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Volume 8 - Opinions of Counsel SBEA No. 103

Opinions of Counsel index

Alternative veterans exemption (member of exempt class) (type of discharge) - Real Property Tax Law, § 458-a:

A person who received an honorable discharge in one war but who was discharged under other than honorable conditions from a later enlistment should nonetheless be considered a veteran for purposes of the alternative veterans exemption.

A veteran who was honorably discharged from his service during World War II, was “undesirably” discharged from his later service during the Korean War. We are asked now whether his widow may receive the alternative veterans exemption, given her late husband’s subsequent “undesirable” discharge from military service. The issue is one of first impression; we have not issued any administrative opinions, and we are unaware of any judicial decision on point.

We have been advised by the New York State Division of Veterans’ Affairs that each completed enlistment period served by a veteran is viewed separately and distinctly. Accordingly, a discharge under other than honorable conditions does not vitiate or otherwise affect a prior honorable discharge. Where a veteran was honorable discharged, his subsequent reenlistment and discharge under other than honorable conditions is not a bar to the veteran’s receipt of benefits based upon his prior service.

The alternative veterans exemption is granted as a reward to wartime veterans for military service. A “veteran” for purposes of the alternative veterans exemption is defined in paragraph (e) of subdivision one of section 458-a as “a person who served in the active military, naval or air service during a period of war and who was discharged or released therefrom under honorable conditions”. There is nothing in the law, however, which renders a veteran, who was so honorably discharged from a period of wartime service, ineligible for exemption because of a subsequent reenlistment and discharge under other than honorable conditions. Given the absence of statutory language which would disqualify this individual, it appears that the honorable discharge establishes eligibility for the exemption. Thus, while there might be a question raised by the subsequent discharge, we must conclude that the apparent intent of the statute is to provide the veteran with the benefit (see, Association of the Bar of the City of New York v. Lewisohn, 34 N.Y.2d 143, 313 N.E.2d 30, 356 N.Y.S.2d 555 (1974)).

Accordingly, it is our opinion that since this veteran honorably served during World War II, he should still be considered a “veteran” for purposes of the alternative veterans exemption, notwithstanding his subsequent reenlistment and discharge under other than honorable conditions. Therefore, assuming all the other statutory requirements are satisfied, the veteran’s widow may receive the alternative veterans exemption.

November 19, 1986

Updated: