PREC 6-2004    Character of Discharge of National Guard Member

  Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-2004, VAOPGCPREC 6-2004, 2004

QUESTIONS PRESENTED:

A.  Is the determination of the character of discharge of a National Guard member who seeks disability compensation for an injury incurred during active duty for training (ADT) based only on discharge or release from the ADT period or must the determination be based on the member’s discharge from the entire period of service in the National Guard?

B.  If the character of a National Guard member’s discharge is based on the member’s discharge from the entire period of service in the National Guard,

must the Department of Veterans Affairs reconsider an award of disability compensation made before the member separated from the National Guard if, at the time the member is separated from the National Guard, the member’s discharge is characterized as less than honorable?

HELD:

A.  When an individual applies for benefits based on an injury incurred during active duty for training (ADT) while in the National Guard, the Department of Veterans Affairs must determine under 38 C.F.R. § 3.12 whether the individual was discharged or released from the ADT period under conditions other than dishonorable.

B.  If VA has awarded disability compensation to an individual based on a disability incurred in a period of ADT while the individual was in the National Guard and the individual is subsequently discharged from the National Guard under other than honorable conditions, VA need not reconsider the earlier award unless the facts underlying the subsequent discharge specifically relate to the ADT period and suggest that the earlier determination regarding character of discharge or release was clearly and unmistakably erroneous.