Line of Duty

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

• VAs 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 departments finding
  of in line of duty is binding on VA unless
  patently inconsistent with the requirements of VA
  law.
• Willful Misconduct - the service departments
  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?