Any person who has intentionally and wrongfully caused the death of another person is not entitled to pension, compensation, or dependency and indemnity compensation or increased pension, compensation, or dependency and indemnity compensation by reason of such death. [26 F.R. 1566, Feb. 24, 1961]

CROSS REFERENCE: Forfeiture; servicemen's indemnity. See §3.1816.

§3.12 Character of discharge.

(a) If the veteran did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable (38 U.S.C. 101(2)). A discharge under honorable conditions is binding on the Veterans Administration as to character of discharge.

(b) A discharge or release from service under one of the conditions specified in this section is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release (38 U.S.C. 3103(b)).

(c) Benefits are not payable where the veteran was discharged or released under one of the following conditions:

(1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities.

(2) By reason of the sentence of a general court-martial.

(3) Resignation by an officer for the good of the service.

(4) As a deserter.

(5) As an alien during a period of hostilities, where it is affirmatively shown that he requested his release. See § 3.7(b) (38 U.S.C. 3103 (a)).

(d) A discharge or release because of one of the offenses specified in this para

graph is considered to have been issued under dishonorable conditions.

(1) Acceptance of an undesirable discharge to escape trial by general courtmartial.

(2) Mutiny or spying.

(3) An offense involving moral turpitude. This includes, generally, conviction of a felony.

(4) Willful and persistent misconduct. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.

(5) Generally, homosexual acts. [28 F.R. 123, Jan. 4, 1963]

CROSS REFERENCES: Validity of enlistments. See § 8.14.

Revision of decisions. See § 3.105. §3.13 Discharge to change status.

(a) A discharge to accept appointment as a commissioned or warrant officer, or to change from a Reserve or Regular commission to accept a commission in the other component, or to reenlist is a conditional discharge if it was issued during one of the following periods:

(1) World War I; prior to November 11, 1918. As to reenlistments, this subparagraph applies only to Army and National Guard. No involuntary extension or other restrictions existed on Navy enlistments.

(2) World War II or Korean conflict; prior to the date the person was eligible for discharge under the point or length of service system, or under any other criteria in effect.

(3) Peacetime service; prior to the date the person was eligible for an unconditional discharge.

(b) The entire period of service under the circumstances stated in paragraph (a) of this section constitutes one period of service and entitlement will be determined by the character of the final termination of active service.

[26 F.R. 1566, Feb. 24, 1961, as amended at 27 F.R. 4024, Apr. 27, 1962; 31 F.R. 9063, July 1, 1966]

§3.14 Validity of enlistments.

Service is valid unless the enlistment is voided by the service department.

(a) Enlistment not prohibited by statute. Where an enlistment is voided

by the service department for reasons other than those stated in paragraph (b) of this section, service is valid from the date of entry upon active duty to the date of voidance by the service depart

Benefis may not be paid, bowever, unless the discharge is held to have been under conditions other than dishonorable. Generally discharge for concealment of a physical or mental defect except 10cmpetency or insanity which would have prevented enlistment will be beld to be under dishonorable conditions.

(b) Statutory prohibition. Where an enlistment is voided by the service department because the person did not have legal capacity to contract for a reason other than minority (as in the case of an insane person or because the enlistment was prohibited by statute (a deserter or person convicted of a felony), benefits may not be paid based on that service even though a disability was incurred during such service. An undestrable discharge by reason of the fraudmient enlistment voids the enlistment from the beginning.

(c) Mirrepresentation of age. Active service which was terminated because of concealment of minority or misrepresentation of age is honorable if the veteran was released from service under conditions other than dishonorable. Service is valid from the date of entry upon active duty to the date of discharge.

(d) Honorable discharges. Determinations as to honorable service will be made by the service departments and the finding shall be binding on the Veterans Administration, but, in the case of an allen, the effect of the discharge will be governed by $3.7 b).

106 P.B. 1567, Feb. 24, 1961, as amended at 27 FR. 4004, Apr. 27, 1982]

$3.15 Computation of service.

For non-service-connected or serviceconnected benefits, active service is countable exclusive of time spent on an industrial, agricultural, or indefinite furlough, time lost on absence without leave (without pay, under arrest (without acquittal, in desertion, while undergoing sentence of court-martial or a period following release from active duty under the circumstances outlined in $3.9. Time spent in a hospital on sick furlough or as a prisoner-of-war is included. In claims based on Spanish-American War service, leave authorized under General

Order No. 130, War Department included.

127 FR. 4024, Apr. 27, 1982]

CROSS REFERENCE: Duty periods $3.6xb)(€).

§3.16 Service pension.

(a) Indian wars. See $33(b)). (b) Spamsh-American War. In occ pating the 70 or 90 days required u 133 b)(2), active service which beg before or extended beyond the war peru will be included if such service was com tinuous. Broken periods of service ing a war period may be added togeth to meet the requirement of length service.

126 F.R. 1567, Feb. 24, 1961]

§3.17 Disability and death pension World War I World War II Korean conflict.

In computing the 90 days' service re quired by $3.3 c), there will be include active service which began before an extended into World War I, or began c ended during World War II or to Korean confact, if such service was com

125 FR. 8513, Sept. 12, 1961] § 3.20

Widow's benefit for month veteran's death.

Where the veteran died on or after December 1, 1962, the rate of death pen ston, death compensation or dependenc and indemnity compensation otherwise payable for his widow for the month which the death occurred shall be po less than the amount of pension or compensation which would have been payable to or for the veteran for that monit but for his death. (38 U.S.C. 3110; Becs 4 and 7, Public Law 87-825) 127 FR. 11886. Dec. 1, 1962] RELATION SECP

§ 3.50 Wife, widow or spouse.

(a) Wife. "Wife" means a person whose marriage to the veteran meets the requirements of $3.1().

b) Widow. Except as provided in $3.52, .dow" means a persons whose marriage to the veteran meets the requirements of §3.1(0) and who was the lawful wife of the veteran at the time of his death and

(1) Who lived with him continuously from the date of marriage to the date of his death except where there was a separation which was due to the mis

conduct of, or procured by, the veteran without the fault of the wife and

(2) Who has not remarried or (in cases not involving remarriage) has not since the death of the veteran and after September 19, 1962, lived with another man and held herself out openly to the public to be the wife of such other man. (38 U.S.C. 101(3); Public Law 87-674)

(c) Spouse. "Spouse" means a person whose marriage meets the requirements of §3.1(j) or as to accured benefits, § 3.52.

126 F.R. 1567, Feb. 24, 1961, as amended at 28 F.R. 2904, Mar. 23, 1963]

CROSS REFERENCE: Definition, marriage. See § 3.1(J).

Marriage dates. See § 3.54.

Evidence, marriage. See § 3.205.

Discountinuance, marriage or remarriage. See § 3.500 (n).

§ 3.51 Dependent husband or widower.

(a) General. The term "wife" includes the husband of any female veteran if such husband is incapable of selfmaintenance and is permanently incapable of self-support due to physical or mental disability. The term "widow" includes the widower of any female veteran if such widower is incapable of selfmaintenance and was permanently incapable of self-support due to physical or mental disability at the time of the veteran's death. (38 U.S.C. 102(b)) Determinations of dependency will be made under the criteria stated in § 3.250.

(b) Entitlement. A dependent husband or widower meeting the requirements of paragraph (a) of this section is in the same status as a wife or widow of a male veteran and is eligible to receive the same benefits, if otherwise entitled, in a claim for pension, compensation, or dependency and indemnity compensation.

[26 F.R. 1567, Feb. 24, 1961]

§ 3.52 Marriages deemed valid.

Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if:

(a) The marriage occurred 5 or more years before the veteran died, and

(b) The claimant entered into the marriage without knowledge of the impediment, and

(c) The claimant cohabited with the veteran continuously from the date of

marriage to the date of his death as outlined in § 3.53, and

(d) No claim has been filled by a legal widow who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. (38 U.S.C. 103(a))

[26 F.R. 1567, Feb. 24, 1961, as amended at 27 F.R. 1215, Feb. 9, 1962]

CROSS REFERENCE: Marriages deemed valid. See §3.205(c).

§3.53 Continuous cohabitation.

(a) General. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows there was no separation due to the fault of the widow. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation.

(b) Findings of fact. The statement of the widow as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the widow to desert her husband, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section.

[26 F.R. 1567, Feb. 24, 1961] § 3.54 Marriage dates.

A widow may qualify for pension, compensation, or dependency and indemnity compensation if the marriage to the veteran occurred before or during his service or, if married to him after his separation from service, before the applicable date stated in this section.

(a) Pension. Death pension may be paid to a widow who was married to the veteran:

(1) Five or more years prior to his death, or

(2) For any period of time if a child was born of the marriage, or

(3) Prior to the applicable delimiting dates, as follows:

(1) Civil War-June 27, 1905. (H) Indian Wars-March 4, 1917. (ii) Spanish-American War—January 1, 1938.

(iv) World War I-December 14, 1944. (v) World War II-January 1, 1957. (vi) Korean conflict-February 1, 1965. (38 U.S.C. 532(d), 534(c), 536(c), 541(e)) (b) Compensation. Death compensation may be paid to a widow who, with respect to date of marriage, could have qualified as a widow for death compensation under any law administered by the Veterans Administration in effect on December 31, 1957, or who was married to the veteran:

(1) Before the expiration of 10 years or, effective June 8, 1960, before the expiration of 15 years after termination of the period of service in which the injury or disease which caused his death was incurred or aggravated, or

(2) Five or more years, or

(3) For any period of time if a child was born of the marriage. (38 U.S.C. 302)

(c) Dependency and indemnity comperaction. Dependency and indemnity compensation may be paid to the widow of a veteran who died on or after January 1, 1957, who was married to the veteran:

(1) Before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or

(2) For 5 or more years, or

(3) For any period of time if a child was born of the marriage. (38 U.S.C. 404)

(d) Child born of the marriage. The term “child born of the marriage" means a birth subsequent to the marriage on which the widow's entitlement is predicated. The term includes a fetus advanced to the point of gestation required to constitute a birth under the law of the jurisdiction in which the fetus was delivered.

(e) More than one marriage to veteran. For periods commencing on or after January 1, 1958, where a widow has been married legally to a veteran more than once, the date of the original marriage will be used in determining whether the statutory requirement as to date of

(b) Has been annulled by a court having basic authority to render annulmez. decrees, unless it is determined by the Veterans Administration that the annulment was obtained through frand b either party or by collusion. (38 U.S.C. 103 (d), (e); Public Law 87-674)

[28 F.R. 2904, Mar. 23, 1963]

CROSS REFERENCE: Evidence. See $ 3.207. §3.57 Child.

(a) General. The term "child" of the veteran means an unmarried person:

(1) Who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran's household or was a member of his household at the time of his death, or an illegitimate child; and

(2) Who is under the age of 18 years;

(3) Who, before reaching the age of 18 years, became permanently incapable of self-support; or

(4) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational (Public Law 89-311)

(b) Stepchild. The term means a legitimate or an Megitimate child of the veteran's sponse, if the child was under the age of 18 years at the time the child became a member of the veteran's household. A child of a surviving spouse whose marriage to the veteran is deemed valid under the provisions of 3.52 and who otherwise meets the requirements of this paragraph is included.

(c) Adopted child. Effective August 25, 1959, the term includes, as of the date of death of a veteran, cne who was:

(1) Living in the veteran's household at the time of his death, and

(2) Legally adopted by the veteran's spouse pursuant to a final decree of adoption or an interlocutory decree of adoption which has the effect of a final

decree, rendered within 2 years after August 25, 1959, or the veteran's death, whichever is later, and

(3) Not receiving from an individual other than the veteran or his spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support. (38 U.S.C. 101(4))

[26 F.R. 1568, Feb. 24, 1961, as amended at 27 F.R. 1215, Feb. 9, 1962; 27 F.R. 6498, July 10, 1962; 30 F.R. 14981, Dec. 3, 1965]

CROSS REFERENCES: Child's relationship. See § 3.210.

Helplessness. See § 3.403(a). Helplessness. bee $3.503 (c). School attendance. See § 3.667. Helpless children; Spanish-American and prior wars. See § 3.950.

§ 3.58 Child adopted out of family.

A child of a veteran adopted out of the family of the veteran either prior or subsequent to the veteran's death is nevertheless a "child" within the meaning of that term as defined by § 3.57 and is eligible for benefits payable under all laws administered by the Veterans

Administration.

126 F.R. 1568, Feb. 24, 1961]

CROSS REFERENCE: Veteran's benefits not apportionable. See § 8.458.

§ 3.59 Parent.

(a) The term "parent" means a natural mother or father (including the mother of an illegitimate child or the father of an illegitimate child if the usual family relationship existed), mother or father through adoption, or a person who for a period of not less than 1 year stood in the relationship of a parent to a veteran at any time before his entry into active service.

(b) Foster relationship must have begun prior to the veteran's 21st birthday. Not more than one father and one mother, as defined, will be recognized in any case. If two persons stood in the relationship of father or mother for 1 year or more, the person who last stood in such relationship before the veteran's last entry into active service will be recognized as the "parent". (38 U.S.C. 101(5))

[26 F.R. 1568, Feb. 24, 1961]

(a) Authority is delegated to the Chief Benefits Director and to supervisory or adjudicative personnel within the jurisdiction of the Department of Veterans Benefits designated by him to make findings and decisions under the applicable laws, regulations, precedents, and instructions, as to entitlement of claimants to benefits under all laws administered by the Veterans Administration governing the payment of monetary benefits to veterans and their dependents, within the jurisdiction of Compensation, Pension and Education Service.

(b) Authority is delegated to the Chief Benefits Director to establish annual income limitations for the purposes of § 3.251(a)(2) based on service defined in § 3.8 (b), (c), or (d) at a rate in Philippine pesos equivalent to $0.50 for each dollar.

(c) Authority is delegated to the Director, Compensation, Pension and Education Service and to personnel of that service designated by him to take final action in the waiver of recovery of payments or overpayments from any person pursuant to the provisions of 38 U.S.C. 3102 subject to any limitations imposed by current Veterans Administration Regulations and instructions. See §§ 3.1900 and 3.1901.

(d) Authority is delegated to the Director, Compensation, Pension and Education Service, and to personnel of that service designated by him to determine whether a claimant or payee has forfeited the right to gratuitous benefits pursuant to the provisions of 38 U.S.C. 3503 or 3504. See § 3.905 (38 U.S.C. 212(a)).

[29 F.R. 7547, June 12, 1964, as amended at 31 F.R. 14455, Nov. 10, 1966]

§ 3.101 Decisions to conform.

All decisions will conform to the laws, regulations, Administrator's decisions, and defined policies as enunciated by the Administrator. All opinions of the General Counsel which constitute a precedent are contained in Administrator's decisions or opinions which are approved by the Administrator. Conclusions reached in individual cases are frequently influenced by peculiar facts or local statutes and, consequently, will not be followed as precedents. However, where