Citation Nr: 1525958 Decision Date: 06/17/15 Archive Date: 06/26/15 DOCKET NO. 10-36 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a non-service-connected disability pension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The appellant served on active duty from June 1973 to October 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois that denied a non-service-connected disability pension. In December 2013, the Board remanded the claim to afford the appellant an opportunity for a Board hearing. The appellant testified at a hearing before the Board by videoconference from the RO in February 2015. A transcript of the hearing is associated with the claims file. The Veterans Benefits Management System and Virtual VA paperless claims processing system contain the transcript of the Board hearing, an August 2010 Application for the Review of Discharge from the Armed Forces of the United States (DD Form 293), and two written statements submitted by the appellant in April 2015. FINDINGS OF FACT 1. The appellant received a bad conduct discharge by order of a general court martial effective October 21, 1976. 2. The Veteran's behavior and mental state was not the result of a disease and did not meet the VA criteria for insanity at the time he committed the offense that resulted in a bad conduct discharge. CONCLUSION OF LAW The appellant's bad conduct discharge by order of a general court martial is a bar to the award of VA benefits. 38 U.S.C.A. §§ 101(2), 5303 (West 2014); 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.354 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In August 2008, the RO provided notice relevant to the claim for a non-service connected pension. The RO issued the notice prior to the decision on the claim in January 2010, provided the service and disability criteria for the pension, and explained appellant's and VA's respective responsibilities to obtain relevant evidence. The RO also advised the appellant that the character of his discharge may affect his eligibility for the claimed benefit. However, VA is not required to provide notice of the information and evidence necessary to substantiate a claim where, as here, 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. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); VAOPGCPREC 5-2004 (June 2004), 69 Fed. Reg. 59989 (2004). The duty to assist also includes obtaining relevant Federal records identified by the claimant that may assist in substantiating the claim. During the February 2015 Board hearing, the appellant testified that he had submitted a request to the Army Discharge Review Board (ADRB) to upgrade the character of discharge. He testified that he had received and responded to correspondence from the ADRB but had not received a final decision. He requested that the Board remand the appeal for VA to obtain the decision and for the transcripts of his general court martial. The Board finds this development is not warranted for reasons provided below. The Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the February 2015 Board hearing, the undersigned VLJ noted that basis of the prior determinations and the elements of the claims that were lacking to substantiate the claims for benefits. Although the issue of character of discharge may be a bar to benefits, the VLJ questioned the appellant on the nature and severity of his disabilities. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims and held the record open for 90 days to allow the appellant to obtain additional evidence including as relevant to his character of discharge. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the undersigned VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. II. Legal Criteria for a Bar to Veteran's Benefits Veteran status is established for a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C.A. § 101(18); 38 C.F.R. § 3.12(a). A discharge under honorable conditions is binding on the VA as to the character of discharge. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars found at 38 U.S.C.A. § 5303(a) and 38 C.F.R. § 3.12(c); and regulatory bars listed in 38 C.F.R. § 3.12(d). Pension benefits are not payable where the former service member was discharged or released by reason of a sentence of a general court martial. 38 C.F.R. § 3.12(c). A discharge or release is considered to be under dishonorable conditions for an offense of moral turpitude that generally includes conviction of a felony. 38 C.F.R. § 3.12(d)(3). A discharge or release from service under one of the conditions specified in 38 C.F.R. § 3.12 is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense. 38 C.F.R. § 3.12(b). VA regulations define an "insane" person as one who: (a) 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 (b) interferes with the peace of society; or (c) 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). The condition of insanity need only exist at the time of the commission of the offense leading to the person's discharge, and there is no requirement of a causal connection between the insanity and the misconduct. Struck v. Brown, 9 Vet. App. 145 (1996). There still must be competent evidence establishing the claimant was insane at the time of the offenses in question leading to an other than honorable discharge. Zang v. Brown, 8 Vet. App. 246, 254 (1995). III. Analysis The Veteran served as a U.S. Army engineering specialist. He contended in a July 2008 claim and during the February 2015 Board hearing that his active duty service did not warrant an other than honorable discharge and that he now experienced multiple psychiatric disabilities. He submitted records of mental health care dated in June through August 2008 in which a private psychologist diagnosed major depressive disorder and posttraumatic stress disorder arising from intense combat experiences in the Republic of Vietnam. A General Court Martial Order issued in December 1975 showed that the appellant was convicted at a general court martial of armed robbery, a violation of Article 122 of the Uniform Code of Military Justice. The sentence included a bad conduct discharge. Following confinement and appellate review, the appellant was awarded the bad conduct discharge (DD Form 259A), effective October 21, 1976. In adjudication of a claim for education benefits, in July 1980 the RO issued an Administrative Decision that barred the appellant from receiving benefits by reason of a sentence by a general court martial. The RO received the appellant's claim for a non-service-connected pension in July 2008. In August 2008, the appellant submitted records of mental health care dated in June through August 2008 in which a private the psychologist diagnosed major depressive disorder and posttraumatic stress disorder arising from intense combat experiences in the Republic of Vietnam and that he was currently experiencing symptoms such as depression, lack of anger control, flashbacks, and mood swings. There was no mention of the armed robbery. The psychologist noted the Veteran's report that he negotiated an early discharge because military service "did not agree with him." In a December 2009 informal RO hearing, the appellant stated that he was wrongly convicted of the armed robbery because, though present, he did not commit the robbery. He requested that VA obtain files from the Army Judge Advocate General for the four months prior to the general court martial and for four months prior to his discharge. In a January 2010 decision, the RO continued to uphold the bar to VA benefits because of the character of discharge and advised the appellant to seek changes to the results of the court martial and character of discharge from the Deparment of the Army. The appellant's representative filed a notice of disagreement in March 2010 without further comment, and following the issuance of a statement of the case, in August 2010, the appellant's wife perfected an appeal on his behalf. In August 2010, the Veteran submitted an Application for the Review of Discharge from the Armed Forces of the United States (DD Form 293) to the Army Discharge Review Board. During the February 2015 Board hearing, the Veteran testified as to the circumstances of the armed robbery and his innocence, stating that the robbery was committed by another soldier with a weapon unknown to him at the time. There was no mention that he experienced any abnormal or unusual mental health symptoms or prolonged deviation from his normal method of behavior; that his behavior interfered with the peace of society; or that he so departed (become antisocial) from the accepted standards of the community. He testified that he simply did not commit the felony. The appellant's representative requested that the Board parse his service into honorable and dishonorable periods for VA purposes. In April 2015, the Veteran submitted two additional written statements in which he again described the events of the robbery and contended he did not commit the crime. As the statements are essentially duplicative of his hearing testimony and do not bear on an issue subject to VA's jurisdiction, the evidence need not be returned to the RO for consideration. 38 C.F.R. § 19.37 (b) (2014). The Board finds that the appellant's bad conduct discharge is a bar to entitlement to VA benefits as a matter of law under both the statutory and regulatory criteria as the discharge was at the order of a general court martial for conviction of a felony. Character of discharge is assigned by the service department and VA has no authority to change the character of discharge or the conviction and sentence by the general court martial. The Board acknowledges that the Veteran submitted an application to upgrade the character of his discharge to the ABDR and petitioned the Board to assist in obtaining the results of its review. However, this additional development is not warranted because the ABDR has no jurisdiction over discharges by reason of a sentence of a general court martial or over 15 years since discharge. 10 U.S.C 1553; Department of Defense Instruction 1332.28, E.2.1.1, E.3.1.2 (Apr.4, 2004). Any request for review in this appellant's case must be addressed to the Army Board of Correction of Military Records (ABCMR) using DD Form 149 or online at http://arba.army.pentagon.mil. The Board acknowledges the appellant's petition to parse periods of service so as to create a period of honorable service. The Board has no authority to so modify the appellant's periods of service as documented in the single Report of Separation from Active Duty (DD-214) that clearly shows one period of active duty ending with an unconditional bad conduct discharge with no intervening reenlistments or other enlistment contract actions. See 38 C.F.R. § 3.13. The Board considered whether there is any competent lay or medical evidence to suggest that the appellant met the VA criteria for insanity at the time of the offense, and the Board finds none. The appellant asserted only that he was innocent and did not commit the offense, not that a mental illness or any behavioral abnormality was a factor. Medical evidence of his current disorders refers to combat events in Vietnam, but service records show that the appellant was never in combat or in Vietnam. Moreover, there is no competent lay or medical evidence to suggest that any current disease was either in existence or had an influence on the conduct that gave rise to a conviction for a felony. Regarding the appellant's request for VA to obtain Judge Advocate General's records before and after the court martial, the Board finds that this development is not warranted because the appellant contended only that he did not commit the offense, a matter that was properly adjudicated by the military court which may not be disturbed by VA. Therefore, as there is no competent evidence of abnormal behavior and mental state due to disease, the appellant does not meet the VA criteria for insanity at the time he committed the offense that resulted in a bad conduct discharge. As the bar to benefits is a matter of law, the "benefit of the doubt" rule is not for application, and the Board must deny the claim for a non-service-connected pension. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A non-service-connected disability pension is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs