part 3 includes a comprehensive list of other categories of individuals who are considered veterans due to their participation in wartime activities, even if they were not members of the military, or due to their training or other military-related service.
Active Duty, Active Duty for Training and in Active Duty for Training
For purposes of qualifying for disability compensation or DIC, active duty can also include a special duty service called active duty for training and inactive duty for training. These two terms define a special category of duty which generally applies to reserve and guard components but it might also apply to the basic training undergone by ROTC cadets and cadets of US preparatory academies – not military academies. The basic training that all reserve and guard units go through when they first join is considered active duty for purposes of veterans disability compensation benefits or DIC.
Inactive duty for training is generally the type of training reserve or guard members perform on weekends or the extended personal training done to learn special skills or to upgrade to another rank. Extended full-time training for reserve and guard units – which lasts weeks or months – and to maintain readiness, is considered active duty for training and also allows for compensation or DIC.
Be aware that disability compensation and DIC are the only benefits available from active duty for training or inactive duty for training.
In the Line of Duty and Willful Misconduct
In order to be eligible for a claim related to death or disability, the veteran had to have been in the line of duty when that injury or illness or death or occurred. It is important to understand that a veteran may make a valid claim when he or she was in the line of duty even though a different injury or illness may preclude a claim related to when the veteran was not in the line of duty. A military person who is on leave and who experiences an injury or illness while on leave is considered to be in the line of duty.
Not being in the line of duty includes actions such as willful misconduct, desertion, absent without leave, illness or injury in service caused by drug or alcohol or tobacco use after 1990 as well as injury or illness incurred while confined under a sentence of court-martial or being confined in a civilian jail for a committed felony while in the service. Absent without leave also requires careful scrutiny under a claim as the motives relating to AWOL must be examined and determination could be made that being absent without leave would still result in a valid claim. Specific rules in 38 CFR 3.301 cover the various contingencies associated with in the line of duty.
One of the most common challenges for claims Adjudicators are injuries or death incurred while under the influence of alcohol or drugs. Under certain circumstances, injuries from the use of alcohol or drugs constitute willful misconduct but only to the extent that judgment and abilities were impaired.
Prior to October 31, 1990 diseases caused by extended use of alcohol, drugs or tobacco while in the service could be covered as service-connected. After this date, conditions caused or aggravated by these usages while in service are considered willful misconduct and are not covered. Contracting a sexually transmitted disease such as venereal disease is not considered willful misconduct. The question of whether suicide with or without mental illness is willful misconduct is covered in 38 CFR 3.302.
Recreational use of alcohol or drugs in the service is not considered willful misconduct. However, alcohol abuse or drug abuse as defined by VA in 38 CFR 3.301 is willful misconduct and could result in a discharge from service. Such a discharge will often be justified by mentioning willful and persistent misconduct on the discharge form. A discharge that includes willful misconduct will bar a veteran from receiving pension benefits and vocational rehabilitation benefits.
Character of the Discharge
The requirement that a discharge from service must be other than dishonorable in order to qualify for VA benefits seems rather simple on the surface. In reality, there are a variety of different discharges that are characterized between an Honorable discharge and a discharge that uses the word dishonorable. In some cases, VA will consider these other than Honorable discharges as dishonorable even though the word dishonorable is not used. In other cases these discharges are considered as Honorable. As a general rule, discharges that are classified as “General Discharges” are considered as Honorable.
Some discharges are characterized as other than Honorable with the reason for separation based on a pattern of behavior that constitutes a significant departure from conduct expected of members of military services. Such discharges may be based on absent without leave, drug use, the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other members of the military services and deliberate acts or omissions that seriously endanger the health and safety of other persons. Depending on the facts of the history of such behavior, VA can choose whether to classify such a discharge as other than dishonorable or dishonorable.
Discharges classified as dishonorable are not that common and are typically the result of a general court-martial for enlisted servicemen. General court-martials are not given to officers, but if their conduct was egregious enough, they will be forced to resign for the good of the service and this is considered a dishonorable discharge. See Title 38 CFR 3.12 for more information on discharges.