[Federal Register Volume 62, Number 60 (Friday, March 28, 1997)]
[Rules and Regulations]
[Pages 14822-14823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7835]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AI40
Upgraded Discharges
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document makes nonsubstantive changes to the Department
of Veterans Affairs (VA) adjudication regulations regarding upgraded
discharges. The intended effect of these changes is to make the
regulations simpler and easier to understand.
EFFECTIVE DATE: This amendment is effective March 28, 1997.
FOR FURTHER INFORMATION CONTACT: Laurence Freiheit, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7252.
SUPPLEMENTARY INFORMATION: 38 U.S.C. 1110 authorizes the Secretary of
Veterans Affairs to compensate veterans for disability resulting from
injury or disease incurred or aggravated during active military service
provided that the veteran was discharged or released under conditions
other than
[[Page 14823]]
dishonorable from the period of service in which the injury or disease
was incurred. 38 U.S.C. 1521(a) authorizes the Secretary to pay non-
service-connected disability pension to certain veterans who are
permanently and totally disabled from non-service-connected disability.
Regulations at 38 CFR 3.12 implement two distinct statutory
provisions governing entitlement to most benefits administered by VA.
One provision, 38 U.S.C. 101(2), defines the term ``veteran'' for
purposes of establishing entitlement to benefits as a person who served
in the active military, naval, or air service, and who was discharged
or released under conditions other than dishonorable. The other, 38
U.S.C. 5303, bars the payment of VA benefits to individuals discharged
under certain listed circumstances regardless of how they fare under
the statutory definition of veteran.
Paragraphs 3.12(g) and (h) implement provisions of Public Law 95-
126, enacted on October 8, 1977, concerning the effect of certain
discharge upgrades and discharge review programs on the definition of
veteran and the statutory bars to benefits. This document reorganizes
the material in paragraphs (g) and (h) into a format that is simpler to
read and understand. The changes are not substantive.
Since these amendments merely reorganize and simplify the current
regulation and are not substantive in nature, this change is being
promulgated without regard to notice and comment and effective date
provisions of 5 U.S.C. 553.
Because no notice of proposed rulemaking was required with the
adoption of this final rule, no regulatory flexibility analysis is
required under the Regulatory Flexibility Act, 5 U.S.C. 601-612. Even
so, the Secretary hereby certifies that these regulatory amendments
will not have a significant economic impact on a substantial number of
small entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. The reason for this certification is that these
amendments would not directly affect any small entities. Only VA
beneficiaries could be directly affected.
The Catalog of Federal Domestic Assistance program numbers are
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Veterans, Vietnam.
Approved: March 14, 1997.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. In Sec. 3.12, paragraphs (g) and (h) are revised and an
authority citation is added to paragraph (h) to read as follows:
Sec. 3.12 Character of discharge.
* * * * *
(g) An honorable or general discharge issued on or after October 8,
1977, by a discharge review board established under 10 U.S.C. 1553,
sets aside a bar to benefits imposed under paragraph (d), but not
paragraph (c), of this section provided that:
(1) The discharge is upgraded as a result of an individual case
review;
(2) The discharge is upgraded under uniform published standards and
procedures that generally apply to all persons administratively
discharged or released from active military, naval or air service under
conditions other than honorable; and
(3) Such standards are consistent with historical standards for
determining honorable service and do not contain any provision for
automatically granting or denying an upgraded discharge.
(h) Unless a discharge review board established under 10 U.S.C.
1553 determines on an individual case basis that the discharge would be
upgraded under uniform standards meeting the requirements set forth in
paragraph (g) of this section, an honorable or general discharge
awarded under one of the following programs does not remove any bar to
benefits imposed under this section:
(1) The President's directive of January 19, 1977, implementing
Presidential Proclamation 4313 of September 16, 1974; or
(2) The Department of Defense's special discharge review program
effective April 5, 1977; or
(3) Any discharge review program implemented after April 5, 1977,
that does not apply to all persons administratively discharged or
released from active military service under other than honorable
conditions.
(Authority: 38 U.S.C. 5303 (e))
* * * * *
[FR Doc. 97-7835 Filed 3-27-97; 8:45 am]
BILLING CODE 8320-01-P
