Through the VA’s looking glass: Are you a veteran?

The word veteran means a lot of things to a lot of different people. Growing up, I never gave much thought to what makes an individual a veteran. As a kid, I simply thought it applied to anyone who spent time in the military. In my mid-twenties I enlisted in the U.S. Army and was privileged to serve in one of the first units to be deployed to Afghanistan. Upon returning to Fort Benning, a number of my fellow Rangers joined the Veterans of Foreign Wars. The VFW seemed like a natural choice given that we had just become veterans of a foreign war. Later, at the conclusion of my military service, I returned to the civilian world and naturally donned the moniker veteran, giving it no more thought than I would putting on a new jacket.

It wasn’t until years later that I discovered, at least for legal purposes with the U.S. Department of Veterans Affairs, the word veteran has a very specific meaning. The U.S. government defines the word veteran at 38 U.S.C. § 101(2). This provision states that 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.”

This definition seems to be straightforward on its face. However, as with anything involving lawyers or bureaucracy, it is not as simple as it seems.

Active Service

First, service must have been “active.” The phrase “active military, naval, or air service” generally refers to periods of active duty (sometimes called full-time duty).  Active duty consists of “full-time duty in the Armed Forces, other than active duty for training.” 38 U.S.C. § 101(21)(A). This is a fairly easy concept to grasp when speaking about an individual who enlisted for active-duty service in the Army, Navy, or Air Force. However, it becomes a bit murkier with National Guard and Reserve service. For example, to meet this portion of the definition, a service member in the National Guard must have been activated for federal purposes. Activation at the state level by a governor does not constitute “active” service for VA purposes.

What About Training?

As discussed above, a service member is not considered to have been “active” on the basis of participatingin active duty for training. There are, of course, exceptions to this general rule. One of the biggest is that a service member who is injured or develops a disease during active duty for training will generally be considered to have had “active military, naval, or air service.”

However, bearing in mind the comments above (the lawyers and bureaucrats make everything more complicated), there is a wrinkle to this exception. Specifically, the courts have ruled that an applicant for VA benefits cannot rely upon statutory presumptions (such as exposure to Agent Orange) in order to trigger the exception or establish active service. To demonstrate this principle, consider the case of an Army Reservist who served from 1966-1970, and who developed Parkinson’s disease after separating from the military. If, during his enlistment, the soldier had been activated and deployed to Vietnam, his Parkinson’s disease will presumptively be considered to be connected to his service. However, let’s say that the soldier never deployed to Vietnam, but during his time in service, did deploy for training to Eglin Air Force Base, an admitted test site and storage location for Agent Orange during the 1960s. In this second example, the Army Reservist cannot rely upon the presumption of service connection to establish that he suffered or aggravated an injury while on active duty for training.

A service member who suffers or aggravates an injury during inactive duty training will also be considered “active” for VA purposes. The rules distinguish between suffering an injury, however, and developing a disease. Unlike during active duty for training, the development of a disease during inactive duty for training will not confer “active” status unless the service member who experienced a an acute myocardial infarction, a cardiac arrest, or cerebrovascular accident.

Service Component

In addition to demonstrating active service, the individual must also demonstrate that this service was provided as a member of certain identified organizations. The statute lists the terms “military, naval, or air service,” but these are much broader than just the Army, Navy (including the Marine Corps), Coast Guard, and Air Force. It also includes time spent at one of the U.S. military’s academies, and in some instances, the preparatory schools associated with those academies. Additionally, Title 38 and the related code of federal regulations are littered with other forms of service that count, including being part of the National Oceanic and Atmospheric Administration, Environmental Science Services, and Public Health Service. The designation is also extended to certain civilian groups. Examples of such groups are most commonly seen from World War II, and include organizations such as the Secret Intelligence Element of the Office of Strategic Services and Women’s Army Auxiliary Corps.

Discharge Requirement

The final requirement is that the individual must have been discharged under conditions other than dishonorable. This requirement, like the others, is not as straightforward as its seems on its face. One reason for this is that there are many types of discharges that span the distance between honorable and dishonorable. A service member who receives a discharge classified as honorable or entry-level separation will almost always be determined by the VA to meet the requirements of the character of discharge element. Conversely, a service member who receives a dishonorable discharge will be determined to have been discharged under conditions other than honorable. However, if the individual’s discharged has been characterized under any other label (under honorable conditions, general, under other-than-honorable conditions, bad conduct, administrative) the VA will be required to undertake an analysis as to whether the discharge was “under conditions other than dishonorable.”

This article is authored through the collaborative efforts of Travis James West and other legal professionals at West & Dunn, a law firm dedicated to providing quality legal services and business counseling to individuals and businesses, with a particular focus on assisting the veterans.