Changes coming in April 2025

[broncovet]

    There are significant rating changes coming up in the spring of 2025, especially for sleep apnea, mental health disorders and tinnitus.  

         If you even might be eligible for a higher rating, or a new rating, my advice is to apply now.  Why?

        Generally, when the rating changes, the Veteran should get "the more favorable" (to the Veteran) of both the "new" and the "old" regulation.  That will all change in April 2025, because then you will be forced into qualifying "with the new" rating system, as you are too late for the old system.  

       In this example, by applying now, you would get to apply EITHER the new or the old criteria, whichever is more favorable.  But, if you wait, then you have no choice but to meet the "new Criteria", which could have unpleasant changes in it.  

       Dont take chances, apply right away, and get the benefit of the new and old rating criteria.

[brokensoldier244th]

There is a period of time where veterans are considered against both ratings standards, at least 60 days, usually. April 2025 is not a 'take effect ' date, it's still a proposal only and hadn't been approved yet. 

[broncovet]

Some of the rules have been finalized.  Of particular importance to some, is the COD (Character of discharge).   

https://www.federalregister.gov/documents/2024/04/26/2024-09012/update-and-clarify-regulatory-bars-to-benefits-based-on-character-of-discharge

On the effective dates in regard to COD:

Quote

II. VA's Decision To Finalize the Proposed Rule With Modifications

After extensive consideration of this issue and all the comments received, VA has decided to finalize the proposed rule with some modifications. This will expand VA benefits eligibility, bring more consistency to adjudications of benefits eligibility, and ensure character of discharge determinations consider all pertinent factors. This decision respects concerns of the Military Departments regarding the impact to their ability to maintain good order and discipline among their troops. Specifically, that the removal of the regulatory bars would undermine their ability to use the consequence of loss of VA benefits as a deterrent to misconduct. In addition, the Military Departments were concerned that removal of the “in lieu of general court-martial” bar would deprive the commander, or for covered offenses, Special Trial Counsel, of a tool to dispose of misconduct in an administrative forum while balancing the interests of justice and victim preferences. Finally, the Military Departments expressed concern that the proposed rule's definition of “an offense involving moral turpitude” as “a willful act that gravely violates accepted moral standards and would be expected to cause harm or loss to person or property” would exclude certain offenses that do not include a willfulness element.

 

Thus, with this final rule, there will be only four regulatory bars: (1) acceptance of a discharge under other than honorable conditions or its equivalent in lieu of trial by GCM; (2) mutiny or spying; (3) moral turpitude; and (4) willful and persistent misconduct. The definition for willful and persistent misconduct has been refined for more objective application, and an expanded compelling circumstances exception now applies to both the moral turpitude (MT) and willful and persistent misconduct bars. Based upon interagency concerns, VA has decided not to alter the current regulatory bar for MT and does not adopt the language from the proposed rule. This will allow the military to retain a deterrent to misconduct that promotes good order and discipline, while also allowing VA to provide a case-by-case, more holistic analysis of whether a former SM who received a Bad-Conduct Discharge (BCD) or Other Than Honorable (OTH) discharge nevertheless warrants “veteran” status and VA benefits eligibility.

As indicated in its RFI, VA rigorously considered the possibility of making more sweeping liberalizing changes than finalized here. But as discussed throughout this notice, there is concern that more sweeping changes would reduce deterrents to misconduct in the military and undermine good order and discipline, as well as concerns that removal of the “in lieu of general court-martial” bar would deprive the commander, or for covered offenses, Special Trial Counsel, of a tool to dispose of misconduct in an administrative forum while balancing the interests of justice and victim preferences.

Given those factors, with this rule, VA seeks to strike a balance between bestowing benefits to those who have earned them, even those whose service was not without blemish, and limiting benefits for those whose service involved serious misconduct. As the Federal Circuit in Garvey noted, there are SMs whose significant misconduct rendered their discharge dishonorable, even if the military did not explicitly characterize their discharges as Dishonorable for reasons unrelated to the seriousness of the misconduct itself. 972 F.3d at 1338-40. Military justice is designed to be flexible, allow exercise of discretion, and balance a number of concerns with regard to how SMs are prosecuted and discharged. Military officials may choose not to prosecute an offense for a variety of reasons, including: (1) to spare crime victims, including children, or their families from the trauma of testifying; (2) to avoid evidentiary issues involving classified documents or military operations; or (3) because the SM has already been convicted of the crime in another court. In these situations, the SM may be administratively separated to avoid the burden, expense, or resources involved in GCM litigation. That decision to avoid trial, however, does not necessarily mean that the SM did not commit an offense.

On the other hand, there are some SMs whose service, while not without blemish, was generally of benefit to this Nation and therefore have earned the status of “veteran” and the benefits to which veterans are entitled. There are also SMs who service to our nation placed them in high-risk situations which could lead to injuries or other circumstances that increase risk for behaviors or conduct that Military Commanders deem inappropriate. For example, as consequence of repeated traumatic exposures during combat, SMs are at risk of posttraumatic stress disorder,^[1] traumatic brain injury,^[2] moral injury or other combat related emotional and cognitive consequences.^[3] Symptoms of these medical conditions include changes to decision making and behaviors. It is therefore important to institute a robust compelling circumstances exception that considers the individual facts and evidence in a particular case. The compelling circumstances language in this final rule includes consideration of the length and character of service exclusive of a period of misconduct and potential mitigating reasons for the misconduct such as mental impairment, physical health, hardship, sexual abuse/assault, duress, obligations to others, and age, education, cultural background and judgmental maturity. The compelling circumstances exception—along with more specific criteria instituted herein for the willful and persistent misconduct regulatory bar—will help enable SMs whose conduct was not dishonorable to receive the VA benefits they have earned.

It is important to clarify here that the regulatory bars shall only be applied when they are clearly supported by the military record. The benefit of the doubt will be resolved in favor of the former SM. See38 U.S.C. 5107(b), 38 CFR 3.102. In other words, when there is insufficient evidence of the alleged misconduct, racial bias in the allegation, or an approximate balance of positive and negative evidence about the alleged misconduct, the bar shall not be applied.

Further, as discussed below, VA agrees with the commenters who recommended limiting the conduct being considered for a COD determination to only that which formed the basis of the discharge from service. In short, if the military decided that a SM's misconduct did not preclude the SM from continuing to serve, then it also should not preclude benefits eligibility. This limitation will prevent conduct unrelated to the basis of the discharge from contributing to a bar from benefits.

Overall, under this final rule, more SMs will be eligible for benefits than under the prior 38 CFR 3.12(d). That said, a favorable COD determination under this rule does not result in blanket eligibility for all VA benefits or a change in the Department of Defense's (DoD) discharge characterization. Rather, certain VA benefits have specific eligibility requirements as it pertains to COD. For example, education assistance under the Montgomery GI Bill program or Post-9/11 GI Bill program is available only for periods of service resulting in an “honorable” discharge. See38 U.S.C. 3011(a)(3)(B) and 3311(c)(1). Therefore, former SMs who do not receive an Honorable discharge from DoD are ineligible for the VA Education benefit.

 

 

Moreover, while relaxing the bars to eligibility, this final rule does not extend VA benefits eligibility to all former SMs. Former SMs who do not meet the criteria for benefits eligibility may remain entitled to certain critical benefits to address the harms caused by their military service such as mental health and substance use care, emergent suicide care, and medical care in emergency situations, as discussed below.

 

[brokensoldier244th]

I'm a personal fan of this one. It should seek to help SM's with bad paper discharged or that got drummed out under DADT under a myriad of reasons, sometimes listed under misconduct and other things. When you piece the whole claim together, though, it becomes pretty clear the likely reason they were really let go. This one just took effect last month. 

 

[broncovet]

I give up, broken soldier.  What is a "SM"?  

[pacmanx1]

10 minutes ago, broncovet said:

What is a "SM"?  

Not trying to speak for Broken but I think SMs stands for "Service Members". 

[brokensoldier244th]

SM is service member (thanks Pacmanx1). It appears throughout the Federal Review link you posted up above. 

13 minutes ago, broncovet said:

I give up, broken soldier.  What is a "SM"?