38 U.S.C. § 5303 — Certain bars to benefits

Page 1056 TITLE 38—VETERANS’ BENEFITS § 5302B Subsec. (b). Pub. L. 114–58, § 601(21)(B), struck out ‘‘(as that term is defined in section 1712A(a)(2)(B) of this title)’’ after ‘‘hostilities’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 110–252, title I, § 1303(c), June 30, 2008, 122 Stat. 2328, provided that: ‘‘The amendments made by this section [enacting this section] shall take effect on the date of the enactment of this Act [June 30, 2008], and shall apply with respect to collections of indebtedness of members of the Armed Forces and veterans who die on or after September 11, 2001.’’ EQUITABLE REFUND Pub. L. 110–389, title VIII, § 801(b), Oct. 10, 2008, 122 Stat. 4185, provided that: ‘‘The Secretary of Veterans Affairs may refund to the estate of such person any amount collected by the Secretary (whether before, on, or after the date of the enactment of this Act [Oct. 10, 2008]) from a person who died while serving on active duty as a member of the Armed Forces if the Secretary determines that, under the circumstances applicable with respect to the deceased person, it is appropriate to do so.’’ Pub. L. 110–252, title I, § 1303(b), June 30, 2008, 122 Stat. 2327, provided that: ‘‘In any case where all or any part of an indebtedness of a covered individual, as described in section 5302A(a) of title 38, United States Code, as added by subsection (a)(1), was collected after Sep- tember 11, 2001, and before the date of the enactment of this Act [June 30, 2008], and the Secretary of Veterans Affairs determines that such indebtedness would have been terminated had such section been in effect at such time, the Secretary may refund the amount so col- lected if the Secretary determines that the individual is equitably entitled to such refund.’’ § 5302B. Prohibition of debt arising from over- payment due to delay in processing (a) LIMITATION.—(1) Except as provided in paragraph (2), no individual may incur a debt to the United States that— (A) arises from the participation of the indi- vidual in a program or benefit administered by the Under Secretary for Benefits; and (B) is attributable to the failure of an em- ployee or official of the Department to process information provided by or on behalf of that individual within applicable timeliness stand- ards established by the Secretary. (2) Nothing in this section shall be construed to affect the penal and forfeiture provisions for fiduciaries set forth in chapter 61 of this title. (b) NOTICE.—(1) If the Secretary determines that the Secretary has made an overpayment to an individual, the Secretary shall provide notice to the individual of the overpayment. (2) Notice under paragraph (1) shall include a detailed explanation of the right of the indi- vidual— (A) to dispute the overpayment, including a detailed explanation of the process by which to dispute the overpayment; or (B) to request a waiver of indebtedness. (c) DELAY ON COLLECTION.—(1) Subject to para- graph (2), the Secretary may not take any ac- tion under section 3711 of title 31 regarding an overpayment described in a notice under sub- section (b) of this section until the date that is 90 days after the date the Secretary issues such notice. (2) The Secretary may take action under sec- tion 3711 of title 31 regarding an overpayment described in a notice under subsection (b) of this section before the date that is 90 days after the date the Secretary issues such notice if the Sec- retary determines that delaying such action is— (A) likely to make repayment of such over- payment more difficult for an individual; (B) likely to cause an unpaid debt to be re- ferred to the Treasury Offset Program; or (C) not in the best interest of the individual. (Added Pub. L. 117–328, div. U, title II, § 252(a)(1), Dec. 29, 2022, 136 Stat. 5462.) Statutory Notes and Related Subsidiaries REGULATIONS Pub. L. 117–328, div. U, title II, § 252(a)(3), Dec. 29, 2022, 136 Stat. 5463, provided that: ‘‘The Secretary of Vet- erans Affairs shall prescribe regulations to establish standards under section 5302B(a)(2) of such title, as added by subsection (a), not later than 180 days after the date of the enactment of this Act [Dec. 29, 2022].’’ § 5303. Certain bars to benefits (a) The discharge or dismissal by reason of the sentence of a general court-martial of any per- son from the Armed Forces, or the discharge of any such person on the ground that such person was a conscientious objector who refused to per- form military duty or refused to wear the uni- form or otherwise to comply with lawful orders of competent military authority, or as a de- serter, or on the basis of an absence without au- thority from active duty for a continuous period of at least one hundred and eighty days if such person was discharged under conditions other than honorable unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence, or of an officer by the acceptance of such officer’s resignation for the good of the service, or (except as pro- vided in subsection (c)) the discharge of any in- dividual during a period of hostilities as an alien, shall bar all rights of such person under laws administered by the Secretary based upon the period of service from which discharged or dismissed, notwithstanding any action subse- quent to the date of such discharge by a board established pursuant to section 1553 of title 10. (b) Notwithstanding subsection (a), if it is es- tablished to the satisfaction of the Secretary that, at the time of the commission of an of- fense leading to a person’s court-martial, dis- charge, or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such per- son was separated. (c) Subsection (a) shall not apply to any alien whose service was honest and faithful, and who was not discharged on the individual’s own ap- plication or solicitation as an alien. No indi- vidual shall be considered as having been dis- charged on the individual’s own application or solicitation as an alien in the absence of affirm- ative evidence establishing that the individual was so discharged. (d) This section shall not apply to the fol- lowing: Page 1057 TITLE 38—VETERANS’ BENEFITS § 5303 (1) Any war-risk insurance, Government (converted) or National Service Life Insurance policy. (2) Benefits under section 2011, 2012, 2013, 2044, or 2061 of this title (except for benefits for individuals discharged or dismissed from the Armed Forces by reason of the sentence of a general court-martial). (e)(1) Notwithstanding any other provision of law, (A) no benefits under laws administered by the Secretary shall be provided, as a result of a change in or new issuance of a discharge under section 1553 of title 10, except upon a case-by- case review by the board of review concerned, subject to review by the Secretary concerned, under such section, of all the evidence and fac- tors in each case under published uniform stand- ards (which shall be historically consistent with criteria for determining honorable service and shall not include any criterion for automati- cally granting or denying such change or issuance) and procedures generally applicable to all persons administratively discharged or re- leased from active military, naval, air, or space service under other than honorable conditions; and (B) any such person shall be afforded an op- portunity to apply for such review under such section 1553 for a period of time terminating not less than one year after the date on which such uniform standards and procedures are promul- gated and published. (2) Notwithstanding any other provision of law— (A) no person discharged or released from ac- tive military, naval, air, or space service under other than honorable conditions who has been awarded a general or honorable dis- charge under revised standards for the review of discharges, (i) as implemented by the Presi- dent’s directive of January 19, 1977, initiating further action with respect to the President’s Proclamation 4313 of September 16, 1974, (ii) as implemented on or after April 5, 1977, under the Department of Defense’s special discharge review program, or (iii) as implemented subse- quent to April 5, 1977, and not made applicable to all persons administratively discharged or released from active military, naval, air, or space service under other than honorable con- ditions, shall be entitled to benefits under laws administered by the Secretary except upon a determination, based on a case-by-case review, under standards (meeting the require- ments of paragraph (1) of this subsection) ap- plied by the board of review concerned under section 1553 of title 10, subject to review by the Secretary concerned, that such person would be awarded an upgraded discharge under such standards; and (B) such determination shall be made by such board (i) on an expedited basis after noti- fication by the Department to the Secretary concerned that such person has received, is in receipt of, or has applied for such benefits or after a written request is made by such person or such determination, (ii) on its own initia- tive before October 9, 1978, in any case where a general or honorable discharge has been awarded before October 9, 1977, under revised standards referred to in clause (A)(i), (ii), or (iii) of this paragraph, or (iii) on its own ini- tiative at the time a general or honorable dis- charge is so awarded in any case where a gen- eral or honorable discharge is awarded after October 8, 1977. If such board makes a preliminary determina- tion that such person would not have been awarded an upgraded discharge under standards meeting the requirements of paragraph (1) of this subsection, such person shall be entitled to an appearance before the board, as provided for in section 1553(c) of title 10, prior to a final de- termination on such question and shall be given written notice by the board of such preliminary determination and of the right to such appear- ance. The Secretary shall, as soon as adminis- tratively feasible, notify the appropriate board of review of the receipt of benefits under laws administered by the Secretary, or of the applica- tion for such benefits, by any person awarded an upgraded discharge under revised standards re- ferred to in clause (A)(i), (ii), or (iii) of this paragraph with respect to whom a favorable de- termination has not been made under this para- graph. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1230, § 3103; Pub. L. 86–113, July 28, 1959, 73 Stat. 262; Pub. L. 95–126, § 1(a), Oct. 8, 1977, 91 Stat. 1106; Pub. L. 97–295, § 4(75), Oct. 12, 1982, 96 Stat. 1310; Pub. L. 99–576, title VII, § 701(70), Oct. 28, 1986, 100 Stat. 3296; renumbered § 5303, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 114–315, title VII, § 702, Dec. 16, 2016, 130 Stat. 1585; Pub. L. 116–283, div. A, title IX, § 926(a)(55), Jan. 1, 2021, 134 Stat. 3830.) Editorial Notes REFERENCES IN TEXT President’s Proclamation 4313 of September 16, 1974, referred to in subsec. (e)(2)(A), is set out as a note under section 3811 of Title 50, War and National De- fense. AMENDMENTS 2021—Subsec. (e). Pub. L. 116–283 substituted ‘‘air, or space service’’ for ‘‘or air service’’ wherever appearing. 2016—Subsec. (d). Pub. L. 114–315 substituted ‘‘not apply to the following:’’ and pars. (1) and (2) for ‘‘not apply to any war-risk insurance, Government (con- verted) or National Service Life Insurance policy.’’ 1991—Pub. L. 102–40 renumbered section 3103 of this title as this section. Subsecs. (a), (b). Pub. L. 102–83, § 4(b)(1), (2)(E), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’. Pub. L. 102–83, § 4(a)(1), substituted ‘‘administered by the Secretary’’ for ‘‘administered by the Veterans’ Ad- ministration’’. Subsec. (e)(1). Pub. L. 102–83, § 4(a)(1), substituted ‘‘ad- ministered by the Secretary’’ for ‘‘administered by the Veterans’ Administration’’. Subsec. (e)(2). Pub. L. 102–83, § 4(b)(1), (2)(E), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’ in last sen- tence. Pub. L. 102–83, § 4(a)(3), (4), substituted ‘‘Department’’ for ‘‘Veterans’ Administration’’ in subpar. (B). Pub. L. 102–83, § 4(a)(1), substituted ‘‘administered by the Secretary’’ for ‘‘administered by the Veterans’ Ad- ministration’’ in subpar. (A) and last sentence. 1986—Subsec. (a). Pub. L. 99–576, § 701(70)(A), sub- stituted ‘‘such person’’ for ‘‘he’’ after ‘‘on the ground that’’ and ‘‘such officer’s’’ for ‘‘his’’ before ‘‘resigna- tion’’. Page 1058 TITLE 38—VETERANS’ BENEFITS § 5303 Subsec. (b). Pub. L. 99–576, § 701(70)(B), substituted ‘‘a person’s’’ for ‘‘his’’, ‘‘that person’’ for ‘‘any person’’, and ‘‘such person’’ for ‘‘he’’ before ‘‘was separated’’. Subsec. (c). Pub. L. 99–576, § 701(70)(C), substituted ‘‘the individual’s’’ for ‘‘his’’ in two places, and ‘‘the in- dividual’’ for ‘‘he’’. Subsec. (e)(2). Pub. L. 99–576, § 701(70)(D), substituted ‘‘the’’ for ‘‘his or her’’ before ‘‘right to such appear- ance’’ at end of second sentence. 1982—Subsec. (e)(2)(B). Pub. L. 97–295 substituted ‘‘be- fore October 9, 1978,’’ for ‘‘within one year after the date of enactment of this paragraph’’, ‘‘before October 9, 1977,’’ for ‘‘on or prior to the date of enactment of this paragraph’’, and ‘‘October 8, 1977’’ for ‘‘such enact- ment date’’. 1977—Subsec. (a). Pub. L. 95–126, § 1(a)(1), inserted pro- visions barring a person in the Armed Forces from being a recipient of benefits when discharged on the basis of an absence without authority from active duty for a continuous period of at least one hundred and eighty days if such person was discharged under condi- tions other than honorable unless such person dem- onstrates to the satisfaction of the Administrator that there are compelling circumstances to warrant such prolonged unauthorized absence and barred benefits notwithstanding any action subsequent to the date of such discharge by a board established pursuant to sec- tion 1553 of Title 10. Subsec. (e). Pub. L. 95–126, § 1(a)(2), added subsec. (e). 1959—Subsec. (c). Pub. L. 86–113 required affirmative evidence to establish that alien was discharged on his own application or solicitation. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1977 AMENDMENT Pub. L. 95–126, § 5, Oct. 8, 1977, 91 Stat. 1108, provided that: ‘‘This Act [amending this section and section 101 of this title and enacting provisions set out below] shall become effective on the date of its enactment [Oct. 8, 1977], except that— ‘‘(1) section 2 [set out below] shall become effective on October 1, 1977, or on such enactment date, which- ever is later; and ‘‘(2) the amendments made by section 1(a) [amend- ing this section] shall apply retroactively to deny benefits under laws administered by the Veterans’ Administration, except that, notwithstanding any other provision of law— ‘‘(A) with respect to any person who, on such en- actment date [Oct. 8, 1977] is receiving benefits under laws administered by the Veterans’ Adminis- tration, (i) such benefits shall not be terminated under paragraph (2) of section 3103(e) [now 5303(e)] of title 38, United States Code, as added by section 1(a)(2) of this Act, until (I) the day on which a final determination not favorable to the person con- cerned is made on an expedited basis under para- graph (2) of such section 3103(e) [now 5303(e)], (II) the day following the expiration of ninety days after a preliminary determination not favorable to such person is made under such paragraph, or (III) the day following the expiration of one hundred and eighty days after such enactment date, whichever day is the earliest, and (ii) the United States shall not make any claim to recover the value of any benefits provided to such person prior to such ear- liest day; ‘‘(B) with respect to any person awarded a general or honorable discharge under revised standards for the review of discharges referred to in clause (A) (i), (ii), or (iii) of such paragraph who has been provided any such benefits prior to such enactment date [Oct. 8, 1977], the United States shall not make any claim to recover the value of any benefits so pro- vided; and ‘‘(C) the amendments made by clause (1) of sec- tion 1(a) [amending this section] shall apply (i) retroactively only to persons awarded general or honorable discharges under such revised standards and to persons who, prior to the date of enactment of this Act [Oct. 8, 1977], had not attained general eligibility for such benefits by virtue of (I) a change in or new issuance of a discharge under section 1553 of title 10, United States Code, or (II) any other pro- vision of law, and (ii) prospectively (on and after such enactment date) to all other persons.’’ EXPEDITED DETERMINATIONS AFTER INFORMATION AND NOTIFICATION TO PERSONS AWARDED GENERAL OR HONORABLE DISCHARGES; PROCEDURES FOR APPLICA- TION TO TITLE 10 § 1552 BOARD AND TO SECRETARY OF VETERANS AFFAIRS Pub. L. 95–126, § 1(b), Oct. 8, 1977, 91 Stat. 1107, as amended by Pub. L. 100–527, § 10(1), (2), Oct. 25, 1988, 102 Stat. 2640, 2641; Pub. L. 102–40, title IV, § 402(d)(2), May 7, 1991, 105 Stat. 239, provided that: ‘‘(1) The Secretary of Defense shall fully inform each person awarded a general or honorable discharge under revised standards for the review of discharges referred to in section 5303(e)(2)(A)(i), (ii), or (iii) [formerly 3103(e)(2)(A)(i), (ii), or (iii)] of title 38, United States Code, as added by subsection (a)(2) of this section, of his or her right to obtain an expedited determination under section 5303(e)(2)(B)(i) [formerly 3103(e)(2)(B)(i)] of such title and of the implications of the provisions of this Act [amending this section and section 101(18) of this title and enacting provisions set out as notes under this section] for each such person. ‘‘(2) Notwithstanding any other provision of law, the Secretary of Defense shall inform each person who ap- plies to a board of review under section 1553 of title 10, United States Code, and who appears to have been dis- charged under circumstances which might constitute a bar to benefits under section 5303(a) [formerly 3103(a)] of title 38, United States Code, (A) that such person might possibly be administratively found to be entitled to benefits under laws administered by the Department of Veterans Affairs only through the action of a board for the correction of military records under section 1552 of such title 10 or the action of the Secretary of Vet- erans Affairs under section 5303 [formerly 3103] of such title 38, and (B) of the procedures for making applica- tion to such section 1552 board for such purpose and to the Secretary of Veterans Affairs for such purpose (in- cluding the right to proceed concurrently under such sections 5303 [formerly 3103], 1552, and 1553).’’ HEALTH CARE AND BENEFITS FOR DISABILITY DURING ACTIVE SERVICE IN LINE OF DUTY, EXCEPT WHEN BARRED UNDER SUBSEC. (a) OR BY BAD CONDUCT DIS- CHARGE Pub. L. 95–126, § 2, Oct. 8, 1977, 91 Stat. 1107, as amend- ed by Pub. L. 100–527, § 10(1), Oct. 25, 1988, 102 Stat. 2640; Pub. L. 102–40, title IV, § 402(d)(2), May 7, 1991, 105 Stat. 239, provided that: ‘‘Notwithstanding any other provi- sion of law, the Secretary of Veterans Affairs shall pro- vide the type of health care and related benefits au- thorized to be provided under chapter 17 of title 38, United States Code, for any disability incurred or ag- gravated during active military, naval, or air service in line of duty by a person other than a person barred from receiving benefits by section 5303(a) [formerly 3103(a)] of such title, but shall not provide such health care and related benefits pursuant to this section for any disability incurred or aggravated during a period of service from which such person was discharged by rea- son of a bad conduct discharge.’’ REGULATIONS RESPECTING STANDARDS AND PROCEDURES FOR DETERMINATION OF SEPARATION FROM ACTIVE SERVICE UNDER CONDITIONS OTHER THAN DISHONOR- ABLE FREE OF UNIQUE OR SPECIAL ADVANTAGES OR SPECIAL DISTINCTIONS BETWEEN VETERANS Pub. L. 95–126, § 4, Oct. 8, 1977, 91 Stat. 1108, as amend- ed by Pub. L. 100–527, § 10(1), (2), Oct. 25, 1988, 102 Stat. 2640; Pub. L. 102–40, title IV, § 402(d)(2), May 7, 1991, 105 Stat. 239, provided that: ‘‘In promulgating, or making Page 1059 TITLE 38—VETERANS’ BENEFITS § 5303A 1 See References in Text note below. any revisions of or amendments to, regulations gov- erning the standards and procedures by which the De- partment of Veterans Affairs determines whether a per- son was discharged or released from active military, naval, or air service under conditions other than dis- honorable, the Secretary of Veterans Affairs shall, in keeping with the spirit and intent of this Act [amend- ing this section and section 101(18) of this title and en- acting provisions set out as notes under this section], not promulgate any such regulations or revise or amend any such regulations for the purpose of, or hav- ing the effect of, (1) providing any unique or special ad- vantage to veterans awarded general or honorable dis- charges under revised standards for the review of dis- charges described in section 5303(e)(2)(A)(i), (ii), or (iii) [formerly 3103(e)(2)(A)(i), (ii), or (iii)] of title 38, United States Code, as added by section 1(a)(2) of this Act, or (2) otherwise making any special distinction between such veterans and other veterans.’’ § 5303A. Minimum active-duty service require- ment (a) Notwithstanding any other provision of law, any requirements for eligibility for or enti- tlement to any benefit under this title or any other law administered by the Secretary that are based on the length of active duty served by a person who initially enters such service after September 7, 1980, shall be exclusively as pre- scribed in this title. (b)(1) Except as provided in paragraph (3) of this subsection, a person described in paragraph (2) of this subsection who is discharged or re- leased from a period of active duty before com- pleting the shorter of— (A) 24 months of continuous active duty, or (B) the full period for which such person was called or ordered to active duty, is not eligible by reason of such period of active duty for any benefit under this title or any other law administered by the Secretary. (2) Paragraph (1) of this subsection applies— (A) to any person who originally enlists in a regular component of the Armed Forces after September 7, 1980; and (B) to any other person who enters on active duty after October 16, 1981, and has not pre- viously completed a continuous period of ac- tive duty of at least 24 months or been dis- charged or released from active duty under section 1171 of title 10. (3) Paragraph (1) of this subsection does not apply— (A) to a person who is discharged or released from active duty under section 1171 or 1173 of title 10; (B) to a person who is discharged or released from active duty for a disability incurred or aggravated in line of duty; (C) to a person who has a disability that the Secretary has determined to be compensable under chapter 11 of this title; (D) to the provision of a benefit for or in connection with a service-connected dis- ability, condition, or death; (E) to benefits under chapter 19 of this title; (F) to benefits under section 2011, 2012, 2013, 2044, or 2061 of this title; (G) to benefits under chapter 30 or chapter 37 of this title by reason of— (i) a discharge or release from active duty for the convenience of the Government, as described in sections 3011(a)(1)(A)(ii)(II) and 3012(b)(1)(A)(iv) of this title; (ii) a discharge or release from active duty for a medical condition which preexisted service on active duty and which the Sec- retary determines is not service connected, as described in clauses (A)(ii)(I) and (B)(ii)(I) of section 3011(a)(1) of this title and in sec- tion 3012(b)(1)(A)(ii) of this title; (iii) an involuntary discharge or release from active duty for the convenience of the Government as a result of a reduction in force, as described in clauses (A)(ii)(III) and (B)(ii)(III) of section 3011(a)(1) of this title and in section 3012(b)(1)(A)(v) of this title; or (iv) a discharge or release from active duty for a physical or mental condition that was not characterized as a disability and did not result from the individual’s own willful mis- conduct but did interfere with the individ- ual’s performance of duty, as described in section 3011(a)(1)(A)(ii)(I) of this title; or (H) to benefits under chapter 43 of this title. (c)(1) Except as provided in paragraph (2) of this subsection, no dependent or survivor of a person as to whom subsection (b) of this section requires the denial of benefits shall, by reason of such person’s period of active duty, be provided with any benefit under this title or any other law administered by the Secretary. (2) Paragraph (1) of this subsection does not apply to benefits under chapters 19 and 37 of this title. (d)(1) Notwithstanding any other provision of law and except as provided in paragraph (3) of this subsection, a person described in paragraph (2) of this subsection who is discharged or re- leased from a period of active duty before com- pleting the shorter of— (A) 24 months of continuous active duty, or (B) the full period for which such person was called or ordered to active duty, is not eligible by reason of such period of active duty for any benefit under Federal law (other than this title or any other law administered by the Secretary), and no dependent or survivor of such person shall be eligible for any such benefit by reason of such period of active duty of such person. (2) Paragraph (1) of this subsection applies— (A) to any person who originally enlists in a regular component of the Armed Forces after September 7, 1980; and (B) to any other person who enters on active duty after October 13, 1982, and has not pre- viously completed a continuous period of ac- tive duty of at least 24 months or been dis- charged or released from active duty under section 1171 of title 10. (3) Paragraph (1) of this subsection does not apply— (A) to any person described in clause (A), (B), or (C) of subsection (b)(3) of this section; or (B) with respect to a benefit under (i) the So- cial Security Act other than additional wages deemed to have been paid, under section 229(a) 1 of the Social Security Act (42 U.S.C.