PRIA, Government Policy, Made Personal

Summary

A service member cannot be discharged from active duty for a physical disability until they either file (or refuse to file) a VA claim for benefits like compensation, pension, or hospital care, or sign (or refuse to sign) a paper saying their right to file was explained. Refusing or failing to sign a claim does not take away the right to make the claim later. A member may still be moved right away to a Department of Veterans Affairs facility if they need hospital care. The Secretary of a military department must keep a reserve member on active duty during a disability evaluation if the member was mobilized and sent to a place where imminent danger pay was authorized under 37 U.S.C. 310 or 351, and the evaluation could lead to separation, retirement, or placement on the temporary disability retired list or inactive status list. The member can ask to end active duty during demobilization or the evaluation, but must get counseling about what that means before release, and the release must be fully documented. That retention rule expired on October 28, 2014.

Title 10, §1218

Armed Forces, Source: USLM XML via OLRC

(a)A member of an armed force may not be discharged or released from active duty because of physical disability until he—

(1)has made a claim for compensation, pension, or hospitalization, to be filed with the Department of Veterans Affairs, or has refused to make such a claim; or

(2)has signed a statement that his right to make such a claim has been explained to him, or has refused to sign such a statement.

(b)A right that a member may assert after failing or refusing to sign a claim, as provided in subsection (a), is not affected by that failure or refusal.

(c)This section does not prevent the immediate transfer of a member to a facility of the Department of Veterans Affairs for necessary hospital care.

(d)(1)The Secretary of a military department shall ensure that each member of a reserve component under the jurisdiction of the Secretary who is determined, after a mobilization and deployment to an area in which imminent danger pay is authorized under section 310 or 351 of title 37, to require evaluation for a physical or mental disability which could result in separation or retirement for disability under this chapter or placement on the temporary disability retired list or inactive status list under this chapter is retained on active duty during the disability evaluation process until such time as such member is—

(A)cleared by appropriate authorities for continuation on active duty; or

(B)separated, retired, or placed on the temporary disability retired list or inactive status list.

(2)(A)A member described in paragraph (1) may request termination of active duty under such paragraph at any time during the demobilization or disability evaluation process of such member.

(B)Upon a request under subparagraph (A), a member described in paragraph (1) shall only be released from active duty after the member receives counseling about the consequences of termination of active duty.

(C)Each release from active duty under subparagraph (B) shall be thoroughly documented.

(3)The requirements in paragraph (1) shall expire on October 28, 2014.

Notes & Related Subsidiaries

Historical and Revision Notes

1962 Act section 1218 and 1219 are restated, without substantive change, to conform to the style adopted for title 10.

Editorial Notes

Amendments

2016—Subsec. (d)(1). Pub. L. 114–328 inserted “or 351” after “section 310” in introductory provisions. 2014—Subsec. (d)(3). Pub. L. 113–291 substituted “on October 28, 2014” for “on the date that is five years after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2010”. 2009—Subsec. (d). Pub. L. 111–84 added subsec. (d). 1989—Subsec. (a)(1). Pub. L. 101–189, § 1621(a)(1), substituted “Department of Veterans Affairs” for “Veterans’ Administration”. Subsec. (c). Pub. L. 101–189, § 1621(a)(4), substituted “facility of the Department of Veterans Affairs” for “Veterans’ Administration facility”. 1962—Pub. L. 87–651 amended section generally, and among other changes, substituted “Discharge or release from active duty: claims for compensation, pension, or hospitalization” for “Explanation of rights before discharge” in section catchline, and struck out provisions which prohibited a person from being discharged or released from active duty until his certificate of discharge or release from active duty and his final pay (or a substantial portion of his final pay) are ready for delivery to him or to his next of kin or legal representative.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 1958, see section 2301 of Pub. L. 85–56, 71 Stat. 172.

§1218 Discharge or Release From Active Duty: Claims for Compensation, Pension, or Hospitalization