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Frequently Asked Questions

Below, Connecticut attorney Josh Grubaugh takes the time to answer FAQs about VA disability benefits, military justice, and Connecticut criminal law. Have more questions? Contact Grubaugh Law for a free consultation about your case.

 

Veterans Disability

Who is a veteran for purposes of qualifying for VA disability benefits?

In order to qualify for most VA benefits, a person must be a veteran or dependent or survivor of a veteran. VA defines veteran as “a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).

What is meant by active service?

VA disability benefits are available for any person who served on full-time active duty. There are also other categories that apply. A veteran, dependent or survivor is eligible for disability benefits if they can tie a death or disease to a period of active duty for training—such as when a reservist is on orders for an event like basic training, or schooling for an MOS.

VA also considers inactive duty for training periods eligible if a person was disabled or died from an injury occurring or aggravated in the line of duty. Such examples from the case law include a reservist hit by lighting during drill weekend. This definition also appears to mean, under the right circumstances, that a reservist who is severely injured in a car accident on their way home from drill weekend may be eligible.

What does a service-connected disease, injury or event mean?

We all understand that a veteran who served in a war zone and suffered physical or mental injuries will be eligible for veterans’ disability benefits. But what other veterans are eligible?

For some veterans’ benefits, such as the G.I. Bill or VA loans, you may need a minimum service time of up to 24 months of active service.  But for service-connected disability benefits, you only need to show a connection to your service, whether it be short term active duty, active duty for training, or inactive duty for training.  VA disability benefits can be thought of as workers' compensation benefits, tied to injuries related to service, regardless of how long you served, or whether it was in a deployed environment.

What was your characterization of service?

Generally speaking, if you received an other than honorable discharge separation administratively, or if you were discharged with a bad-conduct or dishonorable discharge from a court-martial, you may not be eligible for VA disability benefits.

If you have applied for VA disability benefits and have been denied service-connection due to your characterization of service, then you can apply for a discharge upgrade or apply for the discharge review process, where VA will determine if your service was honorable for VA purposes.

What conditions are covered by VA disability benefits?

VA’s website has a list of some of the diseases or injuries covered from disability. But neither their list, or one I could come up with here, would be exhaustive. Generally speaking, if you have a long-term mental or physical infirmity that you believe was caused or aggravated by your military service, you should file a claim.

Will my disability be covered by VA disability benefits?

That’s hard to say in a particular case, without knowing all the facts. But please reach out for a consultation, and we can talk about your case, whether you have already applied and been denied, or are thinking of applying for VA benefits.

To illustrate how confusing the VA disability process can be. I like to share my personal experience.

I served on active duty from 2009-2017. In March 2015, I was diagnosed with melanoma on my face. To remove the melanoma, I underwent a procedure that cut into the skin in my face, that resulted in a facial scar. That scar was an event that took place during active duty, resulting in a VA disability rating related to service. Surprising to me at the time, there was no inquiry to determine the extent to which the melanoma could be tied to service, or my activities before service.

I probably would not have applied for VA benefits at all had I not been told by a treating physician at Walter Reed Hospital that facial scars are usually compensable, when I was being seen for a follow-up visit related to my melanoma. That one comment is all anyone had explained to me at that point, shortly before I left active duty, that I should seek benefits related to this event. And it meant me receiving a monthly stipend for the rest of my life that I would not otherwise have received.

I’m sure there are many others like me out there, who are not aware of what constitutes a compensable rating or not. I also know that even applying for VA benefits seemed overwhelming at the time, in terms of how to fill out the forms correctly, how to gather supporting evidence, etc. Again, I know from experience — both personally, and now professionally. So please reach out for any questions or assistance.

 

Military Justice

A Few Good Men is one of my favorite movies. Much to my disappointment, we didn’t spend the officer basic course, or a good part of our time on active duty, watching and breaking down that movie. We did learn, however, valuable courtroom skills, as well as procedural and substantive legal training to help prepare us become experienced litigators. One thing the movie doesn’t depict is that all service-members have the option to hire a civilian attorney to represent them in court-martial, and they don’t have to use their appointed Judge Advocate.

Here are some basic FAQ’s I’ve learned in my time practicing military justice that you might find useful.

What is a court-martial?

There are different types of court-martial. They aren’t classified as felony and misdemeanor courts, but I found it helpful to provide that analogy to clients when explaining what they were looking at, with general courts-martial roughly analogous to a felony court, and special courts-martial akin to a  misdemeanor court. Essentially, there are different levels of court-martial that can be understood based on what the upper limits for punishment are. And sometimes certain offenses must be sent to a particular court-martial.

General Court-Martial

The most serious offenses are generally taken to a general court-martial. Officers must be tried by a general court-martial.

A general court-martial may try any person subject to the UCMJ for any offense made punishable under the UCMJ. Recent amendments also mandate that certain offenses are tried only at general court-martial, such as rape, rape of a child, sexual assault, sexual assault of a child, as well as attempts thereof under Article 80.

A general court-martial may adjudge any punishment authorized under Rule for Court-Martial 1003, to include, in certain circumstances, death.

Special Court-Martial

A special court-martial is more limited in the types of punishments available. A special court-martial may not adjudge any sentence that includes the death penalty, dishonorable discharge, dismissal, confinement for more than 1 year, hard labor without confinement for more than 3 months, forfeiture of pay exceeding two-thirds pay per month, or any forfeiture of pay for more than 1 year.

Special Court-Martial Judge Alone

One of the recent amendments to the UCMJ provided for this new type of court-martial. Punishments are even more limited in these courts-martial, where a bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months, may not be adjudged. So this means you cannot be discharged from this court-martial, although you may be subject to an administrative separation for your convictions in a separate proceeding. If, before arraignment, the accused objects, he can reject the forum offered here by the convening authority’s referral, if a specification is not a drug offense and has a maximum authorized period of confinement greater than two years, or if a conviction would result in sex offender registration.

Summary Court-Martial

A summary court-martial is composed of one commissioned officer on active duty. In my experience, the officer was normally an 0-3, because that is the lowest permissible rank that will serve as the hearing officer.

The purpose of a summary court-martial is to promptly adjudicate minor offenses under a simple disciplinary proceeding. A finding of guilt does not constitute a criminal conviction, although jeopardy attaches to any charge tried therein. The maximum penalty that can be adjudged in a summary court-martial is confinement for 30 days, forfeiture of two-thirds pay per month for one month, and reduction to the lowest pay grade. For any enlisted member at E-5 or above, a summary court-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next pay grade.

Accused do not have a right to counsel at a summary court-martial. However, pursuant to Rule for Court-Martial 1301(e), an accused may have a defense counsel represent them at a summary court-martial provided the appearance of counsel does not unreasonably delay the proceedings. And an accused has the right to object to this forum, and demand a trial by another court-martial.

Where can you appeal a court-martial?

Service Court of Appeals

Article 66 of the UCMJ mandates that each Judge Advocate General shall establish a Court of Criminal Appeals. The Courts of Criminal Appeals are staffed by senior judge advocates, normally in the grade of 0-5 and 0-6, and sit in three judge panels. These bodies are known as the Air Force Court of Criminal Appeals, the Army Court of Criminal Appeals, the Coast Guard Court of Criminal Appeals, and the Navy Court of Criminal Appeals (which also encompasses the Marines).

These service Courts of Criminal Appeals must review all cases where the judgement from a court-martial includes a sentence of death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable discharge or bad-conduct discharge, or confinement for 2 years or more. A Court of Criminal Appeals will also have jurisdiction in timely appeals filed by convicted servicemembers who are sentenced to more than 6 months confinement but are not discharged, or in cases where the government had previously filed an appeal under Article 62.

Court of Appeals for the Armed Forces

Article 67 mandates review of service courts by the Court of Appeals for the Armed Forces (CAAF). This Court is composed of five civilians who are appointed by the president to 15-year terms, and confirmed by the Senate. They have jurisdiction over the service Court of Criminal Appeals, and also demonstrate the continued civilian control over the military, as these civilians, for all practical purposes, serve as the last check on military justice. (The U.S. Supreme Court has jurisdiction to oversee military cases, but rarely does so, and most appellants should not count on the Supreme Court hearing their case.)

All appellants have the right to petition CAAF within 60 days of the decision by the Court of Criminal Appeals. CAAF does not have to review all these cases, and practically only grants a small fraction of the petitions before it. However, CAAF must review all cases where an appellant was sentenced to death, and all cases certified for appeal by the Judge Advocate General of any one of the branches.

One of the distinctions between CAAF and the Courts of Criminal Appeals is the scope of their review. Article 66(d)(1) provides a positive mandate for the Courts of Criminal Appeals to affirm only such findings of guilt and the sentence as the Court finds correct in law and fact, and what it determines should be approved. This means these courts conduct a factual sufficiency review, to determine if there is sufficient evidence to prove guilt beyond a reasonable doubt. It also means they can determine the appropriateness of a sentence for reasons other than legal error. In contrast, Article 67(c)(4) provides CAAF may only take action with respect to matters of law. So CAAF does not have jurisdiction to conduct a factual sufficiency or sentence appropriateness review of the case.

If you find yourself facing a court-martial or other military justice proceeding, I know just how complex these matters can be. I encourage you to reach out for a free consultation about your rights.

 

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