Character of Service Determinations, How VA Reviews Less-Than-Honorable Discharges

An Other Than Honorable discharge is not a locked door, and it is not the same thing as Dishonorable. VA runs its own review of the underlying conduct, separate from the paper your branch issued, and a veteran can win VA eligibility through that review without ever getting the discharge upgraded. Mental health evidence gets liberal consideration under written VA policy.

Who this article is for

A veteran's character of discharge is the first gate to VA benefits. An Honorable or General (Under Honorable Conditions) discharge generally opens the door. An Other Than Honorable, Bad Conduct, or Dishonorable discharge generally closes it. There is a middle path: VA can make a Character of Service Determination (CoSD) that finds the underlying conduct was not disqualifying, even when the discharge characterization itself was less than honorable. This article explains how CoSD works.

This is educational. Character-of-discharge work is complex and high-stakes. Engage a VA accredited attorney or VSO for any motion.

The basic rule

Under 38 CFR 3.12, a person is not eligible for VA benefits if their discharge was due to:

• A sentence of a general court-martial.
• Mutiny or spying.
• An offense involving moral turpitude (generally a felony conviction).
• Willful and persistent misconduct.
• Homosexual acts involving aggravating circumstances or other offenses (older standard, narrowly applied today).

For each of these statutory bars, VA reviews the underlying facts. The discharge label is not the only thing that matters. The underlying conduct is what VA evaluates.

Two paths to VA eligibility

Path 1, Discharge Upgrade. The veteran applies to the Discharge Review Board (DRB) of their service branch (Army, Navy/Marines, Air Force/Space Force, Coast Guard) to upgrade the discharge characterization itself. If granted, the upgraded discharge restores VA benefit eligibility directly, with no further VA review required.

Application: DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States. There is no fee. The DRB review window is 15 years from discharge; after 15 years, only the Board for Correction of Military Records (BCMR, DD Form 149) has jurisdiction.

Source: 10 USC 1553 (DRB), 10 USC 1552 (BCMR).

Path 2, Character of Service Determination (CoSD) from VA. Even without a discharge upgrade, a veteran can apply directly to VA for a CoSD. VA reviews the underlying conduct and decides whether the statutory bars under 38 CFR 3.12 actually apply.

If VA finds the conduct was NOT disqualifying, the veteran is eligible for VA benefits, even with the original less-than-honorable discharge intact.

Application: A claim for VA benefits triggers the CoSD review automatically when the discharge is less than honorable. The veteran does not file a separate CoSD form. The eligibility determination is part of the benefits claim adjudication.

What VA evaluates in a CoSD

VA looks at six factors when applying the "willful and persistent misconduct" bar:

1. The nature of the conduct underlying the discharge (minor infractions vs serious offenses).
2. The pattern of conduct over the veteran's service.
3. Any combat or other extraordinary circumstances that may have contributed to the conduct.
4. The veteran's overall length of service (a short service history with several minor infractions reads differently than a 15-year career with one bad year).
5. Mental health conditions (PTSD, TBI, depression) that may have contributed to the conduct. Under the 2017 Hagel Memo and 2018 Wilkie Memo, VA gives "liberal consideration" to claims where a mental health condition is plausibly connected to the underlying conduct.
6. Whether the discharge resulted from a single incident in an otherwise good service record.

Source rules:

• 38 CFR 3.12 (statutory bars and standards)
• 38 CFR 3.354 (insanity exception)
• VA M21-1, Part III, Subpart v, Chapter 1 (character-of-discharge procedures)

The insanity exception

Under 38 CFR 3.354, a veteran whose conduct underlying the discharge was due to "insanity" (a broader VA-specific definition than the criminal-law standard) cannot be barred from benefits because of that conduct. VA's definition of "insanity" includes severe mental illness that prevented the veteran from understanding the nature of their acts.

The Hagel Memo (2014) and Wilkie Memo (2018) directed VA to liberally apply the insanity exception when PTSD, TBI, military sexual trauma, or related conditions plausibly contributed to the conduct underlying the discharge.

How CoSD interacts with discharge upgrade

A veteran can pursue both paths simultaneously. They do not conflict.

• A CoSD from VA restores VA benefit eligibility with the original discharge intact. It does NOT change the discharge characterization itself.
• A discharge upgrade from the DRB or BCMR changes the discharge characterization, which can open eligibility for other federal and state benefits beyond VA (such as state veteran benefits, military burial honors, base access).

A veteran whose primary goal is VA benefits can get them via CoSD. A veteran who wants to be recognized as honorably discharged for all purposes needs the DRB or BCMR upgrade.

What to file and where

For VA benefits (CoSD path):

1. File the VA disability claim using VA Form 21-526EZ (or the appropriate benefit-specific form).
2. The VA Regional Office reviews the character of discharge during adjudication.
3. If VA proposes to deny benefits based on character of discharge, the veteran can submit evidence (lay statements, medical records, service personnel records, character references) before the final decision.
4. If denied, the veteran can appeal under the AMA review lanes (Higher Level Review, Supplemental Claim, or Board Appeal).

For a discharge upgrade (DRB or BCMR path):

1. DRB: File DD Form 293 within 15 years of discharge. Hearing is optional but often helpful.
2. BCMR: File DD Form 149 after 15 years, or for relief beyond what the DRB can grant. Hearings are rare; reviews are paper-based.

Common misunderstandings

• Other Than Honorable is NOT the same as Dishonorable. OTH is administrative; Dishonorable is a court-martial sentence. OTH is much more likely to be eligible for VA benefits via CoSD.
• A veteran with an OTH discharge can still receive VA health care for some conditions (the "Section 1720D Tier 1" provision for mental health care related to military sexual trauma, combat related conditions, and some others) without a CoSD. This is healthcare-specific and does not extend to disability compensation.
• Mental health and PTSD evidence is critical in modern CoSD cases. Under the Hagel and Wilkie memos, VA gives liberal consideration. Veterans should gather mental health treatment records and a lay statement describing the connection between symptoms and the conduct.
• A general court-martial discharge is a statutory bar that cannot be overcome by CoSD. The only path is an upgrade through the BCMR.

Sources

• 38 USC 5303 (statutory bars to benefits)
• 38 CFR 3.12 (character of discharge regulation)
• 38 CFR 3.354 (insanity exception)
• 10 USC 1552 (BCMR statute)
• 10 USC 1553 (DRB statute)
• VA Hagel Memo (2014)
• VA Wilkie Memo (2018)
• VA M21-1, Part III, Subpart v, Chapter 1
• DD Form 293 (DRB application)
• DD Form 149 (BCMR application)
• VA Discharge Upgrade page (va.gov/discharge-upgrade-instructions)

Related articles

• Evidence basics: the records that matter once eligibility is established.
• Find accredited help: discharge review and character of service questions reward experienced representation.

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