PREC 16-99    Effect of Entry Level Separation Based upon Fraudulent Enlistment on Status as a Veteran     Citation: Vet. Aff. Op. Gen. Couns. Prec. 16-99,  VAOPGCPREC 16-99, 1999

a. May a claimant who has been discharged from active duty with an entry level separation due to fraudulent enlistment and credited with zero net active service time by the Air Force be considered a veteran under 38 U.S.C. § 101(2)?

b. Should VA consider an Air Force enlistment which is terminated with an entry level separation to have been voided by the service department under 38 C.F.R. § 3.14?

c. For purposes of 38 C.F.R. § 3.14(a), if the service department has voided an enlistment, is concealment of past illegal behavior a basis for considering the discharge to have been under dishonorable conditions?

d. Does 38 C.F.R. § 3.12(k)(1) compel a finding that a claimant’s military service terminated by an uncharacterized entry level separation was "under conditions other than dishonorable," regardless of the circumstances surrounding the separation from service?

a. A claimant who served on active duty in the Air Force and was discharged from such service with an entry level separation due to fraudulent enlistment may qualify as a

veteran under the provisions of 38 U.S.C. § 101(2), even though the claimant was not credited with any net active service time.

b. Section 3.12(k)(1) of title 38, Code of Federal Regulations, requires a finding that an individual who was released from military service with an uncharacterized entry level separation was separated "under conditions other than dishonorable." In such a case, the provisions of 38 C.F.R. § 3.14(a) and (b) concerning enlistments voided by the service department are not controlling for purposes of determination of character of discharge.