Sometimes it is easy to determine if someone is a veteran, but other times it can be pretty difficult. This brief article will shed some light on the Department of Veterans Affairs’ (“VA”) definition of “veteran” regarding benefit entitlement.
The pertinent statutes and regulations define “veteran” as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable” (38 U.S.C. § 101(2) and 38 C.F.R. § 3.1(d)). The three major elements of this definition are: (1) Service, (2) Active Duty, and (3) Discharge or Release.
It is important to note that the pertinent statutes and regulations do not require service in the armed forces. Rather, it states service in the military, naval, or air services. Including the word “or” in the definition means that the service does not need to be military. Including the broad word “services” greatly expands the scope of “veteran.” In addition to service in the traditional military, the VA includes service in the following as qualifying service:
• Public Health Service
• National Oceanic and Atmospheric Administration
• Environmental Science Services Administration
• Coast and Geodetic Survey
• Service in the Women’s Army Auxiliary Corps
• WWII Service in the Merchant Marine
• Secret Intelligence Element of the Office of Strategic Services
• Wake Island Defenders from Guam
• Service of certain civilians supporting operations during periods of armed conflict
Active duty includes any full-time duty in the Army, Navy, Air Force, Marines, or Coast Guard, with the exception of “active duty for training.” Usually the military will designate if a member of the National Guard or Reserves is active duty for training purposes only. The VA can override the military’s designation for a member of the Reserves if the VA determines that such service in the Reserves was actually for operational or support purposes even if the military designates it as for training purpose only. The VA does not have this same authority regarding the National Guard. Attendance as a Cadet or Midshipman at a U.S. Military, Air Force, Naval, or Coast Guard Academy, or attendance at a preparatory school for the above mentioned academies, qualifies as active duty. In order to be considered active duty in the Public Health Service, the National Oceanic and Atmospheric Administration, the Environmental Science Services Administration, and the Coast and Geodetic Survey, a person needs to have served full-time as a commissioned officer. Authorized travel to and from the prior mentioned active duty types also qualifies as active duty. It is important to note that active duty in the National Guard only qualifies a person as a veteran if that active duty was “Federal.” The activation of the National Guard for service to the individual state as opposed to service for the federal government does not qualify the person as a veteran. For example, if the National Guard is activated by a Governor to quell a state prison riot or urban looting, the service would not qualify the Guard members as veterans.
Finally, the veteran’s discharge must be under conditions other than dishonorable. There are multiple statutory and regulatory bars to VA benefits relating to the events that bring about someone’s discharge or dismissal. These are all very fact specific and could fill an entire treatise. However, there are three basic assumptions that the VA usually makes when reviewing a discharge: (1) an Honorable Discharge is always given under conditions other than dishonorable, (2) an Administrative Discharge (entry level separation, void enlistment, etc.) is always given under conditions other than dishonorable, and (3) a Dishonorable Discharge or Dismissal is always given under dishonorable conditions. Any other discharge usually requires some sort of extra determination by the VA. The general Statutory and regulatory bars to VA benefits based on discharge are as follows:
- discharge as a conscientious objector who refused to perform military duty or refused to wear the uniform or otherwise refused to comply with lawful orders of a competent military authority,
- discharge or dismissal by reason of a sentence of a general court-martial,
- an officer resigning for the good of the service,
- discharge as an alien during a time of hostility,
- discharge under other than honorable conditions issued as a result of absence without official leave (“AWOL”) for at least 180 continuous days (some exceptions apply),
- accepting an undesirable discharge or discharge under other than honorable conditions to escape a trial by general court-martial,
- mutiny or spying
- an offense involving moral turpitude, and
- willful and persistent misconduct.
In the general public, the term “Veteran” is used rather loosely in certain circumstances. In other circumstances it is used rather rigidly. The VA considers the term “Veteran” to be a well-defined term of art that serves as a gatekeeper to its benefits. Knowing what the term means and who falls under its definition is key to any successful claim before the VA.