Citation Nr: 1114526 Decision Date: 04/13/11 Archive Date: 04/21/11 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 T. Azizi-Barcelo, 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. In a March 2009 decision, the Board determined that the character of the appellant's discharge from his last period of service was a bar to VA benefits, exclusive of health care under 38 U.S.C. Chapter 17. The appellant appealed the Board decision to the United States Court of Appeals for Veterans Claims. In a November 2010 Memorandum Decision, the Court vacated the Board's March 2009 decision and remanded the appeal to the Board for further development. 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. 2010); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 being discharged "in lieu of court-martial" is not the same as being discharged to "escape trial by general court-martial." In support of his claim, he asserts that he voluntarily turned himself in after going AWOL and was not trying to escape trial by court-martial. He claims he did not voluntarily request an undesirable discharge in order to avoid court-martial. He also claims that as court-martial proceedings were never instituted against him, the character of his discharge should have been upgraded. A person seeking VA benefits must first establish that they have attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38 (1997). 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) (2010). 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 (2010). A discharge under honorable conditions is binding on the VA as to the character of discharge. 38 C.F.R. § 3.12(a) (2010). 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) (2010). 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) (2010); 38 U.S.C.A. § 5303 (West 2002 & Supp. 2010). 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) (West 2002); 38 C.F.R. § 3.12(c)(6) (2010). Compelling circumstances that maybe used to show that the prolonged and unauthorized absence was warranted include the length and character of service exclusive of the period of prolonged AWOL; the reasons for going AWOL, such as family emergencies or obligations owed to third parties, with consideration of the person's age, background, education, and judgmental maturity; and the existence of a valid legal defense for the absence. 38 C.F.R. § 3.12(c)(6)(i-iii) (2010). 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 shows 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) (2010). 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 request for discharge signed by the appellant explained that he was making the request out of his own free will because a charge of AWOL would authorize the imposition of bad conduct or dishonorable discharge, he was afforded the opportunity to consult with appointed counsel, he understood the offense charged and was guilty of the charges or a lesser included offense, and a discharge for other than honorable conditions would make him ineligible for many or all of VA benefits. The narrative reason for the separation listed on the service separation form specifically states, "for the good of the service-in lieu of court-martial." The appellant's service separation form does not identify the type of court-martial the appellant faced when he accepted an other than honorable discharge. The appellant filed an application for correction of military records, requesting an upgrade of the character of his discharge. In February 2005, the appellant sought VA benefits for a left foot injury incurred in March 1988. The RO denied the appellant's claim on the grounds that his service was determined to be dishonorable. 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 Board finds that 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 (that 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); (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) (2010). Pursuant to the Uniform Code of Military Justice (UCMJ) Article 86 does not view AWOL in excess of 30 days as a minor offense, but rather as a severe offence punishable by confinement of up to one year and the issuance of either a bad conduct or dishonorable discharge. Summary and special court martials are not empowered under UCMJ to punish with a dishonorable discharge. Only a general court-martial may exercise that punishment. UCMJ, 10 U.S.C. § 801 et seq., Manual for Court-martial, United States, 1988; Winter v. Principi, 4 Vet. App. 29 (1993). The appellant argues that he was not trying to "escape" a court-martial as evidenced by the fact that he turned himself in, and court-martial proceedings were never instituted against him. Therefore, he alleges that it is incorrect to consider his discharge under "other than honorable" conditions discharge a "dishonorable" discharge. However, a discharge or release for certain offenses is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d) (2010). His service records clearly show that he voluntarily requested a discharge and that he had a right to do so, because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge. The record indicates that when he requested a discharge under other than honorable conditions he acknowledge that he was aware of the implications that this discharge entailed and accepted the discharge. And as the appellant's AWOL offense was longer than 30 days and was subject to a dishonorable discharge, he was therefore subject to a general court-martial because the potential punishment of a dishonorable discharge may only be administered by a general court-martial. The acceptance of an undesirable discharge to avoid trial by general court-martial therefore renders his discharge under other than honorable conditions to be considered under dishonorable conditions for VA purposes. For VA purposes a person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. 38 U.S.C. § 5303 (West 2002); 38 C.F.R. § 3.12 (2010); Camarena v. Brown, 6 Vet. App. 565 (1994) (38 C.F.R. § 3.12 does not limit "dishonorable conditions" to only those cases where dishonorable discharge was adjudged). A dishonorable discharge imposes a bar to VA benefits predicated on that service. 38 U.S.C.A. § 101(2) (West 2002). To the extent that the appellant raised the minor-offense exception, the Board notes that a discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(4) (2010). However, as the appellant was AWOL for more than 30 days, his offense was not considered a minor offense. His AWOL offense was subject to a dishonorable discharge and he was, therefore, subject to a general court-martial, and his discharge was in-lieu of a general court-martial. Therefore, the Board finds that because he was not discharged for persistent and willful misconduct, the exception for minor offenses is inapplicable. 38 C.F.R. § 3.12(d)(4) (2010). Finally the appellant argues that the when he accepted a discharge under other than honorable conditions, he was not assisted by defense counsel. The Board notes that the record indicates that the appellant was provided counsel when he requested a discharge under other than honorable conditions and he acknowledge that he was aware of the repercussions that discharge entailed. Accordingly, the Board finds that the appellant's argument is inconsistent with the evidence of record and is thus without merit. A discharge, however, 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) (2010). Specifically, if it is established to the satisfaction of VA 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 VA based upon the period of service from which such person was separated. 38 U.S.C.A. § 5303(b) (West 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 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) (2010). VAOPGCPREC 20-97 (May 22, 1997), 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 medical and personnel records shows 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 show 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 has stated that the experienced considerable discomfort due to foot trouble and knowingly went AWOL in order to relieve his discomfort. The evidence does not show that the appellant did not know what he was doing was wrong. The Board finds that the preponderance of the evidence is against a finding that the appellant was insane at the time of the offense committed or at the time of his discharge. 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 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 any disease or injury incurred during his last period of service, and his claim must be denied as a matter of law. 38 C.F.R. § 3.12(d) (2010); Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board finds that insanity during the period of service in question is not shown by the evidence of record. As the preponderance of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 2010). 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