Field of law

Military Justice & Veterans Appeals

Non-judicial punishment and courts-martial, discharge characterization and upgrade boards, records correction, service connection and rating disputes, and the appeal lanes that follow a decision.

Total Disability Based on Individual Unemployability

Under 38 CFR 4.16 a total rating may be assigned where service-connected disabilities prevent substantially gainful occupation and the veteran has one disability rated sixty percent or more, or a combined seventy percent with one rated at least forty. Veterans below those gates may be considered on an extraschedular basis. Marginal employment is not substantially gainful, age and nonservice-connected conditions are excluded.

5 min readFederal law

Military Justice & Veterans Appeals

Discharge Characterization and What It Costs Later

Separation carries a characterization: honorable, general under honorable conditions, other than honorable, bad-conduct, dishonorable or uncharacterized. It appears on the DD Form 214 with a narrative reason, separation code and reentry code. Statutory bars in 38 U.S.C. 5303 and regulatory bars in 38 CFR 3.12 exclude some veterans outright, while others receive a character of discharge determination.

5 min readFederal law

Military Justice & Veterans Appeals

The Article 32 Preliminary Hearing and What It Decides

Before charges reach a general court-martial, Article 32 requires a preliminary hearing before an impartial officer, ordinarily a judge advocate. The statute limits the hearing to whether each specification alleges an offense, whether probable cause exists, whether the convening authority has jurisdiction, and what disposition to recommend. The officer produces a written report, and the recommendation in it binds no one.

5 min readFederal law

Military Justice & Veterans Appeals

The Physical Evaluation Board and Medical Separation

When a condition may prevent a service member from meeting retention standards, a medical evaluation board documents it and refers the case to a physical evaluation board. The physical evaluation board decides fitness for duty. A member found unfit receives a rating under the schedule in 38 CFR Part 4 for the unfitting conditions only. A rating of thirty percent or more with the required service produces disability retirement; a lower rating produces separation with severance pay.

5 min readFederal law

Military Justice & Veterans Appeals

Appellate Review After a Court-Martial

After trial the convening authority takes limited action, the judge enters judgment, and review begins. Sentences including death, a punitive discharge, dismissal or two years or more of confinement go automatically to the service Court of Criminal Appeals with appointed counsel; lesser cases go to the Judge Advocate General. Review then lies to the Court of Appeals for the Armed Forces and, in cases it has reviewed, to the Supreme Court.

5 min readFederal law

Military Justice & Veterans Appeals

The Duty to Assist and What a Claimant Must Still Supply

Under 38 U.S.C. 5103A the agency must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Federal records are pursued until obtained or shown not to exist; private records require the claimant's authorization; a medical examination or opinion is provided when a low evidentiary threshold is met. The duty does not extend to claims with no reasonable possibility of substantiation, and it does not apply at every stage of the review system.

5 min readFederal law

Military Justice & Veterans Appeals

Article 15: Accepting Punishment or Demanding Trial

Article 15 of the Uniform Code of Military Justice permits a commanding officer to impose limited punishment for minor offenses without a court-martial. Except for members attached to or embarked in a vessel, the member may demand trial by court-martial instead. Non-judicial punishment produces no federal conviction, is capped by the imposing officer's grade, and is appealable to the next superior authority; a court-martial offers acquittal but also a punitive discharge and confinement.

6 min readFederal law

Military Justice & Veterans Appeals

Summary, Special and General Courts-Martial Compared

Article 16 of the Uniform Code of Military Justice classifies courts-martial as summary, special or general. A summary court-martial is a single officer with sharply limited punishment power that an accused may refuse. A special court-martial sits with a military judge, alone or with members, and may adjudge up to a year of confinement and a bad-conduct discharge. A general court-martial may impose whatever the punitive article authorizes and must be preceded by a preliminary hearing.

5 min readFederal law

Military Justice & Veterans Appeals

Rating Schedules and Why Combined Ratings Are Not Added

The schedule for rating disabilities in 38 CFR Part 4 assigns percentages representing average impairment in earning capacity, organized by body system and identified by diagnostic code. Multiple ratings are combined under the table in 38 CFR 4.25 rather than added: each rating applies to the efficiency remaining after the preceding one. Disabilities of paired extremities receive an additional bilateral factor, and the final combined value is rounded to the nearest ten percent.

5 min readFederal law

Military Justice & Veterans Appeals

Service Connection: Direct, Secondary, Aggravated and Presumptive

Compensation requires a current disability, an in-service event, and a link between them. The direct route proves all three. The secondary route attaches a condition to an already service-connected one, including by aggravation. The aggravation route applies where a condition preexisted service and worsened beyond natural progress. The presumptive route supplies the link by operation of law for listed diseases, exposures and periods of service.

5 min readFederal law

Military Justice & Veterans Appeals

The Three Lanes of the Modernized Appeals System

After a decision, a claimant may file a supplemental claim on VA Form 20-0995 with new and relevant evidence, request higher-level review on VA Form 20-0996 by a senior adjudicator on the existing record, or appeal to the Board of Veterans' Appeals on VA Form 10182 by choosing among three dockets. Filing within one year of the decision preserves the effective date. Board decisions may be appealed to the Court of Appeals for Veterans Claims.

5 min readFederal law

Fields of law

This journal

Military Justice & Veterans Appeals

Total Disability Based on Individual Unemployability

Discharge Characterization and What It Costs Later

The Article 32 Preliminary Hearing and What It Decides

The Physical Evaluation Board and Medical Separation

Appellate Review After a Court-Martial

The Duty to Assist and What a Claimant Must Still Supply

Article 15: Accepting Punishment or Demanding Trial

Summary, Special and General Courts-Martial Compared

Rating Schedules and Why Combined Ratings Are Not Added

Service Connection: Direct, Secondary, Aggravated and Presumptive

The Three Lanes of the Modernized Appeals System