Proposed Rule2021-19413
Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge
Primary source
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Published
September 9, 2021
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is requesting information to assist in the modification of the regulatory framework for discharges considered "dishonorable" for VA benefit eligibility purposes. On July 10, 2020, VA published a proposed rule for public notice and comment. The proposed rule would modify VA regulations governing VA character of discharge determinations based on "willful and persistent misconduct," "moral turpitude," and "homosexual acts involving aggravating circumstances or other factors affecting the performance of duty." In addition, the proposed rule would create a "compelling circumstances" exception to certain regulatory bars to benefits in order to ensure fair character of discharge determinations in light of all pertinent factors. Following publication, VA received numerous public comments. Due to the various and differing comments received, VA is seeking additional information to help inform VA's development of updated character of discharge regulations. Additionally, VA is announcing a virtual listening session to further seek verbal feedback from a variety of entities as VA implements this regulation. Regardless of attendance at the virtual listening session, interested parties are invited to submit comments, including data and research.
Full Text
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<title>Federal Register, Volume 86 Issue 172 (Thursday, September 9, 2021)</title>
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[Federal Register Volume 86, Number 172 (Thursday, September 9, 2021)]
[Proposed Rules]
[Pages 50513-50515]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19413]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AQ95
Update and Clarify Regulatory Bars to Benefits Based on Character
of Discharge
AGENCY: Department of Veterans Affairs.
ACTION: Request for information; notification of listening sessions.
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SUMMARY: The Department of Veterans Affairs (VA) is requesting
information to assist in the modification of the regulatory framework
for discharges considered ``dishonorable'' for VA benefit eligibility
purposes. On July 10, 2020, VA published a proposed rule for public
notice and comment. The proposed rule would modify VA regulations
governing VA character of discharge determinations based on ``willful
and persistent misconduct,'' ``moral turpitude,'' and ``homosexual acts
involving aggravating circumstances or other factors affecting the
performance of duty.'' In addition, the proposed rule would create a
``compelling circumstances'' exception to certain regulatory bars to
benefits in order to ensure fair character of discharge determinations
in light of all pertinent factors. Following publication, VA received
numerous public comments. Due to the various and differing comments
received, VA is seeking additional information to help inform VA's
development of updated character of discharge regulations.
Additionally, VA is announcing a virtual listening session to further
seek verbal feedback from a variety of entities as VA implements this
regulation. Regardless of attendance at the virtual listening session,
interested parties are invited to submit comments, including data and
research.
DATES: Comments on this request for information must be received by VA
on or before October 12, 2021. VA will also hold the first public
virtual listening session on October 5, 2021, and the second public
virtual listening session on October 6, 2021. Each meeting will start
at 8:50 a.m. and conclude at or before 4:15 p.m. Eastern Daylight Time.
Virtual check-in will begin at 8 a.m.
ADDRESSES: Comments must be submitted through <a href="http://www.Regulations.gov">www.Regulations.gov</a> and
will be available for public viewing, inspection, or copies.
The virtual listening sessions will be held virtually as WebEx
events and will be open to the public to listen on a first come, first
served basis. Information about the meeting and registration to speak
or listen can be obtained by emailing: <a href="/cdn-cgi/l/email-protection#1d5e52594f787a746e696f7c69747273334b5f5c5e525d6b7c337a726b"><span class="__cf_email__" data-cfemail="d0939f9482b5b7b9a3a4a2b1a4b9bfbefe869291939f90a6b1feb7bfa6">[email protected]</span></a>.
Virtual attendance will be limited to the maximum allowed by WebEx.
FOR FURTHER INFORMATION CONTACT: Robert Parks, Chief, Part 3 Forms and
Regulations (211D), Department of Veterans Affairs, 810 Vermont Avenue
NW, Washington, DC 20420, 202-461-9540 (This is not a toll-free
telephone number).
SUPPLEMENTARY INFORMATION:
Background
On July 10, 2020 (85 FR 41471), VA published a proposed rule in the
Federal Register to amend 38 CFR 3.12 by updating and clarifying the
regulatory bars to benefits. Specifically, VA proposed to modify the
regulatory framework for discharges considered ``dishonorable'' for VA
benefit eligibility purposes, such as discharges due to ``willful and
persistent misconduct,'' ``an offense involving moral turpitude,'' and
``homosexual acts involving aggravating circumstances or other factors
affecting the performance of duty.'' VA also proposed to extend a
``compelling circumstances'' exception to certain regulatory bars to
benefits in order to ensure fair character of discharge determinations
in light of all pertinent factors.
VA invited interested persons to submit written comments on or
before September 8, 2020. VA received over 70 comments in response to
the proposed rule. Over 20 of those comments were from organizations
and the rest were from individual members of the public. Those
organizations included: (1) American Psychological Association, (2)
Charlotte Center for Legal Advocacy, (3) Homeless Advocacy Project, (4)
Homeless Persons Representation Project, Inc., (5) Inner City Law
Center, (6) Legal Aid Foundation of Los Angeles, (7) Lewis B. Puller
Veterans Benefits Clinic of William & Mary Law School, (8) Modern
Military Association of America, (9) National Law School Veterans
Clinic Consortium, (10) National Organization of Veterans' Advocates,
Inc., (11) National Veterans Legal Services Program, (12) New York
State Division of Veterans Services, (13) NY Legal Assistance Group,
(14) Ohio Veterans Law Task Force, (15) Public Counsel Center for
Veterans Advancement, (16) Swords to Plowshares, (17) The Jerome N.
Frank Legal Services Organization, (18) The Minority Veterans of
America (MVA), (19) The National Coalition for Homeless Veterans, (20)
The National Veterans Council for Legal Redress, (21) University of
Florida Levin College of Law Veterans and Servicemembers Legal Clinic,
(22) Veterans Advocacy Project, (23) Veterans Clinic at the University
of Missouri School of Law, (24) Veterans Healthcare Policy Institute,
(25) Veterans Legal Services, and (26) Vietnam Veterans of America.
Individual comments were also received from U.S. Senators Richard
Blumenthal, Jon Tester, and Sherrod Brown.
This additional request for information, described in more detail
below, will assist VA in gathering and taking into account diverse
viewpoints on this issue. Responses to this request for information
will be used to help inform VA's development of updated character of
discharge regulations. This request for information has a written
comment period of 30 days, during which VA invites individuals, groups,
and entities to reply to the questions presented below. VA believes
that 30 days is sufficient to provide comments, as the individuals,
groups, and entities interested in this program likely have information
and opinions readily available or can quickly compile and submit such
information. Commenters are encouraged to provide complete but concise
responses to the questions outlined below.
VA will also be holding virtual public listening sessions on
October 5, 2021, and October 6, 2021, to provide groups and entities an
opportunity to share additional information. Oral comments,
testimonies, and technical remarks are encouraged to be concise and
directed
[[Page 50514]]
toward specific Request for Information topics below. Please note that
VA will evaluate all comments (oral and written) and, as appropriate,
incorporate them into VA's next action.
Request for Information
To update its character of discharge regulations, VA seeks
information on the topics and issues listed below. Commenters do not
need to address every question and should focus on those that relate to
their expertise or perspectives. Commenters should clearly indicate
which topics and issues are being addressed in their response.
A. Compelling Circumstances
1. VA proposed to consider, as a factor in a ``compelling
circumstances'' analysis, the impact of mental impairment at the time
of the prolonged absence without leave (AWOL) or misconduct, to include
a diagnosis of (or evidence that could later be medically determined to
demonstrate the existence of) certain enumerated mental disabilities.
Some commenters felt that the list of disabilities was overinclusive;
some felt that it was underinclusive. VA seeks comment on the following
question: What conditions, symptoms, or circumstances if any, should VA
consider when determining the impact of mental impairment at the time
of the prolonged AWOL or misconduct?
2. VA proposed to consider, as a factor in a ``compelling
circumstances'' analysis, ``Sexual abuse/assault.'' Should VA employ a
different or additional term for this category, such as ``Military
Sexual Trauma (MST)''? Also, should VA include language reminding
adjudicators to look beyond service records to corroborate the account
of an in-service personal assault, as provided in 38 CFR 3.304(f)(5)?
B. Willful and Persistent Misconduct
VA noted in the proposed rulemaking that ``willful misconduct'' is
already defined in 38 CFR 3.1(n) as ``an act involving conscious
wrongdoing or known prohibited action''--i.e., the act involves
deliberate or intentional wrongdoing with knowledge of or wanton and
reckless disregard of its probable consequences. VA then proposed to
clarify what circumstances qualify as ``willful and persistent
misconduct'' in proposed 38 CFR 3.12(d)(2)(ii), with reference to
certain timelines for ``minor misconduct'' and ``more serious
misconduct''. VA seeks comments on the following questions:
1. Should VA proceed with a distinction between ``minor
misconduct'' and ``more serious misconduct'' when evaluating whether
misconduct is persistent? Should VA define what is considered ``serious
misconduct?'' Should VA only consider an action to be ``misconduct'' if
it actually caused harm to a person or property or should VA consider
all misconduct, regardless of severity, in its determination? Should VA
consider extenuating circumstances that may have led to or impacted the
``misconduct'' at issue?
2. Some commenters requested that VA clarify the number of
incidents required to constitute willful and persistent misconduct. How
many instances over what period of time should be considered
persistent? Should the totality of the circumstances be considered in
addition to the number of incidents when determining misconduct to be
willful and persistent?
C. Moral Turpitude
Some commenters expressed concern that the proposed rule's
definition of moral turpitude is too vague. VA seeks comments on the
following questions:
1. VA regulation currently does not define moral turpitude, but
states in 38 CFR 3.12(d)(3) that it includes ``generally, conviction of
a felony.'' VA's proposed rule would define moral turpitude as a
```willful act that gravely violates accepted moral standards and would
be expected to cause harm or loss to person or property.'' Should VA
revise this proposed definition, and if so, how?
D. Benefit Eligibility
VA seeks comments on the following questions regarding former
service members and the bars to VA benefits:
1. Some commenters recommended that VA only apply statutory bars to
benefits (those enumerated in 38 U.S.C. 5303(a)); others expressed
concerns about how such an approach would affect military order and
discipline. How (if at all) would removing the regulatory bars affect
military order and discipline?
2. Some commenters suggested that granting benefits to those with
less than honorable discharges denigrates others' honorable service.
How (if at all) would extending VA benefits eligibility denigrate
others' honorable service?
3. VA is committed to ensuring that its character of discharge
regulations reflect the principles of fairness, inclusion, and justice
that our Service members and our Nation deserves. What specific changes
can be made to the proposed rule for fairly adjudicating the benefits
eligibility of historically disadvantaged and vulnerable populations?
Listening Session Registration
Information about the meeting, how to listen and/or register to
speak can be obtained by emailing: <a href="/cdn-cgi/l/email-protection#296a666d7b4c4e405a5d5b485d404647077f6b686a66695f48074e465f"><span class="__cf_email__" data-cfemail="4b08040f192e2c22383f392a3f222425651d090a08040b3d2a652c243d">[email protected]</span></a>.
Individual registration: VA encourages individual registrations for
those wishing to speak who are not affiliated with or representing a
group, association, or organization.
Group registration: Identification of the name of the group,
association, or organization should be indicated in your registration
request. Due to virtual platform meeting limitations of WebEx, and the
statutory mandate that VA consult with certain entities, VA may select
certain entities to speak or may limit the size of a group's
registration to allow receipt of testimonies, and/or technical remarks
from a broad, diverse group of stakeholders. Oral comments,
testimonies, and/or technical remarks may be limited from a group,
association, or organization with more than two individuals
representing the same group, association, or organization. Efforts will
be made to accommodate all attendees who wish to participate. The
length of time allotted for participants to provide oral comments,
testimonies, and/or technical remarks during the meeting will be no
more than ten minutes, and is subject to the total number of
participants speaking, to ensure time is allotted to selected
registered speakers. Breaks between speakers will be ten minutes. There
will be no opportunity for audio-visual presentations during the
meeting.
Audio (For listening purposes only): Virtual attendance will be
limited to the maximum allowed by WebEx on a first come, first served
basis. Advanced registration is not required. Audio attendees will not
be allowed to offer oral comments, testimonies, and/or technical
remarks as the phone line will be muted.
Note: Should it be necessary to cancel the meeting due to technical
issues or other emergencies, VA will take available measures to notify
registered participants. VA will conduct the public meeting informally,
and technical rules of evidence will not apply. VA will arrange for a
written transcript of the meeting and keep the official record open
until the closure of the Request For Information comment period to
allow submission of supplemental information. The transcript will be
posted in the docket of the rule as part of the official record when
the rule is published.
[[Page 50515]]
Each listening session will focus on the Request for Information
topics described in this notice and will be scheduled according to the
following Agendas:
Listening Session 1
Virtual Public Listening Sessions 1 (October 5, 2021)
Agenda
08:00-08:50 Arrival/Check-In
09:00-12:00 Morning Public Meeting Session
12:00-13:00 Break
13:00-16:10 Afternoon Public Meeting Session
16:15 Adjourn
Listening Session 2
Virtual Public Listening Sessions 2 (October 6, 2021)
Agenda
08:00-08:50 Arrival/Check-In
08:50-12:00 Morning Public Meeting Session
12:00-13:00 Break
13:00-16:10 Afternoon Public Meeting Session
16:15 Adjourn
Paperwork Reduction Act
This request for information constitutes a general solicitation of
public comments as stated in the implementing regulations of the
Paperwork Reduction Act of 1995 at 5 CFR 1320.3(h)(4). Therefore, this
request for information does not impose information collection
requirements (i.e., reporting, recordkeeping, or third-party disclosure
requirements). Consequently, there is no need for review by the Office
of Management and Budget under the authority of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501, et seq.).
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on July 7, 2021, and authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
[FR Doc. 2021-19413 Filed 9-8-21; 8:45 am]
BILLING CODE 8320-01-P
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