38 U.S.C. § 106 — Certain service deemed to be active service

Page 34 TITLE 38—VETERANS’ BENEFITS § 105 1986—Subsec. (b). Pub. L. 99–576 substituted ‘‘report to the Administrator’’ for ‘‘report to him’’. 1969—Subsec. (a). Pub. L. 91–24 substituted ‘‘the age of twenty-three years’’ for ‘‘the age of twenty-one years’’. § 105. Line of duty and misconduct (a) An injury or disease incurred during active military, naval, air, or space service will be deemed to have been incurred in line of duty and not the result of the veteran’s own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, air, or space service, whether on active duty or on authorized leave, unless such injury or dis- ease was a result of the person’s own willful mis- conduct or abuse of alcohol or drugs. Venereal disease shall not be presumed to be due to will- ful misconduct if the person in service complies with the regulations of the appropriate service department requiring the person to report and receive treatment for such disease. (b) The requirement for line of duty will not be met if it appears that at the time the injury was suffered or disease contracted the person on whose account benefits are claimed (1) was avoiding duty by deserting the service or by ab- senting himself or herself without leave materi- ally interfering with the performance of mili- tary duties; (2) was confined under sentence of court-martial involving an unremitted dishonor- able discharge; or (3) was confined under sen- tence of a civil court for a felony (as determined under the laws of the jurisdiction where the per- son was convicted by such court). (c) For the purposes of any provision relating to the extension of a delimiting period under any education-benefit or rehabilitation program administered by the Secretary, the disabling ef- fects of chronic alcoholism shall not be consid- ered to be the result of willful misconduct. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1110; Pub. L. 99–576, title VII, § 701(4), Oct. 28, 1986, 100 Stat. 3290; Pub. L. 100–689, title I, § 109, Nov. 18, 1988, 102 Stat. 4170; Pub. L. 101–508, title VIII, § 8052(a)(1), Nov. 5, 1990, 104 Stat. 1388–351; Pub. L. 102–83, § 4(a)(1), Aug. 6, 1991, 105 Stat. 403; Pub. L. 116–283, div. A, title IX, § 926(a)(2), Jan. 1, 2021, 134 Stat. 3829.) Editorial Notes AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283 substituted ‘‘air, or space service’’ for ‘‘or air service’’ in two places. 1991—Subsec. (c). Pub. L. 102–83 substituted ‘‘adminis- tered by the Secretary’’ for ‘‘administered by the Vet- erans’ Administration’’. 1990—Subsec. (a). Pub. L. 101–508 substituted ‘‘a result of the person’s own willful misconduct or abuse of alco- hol or drugs’’ for ‘‘the result of the person’s own willful misconduct’’. 1988—Subsec. (c). Pub. L. 100–689 added subsec. (c). 1986—Subsec. (a). Pub. L. 99–576, § 701(4)(A), sub- stituted ‘‘result of the person’s’’ for ‘‘result of his’’ and ‘‘requiring the person’’ for ‘‘requiring him’’. Subsec. (b)(1). Pub. L. 99–576, § 701(4)(B), substituted ‘‘service or by absenting himself or herself’’ for ‘‘serv- ice, or by absenting himself’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–508, title VIII, § 8052(b), Nov. 5, 1990, 104 Stat. 1388–351, provided that: ‘‘The amendments made by subsection (a) [amending this section and sections 310 and 331 [now 1110 and 1131] of this title] shall take effect with respect to claims filed after October 31, 1990.’’ § 106. Certain service deemed to be active service (a)(1) Service as a member of the Women’s Army Auxiliary Corps for ninety days or more by any woman who before October 1, 1943, was honorably discharged for disability incurred or aggravated in line of duty which rendered her physically unfit to perform further service in the Women’s Army Auxiliary Corps or the Wom- en’s Army Corps shall be considered active duty for the purposes of all laws administered by the Secretary. (2) Any person entitled to compensation or pension by reason of this subsection and to em- ployees’ compensation based upon the same service under subchapter I of chapter 81 of title 5 must elect which benefit she will receive. (b) Any person— (1) who has applied for enlistment or enroll- ment in the active military, naval, air, or space service and has been provisionally ac- cepted and directed or ordered to report to a place for final acceptance into such service; or (2) who has been selected or drafted for serv- ice in the Armed Forces and has reported pur- suant to the call of the person’s local draft board and before rejection; or (3) who has been called into the Federal service as a member of the National Guard, but has not been enrolled for the Federal serv- ice; and who has suffered an injury or contracted a dis- ease in line of duty while en route to or from, or at, a place for final acceptance or entry upon ac- tive duty, will, for the purposes of chapters 11, 13, 19, 21, 31, and 39 of this title, and for purposes of determining service-connection of a disability under chapter 17 of this title, be considered to have been on active duty and to have incurred such disability in the active military, naval, air, or space service. (c) For the purposes of this title, an individual discharged or released from a period of active duty shall be deemed to have continued on ac- tive duty during the period of time immediately following the date of such discharge or release from such duty determined by the Secretary concerned to have been required for that indi- vidual to proceed to that individual’s home by the most direct route, and in any event that in- dividual shall be deemed to have continued on active duty until midnight of the date of such discharge or release. (d)(1) For the purposes of this title, any indi- vidual— (A) who, when authorized or required by competent authority, assumes an obligation to perform active duty for training or inactive duty training; and (B) who is disabled or dies from an injury or covered disease incurred while proceeding di- rectly to or returning directly from such ac- tive duty for training or inactive duty train- ing, as the case may be; shall be deemed to have been on active duty for training or inactive duty training, as the case Page 35 TITLE 38—VETERANS’ BENEFITS § 106 may be, at the time such injury or covered dis- ease was incurred. (2) In determining whether or not such indi- vidual was so authorized or required to perform such duty, and whether or not such individual was disabled or died from injury or covered dis- ease so incurred, the Secretary shall take into account the hour on which such individual began so to proceed or to return; the hour on which such individual was scheduled to arrive for, or on which such individual ceased to per- form, such duty; the method of travel employed; the itinerary; the manner in which the travel was performed; and the immediate cause of dis- ability or death. (3) Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this subsection, the burden of proof shall be on the claimant. (4) For purposes of this subsection, the term ‘‘covered disease’’ means any of the following: (A) Acute myocardial infarction. (B) A cardiac arrest. (C) A cerebrovascular accident. (e) Each person who has incurred a disability as a result of an injury or disease described in subsection (b) shall be entitled to the same rights, privileges, and benefits under title 5 as a preference eligible described in section 2108(3)(C) of title 5. (f) Service as a member of the Alaska Terri- torial Guard during World War II of any indi- vidual who was honorably discharged therefrom under section 8147 of the Department of Defense Appropriations Act, 2001, shall be considered ac- tive duty for purposes of all laws administered by the Secretary. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1110; Pub. L. 87–102, § 1, July 21, 1961, 75 Stat. 219; Pub. L. 88–616, Oct. 2, 1964, 78 Stat. 994; Pub. L. 89–311, § 5, Oct. 31, 1965, 79 Stat. 1156; Pub. L. 97–295, § 4(3), Oct. 12, 1982, 96 Stat. 1305; Pub. L. 99–576, title VII, § 701(5), Oct. 28, 1986, 100 Stat. 3291; Pub. L. 102–83, § 4(a)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 106–259, title VIII, § 8147(a), Aug. 9, 2000, 114 Stat. 705; Pub. L. 106–419, title III, § 301(b), Nov. 1, 2000, 114 Stat. 1852; Pub. L. 116–283, div. A, title IX, § 926(a)(3), Jan. 1, 2021, 134 Stat. 3829.) Editorial Notes REFERENCES IN TEXT Section 8147 of the Department of Defense Appropria- tions Act, 2001, referred to in subsec. (f), is section 8147 of Pub. L. 106–259, which amended this section and en- acted provisions set out as a note below. AMENDMENTS 2021—Subsec. (b). Pub. L. 116–283 substituted ‘‘air, or space service’’ for ‘‘or air service’’ in par. (1) and con- cluding provisions. 2000—Subsec. (d). Pub. L. 106–419 designated first sen- tence as par. (1), redesignated former pars. (1) and (2) as subpars. (A) and (B), respectively, of par. (1), and in- serted ‘‘or covered disease’’ after ‘‘injury’’ in subpar. (B) and in concluding provisions, designated second sentence as par. (2) and inserted ‘‘or covered disease’’ after ‘‘injury’’, designated third sentence as par. (3), and added par. (4). Subsec. (f). Pub. L. 106–259 added subsec. (f). 1991—Subsec. (a)(1). Pub. L. 102–83, § 4(a)(1), sub- stituted ‘‘administered by the Secretary’’ for ‘‘adminis- tered by the Veterans’ Administration’’. Subsec. (d). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted ‘‘Secretary’’ for ‘‘Administrator’’ in concluding provi- sions. 1986—Subsec. (b)(2). Pub. L. 99–576, § 701(5)(A), sub- stituted ‘‘the person’s’’ for ‘‘his’’. Subsec. (c). Pub. L. 99–576, § 701(5)(B), substituted ‘‘re- quired for that individual’’ for ‘‘required for him’’, ‘‘proceed to that individual’s home’’ for ‘‘proceed to his home’’, and ‘‘in any event that individual’’ for ‘‘in any event he’’. Subsec. (d). Pub. L. 99–576, § 701(5)(C), struck out ‘‘by him’’ after ‘‘injury incurred’’ in cl. (2), and in closing provisions, substituted ‘‘such individual was disabled’’ for ‘‘he was disabled’’, ‘‘on which such individual began’’ for ‘‘on which he began’’, ‘‘such individual was scheduled’’ for ‘‘he was scheduled’’, ‘‘such individual ceased’’ for ‘‘he ceased’’, and ‘‘the itinerary’’ for ‘‘his itinerary’’. 1982—Subsec. (a)(2). Pub. L. 97–295, § 4(3)(A), sub- stituted ‘‘subchapter I of chapter 81 of title 5’’ for ‘‘the Federal Employees’ Compensation Act’’. Subsec. (e). Pub. L. 97–295, § 4(3)(B), substituted ‘‘title 5 as a preference eligible described in section 2108(3)(C) of title 5’’ for ‘‘the Act of June 27, 1944, (58 Stat. 387–391), as a person described in section 2(1) of such Act’’. 1965—Subsec. (e). Pub. L. 89–311 added subsec. (e). 1964—Subsec. (d)(2). Pub. L. 88–616 struck out ‘‘after December 31, 1956,’’ after ‘‘injury incurred’’. 1961—Subsec. (c). Pub. L. 87–102 extended provisions for benefits based on limited periods immediately fol- lowing discharge from active duty after December 31, 1956 to veterans discharged before such date. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1961 AMENDMENT Pub. L. 87–102, § 2, July 21, 1961, 75 Stat. 219, provided that: ‘‘No monetary benefits shall accrue by reason of the amendments made by this Act [amending this sec- tion] for any period prior to the date of enactment [July 21, 1961].’’ SERVICE IN ALASKA TERRITORIAL GUARD Pub. L. 106–259, title VIII, § 8147(b), (c), Aug. 9, 2000, 114 Stat. 705, provided that: ‘‘(b) DISCHARGE.—(1) The Secretary of Defense shall issue to each individual who served as a member of the Alaska Territorial Guard during World War II a dis- charge from such service under honorable conditions if the Secretary determines that the nature and duration of the service of the individual so warrants. ‘‘(2) A discharge under paragraph (1) shall designate the date of discharge. The date of discharge shall be the date, as determined by the Secretary, of the termi- nation of service of the individual concerned as de- scribed in that paragraph. ‘‘(c) PROHIBITION ON RETROACTIVE BENEFITS.—No ben- efits shall be paid to any individual for any period be- fore the date of the enactment of this Act [Aug. 9, 2000] by reason of the enactment of this section [amending this section and enacting this note].’’ WOMEN’S AIR FORCES SERVICE PILOTS Pub. L. 95–202, title IV, § 401, Nov. 23, 1977, 91 Stat. 1449, as amended by Pub. L. 96–466, title VIII, § 801(m)(3), Oct. 17, 1980, 94 Stat. 2217; Pub. L. 98–94, title XII, § 1263(a), Sept. 24, 1983, 97 Stat. 703; Pub. L. 102–83, § 6(b), Aug. 6, 1991, 105 Stat. 407, provided that: ‘‘(a)(1) Notwithstanding any other provision of law, the service of any person as a member of the Women’s Air Forces Service Pilots (a group of Federal civilian employees attached to the United States Army Air Force during World War II), or the service of any per- son in any other similarly situated group the members of which rendered service to the Armed Forces of the United States in a capacity considered civilian employ- ment or contractual service at the time such service was rendered, shall be considered active duty for the Page 36 TITLE 38—VETERANS’ BENEFITS § 107 purposes of all laws administered by the Secretary of Veterans Affairs if the Secretary of Defense, pursuant to regulations which the Secretary shall prescribe— ‘‘(A) after a full review of the historical records and all other available evidence pertaining to the service of any such group, determines, on the basis of judicial and other appropriate precedent, that the service of such group constituted active military service, and ‘‘(B) in the case of any such group with respect to which such Secretary has made an affirmative deter- mination that the service of such group constituted active military service, issues to each member of such group a discharge from such service under hon- orable conditions where the nature and duration of the service of such member so warrants. Discharges issued pursuant to the provisions of the first sentence of this paragraph shall designate as the date of discharge that date, as determined by the Sec- retary of Defense, on which such service by the person concerned was terminated. ‘‘(2) In making a determination under clause (A) of paragraph (1) of this subsection with respect to any group described in such paragraph, the Secretary of De- fense may take into consideration the extent to which— ‘‘(A) such group received military training and ac- quired a military capability or the service performed by such group was critical to the success of a mili- tary mission, ‘‘(B) the members of such group were subject to military justice, discipline, and control, ‘‘(C) the members of such group were permitted to resign, ‘‘(D) the members of such group were susceptible to assignment for duty in a combat zone, and ‘‘(E) the members of such group had reasonable ex- pectations that their service would be considered to be active military service. ‘‘(b)(1) No benefits shall be paid to any person for any period prior to the date of enactment of this title [Nov. 23, 1977] as a result of the enactment of subsection (a) of this section. ‘‘(2) The provisions of section 106(a)(2) of title 38, United States Code, relating to election of benefits, shall be applicable to persons made eligible for bene- fits, under laws administered by the Secretary of Vet- erans Affairs, as a result of implementation of the pro- visions of subsection (a) of this section. ‘‘(c) Under regulations prescribed by the Secretary of Defense, any person who is issued a discharge under honorable conditions pursuant to the implementation of subsection (a) of this section may be awarded any campaign or service medal warranted by such person’s service.’’ [Section 1263(b) of Pub. L. 98–94 provided that: ‘‘The amendment made by subsection (a) [enacting subsec. (c) set out above] shall apply to all persons issued dis- charges under honorable conditions pursuant to section 401 of the GI Bill Improvements Act of 1977 [Pub. L. 95–202, set out above] whether such discharges are awarded before, on, or after the date of the enactment of this Act [Sept. 24, 1983].’’] [Amendment of subsec. (a)(1)(B), set out above, by Pub. L. 96–466, effective Oct. 1, 1980, see section 802(h) of Pub. L. 96–466, set out as an Effective Date of 1980 Amendment note under section 3452 of this title.] § 107. Certain service deemed not to be active service (a) Service before July 1, 1946, in the organized military forces of the Government of the Com- monwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other com- petent authority in the Army of the United States, shall not be deemed to have been active military, naval, or air service for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the Armed Forces, except benefits under— (1) contracts of National Service Life Insur- ance entered into before February 18, 1946; (2) chapter 10 of title 37; and (3) chapters 11, 13 (except section 1312(a)), 23, and 24 (to the extent provided for in section 2402(a)(8)) of this title. Except as provided in subsection (c) or (d), pay- ments under such chapters shall be made at a rate of $0.50 for each dollar authorized, and where annual income is a factor in entitlement to benefits, the dollar limitations in the law specifying such annual income shall apply at a rate of $0.50 for each dollar. Any payments made before February 18, 1946, to any such member under such laws conferring rights, benefits, or privileges shall not be deemed to have been in- valid by reason of the circumstance that such member’s service was not service in the Armed Forces or any component thereof within the meaning of any such law. (b) Service in the Philippine Scouts under sec- tion 14 of the Armed Forces Voluntary Recruit- ment Act of 1945 shall not be deemed to have been active military, naval, or air service for the purposes of any of the laws administered by the Secretary except— (1) with respect to contracts of National Service Life Insurance entered into (A) before May 27, 1946, (B) under section 620 or 621 of the National Service Life Insurance Act of 1940, or (C) under section 1922 of this title; and (2) chapters 11, 13 (except section 1312(a)), 23, and 24 (to the extent provided for in section 2402(a)(8)) of this title. Except as provided in subsection (c) or (d), pay- ments under such chapters shall be made at a rate of $0.50 for each dollar authorized, and where annual income is a factor in entitlement to benefits, the dollar limitations in the law specifying such annual income shall apply at a rate of $0.50 for each dollar. (c) In the case of benefits under subchapters II and IV of chapter 11 of this title and subchapter II of chapter 13 (except section 1312(a)) of this title paid by reason of service described in sub- section (a) or (b) to an individual residing in the United States who is a citizen of, or an alien lawfully admitted for permanent residence in, the United States, the second sentence of the applicable subsection shall not apply. (d)(1) With respect to benefits under chapter 23 of this title, in the case of an individual de- scribed in paragraph (2), the second sentence of subsection (a) or (b), as otherwise applicable, shall not apply. (2) Paragraph (1) applies to any individual whose service is described in subsection (a) and who dies after November 1, 2000, or whose service is described in subsection (b) and who dies after the date of the enactment of the Veterans Bene- fits Act of 2003, if the individual, on the individ- ual’s date of death—