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Volume 8 - Opinions of Counsel SBEA No. 47

Opinions of Counsel index

Alternative veterans exemption (member of exempt class) (type of discharge) - Real Property Tax Law, § 458-a; 32 C.F.R. Part 41:

A veteran whose separation from service is characterized as under other than honorable conditions is not eligible/or the alternative veterans exemption. However, a veteran who received an honorable discharge, or a general discharge under honorable conditions, qualifies for such exemption.

We have been asked whether a veteran who received a general discharge from active duty is eligible for the alternative veterans exemption (RPTL, §458-a).

The alternative veterans exemption may be granted to “qualifying residential real property” which is “property owned by a qualified owner which is used exclusively for residential purposes” (§458-a(l)(d)). A “qualified owner” as used in the foregoing definition is defined as including a “veteran” (458-a(l)(c)). A “veteran” is defined as “a person who served in active military, naval or air service during a period of war and who was discharged or released therefrom under honorable conditions” (emphasis added) (§458-a(l)(e)).

Provisions for the administrative separation of enlisted members from the military service are set forth in Title 32 of the Code of Federal Regulations. Appendix A of Part 41 of Title 32 establishes standards and procedures relative to administrative separation proceedings. Part 2(C), Appendix A provides in part, as follows:

C. Characterization of Service or Description of Separation.

1. Types of characterization or description. a. At separation, the following types of characterization of service or description of separation are authorized under this part:

(1) Separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions.

* * *

Subsection 2(b)(l) of Part 2(C) states that the characterization of service as Honorable “is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.”

Subsection 2(b)(2) of Part 2(C) provides that:

If a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as General (under honorable conditions) is warranted when significant negative aspects of the member’s conduct or performance of duty outweigh positive aspects of the member’s military record.

Based on the foregoing regulations, it is clear that a veteran whose separation from service is characterized as other than honorable conditions is not eligible for exemption under section 458-a. However, it is our opinion that a veteran who received an honorable discharge, as well as a general discharge under honorable conditions, will qualify for the exemption.

April 18, 1985