A Primer on Veterans' Benefits for

Legal Assistance Attorneys

[Captain Gerald A. Williams\*]{.smallcaps}

A soon-to-be ex-wife of a separating military member comes into your
office for legal assistance. She has the proverbial "quick question,"
which you know will be anything but quick. She hands you a completed
divorce kit and informs you that her husband is going to be an active
reservist and then retire. He has been to the base hospital several
times since he returned from Desert Storm and she wants to know how she
can find out what benefits she and her two children may be entitled to
receive from the Department of Veterans Affairs (VA). She would also
like to know what to do if her husband fails to pay either her alimony
or child support. She has heard that there is something called a VA
pension and wants to know whether that, like a military pension, is
marital property subject to division in her divorce. Before you reach
for the lawyer referral service phone number, there is some guidance you
can give her.

Although this article does not explain the myriad of benefits
administered through the Department of Veterans Affairs, it will provide
an overview of the key areas likely to be encountered during legal
assistance, including VA programs dealing with disability payments,
access to medical care, home loans, and education benefits. The final
section briefly discusses the impact of discharge characterization on
various VA benefits.

I. DISABILITY COMPENSATION

AND PENSION BENEFITS

Air Force judge advocates must be familiar with basically two important
types of VA payments, disability compensation payments and pension
benefits. Disability compensation payments are paid to veterans who are
disabled by injury, illness, or disease incurred or aggravated while on
active duty.[^1] Pension benefits are paid to veterans with low incomes
and low net worth who are disabled for reasons that do not relate to
their military service.[^2] However, the first key to understanding
these VA benefits is understanding the *service-connected* concept
because establishing service-connection is the threshold requirement for
compensation payments as well as many other VA benefits.

**A. Definition of Service-Connected**

Service-connection is established by proving that an injury or disease
was incurred or aggravated by military service. Even so, it is only a
slight exaggeration to say that service-connected really means something
a veteran received medical care for while or within a year of being on
active duty. Although the term service-connected is not defined in any
one place for all purposes, it is usually defined as a "disability
resulting from personal injury suffered or disease contracted in line of
duty, or . . . aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military."[^3] In addition, to
this basic definition, there are a number of presumptions.

The presumptions are listed in various federal statutes and are often
the subject of intense political debate. They have the effect of
eliminating the veteran's burden of proof. For example, for wartime
disability compensation, there is a presumption of service-connection
for any chronic disease that manifests itself, within one year of
discharge, to the point where the veteran could get a ten percent
disability rating.[^4] Also included on the presumption list are various
nutritional deficiencies (designed to compensate former prisoners of
war), peptic ulcer disease, and most cancers if the veteran qualifies as
a radiation-exposed veteran.[^5] There are also additional presumptions
for Vietnam-era veterans[^6] and for "undiagnosed" Persian Gulf-related
medical conditions.[^7] In short, if an individual enters the armed
forces with a preexisting congenital heart condition that gets worse and
they received some type of medical treatment for it while on active
duty, it will most likely be considered service-connected.[^8] This
rating could then trigger entitlements to disability compensation and
access to medical care. This is not because the VA is running some type
of giveaway program. It is because the standards of proof correctly give
the benefit of the doubt to the veteran.[^9]

**B. Disability Compensation Benefits**

The first step in the disability compensation claims process is for the
veteran to complete a VA Form 21-526 and turn it in to a VA regional
office.[^10] After a physical exam and a few months of waiting, the
claimant will get a written rating decision from a veterans service
center manager with the VA regional office. This letter will inform the
veteran what their disability rating is, how much money he will receive
because of his disability, and what his appellate rights are if he
desires to challenge it.[^11]

The rules for determining what level of disability a veteran receives
are extremely complex,[^12] are different than the Air Force's Medical
Evaluation Board process[^13] and are probably beyond the scope of legal
assistance. Another difficult concept involves the use of the combined
ratings table.[^14] Veterans frequently have more than one medical
condition that is considered service-connected. However, a 30 percent
rating for a knee injured during a parachute jump is not simply added to
a 10 percent rating for a stiff joint in an index finger to get an
overall disability rating of 40 percent. The example in the regulation
is illustrative. A condition with a 60 percent disability rating and an
additional condition warranting a 30 percent disability rating yield an
overall disability rating of 72 percent, which will then be rounded to
70 percent.[^15]

Unless you have had experience as a VA claims adjudicator, it may be
better to do nothing more than provide procedural advice to a legal
assistance client. If a client wants to appeal their disability rating,
it is best to refer them to a counselor from a veterans service
organization (e.g., American Legion or Veterans of Foreign Wars).[^16]
The stakes can be high. In addition to possible government employment
implications, a single veteran with a 100 percent service-connected
rating is entitled to receive disability compensation in the amount of
\$1,989 per month, tax-free.[^17] Depending on the disability rating,
married veterans can receive an additional \$34 to \$112 per month and
between \$18 to \$60 per month for each additional child.[^18] In some
cases, clothing allowances for the veteran may also be allowed.[^19]

If you are also the claims officer, there is yet another area where VA
compensation benefits could impact your recommendations. If you have a
medical malpractice claimant who has also received medical care at a VA
hospital, it is possible she has simultaneously filed a VA claim for
compensation payments. Doing so is allowed under federal law.[^20]
However, the claimant cannot receive a double recovery from both the
medical malpractice claim and the VA. The statute has an offset
provision.[^21]

# 

# **C. Pension Payments**

There are three basic types of pensions: old law pensions, section 306
pensions, and improved pensions.[^22] Due to the passage of time, it is
unlikely an Air Force judge advocate will encounter an old law pension
issue.[^23] For Section 306 pensions, low-income veterans may be
eligible to receive VA pension payments if they served on active duty
for at least ninety days and one of those days was during a period of
war.[^24] There is also a requirement that the veteran either be
disabled for non-service-connected reasons or be at least sixty-five
years old.[^25] The non-service-connected disability cannot be due to
the veteran's "willful misconduct or vicious habits."[^26] A slightly
different pension is known as the improved pension. It is the type you
are most likely to see during legal assistance. It has similar military
service and disability requirements and specifically covers Persian Gulf
War veterans.[^27]

Each of these pensions have different payment amounts and different
income limitations. Attempting to calculate income limitations for
receipt of a VA pension is difficult because it is done on a
case-by-case determination of reasonableness[^28] and the rules
governing what is and is not considered to be income for this purpose
are complex.[^29] The amount of the pension also depends on the health
of the veteran and the number of dependants.[^30] There are also special
benefits and procedures for homeless veterans.[^31]

# **D. Appellate Rights**

If the veteran disagrees with the VA regional office's decision
concerning either his compensation or pension benefits, he can
appeal.[^32] The first step is to either reopen his claim by sending in
new evidence or appealing to the Board of Veterans' Appeals (BVA).[^33]
To appeal to the BVA, a Notice of Disagreement[^34] must be sent within
one year from the date of the VA regional office's decision. Attorneys'
fees are not authorized, so the veteran should seek out a representative
from a veterans service organization for help.

Even though the appeal is to the BVA, the local VA regional office will
review the appeal first.[^35] This gives the local office an opportunity
to change its decision. If it does not, it will prepare a Statement of
the Case summarizing the basis for the ruling and mail it to the
veteran.[^36] At that point, the veteran has sixty days to submit a VA
Form 9[^37] to the VA office that made the determination being appealed.
Completing the VA Form 9 is known as submitting a substantive appeal.

The veteran's appeal to the BVA can be done in writing or he may request
a hearing.[^38] The BVA will even send board members from Washington,
D.C., to the local VA regional office to conduct a hearing.[^39] These
types of BVA hearings are called Travel Board Hearings and can take a
significant amount of time to schedule. Once the BVA has made a
decision, a veteran has 120 days to appeal to the United States Court of
Veterans Appeals.[^40] At this point, attorneys' fees of up to 20
percent of the total amount of any past due benefit are allowed.[^41] If
the case concerns a question of statutory interpretation, decisions of
the Court of Veterans Appeals can be appealed to the United States Court
of Appeals for the Federal Circuit.[^42]

The veteran may also request a hearing from the VA regional office to
present evidence to reopen his claim.[^43] Doing so gives the veteran an
opportunity to testify and call witnesses on his behalf. The VA will
furnish the hearing room, provide a hearing officer, and make a
transcript of the hearing. If the claim is subsequently denied, the
record is put in the veteran's claims file and forwarded to the
BVA.[^44]

## E. Dependency and Indemnity Compensation 

## Payments for Family Members

There are a number of programs for surviving family members of
veterans.[^45] Perhaps the most important such program is the Dependency
and Indemnity Compensation (DIC) program. DIC payments may be available
to widows who have not remarried, unmarried children under 18, dependent
children between the ages of 18 and 23 if they are attending a VA
approved school, and low-income parents of deceased service members or
veterans.[^46] Under a recent change, a surviving spouse, who terminates
her remarriage, can now regain her ability to receive DIC payments.[^47]

The initial threshold is dependent upon how the veteran died. To be
eligible, the death must be from either, a disease or injury incurred or
aggravated while on active duty, an injury incurred or aggravated during
inactive duty training, or a disability compensable by the VA.[^48] The
death cannot be the result of the veteran's willful misconduct.[^49]

DIC payments may also be authorized to survivors of veterans whose death
was unrelated to the service-connected disability.[^50] These payments
require the veteran to have received a rating indicating total
continuous disability within one of two time periods: at least ten years
immediately before his death or since being released from active duty
and for at least five years immediately before his death.[^51] Payments
under these provisions are subject to an offset against any awards from
judicial actions brought due to the veteran's death.[^52]

**F. Divorce and Compensation Benefits**

A judge advocate who provides legal assistance long enough will, at some
point, have a former spouse come in and complain that her ex-husband
just got a 30 percent VA disability rating and now she is entitled to
only half of 70 percent of his military pension. There is nothing the
former spouse can do to stop the veteran from waiving his military
retired pay in favor of tax-free VA compensation benefits.[^53] In fact,
if a military retiree files a claim for VA compensation, a waiver of the
retired pay is automatic unless the veteran requests otherwise.[^54]
There is, however, one little known consequence for the veteran.

Although VA benefits are almost never subject to garnishment,[^55] the
VA will honor an assignment order from a court if a veteran, who is
entitled to receive military retired pay, elects a waiver in order to
receive compensation payments.[^56] This raises three issues. First, the
VA will only garnish compensation, not pension payments.[^57] Second,
only the amount waived is subject to garnishment.[^58] Third, it would
be helpful if the former spouse had a way to get accurate information
concerning the amount and type of the veteran's VA payments without
having to resort to litigation.

Although you could guess the amount of the waiver based on the amount
missing from the retired pay, if the veteran is not providing accurate
information to his ex-wife, it could be difficult. Since VA adjudication
records are protected under the Privacy Act,[^59] a court order is
necessary before access will be permitted.[^60] However, there is a
better way. It is possible to call or write a VA regional office and
request the monthly rate of a veteran's pension, compensation, or
educational allowance.[^61] Doing so is an easy and free way to get
accurate information.

## II. ACCESS TO MEDICAL CARE

While Department of Defense hospitals have been downsizing, VA
facilities have been rapidly expanding. There are currently 172 VA
medical centers.[^62] Although that number has not increased since 1989,
over the last ten years, the number of VA outpatient clinics has
increased from 230 to over 600.[^63] During that same period, the number
of outpatient visits per year has increased from 22.6 million to 37
million.[^64] So, who is entitled to all this medical care?

The old rule was basically that a veteran could get medical care only
for his service-connected medical conditions.[^65] There were some
noteworthy exceptions,[^66] but the system almost seemed to encourage
fragmented health care. The Veterans' Health Care Eligibility Reform Act
of 1996[^67] significantly changed the access rules. Today, VA medical
centers and outpatient clinics are actually competing to become the
primary care provider of choice for all veterans. Modern VA health care
closely resembles non-federal health care delivery systems. To be seen
at a VA hospital, you must first be an enrolled patient.[^68] After
enrollment, like TRICARE,[^69] there are access priorities. Access
priorities determine whether and in what order the patients can be given
medical care.

##### **A. Access Priorities**

The VA has seven priority groups.[^70] Priority group one consists of
veterans with a 50 percent or more service-connected disability rating.
The second priority group includes veterans with a 30 or 40 percent
service-connected disability rating. Group three includes veterans with
a 10 or 20 percent service-connected disability rating, former prisoners
of war, Purple Heart recipients,[^71] veterans who received medical
discharges, and veterans receiving care under 38 U.S.C. § 1151.[^72]
Priority group four consists of veterans who are either receiving an
increased pension because they need either regular aid and attendance or
are housebound and veterans who are catastrophically disabled. Group
five consists of low-income veterans[^73] with no service-connected
disability rating. Priority group six is made up of veterans who are
either seeking care due to exposure to a toxic substance, radiation, or
for disorders associated with service in the Persian Gulf[^74] or who
have a zero percent service-connected disability rating. The last group
consists of other veterans, with income above a certain level, who agree
to pay under a co-pay plan.[^75]

These priority groups are going to take on increased significance in the
future. In the event the VA does not have sufficient resources to
provide timely care to everyone, it will be required to limit health
care to patients with higher access priorities.[^76] This is significant
because there is some indication that demand for VA heath care increased
after enrollment was offered to veterans in all priority groups.[^77] As
of March 1999, the VA had enrolled 4,003,708 patients, with priority
group five easily having the most members.[^78] Of the over four million
veterans enrolled, only 2,449,867 used the VA health care system between
October 1998 and March 1999.[^79]

# **B. Financial Information**

Veterans, who want to enroll based in part on their inability to pay for
any portion of their health care, must complete a VA Form 10-10EZ
providing their personal financial data.[^80] Income from the patient's
spouse is also considered.[^81] This process is known as a means test.
The threshold amount for program eligibility is adjusted annually.[^82]
It is important to be accurate with this information because the VA has
the authority to cross reference this information with data provided to
the Social Security Administration and the Internal Revenue
Service.[^83]

If the veteran is not eligible for free medical care, then co-payments
are going to be required. The amount of the co-payments depends on the
type of patient and service. For Medicare eligible patients, the patient
is responsible for the Medicare deductible for the first ninety days of
care during any 365-day period.[^84] The patient is charged half of the
Medicare deductible for any further care. In addition, all patients are
charged \$10 a day for inpatient care and \$5 a day for nursing home
care.[^85] For outpatient appointments, the co-payment is based upon 20
percent of the cost of the average outpatient visit.[^86] Pharmacy
services can also result in a co-payment. Medication for
service-connected conditions is free.[^87] It is also free to veterans
receiving a VA pension.[^88] Otherwise, the veteran will be charged \$2
per drug for each thirty-day supply of medication.[^89]

On top of this perhaps already complex financial structure is the VA's
right to bill the patient's private insurance carrier for treatment of
conditions that are not service-connected.[^90] Even so, the veteran is
not responsible for expenses under the terms of this policy (e.g*.*,
deductible, co-payment, or uncovered items).[^91] There are additional
rules for emergency medical care[^92] and situations in which VA medical
care cannot be provided either because the veteran lives too far from a
VA facility or because the care required is beyond the scope of the
facility.[^93]

###### C. Medical Benefits Package

Effective November 5, 1999, the VA enacted a medical benefits package
describing the inpatient and outpatient care available to enrolled
veterans.[^94] The package is divided into the two components of basic
care and preventive care. Basic care includes both inpatient and
outpatient medical and surgical care, mental health care, prescription
drugs, medical supplies, various counseling services, durable medical
equipment, home health care, pregnancy and delivery services, and
hospice and palliative care.[^95] The basic care component also includes
two aspects that may be especially helpful for legal assistance
attorneys. First, training and counseling services are available to a
veteran's immediate family members or to a legal guardian if the veteran
is going to live with them.[^96] Second, VA providers will complete
forms based on their examination or knowledge of a veteran's medical
condition (e.g. Family Medical Leave Act forms, life insurance
applications).[^97] The preventive care component includes periodic
physical and eye exams, medication monitoring, immunizations, and
genetic counseling.[^98]

# **D. Medical Care for Family Members**

Dependants of veterans may be eligible for health care through
CHAMPVA.[^99] CHAMPVA is a health benefits program that is separate from
TRICARE. However, eligibility is fairly restricted. First, the dependant
cannot be eligible for either TRICARE or Medicare Part A[^100] because
they have reached the age of 65.[^101] Second, they must fall into one
of three categories: (1) the spouse or child of a veteran who has a
permanent and total service-connected disability, (2) the surviving
spouse or child of a veteran who died from a service-connected condition
or was totally disabled from a service-connected condition at the time
of his death, or (3) the surviving spouse or child of a veteran who died
in the line of duty.[^102] In addition, dependants under age 65 must be
enrolled in both Medicare Parts A and B to be eligible for
CHAMPVA.[^103]

## III. HOME LOANS

The VA guarantees home loans for almost all active duty military members
and veterans. Although the VA does not actually loan money, eligible
veterans are able to purchase a home without a down payment, at
relatively low fixed interest rates, and are able to finance the VA
funding fee.[^104] Depending upon the amount of the loan, the VA will
guarantee up to 50 percent of the loan or up to \$50,750.[^105] Lenders
are generally willing to offer loans up to four times the amount of the
guarantee (or up to \$203,000) without a down payment. The VA also
informs the buyer of the reasonable value of the property. However, the
VA only guarantees the loan, not the condition of the property. In
addition, veterans can get their VA entitlement back or use any
remaining balance for additional home purchases.[^106] Clearly, the VA
Home Loan Guarantee is an incredibly significant benefit.[^107]

## A. Eligibility

Almost anyone who has served on active duty in the armed forces is
entitled to a VA home loan guarantee.[^108] Members currently on active
duty are eligible if they have served 181 days.[^109] Veterans who
served at least ninety days on active duty during a war are also
eligible.[^110] Other veterans must also have been on either active duty
for 181 days or discharged for a service-connected disability.[^111]
However, time served on active duty in either the National Guard or
Reserve does not count toward these time limits unless the military
member was activated for federal service.[^112] Surviving spouses of
members who either died on active duty or from a service-connected
disability also qualify.[^113] Veterans who either served six years in
the Selected Reserve[^114] or were discharged prior to six years for a
service-connected disability are eligible as well.[^115]

# **B. Special Rules for Assuming a VA Mortgage**

VA loans, issued after March 1, 1988, have set criteria before they can
be assumed.[^116] If a veteran attempts to avoid these restrictions by
selling his home without notifying the lender, then a lender holding a
VA loan may demand immediate full payment of the principal and
interest.[^117] A lender may allow a buyer to assume a VA loan only if
the payments are current, the buyer is found to be creditworthy, and the
buyer is contractually obligated to purchase the property and assume
full responsibility for repayment of any unpaid balance.[^118] If these
criteria are met, the veteran is released from liability for the
assumption.

# **C. Methods for Veterans to Avoid Foreclosure**

By way of background, the VA does have some significant rights when
faced with a veteran who may default on the VA loan.[^119] The holder of
the note is generally required to give the VA notice when the borrower
has not made payments for sixty days.[^120] In addition, the creditor
cannot take any action to terminate the borrower's rights until thirty
days after providing notice to the VA that it intends to do so.[^121]
During this thirty-day window, the VA may pay the holder the unpaid
balance and require the holder to assign the loan and the security for
the loan to the VA or to a designee.[^122] If the VA does not order this
assignment within the thirty days, the lender is free to proceed with
foreclosure. In order to minimize loses to both the VA and the veteran,
the VA has several programs to work with veterans who find themselves in
positions where they can no longer make their mortgage payments.[^123]

A veteran facing default does have several options beyond either paying
enough to make the note current or offering a deed in lieu of
foreclosure.[^124] First, forbearance is the most common method of
avoiding foreclosure.[^125] With this option, your legal assistance
client may offer to pay back part of the delinquency along with his
monthly payments. If this is not realistic, then the note holder may
agree to accept partial payments or to suspend payments for a set period
of time. Although the VA has no authority to require this of a lender,
note holders frequently cooperate as long as the veteran can demonstrate
he will be able to resume payments on a specific date.[^126] Second, if
forbearance options will not work, the lender also has the authority to
reamortize the loan by adding the amount of the delinquency to the loan
balance.[^127] Of course, doing so increases both the loan amount and
the monthly payments. Third, if the client has the ability to pay but
the lender is unwilling to modify the payment terms, VA refunding may be
an option. The VA, in its discretion, can actually buy the loan from the
holder and take over as the creditor.[^128] At that point, the VA may
continue to serve as the note holder or it may sell the note.[^129] In
spite of all these programs, sometimes sale of the property is the only
option. Fourth, the VA can facilitate a compromise sale.[^130] Under
certain circumstances, a veteran may sell his home for less than the
amount due on the loan.[^131] The VA then pays the difference between
the balance on the loan and the proceeds from the sale, though the
amount cannot exceed the maximum amount of the loan's guaranty.[^132] It
is actually possible for the original borrower to sell his home for
substantially less than is owed and walk away from the transaction owing
nothing. However, any VA loan entitlement will not be restored.[^133]

**IV. EDUCATION BENEFITS**

The primary education benefits administered by the VA are through the
Montgomery GI Bill.[^134] Although there are three separate categories
of eligibility, for anyone currently on active duty the general rule is
that a veteran is eligible for benefits upon discharge if they served
for at least two years and elected to have their military pay reduced by
\$100 per month for twelve months.[^135] Discharges for convenience of
the government, for hardship, or for a medical condition could shorten
that active duty service requirement.[^136]

The amount of the payments and the flexibility of how they may be
spent[^137] is especially useful. Full time students who served at least
three years on active duty receive \$528 a month[^138] for up to 36
months[^139]. Full time students who served two years on active duty
receive \$429 per month.[^140] These funds can be used toward an
undergraduate or graduate degree, a certificate or diploma from
business, technical, or vocational schools, or various other types of
education.[^141] Payments for tutors and work-study programs are also
available.[^142] Generally, any course of study that leads to some type
of degree or certificate will be covered.[^143] GI bill funds can now
also be used to pay for courses that prepare veterans for admissions
tests.[^144]

Educational benefits are also available for dependents. Spouses who have
not remarried and children of veterans are eligible under certain
circumstances: (1) the veteran either died or is permanently and totally
disabled as the result of active duty service, (2) the veteran died from
any cause while rated permanently and totally disabled from a
service-connected disability, (3) the military member has been listed as
either missing in action or as a prisoner of war for over ninety days,
or (4) the military member is detained by a foreign government or power
for over nintey days.[^145] The opportunities are similar to the
veterans' programs and the rate for a full time student is \$485 per
month.[^146]

**V. IMPACT OF DISCHARGE CHARACTERIZATION**

Translating the terms of art used in the military for discharges[^147]
into set rules for VA benefits is difficult because the statues use
definitions that do not correlate with the popular names for the various
types of discharges. Instead, the statutes operate using terms like
"under conditions other than dishonorable."[^148] This can be
particularly troubling because the only VA benefits that absolutely
require an honorable discharge are the Montgomery GI Bill and VA home
loan program for members of the Selected Reserve who have served for at
least six years.[^149] All other VA benefits are determined based on the
actual discharge characterization, the level of the court-martial, and
the nature of the offense.

Although VA benefits do not technically ever vest, it is critical to
understand at the outset that, as a general rule, no discharge
characterization can ever erase the ability of a veteran to receive VA
benefits based on prior honorable enlistments.[^150] Although it may
seem unusual that someone could receive a Dishonorable Discharge and
still qualify for a VA home loan or medical care, the rationale is that
subsequent dishonorable service should not bar benefits from individuals
who successfully completed the period of service to which they had
originally agreed.[^151]

The VA reviews veterans' military records on a case-by-case basis to
determine whether the individual's service was "under conditions other
than dishonorable."[^152] Generally, no VA benefits will be paid to
veterans who were discharged after their first enlistment as a
conscientious objector,[^153] as the result of a sentence from a general
court-martial,[^154] after resigning for the good of the service,[^155]
for being a deserter, or after receiving a discharge under other than
honorable conditions for being absent without leave for at least 180
days.[^156] If, however, the person was determined to be insane at the
time of the event, they may still be eligible for benefits
notwithstanding the nature of the discharge.[^157] This exception does
not apply if the member is discharged after a Chapter 4 discharge or a
Resignation In Lieu of Court-Martial is submitted to avoid trial by
general court-martial,[^158] for either mutiny or spying,[^159] for an
offense that involved moral turpitude, for misconduct that was willful
and persistent, or for homosexual acts that involved some type of
aggravating factor.[^160] The VA will consider the discharge to be under
dishonorable conditions in these situations.[^161] Any entry level
separations[^162] "shall be considered under conditions other than
dishonorable."[^163] By contrast, void enlistments and members dropped
from the rolls will be reviewed on a case-by-case basis.[^164] Finally,
anyone who has committed a homicide will not be entitled to VA benefit
payments.[^165]

The rules for access to medical care also require explanation. Otherwise
eligible veterans who received either an honorable or general discharge
at the time of separation can access VA medical care without the review
of a VA regional office.[^166] However, a veteran who has had his
discharge under other than honorable conditions upgraded to a general
discharge, must have a VA medical facility complete a VA Form 10-7131
and submit it to the VA Regional Office for review.[^167] In some cases,
veterans with a discharge under other than honorable conditions may be
entitled medical care only for conditions incurred or aggravated due to
military service.[^168] Individuals with a punitive discharge (i.e., a
bad conduct or dishonorable discharge adjudged by a court-martial) from
a first enlistment will not be able to access VA medical care.[^169]

**VI. ANSWER TO THE "QUICK QUESTION"**

This article began with a hypothetical divorce fact pattern involving a
Gulf War veteran husband separating from active duty, a civilian wife,
and two children. Assuming there are no discharge characterization
issues, the husband will be entitled to receive, at a minimum, a VA home
loan guaranty and access to medical care. He may also be eligible for
education benefits and should apply for service-connection for any
medical condition or symptom he has had since returning from that
conflict. The former spouse is not going to be entitled to any VA
benefits because she will no longer be either married to a veteran or
considered to be a surviving spouse. If her husband is eligible for
either compensation or pension payments, they are his separate property.
The children, however, may be entitled to VA medical and educational
benefits if their father becomes disabled. In addition, if he receives
any type of additional VA payment because he has dependent children, he
has an obligation to pass that additional amount on to the children.

**VII. CONCLUSION**

VA benefits explanations do not always lend themselves to a chart or to
a quick question. However, there is no reason judge advocates should not
be able to provide useful and accurate guidance during legal assistance.
A few simplified, general rules illustrate the point. For example,
almost every compensation or pension question in legal assistance could
be answered, at a minimum, with a recommendation that the client apply
for the benefits sought. If the client wants either an explanation of or
desires to appeal a rating decision, then in addition to any assistance
provided by the judge advocate, he should be referred to a veterans'
service organization counselor.

For divorce clients, there are two key things to remember. First,
compensation and pension benefits are the veteran's separate property
and are not subject to division. Second, the VA will only garnish
compensation payments and only if there has been an offset against the
veteran's military retired pay. On the real estate front, a client
nearing default should not simply be told to offer a deed in lieu of
foreclosure. The VA will work with her and refer her to the loan
guaranty section of the nearest VA regional office. It is also critical
that both trial and defense counsel remember that no discharge
characterization, punitive or otherwise, can ever erase the ability of
veterans to receive VA benefits based on prior honorable enlistments.

Almost everyone who has ever served in the armed forces will be directly
impacted by some VA benefit. Accordingly, all military personnel should
have at least a basic understanding of what is available and how those
benefits can significantly improve their lives. Of course, judge
advocates provide an important service to military members in the form
of legal advice on these and many other issues. All judge advocates must
have a sound, working knowledge of these benefits and programs and how
they interact with each other.

[^1]: *\* Captain Williams, USAFR (B.S. Oklahoma State University; J.D.,
    University of Oklahoma College of Law), is an IMA assigned to the
    legal office at Luke Air Force Base. As a civilian, he is a staff
    attorney for the Department of Veterans Affairs Regional Counsel's
    Office in Phoenix. He is a member of the Oklahoma and Arizona State
    Bars.*

    ^?^ 38 C.F.R. § 3.4(b) (1998). *See generally* Veterans Affairs
    Pamphlet 80-99-1, Federal Benefits for Veterans and Dependents
    (1999) (overview of benefits available through the Department of
    Veterans Affairs) \[hereinafter VA Pamphlet 80-99-1\].

[^2]: *See* 38 C.F.R. § 3.3(a)(2). These pensions should be
    distinguished from the monthly pension given to individuals awarded
    the Congressional Medal of Honor. *See* 38 U.S.C.A. § 1562(a) (West
    1999); 38 C.F.R. § 3.802.

[^3]: *See* 38 U.S.C.A. §§ 1110, 1131; *id*. §§ 101(16), 1131; 38 C.F.R.
    § 3.1(k). *See generally* Ford v. Gober*,* 10 Vet. App. 531 (1997)
    (finding insufficient evidence to establish veteran's psychiatric
    condition had been incurred during wartime). *See also* 38 U.S.C.A.
    § 1103 (conditions caused by the use of tobacco products are not
    service-connected). This is a different analysis than
    service-connected for military justice purposes. *See* Note,
    *Military Law: Should Military Personnel Be* *Court-Martialed For
    Offenses That Are Not Service-Connected*?, 42 [Okla. L.
    Rev]{.smallcaps}. 116 (1989).

[^4]: 38 U.S.C.A. § 1112(a)(1). VA rating decisions are made through VA
    regional offices after a claim has been filed. The VA rating
    schedule provides degrees of impairment from zero to 100 percent in
    increments of ten percent. *See infra* notes 12--15 and accompanying
    text. *See also* 38 C.F.R. § 3.304(f) (requirements for
    post-traumatic stress disorder).

[^5]: *See* 38 U.S.C.A. § 1112(c)(1)(2); 38 C.F.R. §§ 3.309(d), 3.311.

[^6]: *See* 38 U.S.C.A. § 1116; 38 C.F.R. § 3.313. *See also* 38
    U.S.C.A. § 1805; 38 C.F.R. § 3.814 (allowances to children of
    Vietnam veterans suffering from spina bifida).

[^7]: *See* 38 U.S.C.A. §§ 1117--1118; 38 C.F.R. § 3.317.

[^8]: There are over thirty-five medical conditions that trigger a
    service-connection presumption. 38 U.S.C.A. § 1112. On November 30,
    1999, President Clinton signed the Veterans Millennium Health Care
    and Benefits Act. 106 Pub. Law No. 117, 113 Stat. 1545 (1999). As a
    result, bronchiolo-alveolar carcinoma is now also presumed to be a
    service-connected condition. *Id.* § 503 (to be codified at 38
    U.S.C. § 1112(c)(2)(P)).

[^9]: The Department of Veterans Affairs has a stated policy of
    administering the law "under a broad and liberal interpretation
    consistent with the facts of each individual case." 38 C.F.R. §
    3.303(a); *Id*. § 4.3 (resolves reasonable doubt in favor of the
    veteran).

[^10]: Every state, as well as Guam and Puerto Rico, has a VA regional
    office. Some states have more than one. Examples include California
    (Los Angeles, San Diego, Oakland), New York (Buffalo, New York
    City), and Texas (Houston, Waco). There is even one overseas
    regional office, the Manila Regional Office in Pasay City,
    Philippines.

[^11]: Veterans Affairs Manual M21-1, pt. IV, change 82, ch. 9, exhibits
    A--C (1996) \[hereinafter VA Manual\]; *See also* 38 C.F.R. § 19.25
    (1998).

[^12]: 38 C.F.R. §§ 4.1--4.150. Due to the complexity of the subject, a
    complete discussion of the VA ratings system is beyond the scope for
    this article. There are seventy-four different regulations providing
    guidance on topics as diverse as painful motion, the endocrine
    system, and mental disorders. *Id.* In addition, there are other
    regulations providing rules of construction. For example, one of the
    rules is known as the bilateral factor. It applies when a
    compensable disability exists in more than one place (e.g., both
    arms, both legs, paired skeletal muscles) and provides for an
    additional ten percent of the value of the combined rating being
    added. *See id*. § 4.26. *See also* Richard v. West*,* 161 F.3d 719
    (Fed. Cir. 1998) (holding veteran's claim for service-connected
    compensation benefits did not survive his death).

[^13]: Air Force Instruction 36-3212, Physical Evaluation for Retention,
    Retirement, and Separation (Jan. 1, 1998). Air Force Physical
    Evaluation Boards do use the VA's disabilities rating schedule.
    *Id.* ¶ 1.7. However, the Air Force and VA run separate programs
    authorized under different statutes with different goals. The VA may
    rate any service-connected condition without regard to overall
    physical fitness. In contrast, the Air Force may rate only
    conditions that make someone unfit for continued military service.
    *Id.* ¶ 1.9.

[^14]: *See* 38 C.F.R. § 4.25.

[^15]: *Id.*

[^16]: VA employees can also explain the appeals process.

[^17]: *See generally* 38 U.S.C.A. § 1114. Veterans with a 100 percent
    rating are also entitled to unlimited commissary and base exchange
    privileges. *See* Department of Defense Regulation 1330.17-R, Armed
    Forces Commissary Regulations ¶ 2-101.4i (Apr. 1987); Air Force
    Joint Instruction 34-210, Army and Air Force Exchange Operating
    Policies ¶ 2-9a(9) (Dec. 15, 1992). The VA will help eligible
    veterans complete a DD Form 1172, Application For Uniformed Services
    Identification Card DEERS Enrollment, to obtain commissary and base
    exchange access.

[^18]: 38 U.S.C.A. § 1115.

[^19]: Clothing allowances are provided to veterans who either have a
    service-connected disability requiring a prosthetic device
    (including a wheelchair) that tends to wear or tear clothing or who
    have a skin condition requiring medication that damages outer
    garments. *See id*. § 1162 (stating that the amount of the allowance
    is \$528 per year); 38 C.F.R. § 3.810.

[^20]: 38 U.S.C.A. § 1151. This statute was enacted before the Federal
    Tort Claims Act (FTCA), 28 U.S.C.A. §§ 2671-2680 (West 1999), and
    provided a remedy for service-connected medical conditions for
    individuals who were injured from surgical or medical treatment in
    VA facilities. *See also* 38 C.F.R. § 3.154. *See also* E. Douglas
    Bradshaw, *Veterans Administration Benefits and Tort Claims Against
    the Military,* [Army Law.]{.smallcaps}, Sep. 1986, at 6. This issue
    is most likely to come up at Kirkland Air Force Base, New Mexico,
    and Nellis Air Force Base, Nevada, where they have joint VA and Air
    Force medical facilities.

[^21]: 38 U.S.C.A. § 1151(b). *See generally* Brown v. Gardner*,* 513
    U.S. 115 (1994) (holding that VA's requirement to prove negligence
    was inconsistent with statute); Neal v. Derwinski*,* 2 Vet. App. 296
    (1992) (portion of FTCA settlement offset by Dependency and
    Indemnity Compensation payments). After the *Brown* decision,
    Congress amended the law in 1996 to return to a negligence based
    standard. 38 U.S.C.A. § 1151(a)(1). *See also* Department of
    Veterans Affairs, Op. Off. Gen. Counsel, 01-99 (June 11, 1999),
    *summarized in* 64 Fed. Reg. 31,680--31,681 (1999) (patient cannot
    get compensation under 38 U.S.C. § 1151 for physical disability from
    sexual assault by VA physician but can receive compensation for
    psychiatric disability).

[^22]: Section 306 pensions were passed as part of the Veterans' Pension
    Act of 1959, Pub. L. No. 86-211, § 1, 73 Stat. 432 (1959). Improved
    pensions were passed into law in 1978. Veterans' and Survivors'
    Pension Improvement Act of 1978, Pub. L. No. 95-588, 92 Stat.
    2497--2511 (1978). The eligibility date for Section 306 pensions
    expired on December 31, 1978. VA Manual M21-1, pt. IV, change 79,
    ch. 16, ¶ 16.01c(2) (1995). A person filing a new claim for pension
    benefits must qualify under the improved pension program. *See* VA
    Manual M21-1, pt. IV, ch. 10, change 64, ¶ 10.08 (1994); VA Manual
    M21-1, pt. IV, change 79, ch. 16, ¶ 16.01c(1) (1995). However,
    existing section 306 pensions and old law pensions are protected. 38
    C.F.R. § 3.960.

[^23]: 38 C.F.R. § 3.1(v). The last date for eligibility for old law
    pensions was June 30, 1960. VA Manual M21-1, pt. IV, change 79, ch.
    16, ¶ 16.01c(2). Old law pensions are part of a different statutory
    scheme. Old law pensioners do not get cost-of-living increases,
    although their income limits are increased each year by a
    cost-of-living factor. *Id.* ¶ 16.01c(5). Old law pensions are
    valued because a veteran's spouse's income is excluded from his
    annual income for VA pension determination purposes. 38 C.F.R. §
    3.261.

[^24]: 38 C.F.R. § 3.3(a)(2).

[^25]: *Id*. § 3.3(a)(2)(iv).

[^26]: *Id.* The term *vicious habit* is not specifically defined. As an
    aside, claims for service-connection, filed after October 31, 1990,
    for a primary or secondary disability that resulted from either drug
    or alcohol abuse, can no longer be paid. VA Manual M21-1, pt. IV,
    change 83, ch. 11, ¶ 11.04e(1)(a) (1995).

[^27]: 38 C.F.R. § 3.3(a)(3). In improved pension cases, the veteran's
    adjusted income determines the payment amount. The higher the
    claimant's "countable income," the lower the rate of VA benefits
    payable. VA Manual M21-1, pt. IV, change 79, ch. 16, ¶ 16.01b(1)
    (1995).

[^28]: 38 C.F.R. § 3.274(a).

[^29]: 38 U.S.C.A. § 1552; 38 C.F.R. §§ 3.260--3.275. *See* Cutler v.
    Derwinski*,* 2 Vet. App. 336 (1992) (veteran's wife's workers
    compensation settlement was properly attributed as income to him);
    Department of Veterans Affairs, Op. Off. Gen. Counsel, 4-89 (Mar.
    14, 1989) (concluding gift of a savings bond is counted as income
    for improved pension purposes), *summarized in* 54 Fed. Reg. 38,036
    (1980). For improved pensions, items counted as income include
    individual retirement account distributions, Vietnam-era bonus
    payments, income from joint accounts, and VA compensation payments.
    *See* VA Manual M21-1, pt. IV, change 79, ch. 16, ¶ 16.41 (1995). In
    addition to a separate list of medical expenses that can be
    deducted, excluded items include welfare payments, agent orange
    products liability settlement payments, mineral royalties, loans,
    and redress payments to World War II Japanese internees. *Id.*

[^30]: Examples of the 1999 improved pension maximum annual rates
    include \$8,778 for a veteran without a dependent, \$11,497 for a
    veteran with a dependent, \$10,729 for a veteran who is permanently
    housebound, and \$14,647 for a veteran needing regular aid and
    attendance. *See* VA Pamphlet 80-99-1, *supra* note 1, at 60.

[^31]: In addition to pension benefits, the VA has a Healthcare for
    Homeless Program that operates at seventy-one sites. Access to
    mental health providers and substance abuse programs are included.
    *See generally* [Department of Veterans' Affairs, VA Programs for
    Homeless Veterans]{.smallcaps} (Nov. 1998). The VA's Domiciliary
    Care for Homeless Veterans Program provides residential counseling
    and rehab services to ambulatory veterans. *Id.* The VA also makes
    foreclosed properties available to homeless provider organizations
    for either substantial discounts or \$1 a year leases. *Id*. *See
    also* 38 C.F.R. § 1.710 (provisions for delivery of correspondence
    and payments to homeless veterans).

[^32]: VA appellate rights are explained in detail on VA Form 4017s.
    *See also* Veterans Affairs Pamphlet 01-96-1, Understanding the
    Appeal Process (Apr. 1996) \[hereinafter VA Pamphlet 01-96-1\].

[^33]: The Board of Veterans Appeals has its own procedures and rules
    governing practice before its administrative judges. *See* 38 C.F.R.
    §§ 19.1--20.1304. The President, with the advice and consent of the
    Senate, appoints the Chairman of the Board of Veterans Appeals for a
    6-year term. 38 U.S.C.A. § 7101(b)(1) (West 1991).

[^34]: A Notice of Disagreement can be a letter. It is defined as any
    written communication from the veteran or her representative that is
    timely filed and "expresses disagreement with an appealable
    decision." VA Manual M21-1, pt. II, ch. 7, ¶ 7.04 (1997).

[^35]: 38 C.F.R. § 19.26.

[^36]: *Id*. §§ 19.29-19.30.

[^37]: The VA Form 9 will be mailed to the veteran along with the
    Statement of the Case.

[^38]: 38 C.F.R. § 20.700(a).

[^39]: *Id.* §§ 20.702-20.705.

[^40]: [Ct. Vet. App. R.]{.smallcaps} 4(a).

[^41]: 38 U.S.C.A. § 5904(d)(1) (West 1999).

[^42]: *See* Bailey v. West*,* 160 F.3d 1360 (Fed. Cir. 1998) (noting
    that 120 day time limit is subject to doctrine of equitable
    tolling).

[^43]: 38 U.S.C.A. § 7105(a). "A claimant has a right to a hearing at
    any time and on any issue under 38 C.F.R. part 3 or 4." VA Manual
    M21-1, pt. IV, change 85, ch. 35, ¶ 35.01 (1997). *See also* VA
    Pamphlet 01-96-1, *supra* note 32, at 15.

[^44]: VA Manual M21-1, pt. IV, change 85, ch. 35, ¶ 35.02h(3).

[^45]: Although Dependency and Indemnity Compensation payments are the
    most well known benefit, there are other possible benefit payments
    as well. *See, e.g.,* 38 C.F.R. § 3.23 (1998) (pensions for
    non-service-connected deaths for surviving spouses); *id*. § 3.24
    (improved pension rates for surviving children); *id*. § 3.806
    (death gratuity); *id*. § 3.813 (benefits for survivors of
    Vietnam-era veterans who died due to chloracne or porphyria cutanea
    tarda); *id*. § 3.814 (monetary allowance for children of Vietnam
    veterans suffering from spina bifida). *See generally* Martin v.
    Brown*,* 7 Vet. App. 196 (1994) (holding pension owed to veteran at
    the time of his death was not countable as income when determining
    widow's pension). *See also* 38 C.F.R. § 3.212 (unexplained absence
    for seven years creates presumption of death).

[^46]: *See generally* 38 C.F.R. § 3.5. *See also* 38 U.S.C.A. § 103
    (special provisions relating to marriages); *id*. § 1313 (if no
    surviving spouse, \$361 for one child, \$520 for two); *id*. §
    5110(l); 38 C.F.R § 3.20 (surviving spouse's benefit for month of
    death); *id.* § 3.25 (DIC for parents); *id*. § 3.50 (requirements
    to be considered a surviving spouse); *id*. § 3.57 (dependent child
    requirements). To be a surviving spouse, there must have been
    continuous cohabitation for the duration of the marriage. *Id*. §
    3.53. *See also* Air Force Instruction 36-3002, Casualty Services
    (Aug. 26, 1994).

[^47]: Veterans Millennium Health Care and Benefits Act, 106 Pub. Law
    No. 117, § 502, 113 Stat. 1545 (1999) (to be codified at 38 U.S.C. §
    103(d)).

[^48]: 38 U.S.C. § 101(14); 38 C.F.R. § 3.5.

[^49]: Forshey v. West*,* 12 Vet. App. 71 (1998) (concluding widow's DIC
    request was properly denied because active duty Navy member, who
    died in motorcycle accident due to intoxication and failure to wear
    a helmet, did not have a service-connected death); Myore v. Brown, 9
    Vet. App. 498 (1996) (concerning active duty Marine who died from
    self-inflicted gunshot wound to the head playing Russian roulette
    while home on leave).

[^50]: 38 C.F.R. § 3.22.

[^51]: *Id*. § 3.22(a).

[^52]: *Id*. § 3.22(d).

[^53]: *See* 38 U.S.C.A. §§ 5304(a)-5305; 38 C.F.R. § 3.750(c); VA
    Manual M21-1, pt. IV, ch. 21 (1995). A veteran may waive military
    retired pay by completing a VA Form 21-251. For a detailed
    discussion of the implications of this issue under the Uniformed
    Service Former Spouses Protection Act, see Captain Kristine D.
    Kuenzli, *Uniformed Services Former Spouses' Protection Act: Is
    There Too Much Protection for the Former Spouse?*, 47 [A.F. L.
    Rev]{.smallcaps}. 1 (1999).

[^54]: 38 C.F.R. § 3.750(c).

[^55]: The general rule is that veteran's benefits payable under Title
    38 cannot be reached by any "legal or equitable process, before or
    after receipt by the beneficiary." 38 U.S.C.A. § 5301(a). *See
    generally* Bennett v. Arkansas*,* 485 U.S. 395 (1988) (finding that
    state could not attach prisoner's VA benefits). *Cf.* Repash v.
    Repash, 528 A.2d 744 (1987) (concluding veteran's disability
    benefits were income for purposes of establishing amount of
    alimony); Pfeil v. Pfeil*,* 341 N.W.2d 699 (1983) (determining that
    disability benefits lost their protected status when invested in
    real estate).

[^56]: 5 C.F.R. § 581.103(c)(7) (1998).

[^57]: *Id*. There is no authority to garnish pension payments. VA
    Manual M-21, pt. IV, change 32, ch. 19, ¶ 19.13 (1994).

[^58]: VA Manual M-21, pt. IV, ch. 19, ¶ 19.13. The amount garnished is
    subject to the percentage limitations specifically listed and any
    state law limitations as well. 5 C.F.R. § 581.402. The lowest
    percentage (frequently 50 percent) controls the actual percentage of
    the garnishment. For example, Arizona limits the amount of a
    garnishment to "one-half of the disposable earnings of a debtor for
    any pay period." [Ariz. Rev. Stat. Ann]{.smallcaps}. § 33-1131C
    (West 1990).

[^59]: 5 U.S.C.A. § 552a (West 1991).

[^60]: 38 C.F.R. § 1.576(b)(11).

[^61]: 38 C.F.R. § 1.502 (provides for disclosure to "any person"). The
    call should be made to the VA regional office closest to the
    veteran's home. The telephone number should be available through the
    blue pages of most telephone books.

[^62]: Department of Veterans Affairs, *VAnguard*, Mar. 1999, at 12
    \[hereinafter cited as *VAnguard*\]. Included among the 172 medical
    centers is one in San Juan VA Medical Center in Puerto Rico. The VA
    also operates 131 nursing homes, 40 domiciliaries, and 206 vet
    centers. *Id.* Vet centers provide counseling to help veterans
    resolve war-related psychological issues and readjust to civilian
    life. There are vet centers in every state and in Guam, Puerto Rico,
    and the Virgin Islands. Domiciliaries provide rehabilitative and
    long-term health care for veterans who need assistance but do not
    need to be in a nursing home. The VA also operates outpatient
    clinics in Guam and the Philippines. Access to VA nursing home care
    is now mandatory for veterans who need it for a service-connected
    disability or to veterans who need nursing home care and have a
    service-connected disability rating of at least 70 percent. Veterans
    Millennium Health Care and Benefits Act, 106 Pub. Law No. 117, §
    101, 113 Stat. 1545 (1999) (to be codified at 38 U.S.C. § 1710A).

[^63]: *See VAnguard*, *supra* note 62.

[^64]: *Id.*

[^65]: 38 C.F.R. § 17.60(a)(1). Medical care could also be provided to
    veterans with a low income and low net worth. *Id*. § 17.60(b)(2).

[^66]: Veterans could receive medical care for a non-service-connected
    condition if it was aggravating a service-connected condition. *Id*.
    § 17.60(a)(5).

[^67]: Pub. Law No. 104-262, § 1, 110 Stat. 3177 (1996) (codified at 38
    U.S.C.A. §§ 545, 1705, 1706, 7319, 7230, and 7321 (West 1999)).

[^68]: 38 U.S.C.A. § 1705(c)(1). This statute was widely misread to mean
    all veterans had to enroll by October 1, 1998, or forever lose
    access to VA care. In reality, a veteran can enroll at any time. In
    addition, there are provisions allowing VA medical treatment while
    an application is pending. 38 C.F.R. § 17.34 (tentative eligibility
    determinations).

[^69]: TRICARE is a managed care system for individuals who are eligible
    for military medical care. It has a choice of three plans under
    TRICARE: Prime, Extra, and Standard. TRICARE Prime is similar to a
    Health Maintenance Organization (HMO). It uses military hospitals
    and a network of civilian providers. There are no deductibles or
    claims forms. Primary care managers control referral to medical
    specialists. TRICARE Extra uses a preferred provider network and
    military hospitals on a space available basis. TRICARE Standard is a
    fee for service plan. Although it provides for the most flexibility
    in selecting health care providers, it is also the most expensive to
    the patient. 32 C.F.R. § 199.17.

[^70]: *See* 38 U.S.C.A. § 1705(a); 38 C.F.R. § 17.99. There are
    additional health care programs for veterans with service-connected
    conditions who are either traveling or residing in foreign
    countries. [Department of Veterans Affairs, Foreign Medical Program
    Handbook]{.smallcaps} (Oct. 1995). The VA can also provide
    counseling for veterans who were victims of sexual harassment or
    sexual trauma. 38 U.S.C.A. § 1720D. The entitlement to this service
    was going to end on December 31, 2001. However, it was recently
    extended through December 31, 2004. Veterans Millennium Health Care
    and Benefits Act, § 106 Pub. Law No. 117, § 115, 113 Stat. 1545
    (1999) (to be codified at 38 U.S.C. § 1720D). These same amendments
    require the VA and the Department of Defense to study "the extent to
    which former members of reserve components of the Armed Forces
    experienced physical assault of a sexual nature or battery of a
    sexual nature while serving on active duty for training." *Id.*

[^71]: Veterans Millennium Health Care and Benefits Act §112 (to be
    codified at 38 U.S.C. § 1705(a)(3)).

[^72]: *See* 38 U.S.C.A. §§ 1705(a)(3), 1710(a)(2)(C). *See also supra*
    notes 21-22 and accompanying text for a discussion of compensation
    benefit offsets for medical malpractice claims.

[^73]: The current means test threshold is \$22,351 for single veterans
    and \$26,824 for veterans with one dependent. [Government Accounting
    Office, VA Health Care: Progress and Challenges in Providing Care to
    Veterans]{.smallcaps}, [GAO/T-HEHS-99-158,]{.smallcaps} at 5 (July
    15, 1999) \[hereinafter [Government Accounting
    Office]{.smallcaps}\].

[^74]: There are two good sources for information on medical conditions.
    *See* [Department of Veterans Affairs, Annual Report To Congress:
    Federally Sponsored Research on Gulf War Veterans' Illness for
    1997]{.smallcaps} (March 1998); [Institute of Medicine, Veterans and
    Agent Orange]{.smallcaps}, 1996.

[^75]: 38 U.S.C.A. § 1710(f)(1).

[^76]: 38 U.S.C.A. § 1705(a). The VA is required to manage health care
    resources by providing care first to patients with higher access
    priorities. *Id.*

[^77]: [Government Accounting Office]{.smallcaps}, *supra* note 73, at
    7. Expanded services also increased demand. *Id.* at 2.

[^78]: *Id.* at 6. Priority group five had 1,378,924 enrollees. *Id.*

[^79]: *Id.*

[^80]: 64 Fed. Reg. 54,212 (1999). The VA Form 10-10EZ is titled,
    "Application for Health Care Benefits." It is available at VA
    medical centers and on the Internet at www.va.gov/forms. Veterans
    applying for care based on being in categories 1, 2, 3, 6 and 7 do
    not need to complete sections of the form requesting financial
    information. *Id.*

[^81]: Block IIC on the VA Form 10-10EZ requests the gross income from
    the previous calendar year for the veteran, spouse, and any
    dependent children.

[^82]: VA Pamphlet 80-99-1, *supra* note 1, at 5. The new threshold
    amounts are announced each January. *Id.*

[^83]: *Id.*

[^84]: 38 U.S.C.A. § 1710(f)(3)(E) (West 1999).

[^85]: *Id*. § 1710(f)(2)(B).

[^86]: *Id*. § 1710(g)(2). *See generally* VA Manual M-1, pt. I, ch. 4,
    ¶ 4.31 (1993). Military retirees are entitled to VA medical care on
    the same basis as other discharged veterans. 38 C.F.R. § 17.94
    (1998) (outpatient services for military retirees); VA Manual M-1,
    pt. I, ch. 4, ¶ 4.24. However, Department of Defense patients are
    frequently seen in VA facilities under sharing agreements. In
    addition, the Department of Defense has now been required to enter
    into an agreement with the Department of Veterans Affairs to
    reimburse the VA, either directly or through a TRICARE contractor,
    for medical care provided to military retirees. *See* Veterans
    Millennium Health Care and Benefits Act, 106 Pub. Law No. 117, §
    113, 113 Stat. 1545 (1999).

[^87]: Only charges for medication for non-service connected conditions
    are authorized. 38 U.S.C.A. § 1722A(a)(1).

[^88]: *Id*. § 1722A(a)(3)(B).

[^89]: *Id*. § 1722A(a)(1).

[^90]: *Id*.

[^91]: *Id.* § 1729(a)(3).

[^92]: Veterans may be reimbursed for emergency medical care if a delay
    would have been hazardous to the patient's life or health, the
    condition is related to a service-connected condition, and the VA or
    other federal facilities were not feasibly available. *See* 38
    U.S.C.A. § 1728; 38 C.F.R. §§ 17.54, 17.120--17.121 (prior
    authorization requirements); Zimick v. West*,* 11 Vet. App. 45
    (1998) (concluding facts did not support reimbursement for
    microsurgery at non-VA facility to save finger in part because there
    was no service-connection). *See also* Veterans Millennium Health
    Care and Benefits Act § 111 (establishes payment systems for
    reimbursement for emergency treatment) (to be codified at 38 U.S.C.
    § 1725). *See generally* Nolte v. West, No. 96-1311, 1999 WL 184901
    (Vet. App. 1999) (finding there should be no reimbursement for
    psychiatric treatment for depression that was not
    service-connected).

[^93]: *See* 38 U.S.C.A. § 1703; 38 C.F.R. § 17.52. The VA will contract
    with local facilities to provide hospital care for veterans when the
    VA is not capable of providing care due to facility capability or
    geographic inaccessibility if the treatment is needed for either a
    service-connected condition or something aggravating a
    service-connected condition. *Id*. § 17.52(a)(1). The VA will
    contract for medical services under the same circumstances if the
    veteran has at least a 50 percent service-connected disability
    rating or has recently received VA inpatient care. *Id*. §
    17.52(a)(2). There are also provisions to contract for hospital care
    for women veterans. *Id*. § 17.52(a)(4). *See generally* Meakin v.
    West, 11 Vet. App. 183 (1998) (Board of Veterans' Appeals has
    jurisdiction to decide fee basis care).

[^94]: Generally, a veteran must be enrolled to receive VA health care.
    64 Fed. Reg. 54,212 (1999) (to be codified at 38 C.F.R. § 17.36).
    However, there are ten exceptions to this rule, three of which are
    especially significant. First, VA medical care will be provided to
    unenrolled veterans with a service-connected disability rating of 50
    percent or higher. *Id.* at 54,217 (to be codified at 38 C.F.R. §
    17.37(a)). Second, veterans with a service-connected condition will
    be able to access VA inpatient and outpatient care for that
    condition. *Id.* (to be codified at 38 C.F.R. § 17.37(b)). Third,
    veterans discharged or released from active duty for a disability
    incurred or aggravated in the line of duty may also seek care. *Id.*
    (to be codified at 38 C.F.R. § 17.37(c)).

[^95]: *Id*. (to be codified at 38 C.F.R. § 17.38). The following are
    specifically excluded from the medical benefits package: abortions,
    in vitro fertilizations, access to drugs and medical equipment that
    are not approved by the Food and Drug Administration (unless the
    patient is part of a research study), sex change operations, health
    care for prisoners, and membership in spas and health clubs. *Id.*
    (to be codified at 38 C.F.R. § 17.38(c)). Some aspects of this care
    package will be contracted out to non-VA medical facilities. *See
    supra* note 93.

[^96]: 64 Fed. Reg. at 54,217 (to be codified at 38 C.F.R. §
    17.38(a)(1)(vii)). The veteran's medical condition must involve
    either a service-connected disability or a non-service-connected
    disability in a patient who needs these services in order to be
    appropriately discharged from a hospital. *Id.*

[^97]: *Id.* (to be codified at 38 C.F.R. § 17.38(a)(1)(xiv)). However,
    VA physicians will not complete these forms under circumstances
    where a third party would customarily pay other health care
    professionals to do these exams but will not pay the VA. *Id.*

[^98]: *Id.* (to be codified at 38 C.F.R. § 17.38(a)(2)).

[^99]: *See* 38 U.S.C.A. § 1713 (West 1999); 38 C.F.R. § 17.84. A former
    spouse, who lost CHAMPVA benefits due to remarriage, can now reapply
    for them after a divorce from an additional marriage. Veterans
    Millennium Health Care and Benefits Act § 502 (to be codified at 38
    U.S.C. § 103(d)(5)(B)).

[^100]: Medicare provides health insurance coverage for most Americans
    over 65 years of age, the permanently disabled, and individuals with
    a certain renal disease. Medicare Part A is financed by payroll
    taxes and covers hospital costs. Medicare Part B is optional
    coverage that usually requires a monthly premium. It covers
    outpatient visits and diagnostic tests. [P. Younger, Health Care
    Fraud and Abuse Compliance Manual]{.smallcaps} app. B:9 (1997). *See
    also* *Medicare Subvention: Challenges and Opportunities Facing a
    Possible VA Demonstration, Hearings Before the Subcomm. on Health of
    the House Comm. on Ways and Means*, 106th Cong., 1st Sess. (1999)
    (statements of William J. Scanlon and Stephen P. Backhus),
    *reprinted in* GAO Report GAO/T-HEHS/GCD-99-159 (July 1, 1999).

[^101]: VA Pamphlet 80-99-1, *supra* note 1, at 42.

[^102]: 38 U.S.C.A. § 1713(a). However, spouses and children of Persian
    Gulf veterans are entitled to health status evaluations through
    December 31, 2003. Veterans Millennium Health Care and Benefits Act,
    106 Pub. Law No. 117, § 205, 113 Stat. 1545 (1999) (to be codified
    in notes after 38 U.S.C.A. § 1117).

[^103]: *See* VA Pamphlet 80-99-1, *supra* note 1, at 11. *See also* 38
    U.S.C.A. § 1713(d) (1999).

[^104]: *See* 38 C.F.R. § 36.4312. On home purchase loans, charges
    associated with recording fees, the credit report, taxes, hazard
    insurance, a survey, title examination, and flood zone
    determinations cannot be financed. *Id*. § 36.4312(d). *See also
    id*. § 36.4337 (underwriting standards). On interest rate reduction
    loans and on refinanced loans, the veteran is able to finance the
    closing costs. *Id*. § 36.4312(a). *See generally* 38 U.S.C.A. §
    3710 (authorizing statute for loans for purchase or construction of
    homes).

    The VA funding fee is based on the status of the veteran and the
    amount of the down payment. At the discretion of the veteran and the
    lender, the VA funding fee may be included in the loan amount. 38
    C.F.R. § 36.4254. For veterans of active duty service, who are
    making first time purchase and construction loans, the VA funding
    fee is 2 percent if there is no down payment, 1.5 percent if there
    is a 5 percent down payment, and 1.25 percent if there is a 10
    percent down payment. These rates are slightly higher for veterans
    with only Guard or Reserve service. VA Manual M26-1, change 3, ch.
    8, ¶ 8.02 (1998). VA funding fees are not charged on loans made to
    disabled veterans and to unremarried surviving spouses of veterans
    who died due to military service. 38 C.F.R. § 36.4254(d)(5).

[^105]: 38 U.S.C.A. § 3703(a)(1)(A).

[^106]: To apply to get back a VA loan entitlement, complete a VA Form
    26-1880. A veteran can get his or her VA entitlement back if either
    the property has been sold and the loan has been paid in full or a
    qualified veteran assumes the loan and substitutes his or her
    entitlement for the same entitlement used originally. 38 C.F.R. §
    36.4203(a)(3). If the veteran cannot meet these restoration
    conditions, he or she may still have a remaining entitlement for use
    in another VA loan. VA Manual 26-1, change I, ch. 2, ¶ 2.12 (1997).
    *See generally* 38 U.S.C.A. §§ 3713--3714; 38 C.F.R. §§ 36.4218,
    36.4333, 36.4508.

[^107]: *See generally* Bernard Ingold, *The Department of Veterans'
    Affairs Home Loan Guaranty Program: Friend Or Foe*?, 132 [Mil. L.
    Rev]{.smallcaps}. 231 (1991); Veterans' Affairs Pamphlet 26-4, VA
    Guaranteed Home Loans for Veterans (1995) \[hereinafter VA Pamphlet
    26-4\]; Veterans' Affairs Pamphlet 26-91-1, VA Home Loans: A Quick
    Guide For Homebuyers & Real Estate Professionals (1996); Veterans'
    Affairs Pamphlet 26-96-1, Settlement Costs (1996); Veterans' Affairs
    Pamphlet 26-93-1, VA Direct Home Loans for Native American Veterans
    Living on Trust Lands (1993).

[^108]: 38 U.S.C.A. § 3701. To obtain a VA Certificate of Eligibility,
    complete a VA Form 26-1880 and attach a copy of your DD Form 214. If
    the member is still on active duty and does not have a DD Form 214,
    she must submit a statement of service including the name of the
    base or command, her date of entry on active duty, and the duration
    of any lost time. VA Pamphlet 26-4, *supra* note 107, at 7. Active
    duty members also must submit a military Leave and Earnings
    statement. 38 C.F.R. § 36.4337(f)(2). For members serving in the
    Selected Reserve, an NGB Form 22 may be substituted for a DD Form
    214. The veteran must also be a good credit risk. *See* 38 U.S.C.A.
    § 3710(b)(3); 38 C.F.R. § 36.4337. *See also id*. § 36.4325(a) (VA
    has no liability if either the lender or holder participated in
    intentional misrepresentation). Additional guidance can be found on
    VA Form 26-0592, Counseling Checklist for Military Homebuyers.

[^109]: VA Pamphlet 26-4, *supra* note 107, at 6.

[^110]: 38 U.S.C.A. § 3702(a)(2)(A). This includes the Persian Gulf War.
    *Id*. § 3702(a)(2)(D).

[^111]: *Id*. § 3702(a)(2)(B).

[^112]: *Id*. § 101(21)--(22).

[^113]: *See id*. § 3701(b)(2); VA Manual 26-1, ch. 2,¶ 2.05 (1996).
    Spouses of military members who have been in either MIA or POW
    status for at least ninety days also qualify. *Id.* ¶ 2.06.

[^114]: The Selected Reserve is the main component of the Ready Reserve.
    The President has the authority to order up to 200,000 members of
    the Selected Reserve to active duty for up to 270 days. 10 U.S.C.A.
    § 12304 (West 1999). VA home loan guaranty entitlement based on
    reserve service was recently extended through September 30, 2007.
    Veterans Millennium Health Care and Benefits Act, 106 Pub. Law No.
    117, § 711, 113 Stat. 1545 (1999) (to be codified at 38 U.S.C.A. §
    3702(a)(2)(E)).

[^115]: 38 U.S.C.A. § 3701(b)(5)(A).

[^116]: Loans issued before March 1, 1988 are fully assumable. *See* 38
    U.S.C.A. § 3714(f)(1)(A); 38 C.F.R. §§ 36.4275, 36.4310. However,
    the buyer must be found creditworthy before the VA will issue a
    release of liability to the seller. Veterans' Affairs Pamphlet 26-7,
    VA Lenders Handbook ¶ 2.05 (1998). If the loan is not paid in full
    in connection with the sale, it is possible for someone to sell
    their home and still remain liable to the Government on their VA
    loan even though they no longer own the property. *Id.* In addition,
    a release of liability from the VA only releases the seller from any
    liability he has with the Government. The VA release does not
    release the seller from any liability he has with their lender and
    does not by itself restore a veteran's loan guaranty entitlement.
    *Id*. *See also* Veterans' Affairs Pamphlet 26-68-1, Selling Your GI
    Home? (1989).

[^117]: 38 U.S.C.A. § 3714(b). *See generally* Boley v. Principi, 144
    F.R.D. 305 (E.D.N.C. 1992) (holding that VA entitled to summary
    judgment against veteran who claimed due process violation in
    foreclosure sale).

[^118]: *See* 38 U.S.C.A. § 3714(a)(1); 38 C.F.R. § 36.4508.

[^119]: Over 152,000 VA guaranteed loans with a total value of \$11.4
    billion went into default between July 1, 1995 and June 30, 1997.
    The VA had guaranteed a value of \$4 billion on those loans.
    Surprisingly, more active duty military members than veterans
    defaulted on their VA loans. [Department of Veterans Affairs, Office
    of Inspector General, Attributes of Defaulted VA Home
    Loans]{.smallcaps}, Report No. 9R5-B10-047 (Mar. 25, 1999).

[^120]: *See* 38 C.F.R. § 36.4315; VA Manual M26-4, change 11, ch. 2, ¶
    2.06a (1992). There are provisions for constructive notice. They
    include a letter from the note holder asking for deed in lieu of
    foreclosure advice or a bankruptcy notice. VA Manual M26-4, change
    6, ch. 2, ¶ 2.03c(4)(a) (1992).

[^121]: *See* 38 C.F.R. § 36.4317; VA Manual M26-4, change 11, ch. 2, ¶
    2.06a. The 30-day requirement may be waived. *Id*. change 11, ch. 2,
    ¶ 2.06b.

[^122]: *See* 38 U.S.C.A. § 3732(a)(2); 38 C.F.R. § 36.4318.

[^123]: *See* Urs Gsteiger, *Representing A Veteran After Default of an
    Assumed VA Guaranteed Home Loan*, [Army Law]{.smallcaps}., Jan.
    1993, at 3. A VA Form 26-8762 contains a list of borrower's rights.

[^124]: A deed in lieu of foreclosure is not an option if there is a
    second lien on the property.

[^125]: VA Manual M26-4, ch. 2, ¶ 2.08a (1992).

[^126]: *See id.* ch. 2, ¶ 2.03.

[^127]: VA Manual M26-4, change 15, ¶ 2-8 (1993).

[^128]: *See* 38 U.S.C.A. § 3720(a)(5); 38 C.F.R. §§ 36.4318, 36.4322;
    VA Manual M26-4, change 11, ch. 2, ¶ 2.06c(2) (1995).

[^129]: VA Manual M26-4, ch. 2, ¶ 2.12.

[^130]: *See* 38 C.F.R. §§ 36.4323, 36.4342; VA Manual M26-4, ch. 2, ¶
    2.09 (1992); Major Bruce D. Lennard, *One Dollar May Move You In,
    But It Can Take A Lot More To Move You Out*, [The
    Reporter]{.smallcaps}, Sep. 1997, at 26.

[^131]: The VA has the authority to compromise, waive, or release any
    right or claim. 38 U.S.C.A. § 3720. This authority includes the
    right of the VA to reduce the number and size of debts it has
    against veterans. A compromise sale may be appropriate when it will
    preclude the establishment of an uncollectable debt. Some of the
    criteria include that the default was caused by circumstances beyond
    the debtor's control, that there is no indication of bad faith, and
    that the obligor cooperated with the VA in exploring alternatives to
    the sale. 38 C.F.R. § 36.4323(e)(1)--(4).

[^132]: VA Manual M26-4, ch. 2, ¶ 2.09.

[^133]: 38 C.F.R. § 36.4203(a)(3).

[^134]: *See generally* Veteran's Affairs Pamphlet 22-90-2, Summary of
    Educational Benefits Under the Montgomery GI Bill--Active Duty
    Educational Assistance Program, Chapter 30 of Title 38 U.S. Code
    (1997).

[^135]: 38 U.S.C.A. § 3011 (basic educational assistance entitlement for
    service on active duty). There are also programs available for the
    Selected Reserve and for individuals who had a remaining entitlement
    under the Vietnam Era GI Bill. VA Pamphlet 80-99-1, *supra* note 1,
    at 17--20. *See also* Veteran's Affairs Pamphlet 22-90-3, Summary of
    Educational Benefits Under the Montgomery GI Bill--Selected Reserve
    Educational Assistance Program, Chapter 1606 of Title 10 U.S. Code
    (1998); Veteran's Affairs Pamphlet 22-79-1, Summary of Educational
    Benefits Under the Post-Vietnam Veterans' Educational Assistance
    Program (1997).

[^136]: 38 U.S.C.A. § 3011(a)(1)(B)(ii).

[^137]: 38 C.F.R. § 21.7220 (course approval list). GI Bill funds cannot
    be used for bartending or personality development courses. *Id*. §
    21.7222.

[^138]: 38 U.S.C.A. § 3015(a)(1) (amount of assistance).

[^139]: *Id*. § 3013(c)(1) (duration of benefits).

[^140]: *Id*. § 3015(b)(1).

[^141]: *See id*. § 3687 (apprenticeship or other training); *id*. §
    3241(b) (flight training).

[^142]: 38 C.F.R. § 21.7141 (tutorial assistance); VA Manual M27-1, pt.
    I, change 49, ch. 9, (1995) (work-study allowance program).

[^143]: 38 C.F.R. § 21.4253(b). *See also* *id.* at § 21.4254
    (procedures for nonaccredited courses); *id.* § 21.4255 (required
    refund policy for nonaccredited courses). A college or educational
    institution will be considered accredited by the VA if it is
    recognized by a national accrediting agency or by the applicable
    state agency. *Id.* § 21.4253(c). Students seeking educational
    benefits should complete a VA Form 22-1990, Application for VA
    Education Benefits. The school completes a VA Form 22-1999,
    Enrollment Certification, and returns it to the VA. Students
    receiving benefits should complete a VA Form 22-1995, Request for
    Change of Program or Place of Training, before switching schools or
    changing their educational objective (e.g., college to a vocational
    school).

[^144]: Veterans Millennium Health Care and Benefits Act, 106 Pub. Law
    No. 117, § 701, 113 Stat. 1545 (1999) (to be codified at 38 U.S.C. §
    3002(3)). Examples would college or graduate school entrance exams
    like the ACT, SAT, LSAT, MCAT, and GRE.

[^145]: 38 U.S.C.A. § 3501 (definition of eligible person); 38 C.F.R. §
    21.3021. *See also* *id*. §§ 21.3040--21.3045 (eligibility
    requirements for children); *id*. §§ 21.3046--21.3047 (eligibility
    periods for surviving spouses).

[^146]: 38 U.S.C.A. § 3532 (computation of allowance); *id*. § 3511
    (duration of educational assistance).

[^147]: The two punitive discharges are known as a dishonorable
    discharge and a bad conduct discharge, and they can only be adjudged
    at a court-martial. *See generally* [Manual For
    Courts-Martial]{.smallcaps}, United States, pt. II, Rule For
    Court-Martial 1003(b)(9) (1998 ed.). The three administrative
    discharges are known as a discharge under other than honorable
    conditions, a general discharge, and an honorable discharge. *See
    generally* Air Force Instruction 36-3208, Administrative Separation
    of Airmen ¶ 1.18 (Oct. 14, 1994) \[hereinafter AFI 36-3208\].

[^148]: 38 U.S.C.A § 101(18).

[^149]: *See id*. §§ 3011, 3225; *id*. § 3701(b)(5)(A) (Selected Reserve
    requirements). Military members who have paid into the GI Bill will
    lose that money, as well as their educational benefits, unless their
    final discharge from active duty is characterized as honorable. 38
    U.S.C.A. § 3011(a)(3)(B). A general discharge will not be
    sufficient.

[^150]: Department of Veterans Affairs, Op. Off. Gen. Counsel 61-91,
    (July 7, 1991), *summarized in* 56 Fed. Reg. 50,149 (1991)
    \[hereinafter Op. Off. Gen. Counsel 61-91\]. Military courts share
    this view. *See* United States v. Perry, 48 M.J. 197 (C.A.A.F. 1998)
    (concluding there is no right to instruction on recoupment of Naval
    Academy education); United States v. Perry, No. ACM 30766, 1995 WL
    229140 (A.F.C.C.A. 1995) (holding it was not error to instruct that
    VA benefits may have vested from earlier discharge); United States
    v. Hansen, 36 M.J. 599 (A.F.C.M.R. 1992) (finding no error with
    instruction to members that VA benefits from prior honorable service
    are not forfeited by punitive discharge). *But see* Department of
    the Army Pamphlet 27-9, Military Judges Benchbook 69--70 (1996) (A
    punitive separation "deprives one of substantially all benefits
    administered by the Department of Veterans Affairs.").

[^151]: *See* Op. Off. Gen. Counsel 61-91, *supra* note 151. If a member
    has a three year enlistment, reenlists at two years, and then gets a
    BCD two and a half years from his original entry on active duty, the
    honorable discharge received for the two year term will not count as
    an honorable discharge for VA purposes. *See* 38 U.S.C.A. § 101(18);
    VA Manual M21-1, pt. I, change 2, ch. 3, ¶ 3.10a (1994).

[^152]: VA Manual M21-1, pt. IV, change 83, ch. 11, ¶ 11.01a (1995).
    *See also* Linsday v. Brown, 9 Vet. App. 225 (1996) (concluding
    widow of veteran, who received bad conduct discharge from Navy for
    being absent without leave and a discharge under other than
    honorable conditions from the Army for fraudulent enlistment, was
    not entitled to death pension); Camarena v. Brown, 6 Vet. App. 565,
    567-68 (1994) (concluding someone with a bad conduct discharge is
    not a "veteran" for purposes of veterans benefits legislation, 38
    U.S.C. § 101); Rogers v. Derwinski, 2 Vet. App. 419 (1992) (holding
    widow of veteran who submitted Chapter 4 request when faced with
    drug charges at a special court-martial was not entitled to
    Dependancy and Indemnity Compensation payments). An honorable
    characterization of a member's service by the armed forces is
    binding on the VA. 38 C.F.R. § 3.12(a). There are additional rules
    concerning void enlistments (e.g., concealment of age or physical
    defect). *Id*. § 3.14.

[^153]: The text from the statute reads, "a conscientious objector who
    refused to perform military duty or refused to wear the uniform or
    otherwise to comply with lawful orders of competent military
    authority." 38 U.S.C.A. § 5303(a). *See also* Air Force Instruction
    36-3204, Procedures for Applying as a Conscientious Objector (July
    15, 1994) (includes a discussion of loss of VA benefits).

[^154]: Interestingly, a discharge from a general court-martial, even if
    it is subsequently upgraded, still prohibits VA benefit payments.
    *See* Department of Veterans Affairs, Op. Off. Gen. Counsel 10-96,
    (Oct. 28, 1996), *summarized in* 61 Fed. Reg. 66,784 (1996); Helige
    v. Principi, 4 Vet. App. 32 (1993) (determining that veteran who
    passed sanity board before court-martial was not insane;
    dishonorable discharge upgraded to bad conduct discharge still
    prohibited entitlement to VA benefits because sentence was from
    general court-martial). Upon request, the VA will mail a DD Form 293
    to members wishing to upgrade their discharge. If it has been more
    than 15 years, a DD Form 149 should be used.

[^155]: Applies to commissioned officers only.

[^156]: *See* 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c).

[^157]: The VA uses a medical, rather than a legal, definition of
    insanity. There is no discussion that the veteran is unable to
    distinguish right from wrong. Under the VA definition, a person is
    insane if he exhibits,

    > due to disease\[,\] a more or less prolonged deviation from his
    > normal method of behavior; or who interferes with the peace of
    > society; or who has so departed (become antisocial) from the
    > accepted standards of the community to which by birth and
    > education he belongs as to lack the adaptability to make further
    > adjustment to the social customs of the community in which he
    > resides.

    38 C.F.R. § 3.354.

[^158]: A Chapter 4 discharge refers to a request submitted by an
    enlisted Air Force member to be discharged in lieu of court-martial
    under Chapter 4 of AFI 36-3208. *See* AFI 36-3208, *supra* note 147,
    ch. 4. A Resignation in Lieu of Court-Martial, or RILO, is an
    equivalent request submitted by an officer. *See* Air Force
    Instruction 36-3207, Separating Commissioned Officers ¶ 2.23 (May
    29, 1997).

[^159]: *See generally* 38 U.S.C.A. § 6104 (forfeiture for treason);
    *id*. § 6105 (forfeiture for subversive activities); 38 C.F.R. §
    3.903 (subversive activities).

[^160]: The military's homosexual conduct policy, 10 U.S.C.A § 654 (West
    1995), and the Air Force policy and discharge procedure, permit
    discharge for homosexual conduct. *See* AFI 36-3208, *supra* note
    147, ¶ 5.36. If the facts indicate that in addition to engaging in
    such conduct, there were aggravating factors (e.g., the conduct took
    place in public, with a minor, or by force) present, the Air Force
    member can be discharged under other than honorable conditions.
    *Id.* ¶ 5.37.3.

[^161]: 38 C.F.R. § 3.12(d)(5).

[^162]: Entry level separations are those that occur within 180 days of
    entry onto active duty. *See* AFI 36-3208, *supra* note 147, ¶¶
    1.19.1, 5.22.

[^163]: 38 C.F.R. § 3.12(k)(1).

[^164]: *Id*. § 3.12(k)(2)-(3).

[^165]: *Id*. § 3.11.

[^166]: VA Manual M-1, pt. I, ch. 4, ¶ 4.37a (1993).

[^167]: *Id.* ¶ 4.37b. The purpose of the form is to request a
    determination on whether the veteran's service was other than
    honorable.

[^168]: *See* 38 C.F.R. § 3.360; VA Manual M-1, pt. I, ch. 4, ¶ 4.38.

[^169]: VA Manual M-1, pt. I, ch. 4, ¶ 4.38(b)(3).