[Federal Register Volume 85, Number 244 (Friday, December 18, 2020)]
[Proposed Rules]
[Pages 82399-82400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27106]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AR03


Referral for VA Administrative Decision for Character of 
Discharge Determinations

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend 
title 38 of the Code of Federal Regulations (CFR) to clarify that, when 
determining eligibility for interment or memorialization benefits, the 
National Cemetery Administration (NCA) will refer cases involving other 
than honorable (OTH) discharges, certain other discharges, or potential 
statutory or regulatory bars to benefits, to the Veterans Benefits 
Administration (VBA) for character of discharge determinations. VA is 
merely updating its regulations to conform with statute and current 
practice.

DATES: Comments must be received by VA on or before February 16, 2021.

ADDRESSES: Written comments may be submitted through 
www.regulations.gov; or by mail to Director, Legislative and Regulatory 
Service (42E), Department of Veterans Affairs, 810 Vermont Ave. NW, 
Washington, DC 20420. Comments should indicate that they are submitted 
in response to ``RIN 2900-AR03--Referral for VA Administrative Decision 
for Character of Discharge Determinations.'' Comments received will be 
available for public inspection at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jerry Sowders, Division Chief, 
Eligibility Verification Division, National Cemetery Administration 
(NCA), Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420. Telephone: (314) 416-6369 (this is not a toll-
free number).

SUPPLEMENTARY INFORMATION: VA proposes to amend Sec.  38.620 to clarify 
that, when determining eligibility for interment or memorialization 
benefits, NCA will refer cases involving other than honorable (OTH) 
discharges or other character of discharge issues to VBA for an 
administrative decision.
    Eligibility for NCA-administered benefits, including interment in 
national cemeteries, is tied to an individual establishing veteran 
status or meeting other specified conditions. See, e.g., 38 U.S.C. 
2402(a)(1) (stating any ``veteran'' may be buried in any open national 
cemetery); 112 (allowing VA to provide Presidential Memorial 
Certificates to those eligible for national cemetery burial); 2306(a) 
(authorizing VA to provide a government-furnished headstone or marker 
to those buried in a national cemetery or who meet other specified 
conditions); 2306(b)(2) (tying eligibility for memorial headstones or 
markers to ``veteran'' status); 2306(f) (authorizing caskets or urns 
for burial of deceased ``veterans''). Congress has defined a veteran as 
``a person who served in the active military, naval, or air service, 
and who was discharged or released therefrom under conditions other 
than dishonorable.'' 38 U.S.C. 101(2).
    Applying the ``veteran'' definition to the sections governing NCA-
administered benefits, it is thus clear that, unless other specified 
conditions are met, a deceased individual must have been discharged or 
released from active service under conditions other than dishonorable; 
and an adjudication must sometimes be made as to an individual's 
``veteran'' status in order to determine eligibility for NCA-
administered benefits. Some characterizations of service on a DD-214 
(such as honorable and general under honorable conditions) allow for 
relatively straightforward determinations that the character of 
discharge was other than dishonorable; however, other types of 
characterizations can be somewhat complex and require in-depth 
examination. For example, bad conduct discharges, OTH discharges, 
discharges upgraded from bad conduct or OTH, and uncharacterized 
administrative separations may require more extensive character of 
discharge determinations, including a review to determine whether any 
of the statutory bars to benefits contained in 38 U.S.C. 5303(a) apply.
    In this rulemaking, NCA clarifies that cases involving potential 
character of discharge bars will be referred to VBA for an 
administrative decision under 38 CFR 3.12 (Character of discharge) or 
other applicable sections. NCA makes efficient use of VBA's existing 
expertise and established procedures to adjudicate character of 
discharge and other complex eligibility issues when needed. 
Coordination with VBA for adjudication on such issues helps to ensure 
consistency in benefits determinations and minimizes confusion for 
claimants and beneficiaries that would likely result from VBA and NCA 
having differing protocols. NCA provides funding resources, equivalent 
to the amount necessary for two full time employees, to VBA to offset 
the additional workload

[[Page 82400]]

created by case referrals. NCA proposes this rule to solidify the 
continuation of this effective partnership and provide public 
information regarding adjudication of character of discharge 
determinations involving potential statutory and regulatory bars to 
benefits.

Paperwork Reduction Act

    Under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521), no new or proposed revised collections of 
information are associated with this proposed rule.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. There are no small entities involved with the process 
for determining eligibility for interment or memorialization benefits. 
Therefore, pursuant to 5 U.S.C. 605(b), the initial and final 
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do 
not apply.

Executive Orders 12866, 13563 and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866.
    VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its Regulatory Impact Analysis (RIA) are available on 
VA's website at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published from FY 2004 Through Fiscal Year to Date.''
    This proposed rule is not expected to be an Executive Order 13771 
regulatory action because this proposed rule is not significant under 
Executive Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.201, National Cemeteries; 
64.202, Procurement of Headstones and Markers and/or Presidential 
Memorial Certificates; and 64.203, State Cemetery Grants.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Claims, 
Veterans.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Brooks D. 
Tucker, Assistant Secretary for Congressional and Legislative Affairs, 
Performing the Delegable Duties of the Chief of Staff, Department of 
Veterans Affairs, approved this document on December 4, 2020, for 
publication.

Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 38 as follows:

PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

0
1. The authority citation for part 38 is revised to read as follows:

    Authority: 38 U.S.C. 101, 107, 112, 501, 512, 2306, 2402, 2403, 
2404, 2407, 2408, 2411, 5303, 7105.


38.620  [AMENDED]

0
2. Amend Sec.  38.620 by adding a Note following paragraph (i)(4) to 
read as follows:
* * * * *

    Note to Sec.  38.620: A benefit request pertaining to a decedent 
whose character of discharge may potentially bar eligibility to that 
benefit may be referred to the Veterans Benefits Administration for 
review in accordance with 38 CFR 3.12 (Character of discharge) or 
other applicable sections.

[FR Doc. 2020-27106 Filed 12-17-20; 8:45 am]
BILLING CODE 8320-01-P