Veterans' Legal Assistance

Veterans deal with several issues unique to those who have served, or are currently serving, our country, including:

• Military Benefits
• Disabilities
• Education Benefits
• Employment
• Family Law
• Financial Assistance
• Home and Land Loans
• Health Care
• Immigration
• Mental Health Issues
• Taxation

Employment Rights

Many veterans are eligible for preference in federal employment. State and local agencies often extend this preference, as well.

WV Division of Personnel Explanation of Veterans’ Preference Points

Uniformed Services Employment and Reemployment Rights Act (USERRA)

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that establishes rights and responsibilities for uniformed service members and their civilian employers.

USERRA is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other uniformed services: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. The law is intended to encourage uniformed service so that the United States can enjoy the protection of those services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals.

USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to perform service in the uniformed services to include certain types of service in the National Disaster Medical System and the Commissioned Corps of the Public Health Service.

USERRA affects employment, reemployment and retention in employment, when employees serve in the uniformed services. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.

ESGR’s Ombudsman Services Program provides information and mediation on issues related to USERRA. The ESGR Customer Service Center is available to answer USERRA questions. Specially trained Ombudsmen are available to assist members of the Guard and Reserve in resolving disputes with their civilian employers related to military service in the uniformed services through neutral and impartial mediation. ESGR Ombudsmen are volunteers located throughout the U.S. and U.S. territories.

Vocational rehabilitation

To be eligible for vocational retraining, a veteran must have at least a 20 percent service-connected disability or a 10 percent service-connected disability with a serious employment handicap. The VA (U. S. Department of Veterans Affairs) will evaluate eligible veterans to determine suitable vocational rehabilitation services and a living allowance. The VA will also provide the expenses for higher education, technical school, a certificate program, or technical programs to assist the transition of a veteran into the workforce.

Click here for Army Wounded Warrior Project

Dependency and Indemnity Compensation

Dependency and Indemnity Compensation (DIC) payments are made to unremarried surviving spouses of veterans, single minor children, and students who are college-age children of veterans who died while on active duty or from a service-connected disease or injury. DIC payments, at the current rate of $967 per month, are also made to survivors of veterans who were totally disabled by service-connected conditions at the time of their death, in certain circumstances. Payments can be made in these instances if the veteran was totally disabled for ten years preceding his or her death, if he or she had the rating for five years following discharge from the military service, or if the veteran was a former prisoner of war who died after September 30, 1999, and was continuously rated as totally disabled for a year prior to death.

Health Care

Veterans may be eligible for health care at VA health facilities. There are eight priority groups established largely based on the service-connected disability rating. A veteran’s priority group is determinative in whether he or she is responsible for co-payments for outpatient and inpatient care and prescription medication. Regardless of priority group, veterans are provided no-cost treatment for their service-connected disabilities. Veterans who are service-connected disabled at 50 percent or greater are entitled to medical services for the treatment of any disability, including disabilities that are not service connected.

Attorneys should be aware that eligibility for VA health care is an important option when planning with clients. For example, veterans who are 70 percent or more disabled or otherwise unable to care for themselves because of service-connected disabilities may be entitled to admission to a VA nursing facility. This is a valuable option when conducting estate planning with the family of a veteran who does not meet Medicaid guidelines for acceptance into a nursing facility.

Click here for Army Wounded Warrior Project

Home Loans

The VA offers veterans home loans that require no down payment. A veteran must obtain a certificate of eligibility from the VA and get approval for a specific loan limit. There are varying time-in-service requirements, depending on the era of service and whether the veteran served as an officer or enlisted service member. Veterans of the Persian Gulf War era, which began August 2, 1990, and is ongoing, are eligible for VA home loans if they completed 24 months of active duty, or the full period of active duty (at least 90 days of a reserve call-up), or were granted a hardship or early discharge. A reservist who has not been called up for active duty is eligible for a VA home loan after six years of selected reserve service.

The VA limits the amount of closing costs and origination fees lenders can charge, as well as the appraisal fees. The VA does not require private mortgage insurance and prohibits lenders from requiring it. The VA assesses a funding fee, which ranges from 0.5 percent to 3.30 percent of the loan amount, depending on the type of VA loan and whether it is a first or second VA loan. This fee is waived if the veteran has a compensable service-connected disability. The current loan ceiling, with the VA’s guaranty of $60,000, is $240,000. Recently, numerous members of Congress have offered legislation to increase the VA home loan ceiling to above $300,000.

Insurance

While Servicemembers and Reservists are still in the military service, they can enroll in Servicemembers Group Life Insurance (SGLI), a low-cost term life insurance program that provides coverage up to $250,000. The premiums are static and are not contingent on age.

Following separation from the military service, each veteran who was discharged under conditions other than dishonorable is given the opportunity to convert his or her SGLI into a Veterans’ Group Life Insurance (VGLI) term life insurance policy. If a newly discharged veteran enrolls immediately after his or her discharge, he or she will automatically be granted approval for a VGLI policy; current health status, history of past illness, smoking, and service-connected disabilities will not be factored into policy rates. The VGLI premiums are higher than those of SGLI and are age-contingent; however, this policy provides payment for death incurred in acts of war, terrorism, and ultra-hazardous activities, which is of interest to some veterans who engage in high-risk employment or recreational activities. Although the rates are less competitive than those offered by many private insurers, the program allows some disabled veterans the opportunity to acquire life insurance when they otherwise might not be able to do so.

Service-disabled veterans who are rated for a disability also have the opportunity to purchase basic Service-Disabled Veterans Insurance (S-DVI). Within two years of receiving service connection for a disability, these veterans can purchase up to $10,000 in coverage. A policyholder who becomes totally disabled can apply for a waiver of premiums on his or her basic S-DVI policy and request a $20,000 supplemental S-DVI policy.

Education

The VA administers several education programs for veterans and their dependents, aside from its vocational rehabilitation programs. Veterans separating from active duty have ten years from their release date from active duty to use their educational benefits. Reservists generally have ten years to use the programs from their last date in the Selected Reserve. Veterans can extend these time limits in some circumstances, such as when service-connected disability precludes the use of educational benefits.

In limited circumstances, service members are permitted to transfer their education benefits to one or more dependents. Such service members must work in critical career specialties and will incur additional service obligations in exchange for the ability to transfer these benefits.

The Montgomery GI Bill is available to veterans who entered active duty after June 30, 1985, and contributed $100 per month for 12 months. Unlike other VA-administered programs, veterans must have received an “honorable” discharge to receive this educational benefit; discharge characterizations such as “general” and “under honorable conditions” render a veteran ineligible for this program. Individuals with service obligations greater than two years currently receive $985 per month for full-time studies and $492.50 per month for half-time studies. This program is not available to veterans commissioned through the service academies, and there are limitations for veterans commissioned through the Reserve Officers Training Corps.

The Veterans Educational Assistance Program is available for veterans who entered active duty after December 31, 1976, but before July 1, 1985. Veterans who participated in this program made contributions up to $2,700 while in service. The VA will match these contributions on a $2 to $1 basis. Unused contributions are refunded to the veteran. The veteran must have received a discharge for conditions other than dishonorable.

The Dependents’ Educational Assistance Program is offered to the spouses and children between ages 18 and 26 of totally and permanently disabled, deceased, or missing veterans. Spouses have time limitations in which to use their benefits. Beneficiaries may receive up to $788 per month in educational benefits.

Disability Pension

A disability pension is available for veterans who meet income requirements and are no longer able to work because of a permanent and total disability that is not service-connected. Qualifying veterans must have served for at least 90 days on active duty, with at least one day being during wartime. This pension is distinguished from the VA’s “total disability rating based on individual unemployability” (TDIU) compensation, which is an unemployability payment based on service-connected disabilities.

Death and Burial Benefits

If a veteran dies of a service-connected condition, a $2,000 allowance is payable to his or her survivors. Otherwise, a $300 burial and funeral expense and $300 funeral plot allowance are available.

Veterans also are entitled to burial in a VA national cemetery. Only veterans who die while on active duty or are retired from a military service are entitled to in-ground internment at Arlington National Cemetery, although there are columbarium spaces available for honorably discharged veterans. Veterans are entitled to a headstone or marker free of charge from the VA, even if they are not buried in a national cemetery. In addition, federal law requires, at a family’s request, that a deceased veteran be afforded appropriate military funeral honors, which include the folding and presentation of the U.S. burial flag and the playing of “Taps.”

Correction of Military Records

Attorneys may represent veterans before the military services’ boards for correcting perceived injustices in their military records. A veteran challenging the characterization of his or her discharge should appeal to the corresponding service’s Discharge Review Board (DRB) if he or she raises the appeal within 15 years of discharge. Such boards do not have the authority to adjudicate decisions of general courts martial or medical discharges. However, DRBs can amend other discharges. A veteran should appeal to his or her service’s Board for Correction of Military Records (BCMR) within three years of discovery of an error, unless it is in the interest of justice to go forward with the appeal beyond three years. The service’s BCMR is effectively an appeal to the service’s secretary, and the BCMR has the authority to “correct an error or remove an injustice,” including upgrading a discharge adjudicated by a court-martial. There is no provision, should the veteran’s appeal prevail, for the payment of attorney fees and expenses to the prevailing party.

Appeals

Veterans have the right to appeal the denial of benefits. Following a decision regarding a disability rating, compensation amount, education benefit, or other VA benefit program, a veteran has one year from the date of that decision to file a notice of disagreement to the VA regional office, or medical center, in some instances, that issued the decision. The issuing VA office, following receipt of the veteran’s notice of disagreement, will send the veteran a statement of the case, which contains pertinent facts, laws, and regulations used by the VA to adjudicate the case. In order to perfect the appeal, the veteran must submit a substantive appeal within 60 days of the mailing of the statement of the case, or within a year of the claim, whichever date is later.

The claim is then adjudicated by the Board of Veterans’ Appeals in Washington, D.C. The veteran can also request a local hearing by a traveling board of that body at his or her local regional office or can have a hearing via videoconference. The Board of Veterans’ Appeals is the final agency appellate review for veterans’ claims.

Veterans can appeal decisions to the U.S. Court of Appeals for Veterans Claims, an Article I court established in 1989. Veterans have 120 days to appeal decisions of the Board of Veterans’ Appeals. At this point, veterans can retain private attorneys to represent them in their claims for benefits and compensation.

Employer Support for the Guard and Reserve

ESGR, a Department of Defense office, was established in 1972 to promote cooperation and understanding between Reserve Component Service members and their civilian employers and to assist in the resolution of conflicts arising from an employee’s military commitment. ESGR is supported by a network of more than 4,900 volunteers in 54 committees located across all 50 states, the District of Columbia, Guam-CNMI, Puerto Rico and the U.S. Virgin Islands. ESGR services can only be utilized if an attorney is not involved and no complaint has been filed with the Department of Labor.

Click here for the Employer Support for the Guard and Reserve

Servicemembers Civil Relief Act (SCRA)

The Servicemembers Civil Relief Act (SCRA), formerly known as the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), is a federal law that provides protections for military members as they enter active duty. It covers issues such as rental agreements, security deposits, prepaid rent, eviction, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosure, civil judicial proceedings, automobile leases, life insurance, health insurance and income tax payments.

Legal Aid Assistance

Legal Aid of West Virginia (LAWV) is a non-profit organization that provides free legal assistance to low-income West Virginians in a variety of civil legal areas, including family law, housing, employment, consumer, government benefits, and Social Security. LAWV has 12 offices throughout the state. LAWV may be able to assist low income veterans throughout West Virginia with advice, advocacy, education, or legal representation.

To apply for legal assistance, veterans or their family members should call the Access to Legal Aid Services hotline at 1-866-255-4370. This hotline is open from 8:30 a.m. to 3:00 p.m. Monday, Wednesday, Thursday, and Friday and, additionally, from 8:30 a.m. to 12:30 p.m. and 6:00 p.m. until 8:00 p.m. every Tuesday.

LAWV Explanation of Legal Assistance

Resources

• Employer Support for the Guard and Reserve – ESGR’s mission is to maintain support for Guard and Reserve service.
• Army Wounded Warrior Project
• Military OneSource is a free 24/7 information and referral service available by toll-free telephone and the Web to active duty, Guard, and Reserve (regardless of activation status) members and their families. Access the website at www.militaryonesource.mil or call 1-800-342-9647, phones are answered live 24/7!
• My Army Benefits
• U.S. Armed Forces Legal Assistance Locator
• Uniformed Services Employment and Reemployment Rights Act (USERRA)
• US Department of Justice Servicemembers Civil Relief Act
• Military Consumer: financial education and fraud prevention