As stated before, many VA benefits require either an Honorable or a General character of discharge for baseline eligibility. In order to become eligible for VA benefits, many veterans with disqualifying characters of discharge will apply to the military’s Discharge Review Board and/or the Boards for Correction of Military Records for a discharge upgrade. However, an often-overlooked alternative to these lengthy processes is an application to the VA for a favorable character of service determination. While the VA cannot change the character of a veteran’s discharge, the VA can decide to grant a veteran VA benefits in spite of a less than honorable character of discharge.
The VA is able to grant a favorable character of service determination to veterans with ‘Other than Honorable’ discharges and ‘Bad Conduct’ discharges that were given as part of the sentence of a special court martial. Unfortunately, the VA cannot grant benefits to a veteran who has a Bad Conduct discharge or a Dishonorable discharge as a result of a general court martial.
There are some other instances where VA authority to grant benefits is murky. For example, if a veteran received an ‘Other than Honorable’ discharge after being AWOL continuously for at least 180 days, by regulation, the veteran is ineligible for VA benefits. However, the VA may still grant a favorable character of service determination if it finds there were “compelling circumstances to warrant the prolonged unauthorized absence.”
A veteran may want to seek a character of service determination over a discharge upgrade for several reasons. While the chances of being granted a favorable character of service determination vary among different VA Regional Offices, it is safe to say that a veteran stands a much better chance of getting a favorable character of service determination than a discharge upgrade. Moreover, the time it takes for the VA Regional Office to make a character of service determination is also shorter than the time it takes the military’s Discharge Review Boards or the Boards for Correction of Military Records to consider a discharge upgrade application. Finally, a favorable character of service determination can only help a later discharge upgrade case before a Correction or a Review Board.

DISABILITY AND CHARACTER OF SERVICE CLAIMS PROCEDURES
A disability benefits claim starts at the VA Regional Office (“VARO”) nearest to the veteran. A veteran initiates a claim either by filing a VA Form 21-526EZ, or “informally” by letter to the VARO. A veteran may also file his or her claim online using eBenefits.
A veteran may have more than one claim at any given time, and a claim can contain any number of physical and/or mental conditions. The VA will adjudicate each separately. The claim is “developed” by an adjudicator at the VARO through acquisition of VA medical reports, service personnel and medical records, whatever evidence the veteran submits and the results of the C&P exam. Once the development phase is complete, the adjudicator will issue an initial decision called a “Rating Decision.”
If the veteran who filed the claim for service connected disability compensation has an “Other than Honorable” or “Bad Conduct” discharge, a character of service determination must be made, and a favorable determination granted, before any of the claim development process may proceed.
In order for a claim for service-connected disability compensation to be successful, a VA adjudicator must find that the veteran: 1) suffered an injury during service, 2) is currently disabled, and 3) find a nexus between the in-service injury and the current disability.
The initial “Rating Decision” should state what the VA decided and provide an explanation as to how the decision was arrived at. In reality, the Rating Decision is often nothing more than a conclusory statement that does not offer any insight into how the claim was decided.
If a veteran is dissatisfied with all or part of the Rating Decision, he or she should file a “Notice of Disagreement” within one year of the date of the Rating Decision. The Notice of Disagreement can be in any form, so long as it can reasonably be construed as such. Once a Notice of Disagreement is filed, the VARO must prepare a “Statement of the Case” which is essentially an elaboration of the Rating Decision and is intended as a reference source for further administrative appeal to the Board of Veteran Appeals.
A veteran has 60 days from the mailing date of the Statement of the Case, or one year from the date of the initial Rating Decision – whichever is later – to file a formal appeal to the Board of Veteran Appeals (“BVA”). An appeal to the BVA is made on a VA Form 9. A Form 9 will be attached to the Statement of the Case.
On the Form 9 the veteran can elect to have a personal hearing in front of the BVA at his or her local Regional Office or a videoconference hearing, or submit the case on the record with no hearing. Additional evidence can be submitted to the BVA at any time prior to its consideration of the case.
Additional evidence and argument also can be submitted with or after an appeal to the BVA and at any time after the initial Rating Decision in support of a “Request for Reconsideration” at the VARO level. A claim remains “open” for the VARO’s reconsideration even after an appeal to the BVA has been made. It is not uncommon for a Regional Office to initially deny a claim, but later grant what the veteran requested upon receiving additional medical evidence and/or a well-reasoned argument as to why the initial Rating Decision was wrong.
If a veteran disagrees with a decision made by the Board of Veterans Appeals, a final appeal to the Court of Appeals for Veterans Claims (“CAVC”) can be made. An appeal to CAVC must be made within 120 days of the mailing date of the final decision of the Board of Veterans Appeals.
In summary, a claim starts at the VARO and can be appealed to the Board of Veteran Appeals. Throughout this process, additional evidence can be submitted and the VARO can reconsider its initial decision based on such evidence. The BVA can also consider additional evidence and argument up to the point of its final decision. Once the BVA has issued a final decision, the veteran has 120 days to appeal to the Court of Appeals for Veterans Claims but cannot count on any further evidence to be considered by the Court.
In theory, a VA claim can never die. Even after an adverse decision from CAVC, or, in the event that a deadline is missed, “new and material evidence” can “re-open” a claim.