Who is Eligible for Veterans Benefits?
To be eligible for veterans benefits the applicant must meet the definition of a veteran, meet specified requirements for active duty and must have a discharge other than dishonorable. Reserve and Guard members are generally not eligible for benefits except under certain circumstances.
Here are the basic eligibility requirements for receiving VA benefits which we will discuss in more detail below.
- Must meet definition of a veteran or considered as a veteran
- Must meet active duty requirements
- Must meet the period of active duty service requirements
- Service-connected disabilities cannot be a result of willful misconduct
- Pension is not available if discharge was due to willful misconduct
- Must have received an other than dishonorable discharge
Definition of a Veteran
One must be a veteran in order to receive veterans benefits. Likewise, the benefit for a survivor must be linked to someone who was a veteran.
- "The term "veteran" means "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); Active military includes the Army, the Navy, the Marines, the Air Force and the Coast Guard
- National Guard and Reserve members are not considered veterans unless they were called up to active duty by the President of the United States and served the appropriate length of time to receive an award for a benefit or they honorably completed the length of obligation for which they were called.
- Disability Compensation and DIC are available to reserve and guard members who were not on active duty but sustained injury and certain medical conditions from active duty for training and injury from inactive duty for training
We receive numerous calls and scores of email inquiries every day to our office from would be veterans or family members of these people who want to know if they qualify for VA benefits. The first thing we have to determine with these inquiries is if the person for whom direct benefits or survivors benefits are available is actually a veteran. Of particular interest, we receive numerous calls from former reserve or guard members who are senior citizens and who believe that they are veterans due to their active duty training to get into the reserve or guard. Not so. Others who spent 20 or more years and retired from the reserve or guard and have commissary privileges at a local military installation as well as receiving a military retirement income from their service often assume that they are eligible for VA benefits. It's just not so. Title 38 USC Chapter 101 defines what a veteran is. As we will learn further on this is a rather narrow definition and there are numerous groups of people who have offered service to the country who are considered veterans for benefit purposes. Unfortunately, National Guard and reserve members only qualify as veterans if they were called up under Title 10 of the US code by the president of the United States for active duty service. Since the Gulf War in 1990, 64% of all 1.2 million National Guard and reserve troops have been called up – some more than once. Between 2001 and 2003 alone, President Bush called up more than 300,000 guard and reserve members.
To be eligible for veterans benefits, members of the guard or reserves have to have completed their duty obligation or have completed at least 24 months on active duty – whichever is less. There is one exception to veterans benefits that are available to reserve and guard members regardless of whether they served before the Gulf War or since. If these people were injured or contracted certain diseases while engaged in training for inclusion in the guard or reserve, they are likely eligible for Disability Compensation or Dependency and Indemnity Compensation – DIC – caused by the illnesses or injuries. This is one exception where they don't have to be classified as veterans in order to get benefits.
In June 2015, Congress authorized that approximately 2,000 National Guard flight crews assigned to C123 aircraft that were used to disperse Agent Orange in Vietnam are also eligible for Disability Compensation benefits. Even though these pilots were not on active duty, the planes they flew were considered to be contaminated by agent orange and as such the pilots would be eligible for any agent orange Disability Compensation benefits.
Other Groups Eligible for Veterans Benefits
There are others who are also considered veterans who have served in uniformed capacity.
- Aliens (non-US citizens) who did not request discharge during a period of hostilities
- full-time duty as a commissioned officer of the Public Health Service
- full-time duty as a commissioned officer of Coast and Geodetic, Environmental Science Services Administration and the National Oceanic and Atmospheric Administration (previous two organizations are now part of NOAA)
- full-time reserve duty
- merchant Marines who served during World War 2 and burial benefits and Pension for other merchant Marines who served from August 15, 1945 through December 31, 1946
- service as a cadet in any of the military academies
- other specialized active military service as specified in regulations or by the Secretary
- a very long list of Active military service participants (not active duty) in World War 2 (see Title 38 CFR Part 3)
It is surprising to many people that large numbers of aliens or non-US citizens have served honorably in the active military. As long as these service members did not request discharge during a period of war and received a discharge other than dishonorable, they are typically eligible for veterans benefits. But they must also meet the service periods for most benefits that are discussed further on.
Time spent in preparatory schools such as those for the Air Force, the Military Academy Preparatory School, the Naval Academy Preparatory School, the preparatory school for the Coast Guard and others are not considered veterans unless they continue on to active duty after the schooling. If so, then their time spent in the schooling is considered active duty. Otherwise the preparatory school can be considered active duty for training.
Historically immigrants who were not yet citizens of the United States represented 18% of the Union army in the Civil War. During World War I, 192,000 of alien service members received citizenship during their service. Since World War 2 and up until the advent of the all-volunteer service in July 1973, not that many aliens have served. Since the all-volunteer service was started and conscription known as the draft was dropped in 1973, aliens have been sought out to fill gaps in recruiting quotas. Mostly these are people who carry green cards from the Philippines or Mexico. By joining the service, they are given the opportunity to become naturalized citizens.
Recently, undocumented aliens with special skills have been recruited into the service. Since 2014, those who have completed basic training are given the opportunity to become naturalized citizens. From 1907 to 2010 more than 710,000 individuals were naturalized through military service. However, it should be remembered that there are a great number of individuals who served in the military who may not be citizens.
Besides members of the active military which includes the Army, the Navy, the Marines, the Air Force and the Coast Guard, there are 2 other uniformed services in the United States. Seven uniformed services in all. These other 2 are the commissioned officer corps of the Public Health Service and the commissioned officer corps of the National Oceanic and Atmospheric Administration (NOAA). The Public Health Service is part of the Department of Health and Human Services. There are about 6,500 active commissioned officers in the Public Health Service and about 320 active commissioned officers in NOAA. They use naval uniforms and employ naval rank.
NOAA commissioned officers are pilots and naval officers who command NOAA aircraft and vessels. The Public Health Service is comprised of doctors and nurses and other health specialists who provide special services to public health and are be ready to respond to crises of public help all over the world. For example, officers of the Public Health Service were called into action to help combat the Ebola virus in Africa. The head of the Public Health Service is the Surgeon General of the United States who is a Rear Admiral.
There are likely scores of thousands of retired Public Health Service officers and perhaps thousands of NOAA retired officers. These commissioned officers have special assignments to be called up under military orders to serve all over the United States and when needed all over the world. They are considered veterans for VA benefits.
We don't often think of Merchant Marines as being eligible for veterans benefits. Currently, only those who served on sea duty during World War 2 are eligible. It is interesting that World War 2 Merchant Mariners had a higher per capita casualty rate than the uniformed armed services. The Merchant Marine represents merchant ships flying the flag of America. Currently, out of about 1,300 bluewater merchant vessels owned by Americans only about a third fly the flag of the United States. The others are registered in foreign countries. During time of war, the Navy can press into service the Merchant Marine. This has happened during World War 2, Vietnam and Korea and to some extent the current Middle East conflicts. Members of the Merchant Marine who were pressed into service in combat zones since World War 2 have been trying to gain recognition as veterans for 50 years but have had no success.
Certain members of the reserve compliments are employed full-time by their units to serve the readiness needs of the unit. They wear military uniforms and operate under a military hierarchy and put in a full work load for the unit every day. They are considered active duty and are eligible for veterans benefits. The National Guard also has such a program but they are not considered active duty or eligible for veterans benefits.
Active Duty, Active Duty for Training and Inactive Duty for Training
Active duty is any active military naval and air service and includes a certain number of days of travel time after discharge. For purposes of qualifying for Disability Compensation or DIC, active duty can also include a special duty service called active duty for training, ACDUTRA, and inactive duty for training, IADT. ACDUTRA and IADT generally apply to reserve and guard components as well as ROTC participants and cadets of preparatory academies such as the Merchant Marine Academy. Cadets of the 3 military academies are considered active duty.
Disability Compensation and DIC are available under the following conditions.
- any period of active duty for training during which a person is disabled or dies from
– a disease or injury incurred or aggravated in the line of duty, or
– an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident while proceeding directly to, or returning directly from, a period of active duty for training,
- any period of inactive duty training during which a person is disabled or dies from an
– injury incurred or aggravated in the line of duty, or
– acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training or while proceeding directly to, or returning directly from, such training.
As we already know, reserve and guard members are not considered veterans for VA benefits unless they are actually called up to active service by the president. On the other hand, the basic training that all reserve and guard units go through when they first join can be considered active duty for purposes of veterans Disability Compensation benefits or DIC if the trainee is disabled or dies from a disease or injury incurred or aggravated in the line of duty while going through this basic training. In addition, there are certain medical conditions that are presumptive for making claim for Disability Compensation or death due to basic training for the reserves or the guard. Active duty for training can also include the extended annual training completed each year – usually in summer – under orders to maintain the units in combat ready status.
Inactive duty for training is generally the type of training from reserve or guard members done on weekends or the extended personal training done to learn special skills or to upgrade to another rank.
Please note that inactive duty for training only allows for disability as a result of injury or death and does not include disease as a trigger for disability as prescribed under active duty for training. Note also that the same presumptive medical conditions are allowed for resulting disabilities as are allowed under active duty for training. Also be aware that Disability Compensation and DIC are the only benefits available from active duty for training or inactive duty for training. These two types of special duty service do not qualify for Pension or for any of the other remaining categories of veterans benefits.
Period of Active Duty Service
There is some confusion as to how much time a veteran had to have spent in active duty service in order to be eligible for any benefits. The rules below pertain primarily to Pension, education benefits and loan guarantees but as a general rule are applied to all benefits. But there are exceptions such as eligibility for Disability Compensation, life insurance and VA healthcare as well as full benefits for survivors of individuals who died on active duty regardless of how long they were in the service.
- Prior to (1981) generally each benefit defined its own length of duty service
- After 1981 – 24 months or more of active duty service or successful completion of the term of commitment for service
- Disability Compensation and DIC are some of a few exceptions from the 24 month rule
To be eligible for most veterans benefits, a minimum period of active duty of 24 continuous months or the full period for which a person is called or ordered to active duty must be completed. This rule has been in effect since October 16, 1981 for new enlistees. Prior to this date, there is no regular rule of length of service duty that applies for benefits and each benefit generally had its own rules.
Here are a few of the exceptions to this minimum period of active duty for benefits. However, there are more rules than just these.
- Benefits in connection with a service-connected disability or death do not have any prescribed length of service. If injury or illness occurs anytime on active duty and results in a disability after discharge, the veteran or surviving spouse is eligible for Disability Compensation or DIC.
- If death occurs while on active duty, life insurance benefits are provided to named beneficiaries. Survivors may also be eligible for DIC from death in service.
- Any monies that have been contributed for educational benefits programs prior to discharge from service or death during service will be refunded to the participant or to the survivors.
In the Line of Duty and Willful Misconduct
In order to be eligible for a claim related to disability or death, the claimant had to have been in the line of duty when that injury or illness or death or occurred. It is important to note that a claimant may make a valid claim when he or she was in the line of duty even though a different injury or illness may have occurred when the veteran was not in the line of duty. Only a claim related to failure to be in the line of duty comes under scrutiny for being valid or not.
VA uses a circular definition to define in line of duty and it is best understood what line of duty is not. Not being in the line of duty includes actions such as willful misconduct, desertion, absent without leave, illness or injury in service caused by drug or alcohol or tobacco use prior to 1990 as well as injury or illness incurred while confined under a sentence of court-martial or being confined in a civilian jail for a committed felony while in the service. Absent without leave also requires careful scrutiny under a claim as the motives relating to AWOL must be examined and determination could be made that being absent without leave would still result in a valid claim. Exceptions usually apply only to absent without leave of less than 180 days. Specific rules in 38 CFR 3.301 cover the various contingencies associated with in line of duty.
For any claim related to a service-connected disability or death which would include Disability Compensation and DIC, the veteran service representative in the Regional Office for that claim must determine whether the disability or death was incurred in the line of duty. If the service records do not reflect willful misconduct or any other violation of the line of duty requirements but the nature of the claim raises suspicion that line of duty was avoided either through willful misconduct or other actions, the adjudicator has a responsibility to investigate.
On the other hand if the service records indicate that the disability or death was incurred in the line of duty, or flying in a military aircraft while on duty or was accidental such as vehicular accidents and no willful misconduct from police reports or medical records is indicated, VA must accept these findings and determine that the disabling condition or death was in the line of duty. Willful misconduct is covered in great detail in 38 CFR 3.301. It should also be noted that any service member on leave is considered on active duty and anything that happens during that period would be in the line of duty unless a line of duty determination soon after the incident determines otherwise.
38 CFR 3.301 (n) Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs.
(1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.
(2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct.
(3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death.
Perhaps one of the most common challenges for VA service representatives are injuries or death incurred while under the influence of alcohol or drugs. Under certain conditions, injuries from the use of alcohol or drugs constitute willful misconduct but only to the extent that judgment and abilities were impaired. For alcohol use, VA will determine a blood alcohol level of .08 or greater to constitute willful misconduct.
Vehicular accidents either caused by reckless behavior or violating rules or laws or being under the influence are a common in line of duty determination challenge for VA adjudicators. Police reports and medical records must be examined to determine if blood alcohol levels contributed to the accident. For example an enlisted man consumes several beers at the NCO club and subsequently is driving off-base and is involved in an automobile accident . The service member is injured resulting in a disability claim after that person was discharged from service. The accident report alcohol level was not above VA's established limit for willful misconduct. However the service member was determined by the police report to be at fault by driving recklessly. This claim would probably be classified as willful misconduct and be denied.
Prior to October 31, 1990 diseases directly caused by abuse of alcohol, drug abuse or tobacco use while in the service could be covered as service-connected. After this date, conditions caused or aggravated by these usages while in service are considered willful misconduct and are not covered. This also applies to any death caused by addiction to these substances for purposes of paying DIC – even if the death was in service. It should be noted however that if a different service connection condition after service resulted in drug or alcohol abuse, a newly arising disability due to secondary conditions causing drug or alcohol abuse would be considered service-connected – but only if that underlying service-connected disability caused the abuse.
Contracting a sexually transmitted disease such as venereal disease is not considered willful misconduct by. Suicide for willful misconduct is covered in 38 CFR 3.302.
Recreational use of alcohol or drugs in the service is not considered willful misconduct. However, alcohol abuse or drug abuse – not recreational use – as defined by VA in 38 CFR 3.301 is willful misconduct and could result in a discharge from service due to willful and persistent misconduct. Such a discharge will often be justified by mentioning willful and persistent misconduct on the discharge form. Here is a summary from the regulation pertaining to abuse. "Drug abuse is the use of illegal drugs including prescription drugs illegally obtained for a purpose other than medically intended use or for intoxicating purposes." Isolated use of drugs is not willful misconduct unless it results in a disabling condition or unless it can be shown is due to addiction. Contracting a venereal disease is not evidence of willful misconduct.
A discharge that includes willful misconduct will bar a veteran from receiving Pension benefits and vocational rehabilitation benefits.
Character of the Discharge
The requirement that a valid discharge from service must be other than dishonorable in order to qualify for VA benefits seems rather simple on the surface. In reality, there are a variety of different discharges that are characterized between an honorable discharge and a discharge that uses the word dishonorable. In some cases, VA will consider these other than honorable discharges as dishonorable even though the word dishonorable is not used. In other cases these discharges are considered as other than dishonorable.
As a general rule, discharges that are classified as general discharges are considered as other than dishonorable. But a general discharge is still a blight on a serviceman's application for civilian work. General discharges that reflect negative aspects of military conduct will jeopardize a veteran's ability to use education benefits or to be able to reenlist after discharge. Education benefits specifically require an honorable discharge and any other discharge will disqualify for those benefits.
A discharge carrying the words "dishonorable" is very rare as such a discharge can only be handed down to an enlisted member by a general court-martial.
Some discharges are characterized as other than honorable with the reason for separation based on a pattern of behavior that constitutes a significant departure from conduct expected of members of military services. Such discharges may be based on absent without leave, drug use the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other members of the military services and deliberate acts or omissions that seriously endanger the health and safety of other persons. Depending on the specific facts of the history of such behavior VA can choose whether to classify such a discharge as other than dishonorable or dishonorable.
The following discharges are specifically mentioned in the regulations as barring the payment of benefits and would thus be classified as dishonorable.
- As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities.
- By reason of the sentence of a general court-martial.
- Resignation by an officer for the good of the service.
- As a deserter.
- As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release.
- Acceptance of an undesirable discharge to escape trial by general court-martial.
- Mutiny or spying.
- An offense involving moral turpitude. This includes, generally, conviction of a felony.
- Willful and persistent misconduct
- Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty.
Examples of homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status.
It should be noted that officers cannot be discharged from service by a court-martial – only enlisted people. Officers who are convicted of a court-martial with a recommendation for dismissal are forced to resign for the good of the service. Such a discharge for officers is considered dishonorable. There may be other reasons why officers are forced to resign for the good of the service as well.
Certain discharges are administrative discharges and are not characterized by any wrong behavior. VA will examine each type of discharge and determine whether that discharge constitutes other than dishonorable or dishonorable. These include the following type of separations.
- Entry level separation. Uncharacterized administrative separations of this type shall be considered under conditions other than dishonorable.
- Void enlistment or induction. Uncharacterized administrative separations of this type shall be reviewed based on facts and circumstances surrounding separation, with reference to the provisions of §3.14 of this part, to determine whether separation was under conditions other than dishonorable.
- Dropped from the rolls. Uncharacterized administrative separations of this type shall be reviewed based on facts and circumstances surrounding separation to determine whether separation was under conditions other than dishonorable.
For education benefits the discharge must be honorable. There is no other option to get education benefits under the G.I. Bill.
Please refer to the table of contents in the top right column of this page for more topics on Eligibility for Benefits.
TABLE OF CONTENTS
Eligibility for Benefits
This 2023 Edition provides detailed instructions on how to submit claims for benefits through the Department of Veterans Affairs new intake center and uses the successful "Fully Developed Claim Process" for faster and better decisions. View the Book...
- About Accreditation & Fees
- Accreditation Study Materials
- CLE to Maintain VA Accreditation
- Correcting Your Military Discharge
- Find Home Care / Assisted Living
- Find Hospice Care
- Find Medical Alert
- Help finding a LTC Facility
- Help with Care Management
- Help with Elder Law
- Help with Estate Planning
- Help with Disputes / Mediation
- Help with Financial Planning
- Help with Medicaid Planning
- Help with Tax Planning
- Informal Claims / Effective Dates
- Service Connected Disabilities
- State VA Nursing Homes
- VA Aid and Attendance Benefit
- VA Burial Benefits
- VA Healthcare System
- VA Help - Surviving Spouse
- VA Home Renovation Grants
- VA Long Term Care Benefits
- VA Pays Family for Eldercare
- VA Regional Offices