Line of Duty Willful Misconduct

1. Line of Duty &Willful Misconduct Texas Veterans Commission Fall Conference 2008

2. Overview Line of Duty Definition In Line of Duty Not in Line of Duty Need For VA Determinations

3. Overview (Cont.) Willful Misconduct Definition Considerations Difference: Line of Duty & Willful Misconduct Alcohol Drugs References

4. Line of Duty Definition: Injury / disease during active duty unless; injury / disease was willful misconduct or, claims after October 31, 1990, was result alcohol / drug abuse. Service finding of �in line of duty� binding on VA unless inconsistent with VA law

5. In Line of Duty SC may be granted if disability / cause of death was: incurred / aggravated in line of duty, and not the result of the veteran's own willful misconduct or, claims after October 31, 1990, not the result of alcohol or drug abuse

6. Not In Line of Duty Avoiding duty by desertion, or was absent without leave, or Confined under a sentence of court-martial involving a dishonorable discharge, or Confined under sentence of a civil court for a felony.

7. Need For VA Determinations VA�s formal determination as to line of duty if: - no service finding, and injury / death circumstances raise a issue of willful misconduct or - service department holds the disability / death not in line of duty or - favorable service department finding may be properly questioned.

8. Willful Misconduct Definition: Conscious wrongdoing or known prohibited action. Service department finding of �not due to misconduct� binding on VA unless it is inconsistent with the facts and the requirements of VA laws.

9. Considerations Not willful misconduct based on the being wrong or forbidden law, unless act was proximate / direct cause of the injury. - may be willful misconduct if it involves deliberate / intentional wrongdoing with disregard of probable consequences. - may not be willful misconduct for mere violation of police regulations or ordinances.

10. Difference: Line of Duty & Willful Misconduct Note the subtle differences in wording of 2 laws Line of Duty - �the service department�s finding of in line of duty is binding on VA unless patently inconsistent with the requirements of VA law.� Willful Misconduct - �the service department�s finding of not willful misconduct is binding on VA unless patently inconsistent with the facts and the requirements of VA law.� (Addition of this phrase grants VA leeway in determination of willful misconduct.)

11. Alcohol Alcohol use is not willful misconduct Intoxication resulting in disability / death will be considered willful misconduct. Organic diseases / disabilities secondary result of alcohol will not be considered willful misconduct.

12. Drugs Isolated & infrequent use of drugs will not be considered willful misconduct. Progressive & frequent use of drugs to addiction will be considered willful misconduct. Drugs used & the effects result in disability / death will be considered willful misconduct. Organic diseases & disabilities secondary to drug use will not be considered willful misconduct Drugs therapeutic purposes from a SC disability will not be considered of misconduct origin.

13. Review Line of Duty Definition In Line of Duty Not in Line of Duty Need For VA Determinations

14. Review (Cont.) Willful Misconduct Definition Considerations Difference: Line of Duty & Willful Misconduct Alcohol Drugs References

15. REFERENCES 38 CFR 3.1 (m) 38 CFR 3.1 (n) 38 CFR 3.301 (a) 38 CFR 3.301 (b) 38 CFR 3.301 (c)(2) M21-1, Part IV, 11.03; 11.04; 11.04(c)

16. QUESTIONS?