Food for thought on Administrative Discharges

 Rebecca L. Feldmann, Bad Paper & the Problem with Moral Turpitude in the VA Context. 90 Mo. L. Rev. 57 (2025).

Moral turpitude serves as a way to exclude former servicemembers from the U.S. Department of Veterans Affairs (“VA”) definition of a veteran. As a result, servicemembers who commit offenses deemed morally turpitudinous cannot access VA disability compensation, burial in a VA cemetery, education benefits, many types of VA healthcare, or any other of the multitude of benefits offered by the VA. This issue is especially problematic for veterans with “bad paper”—i.e., those with a less than fully honorable discharge—whose underlying misconduct is related to post-traumatic stress disorder (“PTSD”), a traumatic brain injury (“TBI”), or another mental health condition.

This Article explores the problems of using “moral turpitude” to bar former servicemembers, particularly those with an Other Than Honorable (“OTH”) discharge, from VA benefits. It builds upon and supports petitions by a coalition of veterans’ advocates for the VA to amend its regulation to align with congressional intent. The Article expands this discussion by analyzing more recent decisions of the Board of Veterans’ Appeals, which demonstrate inconsistent results stemming from the term’s inherently vague nature combined with a lack of a cohesive framework or any precedential guidance for resolving whether a particular offense involves moral turpitude. The Article also addresses the final rule issued by the VA in April 2024, explores the failuresto resolve the concerns at the heart of the petition for rulemaking, and discusses how 38 C.F.R. § 3.12(d) continues to inject unnecessary confusion into the adjudication of veterans’ benefits, particularly for veterans with an OTH discharge. In concluding, the Article proposes steps that Congress or veterans’ advocates can take to resolve the confusion and arbitrariness that has existed for decades surrounding this bar to VA benefits.