Reflecting on the VA’s Update to the Regulatory Bars to Benefits (by Joshua Isley, University of Detroit Mercy School of Law Veterans Law Clinic)
Introduction
In April 2024, the VA updated and clarified the regulatory bars to benefits based on a character of discharge under 38 C.F.R. § 3.12(d). The changes became effective on June 25, 2024, and are the first substantive revision to 38 C.F.R. § 3.12(d) in over four decades.
These revisions matter. They have relaxed the regulatory bars to eligibility for VA benefits. As a result, more service members are eligible for discharge re-characterizations and benefits. This blog post highlights the main changes to the 38 C.F.R. § 3.12(d) and their key takeaways.
Key Takeaways
1. Only Four Regulatory Bars
There are only four regulatory bars for VA benefits under the modern rule. They are: “(1) acceptance of a discharge under other than honorable conditions or its equivalent in lieu of trial by general court-martial; (2) mutiny or spying; (3) moral turpitude; and (4) willful and persistent misconduct.” The VA decided to remove the homosexual acts bar, noting that it is outdated and unnecessary.
2. Willful and Persistent Misconduct Definition Clarified and Liberalized
The definition of willful and persistent misconduct has been clarified and liberalized under the modern rule. Willful and persistent misconduct is now defined as: “(1) instances of minor misconduct (as defined in reference to the MCM) occurring within two years of each other; (2) an instance of minor misconduct occurring within two years of more serious misconduct; or (3) instances of more serious misconduct occurring within five years of each other.”
The VA declined to make further amendments because it was concerned about hindering the Military Departments’ ability to deter misconduct with the regulatory bars to benefits.
3. Compelling Circumstances Exception Expanded
The modern rule expanded the scope of the compelling circumstances exception. This exception now applies to the bars of moral turpitude as well as willful and persistent misconduct. The expansion is intended to provide decision-makers with a holistic means to assess the misconduct underlying a service member’s discharge on a case-by-case basis.
4. VA Refused to Modify the Bar for Moral Turpitude
The VA refused to modify the regulatory bar for moral turpitude. This decision was based on interagency concerns. Instead, the VA decided that the VA General Counsel Opinion, VAOPGC 6-87 (July 27, 1987), continues to govern the definition of moral turpitude. As a result, moral turpitude remains defined as conduct that “is willful, gravely violates accepted moral standards, is committed without justification or legal excuse, and, by reasonable calculation, would be expected to cause harm or loss to person or property.”
5. Applicability of the Changes to Claims
The modern rule applies to applications received by the VA on or after June 25, 2024. It also applies to all pending applications before the VA, the US Court of Appeals for Veterans Claims, or the US Court of Appeals for the Federal Circuit on June 24, 2024.
Conclusion
The VA’s updates to 38 C.F.R. § 3.12(d) provide important clarity for adjudicators and applicants. By reducing the overall number of regulatory bars to four, refining the definition of willful and persistent misconduct, and expanding the compelling circumstances exception, this regulation provides veterans with more avenues to secure benefits through a re-characterization of their discharge status. Overall, it offers a more individualized and holistic approach for veterans seeking a second chance.
For more information, you can read the VA’s update here: