In a publication of the Penn State Law Review, Dana Montalto of the Legal Services Center of Harvard Law School, along with colleague Bradford Adams of Swords to Plowshares, provides a legal history and analysis of how the Department of Veterans Affairs (VA) determines who is eligible for basic health care and support services – and who should be excluded. Although the 1944 GI Bill of Rights makes clear that only those veterans who “engaged in severe or repeated misconduct without explanation” should be barred from receiving benefits, Montalto and Adams argue that the VA incorrectly interprets the law, thereby unfairly preventing hundreds of thousands of former service members from receiving needed benefits.
Since World War II, the VA has been required to provide veterans’ benefits to all service members who left under conditions classified as “other than dishonorable,” so that only those who received or should have received a “dishonorable discharge” should be barred. Service members who engaged in less severe misconduct, who were experiencing mental illness, or who suffered from other hardships should still be eligible for benefits. Montalto explains that the VA has improperly implemented Congress’s statutory standard, excluding former service members for minor disciplinary problems during service and failing to consider extenuating or mitigating circumstances.
Montalto and Adams propose that the VA adopt a more holistic approach when determining whether a veteran is eligible for benefits. Some changes to the VA’s eligibility review procedure could include starting with a presumption of eligibility instead of ineligibility for former service members, including a consideration of positive or mitigating factors in each eligibility case, and providing access to basic healthcare while eligibility reviews are pending.
For more information regarding the Veterans Legal Clinic’s advocacy on behalf of veterans with bad paper discharges, read the following publications: