News Room

NVLSP, Swords to Plowshares Comments on VA’s Long-Overdue Character of Discharge Final Rule

Released 4/25/24 | Tags:

NVLSP, Swords to Plowshares Comments on VA’s Long-Overdue Character of Discharge Final Rule
-After Nearly Nine Years and Several Lawsuits, VA COD Rule Still Falls Short-


ARLINGTON, VA— Today, the National Veterans Legal Services Program (NVLSP) and Swords to Plowshares issued the following comments on the U.S. Department of Veterans Affairs’ (VA) long-overdue Final Rule to Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge. VA’s Final Rule is in direct response to a petition for rulemaking submitted by NVLSP and Swords to Plowshares in December 2015, which sought much-needed amendments to VA rules that today bar thousands of veterans with less than honorable discharges from obtaining critical VA benefits including health care, disability compensation, and pensions that they have been wrongfully denied. 

Just last week,  NVLSP and Swords to Plowshares were forced to file a new petition for mandamus seeking to compel VA to publish a Final Rule after the VA failed to meet an April  deadline set by a federal court in February. NVLSP and Swords to Plowshares filed an earlier lawsuit in October 2023 seeking the same result.

“Nearly nine years after our initial petition for rulemaking and two lawsuits, VA’s final rule on character of discharge reflects only minor changes from its proposed rule in 2020 and still unfortunately falls short on many fronts to grant far too many deserving former servicemembers recognition as a ‘veteran’ and access to critical services and benefits,” said NVLSP Director of Litigation Renee Burbank.  “Given VA’s track record, in order for this new regulation to make any difference to servicemembers who have long been denied their benefits, VA needs to outline specific efforts to educate their employees to ensure they properly serve any newly recognized veterans.”

"We are grateful to see that mitigating factors such as PTSD and Traumatic Brain Injury symptoms are now allowed in some cases to be considered when determining VA benefits eligibility, but these regulations are still lacking in very important ways. For example, the VA is well aware that service members of color, particularly Black service members, are much more likely to face court martial charges than white service members. Yet, the regulations promulgated today explicitly prohibit the use of such mitigating circumstances and PTSD-related evidence in deciding cases of discharge in lieu of court martial. After years of advocacy, to see such an unjust outcome is incredibly frustrating, “ said Maureen Siedor, Legal Director of Swords to Plowshares.

“VA took an important step forward to finally remove discriminatory language that harms LGBTQ+ veterans and to require consideration of the full context that led to a servicemember receiving a less-than-honorable discharge, such as mental health, sexual assault and harassment, and other extenuating circumstances. But the rule still imposes a significant burden on veterans who will have to undergo a lengthy, individualized review in order to gain access to supportive services and health care at VA. The consequence of VA’s failure to fully reform these regulations is that VA is leaving veterans experiencing homelessness without access to housing services and leaving veterans experiencing mental health conditions without access to treatment, “ said Dana Montalto of the Veterans Legal Clinic at the Legal Services Center of Harvard Law School.

NVLSP and Swords to Plowshares documented the catastrophic impact of servicemembers who are not recognized as “veterans” in, Underserved, a report that covered the legislative history of the 1944 G.I. Bill and its expanded eligibility standard and Congressional intent regarding the “other than dishonorable” eligibility standard. 

NVLSP and Swords to Plowshares are represented by pro bono counsel from the Veterans Legal Clinic at the Legal Services Center of Harvard Law School, Latham & Watkins LLP and ZwillGen PLLC.

About The National Veterans Legal Services Program (NVLSP)
The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 18 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP’s success in these lawsuits has resulted in more than $5.4 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.

About The Veterans Legal Clinic at the Legal Services Center of Harvard Law School
The Veterans Legal Clinic at the Legal Services Center of Harvard Law School provides pro bono representation to veterans and their family members in a range of veterans and military law matters, as well as pursues initiatives to reform the systems that serve the veterans community. Located at the crossroads of Jamaica Plain and Roxbury in the City of Boston, the Legal Services Center is a community-based public interest law firm. We are home to six legal clinics—Consumer Protection Clinic, Housing Law Clinic, Family Justice Clinic, Tax Litigation Clinic, LGBTQ+ Advocacy Clinic, and the Veterans Legal Clinic—and are Harvard Law School’s largest clinical placement site. The Center’s long-standing mission is to fight for fairness, justice, and legal, economic, and social change, by addressing our community’s civil legal needs and training the next generation of public interest lawyers. For more information, please visit https://legalservicescenter.org/.

About Latham & Watkins
Latham & Watkins delivers innovative solutions to complex legal and business challenges around the world. From a global platform, our lawyers advise clients on market-shaping transactions, high-stakes litigation and trials, and sophisticated regulatory matters. Latham is one of the world’s largest providers of pro bono services, steadfastly supports initiatives designed to advance diversity within the firm and the legal profession, and is committed to exploring and promoting environmental sustainability.

About ZwillGen
ZwillGen is a mid-size boutique law firm that specializes in helping clients navigate legal challenges related to data and emerging technologies, including a strong focus on privacy and information security. Founded in 2010, ZwillGen began with a pioneering spirit aimed at offering thoughtful and practical legal advice outside the traditional Big Law framework. Today, ZwillGen is a thriving coast-to-coast firm with nearly forty attorneys across four offices located in Washington, DC, New York, Chicago, and San Francisco.

Media contacts:
For NVLSP: Patty Briotta, 202 621 5698, patty@nvlsp.org
For Swords to Plowshares: Katie Ettl, 530-218-2147, katie.ettl@stp-sf.org

News & Media

Subscribe to our newsletter
Newsletter Archives