Appendix D to Part 724 - Veterans' Benefits
32:5.1.1.3.7.9.1.4.4 : Appendix D
Appendix D to Part 724 - Veterans' Benefits 91 Stat. 1106 Pub. L.
95-126, Oct. 8, 1977 95th Congress An Act
To deny entitlement to veterans' benefits to certain persons who
would otherwise become so entitled solely by virtue of the
administrative upgrading under temporarily revised standards of
other than honorable discharges from service during the Vietnam
era; to require case-by-case review under uniform, historically
consistent, generally appli cable standards and procedures prior to
the award of veterans' benefits to persons administratively
discharged under other than honorable conditions from active
military, naval, or air service; and for other purposes.
Be it enacted by the Senate and the House of Representatives of
the United States of America in Congress assembled, That (a)
section 3103 of Title 38, United States Code, is amended by -
(1) Inserting “or on the basis of an absence without authority
from active duty for a continuous period of at least one hundred
and eighty days if such person was discharged under conditions
other than honorable unless such person demonstrates to the
satisfaction of the Administrator that there are compelling
circumstances to warrant such prolonged unauthorized absence.”
after “deserter,” in subsection (a), and by inserting a coma and
“notwithstanding any action subsequent to the date of such
discharge by a board established pursuant to section 1553 of title
10” before the period at the end of such subsection; and
(2) Adding at the end of such section the following new
subsection:
“(e)(1) Notwithstanding any other provision of law, (A) no
benefits under laws administered by the Veterans' Administration
shall be provided, as a result of a change in or new issuance of a
discharge under section 1553 of title 10, except upon a
case-by-case review by the board of review concerned, subject to
review by the Secretary concerned, under such section, of all the
evidence and factors in each case under published uniform standard
(which shall be historically consistent with criteria for
determining honorable service and shall not include any criterion
for automatically granting or denying such change or issuance) and
procedures generally applicable to all persons administratively
discharged or released from active military, naval, or air service
under other than honorable conditons: and (B) any such person shall
be afforded an opportunity to apply for such review under such
section 1553 for a period of time terminating not less than one
year after the date on which such uniform standards and procedures
are promulgated and published.
“(2) Notwithstanding any other provision of law -
“(A) No person discharged or released from active military,
naval, or air service under other than honorable conditions who has
been awarded a general or honorable discharge under revised
standards for the review of discharges, (i) as implemented by the
President's directive of January 19, 1977, initiating further
action with respect to the President's Proclamation 4313 of
September 16, 1974, (ii) as implemented on or after April 5, 1977,
under the Department of Defense's special discharge review program,
or (iii) as implemented subsequent to April 5, 1977, and not made
applicable to all persons administratively discharged or released
from active military, naval, or air service under other than
honorable conditions, shall be entitled to benefits under laws
administered by the Veterans' Administration except upon a
determination, based on a case-by-case review, under standards
(meeting the requirements of paragraph (1) of this subsection)
applied by the board of review concerned under section 1553 of
title 10, subject to review by the Secretary concerned, that such
person would be awarded an upgraded discharged under such
standards;
“(B) Such determination shall be made by such board, (i) on an
expedited basis after notification by the Veterans' Administration
to the Secretary concerned that such person has received, is in
receipt of, or has applied for such benefits or after a written
request is made by such person or such determination, (ii) on its
own initiative within one year after the date of enactment of this
paragraph in any case where a general or honorable discharge has
been awarded on or prior to the date of enactment of this paragraph
under revised standards referred to in clause (A) (i), (ii), or
(iii) of this paragraph, or (iii) on its own initiative at the time
a general or honorable discharge is so awarded in any case where a
general or honorable discharge is awarded after such enactment
date.
“If such board makes a preliminary determination that such
person would not have been awarded an upgraded discharge under
standards meeting the requirements of paragraph (1) of this
subsection, such personal shall be entitled to an appearance before
the board, as provided for in section 1553(c) of title 10, prior to
a final determination on such question and shall be given written
notice by the board of such preliminary determination and of his or
her right to such appearance. The Administrator shall, as soon as
administratively feasible, notify the appropriate board of review
of the receipt of benefits under laws administered by the Veterans'
Administration, or the application for such benefits, by any person
awarded an upgraded discharge under revised standards referred to
in clause (A) (i), (ii), or (iii) of this paragraph with respect to
whom a favorable determination has not been made under this
paragraph.”.
(b)(1) The Secretary of Defense shall fully inform each person
awarded a general or honorable discharge under revised standards
for the review of discharges referred to in section 3103(e)(2)(A)
(i), (ii), or (iii) of title 38, United States Code, as added by
subsection (a)(2) of this section of his or her right to obtain an
expedited determination under section 3103(e)(2)(B)(i) of such
title and of the implications of the provisions of this Act for
each such person.
(2) Notwithstanding any other provision of law, the Secretary of
Defense shall inform each person who applies to a board of review
under section 1553 of title 10, United States Code, and who appears
to have been discharged under circumstances which might constitute
a bar to benefits under section 3103(a), of title 38, United States
Code, (A) that such person might possibly be administratively found
to be entitled to benefits under laws administered by the Veterans'
Administration only through the action of a board for the
correction of military records under section 1552 of such title 10
or the action of the Administrator of Veterans' Affairs under
section 3103 of such title 38, and (B) of the procedures for making
application to such section 1552 board for such purpose and to the
Administrator of Veterans' Affairs for such purpose (including the
right to proceed concurrently under such sections 3103, 1552 and
1553).
Section 2. Notwithstanding any other provision of law, the
Administrator of Veterans' Affairs shall provide the type of health
care and related benefits authorized to be provided under chapter
17 of title 38, United States Code, for any disability incurred or
aggravated during active military, naval, or air service in line of
duty by a person other than a person barred from receiving benefits
by section 3103(a) of such title, but shall not provide such health
care and related benefits pursuant to this section for any
disability incurred or aggravated during a period of service from
which such person was discharged by reason of a bad conduct
discharge.
Section 3. Paragraph (18) of section 101 of Title 38, United
States Code, is amended to read as follows:
“(18) The term ‘discharge or release’ includes, (A) retirement
from the active military, naval, or air service, and (B) the
satisfactory completion of the period of active military, naval, or
air service for which a person was obligated at the time of entry
into such service in the case of a person who, due to enlistment or
reenlistment, was not awarded a discharge or release from such
period of service at the time of such completion thereof and who,
at such time, would otherwise have been eligible for the award of a
discharge or release under conditions other than dishonorable.”
Section 4. In promulgating, or making any revisions of or
amendments to, regulations governing the standards and procedures
by which the Veterans' Administration determines whether a person
was discharged or released from active military, naval, or air
service under conditions other than dishonorable, the Administrator
of Veterans' Affairs shall, in keeping with the spirit and intent
of this Act, not promulgate any such regulations or revise or amend
any such regulations for the purpose of, or having the effect of,
(1) providing any unique or special advantage to veterans awarded
general or honorable discharges under revised standards for the
review of discharges described in section 3103(e)(2)(A) (i), (ii),
or (iii) of title 38, United States Code, as added by section
1(a)(2) of this Act, or (2) otherwise making any special
distinction between such veterans and other veterans.
Section 5. This Act shall become effective on the date of its
enactment, except that -
(1) Section 2 shall become effective on October 1, 1977, or on
such enactment date, whichever is later; and
(2) The amendments made by section 1(a) shall apply
retroactively to deny benefits under laws administered by the
Veterans' Administration, except that, notwithstanding any other
provision of law.
(A) With respect to any person who, on such enactment date is
receiving benefits under laws administered by the Veterans'
Administration, (i) such benefits shall not be terminated under
paragraph (2) of section 3103(e) of title 38, United States Code,
as added by section 1(a)(2) of this Act, until, (I) the day on
which a final determination not favorable to the person concerned
is made on an expedited basis under paragraph (2) of such section
3103(e), (II) the day following the expiration of ninety days after
a preliminary determination not favorable to such person is made
under such paragraph, or (III) the day following the expiration of
one hundred and eighty days after such enactment date, whichever
day is the earliest, and (ii) the United States shall not make any
claim to recover the value of any benefits provided to such person
prior to such earliest day;
(B) With respect to any person awarded a general or honorable
discharge under revised standards for the review of discharges
referred to in clause (A) (i), (ii), or (iii) of such paragraph who
has been provided any such benefits prior to such enactment date,
the United States shall not make any claim to recover the value of
any benefits so provided; and
(C) The amendments made by clause (1) of section 1(a) shall
apply, (i) retroactively only to persons awarded general or
honorable discharges under such revised standards and to persons
who, prior to the date of enactment of this Act, had not attained
general eligibility to such benefits by virtue of (I) a change in
or new issuance of a discharge under section 1553 of title 10,
United States Code, or (II) any other provision of law, and (ii)
prospectively (on and after such enactment date) to all other
persons.