Citation Nr: 0909213 Decision Date: 03/12/09 Archive Date: 03/26/09 DOCKET NO. 07-14 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether the character of the appellant's discharge from service constitutes a bar to Department of Veterans Affairs (VA) benefits, exclusive of health care under 38 U.S.C. Chapter 17. REPRESENTATION Appellant represented by: John W. Tilford, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The appellant served on active duty from January 1972 to January 1975, from December 1976 to December 1980, and from March 1988 to October 1988. He was discharged in October 1988 under other than honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that determined that the appellant's character of discharge from his last period of service constituted a bar to VA benefits based upon his last period of service. FINDINGS OF FACT 1. The appellant was honorably discharged from his first two periods of active service, which spanned from January 1972 to January 1975, and from December 1976 to December 1980. 2. The appellant reenlisted in March 1988 and was administratively discharged in October 1988 under other than honorable conditions. 3. During his service from March 1988 to October 1988, the appellant was absent without official leave (AWOL) from June 9, 1988 to July 20, 1988, a period of 42 days. 4. The appellant accepted a discharge under other than honorable conditions in lieu of trial by court martial. CONCLUSION OF LAW The appellant's other than honorable discharge from service is a bar to the award of VA benefits. 38 U.S.C.A. §§ 101(2), 5103A, 5303 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The term veteran means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d) (2008). If the 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 was based was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.12 (2008). A discharge under honorable conditions is binding on the VA as to the character of discharge. 38 C.F.R. § 3.12(a) (2008). However, a discharge or release from service under specified conditions 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 C.F.R. § 3.12(b) (2008). Benefits are not payable where the claimant was discharged or released by reason of the sentence of a general court-martial. 38 C.F.R. § 3.12(c)(2) (2008); 38 U.S.C.A. § 5303 (West 2002 and Supp. 2008). A person discharged under conditions other than honorable on the basis of an absence without official leave period of at least 180 days is barred from receipt of VA benefits unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c)(6). The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence: (i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation. (ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity. Consideration should be given to how the situation appeared to the person himself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. (iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. 38 C.F.R. § 3.12(c)(6)(i-iii). The appellant was honorably discharged from his first two periods of active service, which spanned from February 1972 to February 1974, and from December 1976 to December 1980. The character of his discharge and his eligibility for VA benefits based upon those periods of service are not at issue. The Board accordingly will confine its analysis to whether the appellant's character of discharge from his third and final period of service bars him from the receipt of VA benefits for that period of service. The record reflects that the appellant was AWOL from June 9, 1988, to July 20, 1988, a period of 42 days, well short of the 180 days required for the period of AWOL to be considered to be prolonged. 38 C.F.R. § 3.12(c)(6). In July 1988, the appellant accepted a discharge under conditions other than honorable for the good of the service and in order to avoid trial by court martial. The narrative reason for the separation listed on the Form DD-214, Certificate of Release or Discharge from Active Duty, specifically states, "for the good of the service-in lieu of court-martial." The appellant contends that the character of his discharge from his last period of service should not be a bar to the award of VA benefits. Specifically, he asserts that because he voluntarily turned himself in and because court martial proceedings were never instituted against him, the character of his discharge should have been upgraded. The character of the appellant's discharge from his last period of service has not been upgraded, and the Board makes no findings as to propriety of any upgrade of his discharge, merely that an upgrade of discharge has not been awarded by the appropriate body of jurisdiction. The United States Army Review Board denied the appellant's application to upgrade the character of his discharge in an October 2005 decision. As there has been no removal of any bar to VA benefits, the bar to benefits established under 38 C.F.R. § 3.12 remains in effect. An "other than honorable" discharge is not necessarily tantamount to a "dishonorable" discharge. However, a discharge or release for certain offenses is considered to have been issued under dishonorable conditions. A discharge or release from service for one of the following reasons is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude (this includes, generally, conviction of a felony); (4) willful and persistent misconduct; and (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). In July 1988, the appellant signed a memorandum requesting that he be discharged from service for the good of the service. In that memorandum, he acknowledged that he understood the elements of the offenses charged and his guilt. His signature to the memorandum authorized the imposition of a dishonorable discharge. His Form DD-214 for the period of service reflects that he was discharged in order to avoid a court martial. Despite that the appellant turned himself in and that court martial proceedings were never instituted against him, his service records clearly reflect that he voluntarily accepted a discharge in lieu of a court martial. The acceptance of an undesirable discharge in lieu of trial by general court- martial renders his discharge under other than honorable conditions dishonorable. A dishonorable discharge imposes a bar to all VA benefits predicated on that service. 38 U.S.C.A. § 101(2). However, a discharge under dishonorable conditions will not constitute a bar to benefits if the individual was insane at the time of the offenses causing the discharge. 38 U.S.C.A. § 5303(b) (West 2002); 38 C.F.R. § 3.12(b). Specifically, pursuant to 38 U.S.C.A. § 5303(b), "if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person's court-martial, discharge or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary based upon the period of service from which such person was separated." 38 U.S.C.A. § 5303(b). 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 to the social customs of the community in which he resides. 38 C.F.R. § 3.354(a). See also VAOPGCPREC 20-97 (May 22, 1997) (holding that the term "constitutionally psychopathetic" was synonymous with psychopathetic personality (antisocial personality disorder). Consulting various well-accepted legal authority, VA General Counsel has noted that the term insanity was more or less synonymous with "psychosis." VAOPGCPREC 20-97, 62 Fed. Reg. 37955(1997). In order for a person to be found to have been insane at the time of committing the offense, the insanity must be such that it legally excuses the acts of misconduct. Additionally, there must be a causal connection between the insanity and the misconduct in order to demonstrate that a claimant's other than honorable discharge should not act as a bar to the grant of veterans' benefits. Cropper v. Brown, 6 Vet. App. 450 (1994). A review of the appellant's service treatment and personnel records reveals that he underwent examination in January 1988, prior to reporting to his final period of active duty. The psychiatric portion of the examination was normal and the appellant did not report any mental health problems. His service medical records for the remainder of that period of service do not demonstrate any psychiatric abnormalities. The appellant's service records are completely negative for any suggestion of insanity. The records do not reflect that the appellant had a disease that caused him to act in a manner not in accordance with his normal method of behavior; or caused him to interfere with the peace of society, or caused him to depart from the accepted standards of the community. In general, the evidence shows that the appellant experienced considerable discomfort secondary to foot trouble and knowingly went AWOL in order to relieve his discomfort. The evidence does not demonstrate that the appellant did not know what he was doing was wrong. The appellant's discharge under other than honorable conditions is in this case a bar to VA benefits for that period of service. Insanity is not an applicable defense in this instance and the appellant has failed to establish, by a preponderance of the evidence, that he is a "veteran" (with a qualifying discharge) with respect to his last period of service. Holmes v. Brown, 10 Vet. App. 38 (1997); Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (before applying for benefits, person must demonstrate by preponderance of evidence qualifying service and character of discharge). Consequently, the appellant has no legal entitlement to VA benefits based on disease or injury incurred during his last period of service, and his claim must be denied as a matter of law. 3 8 C.F.R. § 3.12(d); Sabonis v. Brown, 6 Vet. App. 426 (1994). In any event, the Board finds that insanity during the period of service in question is not shown by the evidence of record. The Board has considered whether the notice and development provisions of law of applicable to this claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008). The Board finds that because the appellant has been determined not to be a veteran with respect to his last period of service as a matter of law for compensation purposes and is thus found to be barred from VA benefits by reason of the character of his discharge, the notice provisions do not apply in this case. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim. ORDER The character of the appellant's service from March 1988 to October 1988 is a bar to entitlement to VA benefits other than health care under 38 U.S.C. Chapter 17. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs