Citation Nr: 0307026 Decision Date: 04/11/03 Archive Date: 04/14/03 DOCKET NO. 97-18 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether the character of the claimant's discharge is a bar to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Reichelderfer, Counsel INTRODUCTION The claimant served on active duty from January 1970 to March 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 1996 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) at New Orleans, Louisiana. In May 2000, the Board remanded this case to the RO for additional evidentiary development and adjudication. At that time, the Board pointed out the procedural history of the issue on appeal. The case has been returned to the Board for further appellate consideration. The claimant presented testimony before the undersigned Veterans Law Judge at a hearing at the RO in November 1999. A transcript of the hearing has been associated with the claims folder. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the claim has been developed. 2. In March 1971, the claimant received a discharge from service under other than honorable conditions due to willful and persistent misconduct. CONCLUSION OF LAW The claimant's discharge was dishonorable and is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5100, 5102, 5103, 5103A, 5106, 5107, 5126, 5303 (West 2002); 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.159, 3.326, 3.354 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background Review of the claimant's military records show in July 1970, nonjudicial punishment under Uniform Code of Military Justice (UCMJ) Art. 15 was imposed for his failure to go to his appointed place of duty. On August 11, 1970, nonjudicial punishment under UCMJ Art. 15 was imposed for failure to go to his appointed place of duty. On August 14, 1970, nonjudicial punishment under UCMJ Art. 15 was imposed for failure to go to his appointed place of duty, disobeying a lawful order, and being disrespectful toward his superior noncommissioned officer. In January 1971, the claimant was charged in two specifications with violation of UCMJ Art. 86 (absent without leave), two specifications of violation of UCMJ Art. 91 (insubordinate conduct), and two specifications of violation of UCMJ Art. 128 (assault on superior noncommissioned officer). The claimant was confined in January 1971 and a special court martial was convened. In February 1971, the claimant requested a discharge for the good of the service and acknowledged that he may be discharged under other than honorable conditions. He also acknowledged consulting with counsel. Counsel noted the claimant personally made the choice indicated in the discharge request. The claimant underwent psychiatric evaluation in March 1971. The findings were that the claimant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in proceedings. The impression was that there was no psychiatric disease. The claimant was discharged in March 1971 under other than honorable conditions and an undesirable discharge was issued. The claimant presented testimony at a hearing at the RO in May 1996. He testified that he had a nervous condition in service and that he believed he was treated unfairly. The claimant's representative indicated that the claimant was incorrectly pushed into accepting the undesirable discharge in lieu of court martial. The claimant presented testimony before the undersigned at a hearing at the RO in November 1999. He testified that he had a nervous condition in basic training. He also indicated that prior to January 1971 he had an Article 15. The claimant stated that he accepted the discharge because he was in the stockade and that he was not adequately represented. He also noted that his discharge should have been under honorable conditions and that he just signed the papers to be discharged for the good of the military. The representative indicated that the claimant's conduct during service was not willful and persistent, and he may have been suffering from post traumatic stress disorder (PTSD). In August 2000, the Army Board for Correction of Military Records reported that the claimant's separation was in compliance with applicable regulations, there was no indication of procedural errors, and the type of discharge was appropriate considering the facts of the case. The Board for Correction also noted there was no evidence of racial discrimination, the request for discharge tended to show that he wished to avoid trial by court martial, and that the contentions of counsel were unsubstantiated. The Board for Correction found there was no basis for granting the claimant's request. Analysis Initially, the Board notes that during the pendency of the appellant's claim and appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). The VCAA is liberalizing and is therefore applicable to this case. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The VCAA and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim. Additionally, the VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also requires VA to notify the claimant and the claimant's representative of any information including medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. 38 C.F.R. §§ 3.102, 3.159, 3.326 (2002). Review of the record reflects that the claimant was informed of the requirements for a grant of the benefit sought in the April 1997 statement of the case and the June 2002 supplemental statement of the case. The statement of the case and the supplemental statements of the case provided the claimant with a summary of the evidence in the record used for the determination. Therefore, the claimant was advised of the evidence necessary to substantiate his claim. A January 1996 VA letter to the claimant advised him of the evidence that the RO would obtain and to submit any evidence that would support his claim. He was thus advised of the evidence that he was responsible for obtaining. Service records detailing the facts and circumstances of the claimant's discharge have been obtained and records from the Army Board for Correction of Military Records have been obtained. The appellant has not identified additional relevant evidence of probative value which has not already been sought and associated with the claims file. Accordingly, the facts relevant to this claim have been properly developed and there is no further action to be undertaken to comply with the provisions of the VCAA. 38 C.F.R. §§ 3.102, 3.159, 3.326 (2002). A veteran is "a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2002). If a former service member 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.A. § 101(2) (West 2002); 38 C.F.R. § 3.12(a) (2002). A discharge by reason of willful and persistent misconduct is considered dishonorable. 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. 38 C.F.R. § 3.12(d)(4) (2002). A discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offense causing the discharge. 38 U.S.C.A. § 5303(b) (West 2002); 38 C.F.R. § 3.12(b) (2002). An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more-or- less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment in the social customs of the community in which he resides. 38 C.F.R. § 3.354(a) (2002). When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation, it will base its decision on all the evidence procurable relating to the period involved and apply the definition in subparagraph (a). 38 C.F.R. § 3.354(b) (2002). The claimant began service in January 1970 and was discharged in March 1971 under other than honorable conditions. The record indicates that in July 1970 nonjudicial punishment under the UCMJ was imposed. Nonjudicial punishment was again imposed on two more separate occasions in August 1970. Therefore, in a period of approximately two months, nonjudicial punishment was imposed on three separate occasions. Then in January 1971, he was charged with multiple offenses including absent without leave, insubordination, and assault. The claimant then requested discharge for the good of the military and he was subsequently discharged. Therefore, in the one year period from the time he entered service until he was confined, the claimant had nonjudicial punishment imposed or charges brought against him on four separate occasions. This number of incidents in such a brief period amounts to persistent misconduct. Additionally, the nature of the nonjudicial punishments and the January 1971 charges indicate the claimant's conduct was willful. As noted, the claimant had charges brought against him in January 1971 which included insubordinate conduct and assault on a superior noncommissioned officer. The gravity or seriousness of these charges was reflected by the convening of a special court martial. Therefore, the charges that led to the claimant's request for discharge were not minor offenses. Accordingly, the claimant's other than honorable discharge was due to persistent and willful misconduct, and was thus issued under dishonorable conditions. 38 C.F.R. § 3.12(b)(4) (2002). The representative has indicated that the January 1971 incident was the first indication of a disciplinary problem. However, this is incorrect. As noted above, the claimant had nonjudicial punishment imposed on three separate occasions prior to the January 1971 charges. The claimant has indicated that he was not adequately advised when he requested his discharge. However, the record shows that at the time he requested discharge, he consulted counsel and acknowledged that he may receive an other than honorable discharge. Additionally, in August 2000 the Board for Correction of Military Records indicated that type of discharge was appropriate given the facts of the case. The representative has also indicated there were irregularities in the materials that led to the January 1971 charges. However, the claimant consulted with counsel prior to requesting his discharge and the time to dispute the military charges was in 1971, not over 30 years after being discharged from service. Additionally, in August 2000 the Army Board for Correction of Military Records indicated that the claimant's request for a discharge tended to show that he wished to avoid trial by court martial and that similar contentions by his representative were unsubstantiated. Accordingly, the contentions raised by the claimant and his representative do not alter the finding that the other than honorable discharge was due to willful and persistent misconduct. 38 C.F.R. § 3.12(b)(4) (2002). A dishonorable discharge will not be considered a bar to benefits if the claimant was insane at the time of the offense that led to the discharge. Additionally, the claimant's representative has indicated that the claimant may have had PTSD at the time he committed the offenses. However, at the time the claimant was being processed for discharge, he received a psychiatric evaluation. There was no psychiatric disease, he was mentally responsible, and was able to distinguish right from wrong and adhere to right. Therefore, there is no basis to find that the claimant was insane or otherwise mentally impaired at the time he committed the offenses that led to his discharge from service. 38 U.S.C.A. § 5303(b) (West 2002); 38 C.F.R. §§ 3.12(b), 3.354 (2002). Based on the above, the claimant's other than honorable discharge was due to persistent and willful misconduct, and was thus issued under dishonorable conditions. Accordingly, his discharge is a bar to VA benefits (except certain benefits under 38 U.S.C. Chapt. 17). 38 U.S.C.A. §§ 101, 5100, 5102, 5103, 5103A, 5106, 5107, 5126, 5303 (West 2002); 38 C.F.R. §§ 3.1, 3.12, 3.102, 3.159, 3.326, 3.354 (2002). ORDER The claimant's discharge from service constitutes a bar to entitlement to VA benefits (except certain benefits under 38 U.S.C. Chapt. 17). The appeal is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.