When Willful Misconduct in the Military Makes a Veteran Ineligible for Benefits

The Department of Veterans Affairs (VA) will not grant disability compensation or pension to a veteran for an injury or illness that was the result of willful misconduct, even if the veteran meets the other basic eligibility requirementsfor veterans benefits. Likewise, if a veteran's death is found to be the result of willful misconduct, the surviving family will not be able to obtain disability and indemnity compensation (DIC).

Willful misconduct that causes a disability also prohibits eligibility for vocational rehabilitation benefits. However, if a veteran has another service-connected disability that was not caused by willful misconduct, the veteran may be eligible for compensation or pension as well as educational and vocational benefits based on that service-connected disability.

Presumption Against Willful Misconduct

Whenever a service member is injured or dies while serving on active duty, there is a presumption that willful misconduct was not the cause. If the VA wants to bar veterans benefits based on a death or disability, the VA to prove by a "preponderance of the evidence" that it was caused by willful misconduct. This is not a high standard of legal proof, however. The VA just has to show that most of the evidence supports a finding of willful misconduct.

Definition of Willful Misconduct

Willful misconduct is defined in VA regulations as intentionally doing something known to be wrong without caring about the consequences. For example, reckless driving can be considered willful misconduct when most of the evidence shows that the veteran's disregard for the consequences of driving recklessly caused his injury or death. In addition, disabilities incurred while committing a violent crime will not be eligible for benefits. However, violating a rule or law won't be considered willful misconduct unless it actually causes the injury or illness.

VA regulations address when specific issues, including alcohol and drug abuse, tobacco use, venereal disease, and suicide, will be considered willful misconduct.

Alcohol and Drug Abuse

Under VA regulations, alcohol and drug abuse constitutes willful misconduct, so disabilities caused by alcohol or drug abuse will not qualify for disability compensation or pension. However, the analysis of whether a particular injury or death was caused by substance abuse is extremely fact specific.

Definition of Alcohol Abuse

Generally, drinking is considered alcohol abuse that can be considered willful misconduct when:

• it continues for a long period of time
• it is excessive to the point that it causes injury or death, or
• it is done for the purpose of enjoying intoxication and directly and immediately causes injury or death.

When Drinking Is Willful Misconduct

On the other hand, if a service member has a couple of drinks without intending to become intoxicated and has a car accident, the use of alcohol will be one factor considered, but will not be determinative in whether there was willful misconduct.

If the individual was also speeding or distracted by passengers and not watching the road, benefits will likely be denied. But if the individual was driving safely and at the proper speed, benefits may be granted in that case, so long as there is no finding that the alcohol use directly caused the accident. This determination will often be made on the basis of the blood alcohol level at the time of the accident. A very low blood alcohol level will not, by itself, be a bar to collecting benefits.

Definition of Drug Abuse

As with alcohol use, only when the use of drugs directly causes the injury or death will benefits be denied. Benefits will be denied on the basis of willful misconduct if a service member is injured or dies after using drugs:

• to enjoy getting intoxicated
• for a purpose other than the intended medical use
• that are illegal, or
• that are legal prescription drugs but are obtained through "illegal or illicit means."

The occasional use of a drug (even if illegal) will not rise to the level of willful misconduct in the absence of a finding that the use of the drug actually caused the injury or death.

If a prescription drug is taken as prescribed and is used as medically intended, this is not drug abuse even if it results in an addiction to the prescription drug.

When Drug or Alcohol Abuse Follows a Service-Connected Disability

In some circumstances, if an injury or illness resulted from alcohol or drug abuse, and the abuse arose, or became worse, due to a service-connected disability, disability compensation may be available for the injury or illness. For example, if a veteran develops service-connected post-traumatic stress disorder and begins drinking or abusing drugs to treat the symptoms of that disorder, disability compensation may be available for injuries resulting from the drug or alcohol abuse. Read more about secondary service connection, which is when a service-connected disability gives rise to a second injury or illness.

However, this method of establishing a service connection only works when the alcohol and drug abuse-related disabilities incurred after service. Disabilities caused by alcohol or drug abuse while on active duty will not be eligible for disability compensation under this exception to the willful misconduct rule.

Tobacco Use

It used to be the case that veterans who started smoking while serving in the military could be eligible for benefits based on tobacco-related illnesses. This is no longer true. The VA often considers smoking-related disabilities as caused by willful misconduct and denies benefits on this basis.

Sexually Transmitted Diseases (STDs)

Getting a venereal disease or STD, or the disabilities resulting from it, does not constitute willful misconduct under VA regulations. This is true even if the military found that the venereal disease resulted from willful misconduct. Consequently, a veteran can obtain service-connected disability compensation for these disabilities.

Suicide and "Unsound Mind"

A suicide will prevent a veteran's family from collecting survivor benefits only in some circumstances. If the veteran was considered to be of "sound mind," the suicide will be deemed intentional, and benefits will be denied.

If the veteran had an "unsound mind" as the result of a service-connected mental illness, then the suicide will be considered unintentional. Therefore, a surviving family member can receive DIC after a veteran commits suicide if it is determined that when the veteran committed suicide he or she was of "unsound mind."

Being of unsound mind means being incapable of having the intent to perform the act. Attempting or committing suicide can itself be evidence of unsoundness. But if a rational person would have committed suicide under the circumstances, then the veteran will be considered to have had "sound mind."

The VA will consider the statements of family and friends as well as doctors at the time of the veteran's death in order to determine if the veteran was of sound mind or not.

Finding a Veterans Attorney

If a veteran or surviving family member is denied disability compensation or pension on the grounds that the disability or death was caused by willful misconduct, you should consult a veterans disability attorney. An experienced lawyer may be able to reverse this decision on appeal.