38 U.S.C. § 5303B — Character of service determinations

Page 1061 TITLE 38—VETERANS’ BENEFITS § 5304 SCOPE OF EXCLUSION Pub. L. 97–306, title IV, § 408(d), Oct. 14, 1982, 96 Stat. 1446, provided that: ‘‘Section 3103A [now 5303A] of title 38, United States Code, as amended by subsection (a), is the law with respect to the matters stated in such sec- tion and applies, in accordance with its terms, with re- spect to benefits under Federal law, regardless of the particular title of the United States Code or other law under which any such benefit is provided or the depart- ment, agency, or instrumentality which administers any such benefit.’’ APPLICABILITY Pub. L. 97–66, title VI, § 604(b), Oct. 17, 1981, 95 Stat. 1036, provided that: ‘‘Section 5303A [formerly 3103A] of title 38, United States Code, as added by subsection (a), shall not apply with respect to the receipt by any per- son of any benefit provided by or pursuant to law be- fore the date of the enactment of this Act [Oct. 17, 1981]. Notwithstanding such section, a person who be- fore such date has received a certificate of eligibility from the Administrator of Veterans’ Affairs [now Sec- retary of Veterans Affairs] for benefits under chapter 37 of title 38, United States Code, is eligible for such bene- fits after such date.’’ § 5303B. Character of service determinations (a) DETERMINATION.—The Secretary shall es- tablish a process by which an individual who served in the Armed Forces and was discharged or dismissed therefrom may seek a determina- tion from the Secretary with respect to whether such discharge or release was under a condition that bars the right of such individual to a ben- efit under the laws administered by the Sec- retary based upon the period of service from which discharged or dismissed. (b) PROVISION OF INFORMATION.—If the Sec- retary determines under subsection (a) that an individual is barred to a benefit under the laws administered by the Secretary, the Secretary shall provide to such individual information re- garding the ability of the individual to address such condition, including pursuant to section 5303 of this title and chapter 79 of title 10. (Added Pub. L. 115–141, div. J, title II, § 259(a), Mar. 23, 2018, 132 Stat. 828.) § 5304. Prohibition against duplication of bene- fits (a)(1) Except as provided in section 1414 of title 10 or to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, emergency offi- cers’, regular, or reserve retirement pay, or ini- tial award of naval pension granted after July 13, 1943, shall be made concurrently to any per- son based on such person’s own service or con- currently to any person based on the service of any other person. (2) Notwithstanding the provisions of para- graph (1) of this subsection and of section 5305 of this title, pension under section 1521 or 1541 of this title may be paid to a person entitled to re- ceive retired or retirement pay described in sec- tion 5305 of this title concurrently with such person’s receipt of such retired or retirement pay if the annual amount of such retired or re- tirement pay is counted as annual income for the purposes of chapter 15 of this title. (b)(1) Except as provided in paragraphs (2) and (3) of this subsection and in section 1521(i) of this title, the receipt of pension, compensation, or dependency and indemnity compensation by a surviving spouse, child, or parent on account of the death of any person, or receipt by any per- son of pension or compensation on account of such person’s own service, shall not bar the pay- ment of pension, compensation, or dependency and indemnity compensation on account of the death or disability of any other person. (2) Benefits other than insurance under laws administered by the Secretary may not be paid or furnished to or on account of any child by reason of the death of more than one parent in the same parental line; however, the child may elect one or more times to receive benefits by reason of the death of any one of such parents. (3) Benefits other than insurance under laws administered by the Secretary may not be paid to any person by reason of the death of more than one person to whom such person was mar- ried; however, the person may elect one or more times to receive benefits by reason of the death of any one spouse. (c) Pension, compensation, or retirement pay on account of any person’s own service shall not be paid to such person for any period for which such person receives active service pay. (d)(1) Other than amounts payable under sec- tion 1413a or 1414 of title 10, the amount of pen- sion and compensation benefits payable to a per- son under this title shall be reduced by the amount of any lump sum payment made to such person under section 1415 of title 10. (2) The Secretary shall collect any reduction under paragraph (1) from amounts otherwise payable to the person under this title, including pension and compensation payable under this title, before any pension and compensation pay- ments under this title may be paid to the per- son. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1230, § 3104; Pub. L. 86–495, § 1, June 8, 1960, 74 Stat. 163; Pub. L. 88–664, § 9, Oct. 13, 1964, 78 Stat. 1096; Pub. L. 91–376, § 6, Aug. 12, 1970, 84 Stat. 790; Pub. L. 95–588, title III, § 304, Nov. 4, 1978, 92 Stat. 2507; Pub. L. 96–385, title V, § 503(a), Oct. 7, 1980, 94 Stat. 1534; Pub. L. 99–576, title VII, § 701(71), Oct. 28, 1986, 100 Stat. 3297; renumbered § 5304 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §§ 4(a)(1), 5(c)(1), Aug. 6, 1991, 105 Stat. 403, 406; Pub. L. 108–454, title III, § 308(a), Dec. 10, 2004, 118 Stat. 3614; Pub. L. 114–92, div. A, title VI, § 633(b), Nov. 25, 2015, 129 Stat. 850.) Editorial Notes AMENDMENTS 2015—Subsec. (d). Pub. L. 114–92 added subsec. (d). 2004—Subsec. (a)(1). Pub. L. 108–454 inserted ‘‘as pro- vided in section 1414 of title 10 or’’ after ‘‘Except’’. 1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3104 of this title as this section. Subsec. (a)(2). Pub. L. 102–83, § 5(c)(1), substituted ‘‘1521’’ and ‘‘1541’’ for ‘‘521’’ and ‘‘541’’, respectively. Pub. L. 102–40, § 402(d)(1), substituted ‘‘5305’’ for ‘‘3105’’ in two places. Subsec. (b)(1). Pub. L. 102–83, § 5(c)(1), substituted ‘‘1521(i)’’ for ‘‘521(i)’’. Subsec. (b)(2), (3). Pub. L. 102–83, § 4(a)(1), substituted ‘‘administered by the Secretary’’ for ‘‘administered by the Veterans’ Administration’’.