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For many veterans, serving in the military is a defining chapter of their lives. But sometimes, due to a variety of personal and service-related issues, their service ends with an “Other Than Honorable” (OTH) discharge. An OTH discharge can be devastating for veterans because it disqualifies them from many Veterans Affairs (VA) benefits, including disability compensation, education assistance, and healthcare services. Unfortunately, this can leave many veterans, especially those struggling with mental health issues, without the support they desperately need.
However, there is hope. Veterans with OTH discharges can still obtain VA benefits under certain circumstances, particularly by pursuing the “insanity” exception. As veterans disability attorneys have learned through years of experience, there are ways to overcome the challenges posed by an OTH discharge. In this guide, we will walk through the steps a veteran can take to navigate this process, discuss the “insanity” exception, and explore what it takes to build a successful case for obtaining VA benefits despite an unfavorable discharge.
Understanding the Impact of an Other Than Honorable Discharge
An OTH discharge is a characterization of military service that is less than honorable but does not rise to the level of a dishonorable discharge, which is reserved for the most severe misconduct. While OTH is not as severe as a dishonorable discharge, it still carries significant consequences. Veterans with an OTH discharge typically face:
- Denial of VA Benefits – VA benefits, including disability compensation, healthcare, pension, and educational assistance, are often denied.
- Limited Employment Opportunities – Some employers may hesitate to hire veterans with an OTH discharge, limiting job prospects.
- Social Stigma – Veterans with OTH discharges may feel a sense of shame or stigma due to their service record.
Despite these challenges, veterans with OTH discharges are not without options. In many cases, the reason for the discharge is tied to undiagnosed mental health issues that were either ignored or mishandled during their service.
Common Reasons Veterans Receive an Other Than Honorable Discharge
Veterans who receive an OTH discharge often experience a similar pattern. A typical scenario involves a veteran who initially joins the military without any problems. They complete boot camp and are assigned to a combat zone or a high-stress environment where they may experience traumatic events. In many cases, the psychological strain of their experiences causes them to develop mental health issues, such as depression, anxiety, or post-traumatic stress disorder (PTSD).
Unfortunately, instead of receiving proper treatment, many veterans turn to substances like alcohol or drugs to cope. This often leads to misconduct charges, such as drug use or disobeying orders. As a result, the military issues an OTH discharge based on behavioral problems, even though the misconduct is often a symptom of the underlying mental health condition.
Another common reason for OTH discharges is when veterans are misdiagnosed with a personality disorder, which is considered a pre-existing condition not related to service. The psychiatric symptoms that led to their discharge may have actually been early signs of a more serious mental illness, such as PTSD, but were never properly recognized or treated by military medical professionals.
The “Insanity” Exception: What It Means and How It Can Help
Despite an OTH discharge, veterans may still be eligible for VA benefits if they can demonstrate that their misconduct was a result of a mental illness. This is where the “insanity” exception comes into play. The term “insanity” in VA terms does not refer to the common understanding of being unable to understand right from wrong like when someone is accused of a crime. Instead, it refers to having a psychiatric illness that impaired the veteran’s ability to conform to military rules and regulations at the time of the misconduct.
According to VA regulations, a veteran may qualify under the “insanity” exception if:
- They had a mental illness during the time of service that caused the behavior leading to the OTH discharge.
- The mental illness could be depression, PTSD, bipolar disorder, anxiety, schizophrenia, or another psychiatric disorder.
- The misconduct that led to the OTH discharge is directly linked to this mental illness.
In essence, if the veteran’s “misconduct” was actually a symptom of an undiagnosed or untreated mental health condition, they may still be able to receive VA benefits, even with an OTH discharge.
Building a Case for VA Benefits Despite an OTH Discharge
The process of obtaining VA benefits despite an OTH discharge is complex, but it is not impossible. Here are the key steps a veteran needs to take:
#1: Obtain a Psychiatric Diagnosis
The foundation of any successful claim involving the “insanity” exception is a current psychiatric diagnosis. The veteran must be diagnosed with a mental health condition that was present during their service, even if it was not formally diagnosed at the time.
For example, a veteran who was discharged due to drug use might be diagnosed years later with PTSD. The key is to demonstrate that the drug use was a way of coping with undiagnosed PTSD, rather than simple misconduct.
#2: Review Service Treatment Records
Next, the veteran should review their service treatment records and personnel files. These records may contain clues or indications of psychiatric symptoms, even if they were not formally diagnosed. Any evidence of behavioral problems, requests for counseling, or disciplinary actions can help build a case that the veteran was suffering from a mental illness during service.
#3: Hire a Forensic Psychiatrist
A forensic psychiatrist can play a crucial role in linking the veteran’s current psychiatric condition to their time in service. The forensic psychiatrist will review the veteran’s service treatment records and provide an expert opinion as to whether the veteran’s misconduct was likely the result of their mental illness. This expert testimony is often a critical piece of evidence when challenging the character of discharge in a VA benefits claim.
#4: File a Claim for VA Benefits
Once the psychiatric diagnosis and evidence are in place, the veteran can file a claim for VA benefits. It’s important to include all supporting documentation, such as medical records, psychiatric evaluations, and any expert testimony from the forensic psychiatrist. The goal is to present a compelling case that the veteran’s misconduct was directly caused by an untreated mental illness during service.
Upgrading the Discharge: A Difficult but Possible Option
In some cases, veterans may choose to pursue a discharge upgrade through the Discharge Review Board (DRB) or the Board for Correction of Military Records (BCMR). While this process is separate from seeking VA benefits, an upgraded discharge can make it easier to access benefits.
However, upgrading a discharge is often challenging. Many discharge review boards are hesitant to change the characterization of discharge, particularly if the misconduct was well-documented. That said, if a veteran can show that their mental illness played a significant role in their misconduct, they may have a chance of success.
The Importance of Legal Representation
Navigating the VA benefits system is complex, especially for veterans with OTH discharges. This is why it’s critical to have an experienced veterans disability attorney on your side. Attorneys who specialize in VA benefits understand the intricacies of the law and can help build a strong case by gathering the right evidence, obtaining expert testimony, and presenting compelling legal arguments.
As veterans disability lawyers, we have seen in our experience that these cases can be won with the right strategy, experts, and evidence. Veterans with OTH discharges should not give up hope. With the help of a knowledgeable attorney at our firm, it is possible to secure the benefits they need and deserve. Contact Gang & Associates online today to get started with a private consultation.