38 U.S.C. § 105 — Line of duty and misconduct

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