Citation Nr: 0931704	
Decision Date: 08/24/09    Archive Date: 09/02/09

DOCKET NO.  06-14 586	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Montana Healthcare System & 
Regional Office
in Fort Harrison, Montana



THE ISSUE

Eligibility for enrollment in the Department of Veterans 
Affairs healthcare system.




ATTORNEY FOR THE BOARD

Suzie S. Gaston, Counsel





INTRODUCTION

The appellant served on active duty from January 1968 to July 
1971, at which time he received a discharge characterized on 
his DD Form 214 MC as Under Conditions Other Than Honorable.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2005 decision, by the above 
Department of Veterans Affairs (VA) Healthcare System & 
Regional Office (HS&RO), which denied the appellant access to 
VA medical benefits based upon the character of his military 
discharge.  

In May 2008, the Board determined that the appellant had 
submitted a new claim for VA healthcare benefits, and 
remanded the case for further procedural development and 
readjudication.  The HS&RO completed all requested 
development, and continued the denial of the benefits sought.  
The case is properly returned to the Board for appellate 
consideration.  


FINDINGS OF FACT

1.  The appellant was discharged from service in July 1971, 
under conditions other than honorable (OTH) as a result of a 
Special Court-Martial which imposed a sentence including a 
bad conduct discharge.  

2.  During his period of active service, the appellant was 
absent without leave (AWOL) from July 22, 1970, to August 12, 
1970, and from November 11, 1970, to February 8, 1971, 
together totaling 276 days.  

3.  In an Administrative Decision issued in April 1972, the 
RO determined that the character of the appellant's discharge 
was under dishonorable conditions because of willful and 
persistent misconduct, and constituted a bar to VA benefits.   

4.  In an Administrative decision issued in March 2009, the 
HS&RO determined that the appellant's actions which led to a 
Special Court-Martial resulting in a bad conduct discharge in 
July 1971 constituted a bar to VA benefits, including 
healthcare benefits under Chapter 17 of title 38, U.S. Code.  

5.  The appellant has no service-connected disabilities.  


CONCLUSION OF LAW

The appellant's bad conduct discharge constitutes a bar to VA 
healthcare benefits under Chapter 17, of title 38, United 
States Code.  38 U.S.C.A. §§ 101(2), 5107, 5303(b) (West 2002 
& Supp. 2009); 38 C.F.R. §§ 3.12, 3.360 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000, Public Law No. 
106-475 (VCAA) enhanced VA's duty to notify and assist 
claimants in substantiating their claims for VA benefits, as 
codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 
5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 
3.159, 3.326(a) (2009).

At the outset of this decision, the Board finds that the 
provisions of the VCAA are not applicable to this claim on 
appeal, because the appeal turns on a question of law and not 
on the underlying facts or development of the facts.  See 
Manning v. Principi, 16 Vet. App. 534, 542 (2002), in which 
the U.S. Court of Appeals for Veterans Claims held that the 
VCAA can have no effect on appeals which are decided on an 
interpretation of the law as opposed to a determination based 
on fact.  See also Smith v. Gober, 14 Vet. App. 227 (2000); 
Dela Cruz v. Principi, 15 Vet. App. 143 (2001).  Thus, 
although the record reflects that the appellant has received 
the full panoply of notice and assistance in his claim and 
appeal, any deficiency which might be found would constitute 
harmless error, because the facts are not in dispute herein 
and the case turns entirely on the law.

II.  Factual Background

The record indicates that the appellant served on active duty 
in the Marine Corps from January 1968 to July 1971.  He 
served without disciplinary incident until April 1969, when 
he received nonjudicial punishment (NJP), under Article 15 of 
the Uniform Code of Military Justice, for possession of a 
false identification card.  He received a reduction in pay 
grade, correctional custody, and partial forfeiture of pay.  
He served without incident in Vietnam from May 1969 to 
January 1970.  In August 1970, he was convicted by a Summary 
Court-Martial of a 21-day period of unauthorized absence 
(UA).  He received a reduction in pay grade, confinement at 
hard labor, and partial forfeiture of pay.  In March 1971, 
the appellant was convicted by Special Court-Martial of an 
89-day period of UA.  He was sentenced to a forfeiture of 
pay, confinement at hard labor, and a bad conduct discharge.  
At his request, the sentence of a bad conduct discharge was 
executed early, and the appellant was discharged from service 
in July 1971, under other than honorable conditions by reason 
of the sentence of the Special Court-Martial.  At discharge, 
his total time lost from service totaled 276 days.  

In an April 1972 administrative decision, VA determined that 
the character of the appellant's discharge was under 
dishonorable conditions, and constituted a bar to VA 
benefits, other than insurance benefits, on the basis that 
the discharge was based on willful and persistent misconduct, 
under VA Regulation (VAR) 1012(D).  

In June 2005, the appellant applied for VA healthcare 
benefits.  

Received in April 2006 was a decision issued by the Board for 
Correction of Naval Records, dated in February 2006, which 
had determined that recharacterization of the appellant's 
discharge was not warranted "because of the seriousness of 
your repetitive misconduct which resulted in NJP and two 
court-marital convictions, and since you requested immediate 
execution of the BCD [bad conduct discharge]."  

In a March 2009 administrative decision, after review of the 
all the facts and circumstances surrounding appellant's 
discharge on July 16, 1971, the HS&RO determined that the 
appellant is not entitled to healthcare benefits under 
Chapter 17 of title 38, U.S. Code, due to his receipt of a 
bad conduct discharge, citing 38 C.F.R. § 3.360 (2009).  

In correspondence dated in April 2009, the National Personnel 
Records Center (NPRC) reported that there is no record of an 
upgrade of the appellant's discharge by any military or 
civilian authority.  

III.  Legal analysis

The appellant is seeking to be declared eligible for VA 
healthcare benefits.  When a person is seeking VA benefits, 
it first must be shown that the service member upon whose 
service such benefits are predicate, has attained the status 
of veteran.  Holmes v. Brown, 10 Vet. App. 38, 40 (1997).  
The term "veteran" means a person who served in the active 
military, naval, or air service, and who was discharged or 
released therefrom under conditions other than dishonorable.  
38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  

Where an individual's discharge or release is considered to 
have been issued under dishonorable conditions under the 
provisions of 38 C.F.R. § 3.12, that individual is not 
eligible for VA benefits other than healthcare and related 
benefits authorized by Chapter 17, title 38, U.S. Code.  See 
38 U.S.C.A. § 101(2); 38 C.F.R. §§ 3.1(d), 3.12(a), 3.360(a).  

Pursuant to 38 C.F.R. § 3.360(b), healthcare and related 
benefits authorized by Chapter 17, title 38, U.S. Code, may 
not be furnished for any disability incurred or aggravated 
during a period of service terminated by a bad conduct 
discharge or when one of the bars listed in 38 C.F.R. 
§ 3.12(c) applies.  In this regard, the Board notes that VAR 
1012, cited in the April 1972 administrative decision, has 
since been redesignated as 38 C.F.R. § 3.12.  The conditions 
of discharge listed at 38 C.F.R. § 3.12(c) are statutory bars 
which do not apply to this case.  However, the dispositive 
legal criteria in the present matter are set out at 38 C.F.R. 
§ 3.360(b), which was not in effect in 1972, but was 
promulgated to implement the provisions of Public Law 95-126, 
§ 2, 91 Stat. 1106, 1107-08 (October 8, 1977).  See 43 Fed. 
Reg. 15,154 (Apr. 11, 1978).

As discussed above, the appellant's service was terminated as 
a result of a Special Court-Martial, and, his sentence 
included a bad conduct discharge.  The appellant has no other 
period of military service, and there is no established 
service-connected disability.  Thus, the appellant is not 
eligible for healthcare benefits authorized by Chapter 17 of 
title 38, U.S. Code, under the authority of 38 C.F.R. 
§ 3.360(b).  

Where the law and not the evidence is dispositive, the claim 
should be denied or the appeal to the Board terminated 
because of the absence of legal merit or the lack of 
entitlement under the law.  See Sabonis v Brown, 6 Vet. App. 
426, 430 (1994).  For these reasons, the Board finds that the 
appellant's claim is without legal merit.  


ORDER

Eligibility for enrollment in the Department of Veterans 
Affairs healthcare system is denied.  



___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs