**§3.12 Character of discharge.**

\(a\) If the former service member did not die in service, pension,
compensation, or dependency and indemnity compensation is not payable
unless the period of service on which the claim is based was terminated
by discharge or release under conditions other than dishonorable. (38
U.S.C. 101(2)). A discharge under honorable conditions is binding on the
Department of Veterans Affairs as to character of discharge.

\(b\) A discharge or release from service under one of the conditions
specified in this section is a bar to the payment of benefits unless it
is found that the person was insane at the time of committing the
offense causing such discharge or release or unless otherwise
specifically provided (38 U.S.C. 5303(b)).

\(c\) Benefits are not payable where the former service member was
discharged or released under one of the following conditions:

\(1\) As a conscientious objector who refused to perform military duty,
wear the uniform, or comply with lawful order of competent military
authorities.

\(2\) By reason of the sentence of a general court-martial.

\(3\) Resignation by an officer for the good of the service.

\(4\) As a deserter.

\(5\) As an alien during a period of hostilities, where it is
affirmatively shown that the former service member requested his or her
release. See §3.7(b).

\(6\) By reason of a discharge under other than honorable conditions
issued as a result of an absence without official leave (AWOL) for a
continuous period of at least 180 days. This bar to benefit entitlement
does not apply if there are compelling circumstances to warrant the
prolonged unauthorized absence. This bar applies to any person awarded
an honorable or general discharge prior to October 8, 1977, under one of
the programs listed in paragraph (h) of this section, and to any person
who prior to October 8, 1977, had not otherwise established basic
eligibility to receive Department of Veterans Affairs benefits. The term
"established basic eligibility to receive Department of Veterans Affairs
benefits" means either a Department of Veterans Affairs determination
that an other than honorable discharge was issued under conditions other
than dishonorable, or an upgraded honorable or general discharge issued
prior to October 8, 1977, under criteria other than those prescribed by
one of the programs listed in paragraph (h) of this section. However, if
a person was discharged or released by reason of the sentence of a
general court-martial, only a finding of insanity (paragraph (b) of this
section) or a decision of a board of correction of records established
under 10 U.S.C. 1552 can establish basic eligibility to receive
Department of Veterans Affairs benefits. The following factors will be
considered in determining whether there are compelling circumstances to
warrant the prolonged unauthorized absence.

\(i\) *Length and character of service exclusive of the period of
prolonged AWOL*. Service exclusive of the period of prolonged AWOL
should generally be of such quality and length that it can be
characterized as honest, faithful and meritorious and of benefit to the
Nation.

\(ii\) *Reasons for going AWOL*. Reasons which are entitled to be given
consideration when offered by the claimant include family emergencies or
obligations, or similar types of obligations or duties owed to third
parties. The reasons for going AWOL should be evaluated in terms of the
person's age, cultural background, educational level and judgmental
maturity. Consideration should be given to how the situation appeared to
the person himself or herself, and not how the adjudicator might have
reacted. Hardship or suffering incurred during overseas service, or as a
result of combat wounds of other service-incurred or aggravated
disability, is to be carefully and sympathetically considered in
evaluating the person's state of mind at the time the prolonged AWOL
period began.

\(iii\) A valid legal defense exists for the absence which would have
precluded a conviction for AWOL. Compelling circumstances could occur as
a matter of law if the absence could not validly be charged as, or lead
to a conviction of, an offense under the Uniform Code of Military
Justice. For purposes of this paragraph the defense must go directly to
the substantive issue of absence rather than to procedures,
technicalities or formalities.

\(d\) A discharge or release because of one of the offenses specified in
this paragraph is considered to have been issued under dishonorable
conditions.

\(1\) Acceptance of an undesirable discharge to escape trial by general
court-martial.

> \(2\) Mutiny or spying.
>
> \(3\) An offense involving moral turpitude. This includes, generally,
> conviction of a felony.

\(4\) Willful and persistent misconduct. This includes a discharge under
other than honorable conditions, if it is determined that it was issued
because of willful and persistent misconduct. A discharge because of a
minor offense will not, however, be considered willful and persistent
misconduct if service was otherwise honest, faithful and meritorious

\(5\) Homosexual acts involving aggravating circumstances or other
factors affecting the performance of duty. Examples of homosexual acts
involving aggravating circumstances or other factors affecting the
performance of duty include child molestation, homosexual prostitution,
homosexual acts or conduct accompanied by assault or coercion, and
homosexual acts or conduct taking place between service members of
disparate rank, grade, or status when a service member has taken
advantage of his or her superior rank, grade, or status.

\(e\) An honorable discharge or discharge under honorable conditions
issued through a board for correction of records established under
authority of 10 U.S.C. 1552 is final and conclusive on the Department of
Veterans Affairs. The action of the board sets aside any prior bar to
benefits imposed under paragraph (c) or (d) of this section.

\(f\) An honorable or general discharge issued prior to October 8, 1977,
under authority other than that listed in paragraphs (h)(1), (2) and (3)
of this section by a discharge review board established under 10 U.S.C.
1553 set aside any bar to benefits imposed under paragraph (c) or (d) of
this section except the bar contained in paragraph (c)(2) of this
section.

\(g\) An honorable or general discharge issued on or after October 8,
1977, by a discharge review board established under 10 U.S.C. 1553, sets
aside a bar to benefits imposed under paragraph (d), but not paragraph
(c), of this section provided that:

\(1\) The discharge is upgraded as a result of an individual case
review;

\(2\) The discharge is upgraded under uniform published standards and
procedures that generally apply to all persons administratively
discharged or released from active military, naval or air service under
conditions other than honorable; and

\(3\) Such standards are consistent with historical standards for
determining honorable service and do not contain any provision for
automatically granting or denying an upgraded discharge.

\(h\) Unless a discharge review board established under 10 U.S.C. 1553
determines on an individual case basis that the discharge would be
upgraded under uniform standards meeting the requirements set forth in
paragraph (g) of this section, an honorable or general discharge awarded
under one of the following programs does not remove any bar to benefits
imposed under this section:

\(1\) The President's directive of January 19, 1977, implementing
Presidential Proclamation 4313 of September 16, 1974; or

\(2\) The Department of Defense's special discharge review program
effective April 5, 1977; or

\(3\) Any discharge review program implemented after April 5, 1977, that
does not apply to all persons administratively discharged or released
from active military service under other than honorable conditions.
(Authority: 38 U.S.C. 5303(e))

\(i\) No overpayments shall be created as a result of payments made
after October 8, 1977, based on an upgraded honorable or general
discharge issued under one of the programs listed in paragraph (h) of
this section which would not be awarded under the standards set forth in
paragraph (g) of this section. Accounts in payment status on or after
October 8, 1977, shall be terminated the end of the month in which it is
determined that the original other than honorable discharge was not
issued under conditions other than dishonorable following notice from
the appropriate discharge review board that the discharge would not have
been upgraded under the standards set forth in paragraph (g) of this
section, or April 7, 1978, whichever is the earliest. Accounts in
suspense (either before or after October 8, 1977) shall be terminated on
the date of last payment or April 7, 1978, whichever is the earliest.

\(j\) No overpayment shall be created as a result of payments made after
October 8, 1977, in cases in which the bar contained in paragraph (c)(6)
of this section is for application. Accounts in payment status on or
after October 8, 1977, shall be terminated at the end of the month in
which it is determined that compelling circumstances do not exist, or
April 7, 1978, whichever is the earliest. Accounts in suspense (either
before or after October 8, 1977) shall be terminated on the date of last
payment, or April 7, 1978, whichever is the earliest.

\(k\) *Uncharacterized separations.* Where enlisted personnel are
administratively separated from service on the basis of proceedings
initiated on or after October 1, 1982, the separation may be classified
as one of the three categories of administrative separation that do not
require characterization of service by the military department
concerned. In such cases conditions of discharge will be determined by
the VA as follows:

\(1\) *Entry level separation*. Uncharacterized administrative
separations of this type shall be considered under conditions other than
dishonorable.

\(2\) *Void enlistment or induction.* Uncharacterized administrative
separations of this type shall be reviewed based on facts and
circumstances surrounding separation, with reference to the provisions
of §3.14 of this part, to determine whether separation was under
conditions other than dishonorable.

\(3\) *Dropped from the rolls.* Uncharacterized administrative
separations of this type shall be reviewed based on facts and
circumstances surrounding separation to determine whether separation was
under conditions other than dishonorable. (Authority: 38 U.S.C. 501(a))

\[28 FR 123, Jan. 4, 1963, as amended at 41 FR 12656, Mar. 26, 1976; 43
FR 15153, Apr. 11, 1978; 45 FR 2318, Jan. 11, 1980; 49 FR 44099, Nov. 2,
1984; 62 FR 14823, Mar. 28, 1997\]

**Cross references:** Validity of enlistments. See §3.14. Revision of
decisions. See §3.105. Effective dates. See §3.400(g). Minimum
active-duty service requirement. See §3.12a.

**Supplement *Highlights* reference**: 28(1)