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Federal Register / Vol. 86, No. 172 / Thursday, September 9, 2021 / Proposed Rules
toward specific Request for Information topics below. Please note that VA will evaluate all comments oral and written and, as appropriate, incorporate them into VAs next action.
Request for Information To update its character of discharge regulations, VA seeks information on the topics and issues listed below.
Commenters do not need to address every question and should focus on those that relate to their expertise or perspectives. Commenters should clearly indicate which topics and issues are being addressed in their response.

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A. Compelling Circumstances 1. VA proposed to consider, as a factor in a compelling circumstances analysis, the impact of mental impairment at the time of the prolonged absence without leave AWOL or misconduct, to include a diagnosis of or evidence that could later be medically determined to demonstrate the existence of certain enumerated mental disabilities. Some commenters felt that the list of disabilities was overinclusive; some felt that it was underinclusive. VA seeks comment on the following question: What conditions, symptoms, or circumstances if any, should VA consider when determining the impact of mental impairment at the time of the prolonged AWOL or misconduct?
2. VA proposed to consider, as a factor in a compelling circumstances analysis, Sexual abuse/assault.
Should VA employ a different or additional term for this category, such as Military Sexual Trauma MST?
Also, should VA include language reminding adjudicators to look beyond service records to corroborate the account of an in-service personal assault, as provided in 38 CFR
3.304f5?
B. Willful and Persistent Misconduct VA noted in the proposed rulemaking that willful misconduct is already defined in 38 CFR 3.1n as an act involving conscious wrongdoing or known prohibited actioni.e., the act involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. VA then proposed to clarify what circumstances qualify as willful and persistent misconduct in proposed 38 CFR
3.12d2ii, with reference to certain timelines for minor misconduct and more serious misconduct. VA seeks comments on the following questions:
1. Should VA proceed with a distinction between minor
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misconduct and more serious misconduct when evaluating whether misconduct is persistent? Should VA
define what is considered serious misconduct? Should VA only consider an action to be misconduct if it actually caused harm to a person or property or should VA consider all misconduct, regardless of severity, in its determination? Should VA consider extenuating circumstances that may have led to or impacted the misconduct at issue?
2. Some commenters requested that VA clarify the number of incidents required to constitute willful and persistent misconduct. How many instances over what period of time should be considered persistent? Should the totality of the circumstances be considered in addition to the number of incidents when determining misconduct to be willful and persistent?
C. Moral Turpitude Some commenters expressed concern that the proposed rules definition of moral turpitude is too vague. VA seeks comments on the following questions:
1. VA regulation currently does not define moral turpitude, but states in 38
CFR 3.12d3 that it includes generally, conviction of a felony. VAs proposed rule would define moral turpitude as a willful act that gravely violates accepted moral standards and would be expected to cause harm or loss to person or property. Should VA
revise this proposed definition, and if so, how?
D. Benefit Eligibility VA seeks comments on the following questions regarding former service members and the bars to VA benefits:
1. Some commenters recommended that VA only apply statutory bars to benefits those enumerated in 38 U.S.C.
5303a; others expressed concerns about how such an approach would affect military order and discipline.
How if at all would removing the regulatory bars affect military order and discipline?
2. Some commenters suggested that granting benefits to those with less than honorable discharges denigrates others honorable service. How if at all would extending VA benefits eligibility denigrate others honorable service?
3. VA is committed to ensuring that its character of discharge regulations reflect the principles of fairness, inclusion, and justice that our Service members and our Nation deserves. What specific changes can be made to the proposed rule for fairly adjudicating the benefits eligibility of historically
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disadvantaged and vulnerable populations?
Listening Session Registration Information about the meeting, how to listen and/or register to speak can be obtained by emailing:
CODRegistration.VBACO@va.gov.
Individual registration: VA
encourages individual registrations for those wishing to speak who are not affiliated with or representing a group, association, or organization.
Group registration: Identification of the name of the group, association, or organization should be indicated in your registration request. Due to virtual platform meeting limitations of WebEx, and the statutory mandate that VA
consult with certain entities, VA may select certain entities to speak or may limit the size of a groups registration to allow receipt of testimonies, and/or technical remarks from a broad, diverse group of stakeholders. Oral comments, testimonies, and/or technical remarks may be limited from a group, association, or organization with more than two individuals representing the same group, association, or organization. Efforts will be made to accommodate all attendees who wish to participate. The length of time allotted for participants to provide oral comments, testimonies, and/or technical remarks during the meeting will be no more than ten minutes, and is subject to the total number of participants speaking, to ensure time is allotted to selected registered speakers. Breaks between speakers will be ten minutes.
There will be no opportunity for audiovisual presentations during the meeting.
Audio For listening purposes only:
Virtual attendance will be limited to the maximum allowed by WebEx on a first come, first served basis. Advanced registration is not required. Audio attendees will not be allowed to offer oral comments, testimonies, and/or technical remarks as the phone line will be muted.
Note: Should it be necessary to cancel the meeting due to technical issues or other emergencies, VA will take available measures to notify registered participants. VA will conduct the public meeting informally, and technical rules of evidence will not apply. VA will arrange for a written transcript of the meeting and keep the official record open until the closure of the Request For Information comment period to allow submission of supplemental information. The transcript will be posted in the docket of the rule as part of the official record when the rule is published.

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