This week I’m sharing a blog from the office of Dave Zumpano, who focuses in Medicaid planning. I’ll be sharing blogs from the office of Dave Zumpano monthly in this space.

Now, here’s the blog from Dave’s office:

When planning for a VA client, practitioners often spend the bulk of their time considering the claimant’s eligibility in terms of their net worth and income. And these are very important things to consider for VA non-service-connected disability pensions, particularly because the bulk of your clients are probably not initially financially eligible. Before you dive headlong into the numbers, though, remember that there are other requirements for eligibility that have nothing to do with money or finances.

In order to determine whether a veteran is entitled to a non-service-connected disability pension, you must consider his or her military service in terms of the wartime period, the minimum active-duty service requirement and the character of the military discharge. The requirements in these three areas in a nutshell are listed below.

The veteran must have:

• Served at least ONE DAY during a wartime period;
• Served 90 days on active duty (not training);
• Received a discharge other than dishonorable.

Wartime periods are defined by Congress, and most of the veterans you encounter will probably have served during World War II, or the Korean or Vietnam wartime periods.

World War II – December 7, 1941 thru December 31, 1946

Korean Conflict – June 27, 1950 thru January 31, 1955

Vietnam Era – February 28, 1961 thru May 7, 1975 (if in the Republic of Vietnam) August 5,

1964 thru May 7, 1975 (if serving anywhere)

The minimum active-duty service requirement is that the veteran must have served 90 days on active duty. What does active duty mean? It is defined in 38 U.S. Code §101(21) as full-time duty in the Armed Forces; as a commissioned officer of the Regular or Reserve Corps of the Public Health Service; as a commissioned officer of the National Oceanic and Atmospheric Administration; service as a military cadet; and authorized travel to or from such duty or service. The Armed Forces includes the five branches: Army, Navy, Marine Corps, Air Force, and Coast Guard, as well as the Reserve in these branches. There are other categories of military service that I have not included here because they are not conventional and thus not as commonly encountered. For example, certain service in the military of the Philippines, the Women’s Army Auxiliary Corps and the American Merchant Marine during WWII qualifies, as well as the work by certain civilians on Wake Island during the same period. Active duty does not mean any service related to training, such as active duty training or inactive duty training, neither one of which entitles a veteran to non-service-connected disability pension, no matter how much time is served.

Although there is a minimum active-duty service requirement that the veteran must have served 90 days on active duty, there is no minimum length of service required beyond that for veterans with active service prior to September 8, 1980. Therefore, for most of your clients who are veterans of earlier wartime periods, this will not be an issue as long as they served at least those 90 days. For those veterans with active service after September 8, 1980, the minimum service requirement for benefits such as health care and non-service-connected disability pension (with some exceptions) is 24 months or the full period for which a person was called or ordered to active duty, whichever is shorter.

The requirement for the character of the military discharge is that the veteran received a discharge other than dishonorable. The VA will consider a discharge as “under conditions other than dishonorable” if there are no statutory or regulatory bars to VA benefits in that particular circumstance. Statutory bars include when someone is discharged or released as a conscientious objector, because of a general court-martial, as a deserter, or as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. For example, if it is found that the person was insane at the time of committing the offense that caused such a discharge or release, then the discharge would not be considered a statutory bar. Another exception is for AWOL cases: If there are compelling circumstances to justify the absence without official leave, this may not constitute a statutory bar to benefits.

Regulatory bars include a discharge or release because of criminal offenses such as mutiny, treason, espionage or sabotage, but also for offenses involving moral turpitude, willful and persistent misconduct, or for homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. It should be noted that the VA has proposed revising the last regulatory bar to change “homosexual acts” to “sexual acts.” Again, these regulatory bars may not apply if insanity can be shown to have been a factor when the offense was committed.

Things can become complicated when a veteran has multiple periods of active duty service and the character of the discharges varies. In general, if a veteran has a discharge that is other than dishonorable for a particular period of service, he/she might still be entitled to benefits on the basis of that term of service despite any later disqualifying discharges for subsequent service periods. However, serious offenses may forever bar a veteran from entitlement to VA benefits regardless of any honorable discharges for prior service periods.

For all the specifics regarding wartime periods, active duty service requirements and military discharge, go right to the source at 38 United States Code Part I – GENERAL PROVISIONS §§101 – 109 and 38 Code of Federal Regulations (CFR) §§3.1 – 3.17, 3.40 – 3.41, 3.50 – 3.60.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
www.aaepa.com