Wood & Smith Legal Services, LLC

Vietnam Veterans Pursuing Discharge Upgrades

Vietnam Veterans Blog

On September 3, 2014, Defense Secretary Chuck Hagel signed a memorandum allowing veterans discharged under other than honorable conditions (also called “bad paper” discharges) broad reconsideration of their discharge by the Department of Defense if the veteran can connect the discharge to a PTSD diagnosis.  PTSD must have been in existence at the time of the discharge.  What does this mean for veterans?

The memorandum applies to veterans discharged before PTSD became recognized as a medical diagnosis in 1980.  Because of this, most of the veterans likely to be affected by the new policy are those who served in the Vietnam War.  The policy applies mainly to conduct that was not serious and resulted in only an administrative discharge.  Still, it is difficult to know exactly what, if any, impact this memorandum may have on veterans.

Some veterans may succeed in having their “bad paper” discharges corrected to another type of discharge, allowing them and maybe even their dependents to access VA services and other benefits such as VA compensation and VA pension.  Veterans with “bad paper” discharges and pending disability claims before the VA may be able to emphasize a PTSD diagnosis and connect it to their service when requesting a Character of Service Determination from the VA.  While a Character of Service Determination does not change a veteran’s record, if the VA finds favorably for the veteran, the veteran may be eligible to receive VA benefits, including VA disability compensation, despite the veteran’s “bad paper.”

In March of this year, a lawsuit was filed for veterans who argued that the Department of Defense was wrongly rejecting discharge upgrade applications from veterans bringing claims of PTSD.  The memorandum signed on September 3rd was made in response to this lawsuit.

Additional information about the memorandum and the underlying lawsuit may be found here.  It will be interesting to see if the new policy results in more applications for discharge upgrades and if so, how the increased numbers are handled by the review boards.

 

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Accrued Benefits For Survivors

Accrued Benefits Blog

What happens if a veteran’s claim for disability compensation is pending, and the veteran passes away before a final decision is made on the claim or before compensation is actually paid?  In these circumstances, spouses and/or children may be entitled to accrued benefits.  Accrued benefits are lump sum benefits owed to the deceased veteran.  Because the veteran did not receive these benefits during his or her lifetime, his or her survivors may be eligible to receive them.  Survivors are not eligible to receive monthly disability compensation owed to the veteran, but survivors are eligible to receive lump sum back payments (also called retroactive payments) that were owed as the result of a disability compensation decision.

If the deceased veteran has a surviving spouse, typically, the spouse becomes the claimant of the veteran’s disability compensation.  If the deceased veteran’s spouse is also deceased or the veteran was not married, the veteran’s children generally become the claimants of the veteran’s disability compensation.  By “claimant,” I mean the spouse or children are able to continue the claim for the veteran.  If the veteran’s claim was already determined, and the veteran was waiting to receive payment, the spouse or the children will not necessarily need to pursue the claim anymore, and they will be entitled to receive the payment belonging to the deceased veteran.

In order for a veteran’s spouse or children to be eligible for accrued benefits, the deceased veteran usually needs to have had a disability rating or a pending claim for compensation.  Claims for accrued benefits must be filed within 1 year of the veteran’s death.

Evidence Limitations

  • Only evidence existing at the time of the veteran’s death allowed
  • Death certificate allowed

“Children” for purposes of Accrued Benefits are individuals who are:

  • Unmarried
  • Younger than 18, OR
  • Between 18 and 22 years old and in school under an approved program, OR
  • Incapable of supporting themselves prior to reaching age 18.

Survivors may request accrued benefits using VA Form 21-534, which is also the form used for Dependency and Indemnity and Death Benefits claims.  Survivors may also use VA Form 21-601, which is a form only for claims of accrued benefits.

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May Veterans Receive Both Military Retirement and Disability Compensation?

Concurrent Retirement & Disability blog

Recently, a veteran contacted us with this question.  The answer is more complicated than a simple “yes” or “no,” but in general, some veterans may be eligible to receive both military retirement and disability compensation.  Disabled veterans qualifying for Concurrent Retirement and Disability Payments (CRDP) may collect full retirement pay along with disability compensation.  Veterans not qualifying for CRPD receive retirement pay at a rate reduced by the amount of disability payments they receive.  In other words, receiving disability payments will decrease the amount of a veteran’s retirement pay.

Eligibility for CRDP requires:

  1. Military retirement after 20 or more years of service
  2. Service-connected disability rating of 50% or higher.

In order to determine whether or not a veteran is a military retiree, the following factors are considered:

  1. Did the veteran retire after 20 or more years of military service?
  2. Was the veteran medically retired because of a disability (Chapter 61 retirement)?
  3. Did the veteran retire under Temporary Early Retirement Authority (TERA), and therefore serve less than 20 years in the military?
  4. Did the veteran serve in the National Guard or Reserve for at least 20 years?
    • Reservists must have reached retirement age (usually age 60, for reservists) in order to receive CRPD.

Veterans in the above categories may be considered “retirees” for purposes of determining eligibility for CRDP.

To determine whether or not a veteran has a service-connected disability, consider:

  1. Did the condition occur during military service?
  2. Did the condition become worse during military service?
  3. Is the condition a result of an injury occurring because of military service?

If the answer to any of those questions is “yes,” the veteran may have a service-connected disability.  Veterans who are Totally Disabled because of Individual Unemployability (TDIU) are eligible to receive full retirement pay and full disability compensation.

The CRPD program began January 1, 20004, and all eligible veterans should be phased into the program as of January 2014.  Qualifying veterans should have been enrolled automatically and should have seen an increase in monthly pay.  There is no separate application process for CRPD.

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Homeless Veterans Resource Fair, Part II

Below are the remaining slides we referenced to present a brief session at the Homeless Veterans Resource Fair held in Montgomery, Alabama, on August 29th.  These slides cover the topic of the possibility of housing through an organization like Habitat for Humanity.  This part of the presentation tied into the program because VA Pension and VA Disability Compensation both count as income, which Habitat for Humanity and some other organizations require for eligibility.  The slides below also touch on Veterans Treatment Courts (VTCs).  Only three VTCs exist in Alabama right now, but there is a push to establish more of these important courts for veterans.

 

 


Veterans Resource Fair – Created with Haiku Deck, presentation software that inspires

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Homeless Veterans Resource Fair

Today, the attorneys in our firm gave a brief presentation at a Homeless Veterans Resource Fair held in Montgomery, Alabama.  We met some really interesting people, including veterans and individuals who work with veterans.  It was a productive day, but it was very hot!  Here are a few of the slides on which we based our presentation.  These slides provide information on VA Pension and VA Disability Compensation.



VA Benefits – Created with Haiku Deck, presentation software that inspires

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Presentation to Veterans

Our firm is developing a presentation for veterans next week.  In preparation for that presentation, we created the following overview of VA Benefits and the steps to filing a claim for benefits with the VA.  The document provides an overview of the VA claims process and a brief look at some of the benefits  available to veterans and their dependents and survivors.  Not all veterans will qualify for all benefits, and not all veterans will have to take their VA disability compensation claims all the way to the Supreme Court of the United States.  Still, this represents basic information for veterans, their dependents, and their survivors regarding the types of benefits available, and the process they might encounter when pursuing those benefits.

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Handout-1

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VA Benefits and a Less Than Honorable Discharge

CSD Blog

Veterans discharged from active duty with a less than honorable discharge may still become eligible to receive VA benefits.  A few ways to become eligible for benefits include:

  • requesting a discharge upgrade
  • requesting a correction to military records, or
  • requesting a Character of Service Determination

Last week we discussed ways to correct a veteran’s record, including requesting a discharge upgrade or a correction to military records.  These methods may be effective, but these types of requests process through review boards rather than the VA.  It may also take several years for a determination to be made.  Because of these two issues, some veterans instead request a Character of Service Determination (CSD) through the VA.

If a veteran was discharged under any of the following circumstances, he or she will not be eligible for a CSD:

  • receiving a dishonorable or bad conduct discharge after a General Court-Martial conviction
  • accepting an undesirable discharge instead of being court-martialed
  • receiving a discharge for committing an offense involving “moral turpitude”
  • receiving a discharge for “willful and persistent misconduct”
  • spying for the enemy
  • refusing to perform duties or follow orders

The list above is not exhaustive, and there may be other reasons a veteran is not eligible for a CSD.

Veterans who were absent without leave (AWOL) may qualify for a CSD under certain circumstances.  The VA will likely evaluate the following factors to determine a veteran’s eligibility for a CSD if the veteran went AWOL:

  • length of service prior to absence
  • quality of service
  • age, and
  • education

When a veteran was AWOL for a period of 180 days or more, the VA looks to see if compelling circumstances existed for the absence.

Once a veteran applies for VA disability compensation or pension, the VA reviews the veteran’s file and sees the type of discharge from active duty the veteran received.  If the veteran has a less than fully honorable discharge, the VA will send the veteran a letter indicating the information needed to submit a CSD request.

 

 

 

 

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Correcting a Veteran’s Record

Correcting a Veteran's Record Blog

Did you realize it is possible to correct a veteran’s DD Form 214?  This form is also known as a Certificate of Release or Discharge from Active Duty and is often referred to as the DD214.  A DD214 is particularly important to service members and their dependents because it contains data needed to determine eligibility for veterans benefits, retirement, and even future employment.  Errors on the DD214 create headaches (at a minimum) and may result in the veteran or dependents not receiving benefits for which they really are eligible.  What some veterans don’t realize, though, is errors on the DD214 may be amended or changed.

Using DD Form 149 (Application for Correction of Military Record)  veterans may request a change or correction to their DD214.  The VA does not make these changes or process the application.  Instead, the DD149 should be submitted to the applicable service branch.  Addresses for each branch are provided at the bottom of the form.

When filing a DD149, realize that it is better to request a correction as soon as an error is noted.  In general, a DD149 must be filed within three years of finding an error.  If the DD149 is not filed within this time-frame, the record may still be corrected if “it would be in the best interest of justice to do so.

Once a DD214 is corrected, DD Form 215 is issued.  This form contains any corrections made to the DD214.

Using DD Form 293 (Application for the Review of Discharge), veterans may request a change to a discharge status.  As with the DD149, the VA does not process this form.  Addresses for each military branch’s review board are provided on the form, and the DD293 should be sent to the applicable branch.

If a discharge occurred over 15 years ago, the veteran will need to use DD149 rather than DD293.  According to information on the National Archives website, veterans with disabilities may qualify for medical care even if their discharge was other than honorable.  Here is the exact language from that site:

“Veterans with disabilities incurred or aggravated during active military service may qualify for medical or related benefits regardless of separation and characterization of service. Veterans separated administratively under other than honorable conditions may request that their discharge be reviewed for possible recharacterization, provided they file their appeal within 15 years of the date of separation. Questions regarding the review of a discharge should be addressed to the appropriate discharge review board at the address listed on DoD Form 293 [DD293].”

It is always better to catch errors on a DD214 before it is completed, but in the event errors occur, veterans and their dependents should realize these errors may be corrected.   Forms such as the DD214 and the DD215 need to be stored in a secure location because they are necessary for determining eligibility for veterans benefits.

 

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VA Benefits and Habitat for Humanity

Home Ownership Blog

Veterans receiving VA benefits or VA pension may be eligible for home ownership through organizations like Habitat for Humanity.  For veterans and their dependents living on limited incomes, these organizations may make the difference between being homeless or living in inadequate or unsafe conditions.

Eligibility requirements for housing through Habitat for Humanity differ by area.  Since we are located in Prattville, Alabama, this post discusses the current requirements for individuals needing housing in Autauga County.  Please be sure to check with your local Habitat for Humanity organization, though, for its income requirements, and keep in mind that requirements may change.

Income limits for Autauga County depend on the number of individuals in the household.  Below are the limits for 2014.

  •  1 person household: $12,550-$25,100
  • 2 person household: $14,350-$28,700
  • 3 person household: $16,150-$32,300
  • 4 person household: $17,900-$35,800
  • 5 person household: $19,350-$38,700
  • 6 person household: $20,800-$41,600
  • 7 person household: $22,200-$44,400
  • 8 person household: $23,650-$47,300

In addition to the above income limits, other qualifications must be met.  These include:

  1. The individual(s) must work or live in Autauga County for a minimum of 9 months before applying.
  2. The applicant must be spending more than 30% of gross income on housing and/or living in substandard or inadequate conditions.
  3. The applicant must have a credit report of around 550.
  4. The applicant must be willing to work either 400 hours (applies to a married couple), 200 hours (applies to a married couple that is disabled and single individuals), or 100 hours (applies to a disabled, single individual).
  5. The applicant cannot be a registered sex offender, cannot have a drug conviction in the past three years or currently be in bankruptcy.
  6. Applicants chosen to participate in the Habitat for Humanity program must pay 2% of their income towards their house on a monthly basis.

The following forms of documentation are also required:

  • Government issued photo ID
  • Documentation verifying legal status, such as a birth certificate, Social Security card, passport, or I-551
  • Proof of income from all sources for the most recent two months, including income from employer, child support, SSI, SSD, food stamps, veterans compensation, and any other source
  • Copies of all monthly bills
  • Names, addresses, and phone numbers of:
    • Employer(s)
    • Landlord(s)
    • References (Three are required; these references should not be related to the applicant.)

Married couples must both apply for home ownership through Habitat for Humanity, and they must both apply at the same time.

Habitat for Humanity may not be the only organization through which a veteran receiving VA compensation or pension may qualify for housing, but it represents the type of help that may be available for some veterans and their dependents.  Compensation and pension payments count as income for purposes of meeting Habitat for Humanity’s financial requirements.

If you or someone you know is interested in learning more about Habitat for Humanity or applying for home ownership in Autauga County, you may call 334-365-4132 for more information or visit this website.

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VA Benefits: Clothing Allowance

Annual Clothing Allowance Blog

Many VA Benefits are available to veterans, and it may be hard to know about each one of them.  In fact, one benefit that may be particularly helpful is the VA clothing allowance, and many veterans are unaware of this allowance.  Veterans who qualify for this type of compensation are eligible for either a one-time payment or an annual payment.

Before filing for a clothing allowance, veterans must have submitted a claim for disability compensation with the VA.  After this claim has been submitted, an application for a clothing allowance may be made.  Veterans with the following needs may be eligible for this allowance:

  • Veterans using a prosthetic device
  • Veterans using an orthopedic device (including a wheelchair or crutches)
  • Veterans needing a prescription to treat a skin condition, and the prescription damages clothing

Note that non-rigid devices, such as knee, ankle, or elbow sleeves are not considered prosthetic devices and will not qualify a veteran to receive a clothing allowance.  The clothing allowance is considered a special benefit.  Currently, the clothing allowance rate is $764.30, but this rate changes every year.

Increased clothing allowances may be available if:

  • The veteran needs more than one prosthetic device
  • The veteran needs more than one orthopedic device
  • The medication prescribed damages more than one type of clothing or additional medications are prescribed that also damage clothing

Types of clothing covered by the allowance include:

  • Shirts
  • Blouses
  • Pants
  • Skirts
  • Shorts

Clothing not covered by the allowance includes:

  • Shoes
  • Hats
  • Scarves
  • Underwear
  • Socks

The VA makes payments for the clothing allowance only once per year, between September 1st and October 31st.  Veterans must submit their applications for the clothing allowance prior to August 1st of the year(s) they desire to receive the allowance.

To apply for the clothing allowance, use VA Form 10-8678.  To complete the form, veterans need to provide the following information:

  • Type of device or name of medication
  • A list of service-connected disabilities
  • Month and year the device or medication was issued or prescribed
  • Name and location of the VA facility authorizing the device or medication
  • Body parts affected by the prosthetic device or medication

Submit this form to the prosthetic representative at the VA medical facility nearest you.  According to the VA website as of this writing, veterans may use this map to find their nearest medical centers.  Just to see if the map worked, I typed in a few addresses in Alabama where I knew VA locations were located, and my search results always returned nothing.

I also tried an address in Florida.  Again, the map returned zero results.  Maybe I was not entering the information correctly, but I tried it a couple of different ways, and I could not get the search to return any results for me.

On the same page I discussed and linked to above, there is a search box on the right side of the page labeled “Search in Facility Directory.”  When I typed in “Montgomery, AL,” without quotation marks, several results were generated.  If you are unsure where your nearest VA medical facility is, your best bet may be to call 1-800-827-1000 or try the “Search in Facility Directory” box.

Finally, once you locate the VA facility nearest you, you will actually need to send your VA Form 10-8678 to the prosthetic representative at that location.  I’m not sure how to determine who this individual is other than to call or stop by your local VA medical facility.  If you have other suggestions for quick, or at least successful, methods of locating the prosthetic representative at your nearest VA medical center, please share those!

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