Welcome to the OAR micro lesson on reviewing for prior final
character of discharge determinations. At the end of
this module,
given the training and examples, learners will be able to
successfully pass the end of course assessment through
instruction on the following objectives:
So first, recognize when a prior character of discharge COD
determination requires additional action; and identify
the appropriate process required when reviewing a prior COD
determination.
And just as a reminder, the intent of this lesson isn't to
provide an in depth training on the full process for COD, but to
provide clarification and reminders for DROC employees
when reviewing cases where a prior final COD determination is
of record.
Our references for today's micro lesson are 38 USC 53O3B, 38, CFR
3.1(d), 38, CFR 3.12 and M21-1, Part 10, Subpart 4, Chapter One
and Section A. And just a brief COD overview,
in order to establish Veteran status and basic eligibility for
VA benefits that require Veteran status under 38 CFR 3.1(d), a
former service member must have had active military, Naval, Air,
or space service and a discharge or release from that service
under conditions other than dishonorable.
An administrative decision is required by VA under 38 USC
5303B and that would be that determination on the question of
whether a discharge or release from a period of active
military, Naval, Air or space service was under conditions
other than dishonorable when the discharge characterization is
under other than honorable.
So OTH, A bad conduct, discharge, BCD, dismissal of an
officer and dishonorable.
So these administrative decisions are called character
of discharge.
COD determinations. Uncharacterized separations
under void enlistment, induction, and dropped from the
rolls also requires COD determinations and when a
discharge for a period of service is found to be
dishonorable for VA purposes, there will be no basic
eligibility to any VA benefits requiring Veteran status based
on that service.
The bars to entitlement can be located within 38 CFR 3.12.
M21-1 X.iv.1.A.1.q, Reviewing for prior final COD
determinations, requires that when a former service member or
survivor files a claim for benefits claims, processors must
review the file for any prior final COD determination made in
accordance with the same criteria and based on the same
facts.
So you have to review regardless of whether the filing
specifically alludes to a prior COD determination or attaches
evidence.
In the next slides, we're going to go over some if then
scenarios for what the appropriate steps are when
reviewing the file for the prior's final COD
determinations.
So while reviewing for a prior final COD, if there is no
previous COD, ask yourself is the COD determination necessary
to assess basic eligibility for the current claim?
If it is, then go ahead and prepare a COD determination in
accordance with M21-1 X.iv.1.A.1.h.
If not, there is no action needed regarding the COD and
claims processing can go ahead and continue.
If upon review, the prior COD determination found all service
to be other than dishonorable for VA purposes, then that also
would be a situation where there's no additional action
needed in regards to the COD and claims processing can continue.
All right, moving on to some additional if then scenarios.
If a prior COD determination found a period of service to be
dishonorable, and the current claim is for a benefit requiring
Veteran status, and the claim is based on the dishonorable.
You must follow the guidance in M21-1 X.iv.1.A.1.r. to determine
if there's a basis for changing the prior determination.
If a prior COD determination found a period of service to be
dishonorable, but the prior COD determination is not binding on
the current claim, ask yourself the following.
Is that COD determination necessary to assess basic
eligibility of the current claim?
If so, go ahead and prepare COD determination in accordance with
M21-1 X.iv.1.A.1.h. and if not, no additional action is needed
regarding the COD. And we just briefly want to touch on the
idea of administrative decision finality.
M21-1, X.iv.1.A.1.r states COD determinations are final and can
only be revised by new and relevant evidence, a finding of
clear and unmistakable error, or a queue or a new legal basis of
eligibility.
One common example of a queue that the DROCs may discover
during review is failure of the prior COD determination to
recognize when a conditional discharge determination is
applicable and For more information on some other ideas.
Discussing administrative decision, finality cues, new and
relevant evidence as it pertains to Cods and a new legal basis of
eligibility.
Take a look at the manual reference for supplemental
claims, which can be found in M21-1, Part II, Subpart iii,
2.B.1, revision based on new evidence and you can see M21-1
Part X. Subpart ii. 2. A.
There's also revision due to CUE, see M21-1, Part X,
Subpart ii, 5.A, and and the right to a decision and decision
notice on determinations regarding new and relevant
evidence.
And for that, see Harris VS McDonough.
If a change in the prior COD is justified under the conditions
discussed in the prior slide about administrative decision
finality, then the decision maker would go ahead and make
another COD determination as provided in M21-1 X.iv.1.A.1.k.
and provide decision notice in accordance with M21-1
X.iv.1.A.1.n.
If no change in the prior COD determination is justified after
review, go ahead and complete a VA Form 21-0961, and that's
essentially a signature document and you would go ahead
documenting the determination in the Remark section of the form
and generate a decision notice that meets the requirements in
M21-1 VI.i.1.B.
And these are just a few additional reminders for DROC
employees on CODs.
Generally DROC employees will encounter the issue of COD on
board decisions and higher level reviews.
Please remember that when the issue of COD is formally put at
issue on HLRA, formal HLR decision is still required in
accordance with M21-5 Chapter 5, Higher level review procedures.
This is in addition to any required steps mentioned within
this training.
The HLR decision does not replace the requirement to
complete a formal COD determination or a VA Form
21-0961.
The HLR decision explains the results of our review.
However, we still do need to implement that decision with the
formal determination or the formal signature sheet.
If you're essentially concurring on the prior COD determination,
Please also be aware that when the Board makes a determination
regarding whether or not former service members service to be
honorable for VA purposes, DROC employees must still follow all
formal steps to implement the Board's decision as required by
M21-5 7.G.1.e. reviewing the claims holder and or
implementing the Board decision.
So, for example, if the board now holds that service is
honorable for VA purposes, we still do need that formal COD
administrative decision determination and that would
essentially be implementing the Board's overall determination.
All right, let's do a knowledge check.
So a former service member submits an HLR regarding an
unfavorable COD determination made by the VA.
Upon review, the claims processor determines that the
prior COD is not justified and that the period of service
should be classified as honorable for VA purposes.
What is the appropriate next action?
And the first step is that the processor should prepare an HLR
decision explaining the decision and rationale for why the prior
decision was unjustified, prepare a formal COD
determination deeming service as honorable for VA purposes, and
then prepare notification for the Veteran.
All right, Knowledge Check #2.
The D Roc receives at HLR in response to a prior denial for
hearing loss.
The HLR and paperwork submitted make no mention of the COD.
Review of the E folder shows a prior final COD determination
with multiple periods of service and findings as follows.
A period of November 30th, 2001 to November 29th, 2005 Honorable
for VA purposes.
A Second period November 30th, 2005 through June 17th, 2007 as
dishonorable for VA purposes Under 3.12 D The hearing loss is
solely based upon the period of service of November 30th, 2001
through November 29th, 2005.
What is the appropriate next action?
No actions needed regarding the COD.
The period of service and the disability of hearing loss are
solely the first period, which is already honorable for VA
purposes, and the decision maker can go ahead and continue
processing the claim as usual.
All right, now let's check #3A.
Former service member submits HLR regarding an unfavorable COD
determination that's been made by VBA.
Upon review, the claims processor determines that the
prior COD determination is justified.
What is the appropriate next action?
So in this case, the decision maker should prepare HLR
decision explaining the decision and rationale for why the prior
decision was justified, then prepare a VA Form 21-O961
documenting that determination that upholds the prior COD and
also prepare notification to the former service member explaining
that this concludes the map module reviewing for prior final
character of discharge determinations.
If you have any questions, please discuss those locally
with peers, experts, quality staff and our management.
And then if there are additional questions, D Rock management may
route any questions requiring OA Rs assistance to our quality and
training mailbox.
For our next steps, make sure you complete your assessment and
satisfaction survey that's been assigned to you in TMS in order
to receive training credit.
And if you do have additional need for further training On the
topic of COD, we do have some recommended trainings listed
here on the slide.
And there are also quite a few other training courses available
within the VBA Learning catalog, which you can find via a keyword
search.
Thank you for your participation.