U.S. Code » Title 38 » Part PART I— GENERAL PROVISIONS › Chapter CHAPTER 1— GENERAL

38 U.S.C. § 105

Line of duty and misconduct

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(a) An injury or disease incurred during active military, naval, air, or space service will be deemed to have been incurred in line of duty and not the result of the veteran’s own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, air, or space service, whether on active duty or on authorized leave, unless such injury or disease was a result of the person’s own willful misconduct or abuse of alcohol or drugs. Venereal disease shall not be presumed to be due to willful misconduct if the person in service complies with the regulations of the appropriate service department requiring the person to report and receive treatment for such disease.(b) The requirement for line of duty will not be met if it appears that at the time the injury was suffered or disease contracted the person on whose account benefits are claimed (1) was avoiding duty by deserting the service or by absenting himself or herself without leave materially interfering with the performance of military duties; (2) was confined under sentence of court-martial involving an unremitted dishonorable discharge; or (3) was confined under sentence of a civil court for a felony (as determined under the laws of the jurisdiction where the person was convicted by such court).(c) For the purposes of any provision relating to the extension of a delimiting period under any education-benefit or rehabilitation program administered by the Secretary, the disabling effects of chronic alcoholism shall not be considered to be the result of willful misconduct.(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1110; Pub. L. 99–576, title VII, § 701(4), Oct. 28, 1986, 100 Stat. 3290; Pub. L. 100–689, title I, § 109, Nov. 18, 1988, 102 Stat. 4170; Pub. L. 101–508, title VIII, § 8052(a)(1), Nov. 5, 1990, 104 Stat. 1388–351; Pub. L. 102–83, § 4(a)(1), Aug. 6, 1991, 105 Stat. 403; Pub. L. 116–283, div. A, title IX, § 926(a)(2), Jan. 1, 2021, 134 Stat. 3829.)Editorial NotesAmendments

2021—Subsec. (a). Pub. L. 116–283 substituted “air, or space service” for “or air service” in two places.

1991—Subsec. (c). Pub. L. 102–83 substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.

1990—Subsec. (a). Pub. L. 101–508 substituted “a result of the person’s own willful misconduct or abuse of alcohol or drugs” for “the result of the person’s own willful misconduct”.

1988—Subsec. (c). Pub. L. 100–689 added subsec. (c).

1986—Subsec. (a). Pub. L. 99–576, § 701(4)(A), substituted “result of the person’s” for “result of his” and “requiring the person” for “requiring him”.

Subsec. (b)(1). Pub. L. 99–576, § 701(4)(B), substituted “service or by absenting himself or herself” for “service, or by absenting himself”.

Statutory Notes and Related SubsidiariesEffective Date of 1990 Amendment

Pub. L. 101–508, title VIII, § 8052(b), Nov. 5, 1990, 104 Stat. 1388–351, provided that: “The amendments made by subsection (a) [amending this section and sections 310 and 331 [now 1110 and 1131] of this title] shall take effect with respect to claims filed after October 31, 1990.”

Notes of Decisions
Cited in 70 cases (4 in the last 5 years), 1980–2025 · leading case: Rezi P. Forshey, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 284 F.3d 1335 (Fed. Cir. 2002).
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Rezi P. Forshey, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 284 F.3d 1335 (Fed. Cir. 2002). · cites it 11× “38 U.S.C. § 105 (a) (2000) (emphases added).”
Jerry R. Shedden, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 381 F.3d 1163 (Fed. Cir. 2004). · cites it 5× “While the Court of Appeals for Veterans Claims erroneously stated that 38 U.S.C. § 105 (a) does not create a presumption of service connection, we conclude that this error was harmless, and we affirm.”
Morris v. Shinseki, 678 F.3d 1346 (Fed. Cir. 2012). · cites it 8× “Morris filed a motion with the Board in which he argued that the 1988 Board Decision was tainted by CUE because the Board failed to correctly apply 38 U.S.C. §§ 105 (a), 1110, and 1111. According to Mr.”
Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009). · cites it 2× “Bryant appealed to the Veterans Court and argued that the Board either misinterpreted or failed to apply 38 U.S.C. §§ 105 (a) and 1111. The Veterans Court affirmed the Board’s denial of compensation in both cases.”
William F. Allen, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 237 F.3d 1368 (Fed. Cir. 2001). · cites it 3× “1119 (repealed 1958), stated that “no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct.”
Simmons v. Wilkie, 964 F.3d 1381 (Fed. Cir. 2020). · cites it 3× “Another statutory presumption relevant to the second requirement is set forth in 38 U.S.C. § 105 (a), which cre- ates a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty and not caused by any veteran misconduct.”
United States v. Johnson, 481 U.S. 681 (1987). · cites it 2× “See 38 U. S. C. § 105 . Moreover, the VBA is not, as Feres assumed, identical to federal and state workers' compensation statutes in which exclusivity provisions almost invariably appear.”
Gabrielson v. Brown, 7 Vet. App. 36 (Vet. App. 1994). · cites it 2× “§ 1310 (a) (requiring that service connection be established under chapter 11 for DIC purposes); 38 U.S.C. § 105 (a) (describing line of duty and willful misconduct); 38 C.”
Dennis R. Thomas, Claimant-Appellant v. R. James Nicholson, Sec'y of Vets. Affairs, 423 F.3d 1279 (Fed. Cir. 2005). · cites it 3× “On appeal, Thomas argues that the Veterans Court improperly interpreted 38 U.S.C. § 105 (a) by disregarding a presumption of service-connection for Thomas’s injuries that occurred in the line of duty and by not requiring “clear and convincing evidence” from the Secretary of…”
Conley v. Peake, 543 F.3d 1301 (Fed. Cir. 2008). · cites it 3× “Because we conclude that the Veterans Court correctly interpreted 38 U.S.C. § 105 (a), we affirm. BACKGROUND John W.”
Jerry G. Dalton v. R. James Nicholson, 21 Vet. App. 23 (Vet. App. 2007). “According to the appellant, section 1154(b), either alone, or together with section 105(a), creates a presumption of service connection that elimi *29 nates a veteran’s need to submit medical nexus evidence, unless the presumption is rebutted by clear and convincing evidence to…”
Manio v. Derwinski, 1 Vet. App. 140 (Vet. App. 1991). “752 (1944), essentially the same provisions are today found at 38 U.S.C. § 105 (1988), and *143 are also found at 38 C.”
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38 U.S.C. § 105(a): 2 cases
Dennis R. Thomas, Claimant-Appellant v. R. James Nicholson, Sec'y of Vets. Affairs, 423 F.3d 1279 (Fed. Cir. 2005). “On appeal, Thomas argues that the Veterans Court improperly interpreted 38 U.S.C. § 105 (a) by disregarding a presumption of service-connection for Thomas’s injuries that occurred in the line of duty and by not requiring “clear and convincing evidence” from the Secretary of…”
Thomas v. Nicholson (Fed. Cir. 2005).
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