Citation Nr: 1535758 Decision Date: 08/20/15 Archive Date: 08/31/15 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 based on that period of service, 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. Wishard, 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) on appeal from a December 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appellant testified at a hearing before a Veterans Law Judge (VLJ) in August 2008, and at a hearing before another VLJ in April 2014. Transcripts of the hearings are of record. When two hearings have been held by different VLJs concerning the same issue, the law also requires that the Board assign a third VLJ to decide that issue because a proceeding before the Board may be assigned either to an individual VLJ or to a panel of not less than three members of the Board. 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3. In a statement dated in May 2014, the appellant's agent requested a hearing before another VLJ. In June 2014, the Board remanded the appellant's claim for a hearing to be scheduled. In June 2014 correspondence, the appellant's agent stated that the appellant did not wish to have another hearing; thus, the Board will now adjudicate the appellant's claim. 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 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 5. The appellant's discharge or release from his March 1988 to October 1988 period of service was based on his acceptance of an undesirable discharge to escape trial by general court-martial. 6. The evidence does not support a finding that the appellant was insane at the time of his AWOL. CONCLUSION OF LAW The character of the appellant's discharge from service is a bar to eligibility for VA compensation benefits based on that period. 38 U.S.C.A. §§ 101, 5303 (West 2014); 38 C.F.R. §§ 3.12, 3.13 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in April 2005. The appellant's claim has now been pending for approximately ten years. It has been before the Board on four prior occasions and before the U.S. Court of Appeals of Veterans Claims on two occasions. The appellant has been represented by an agent. The record reflects that the appellant is aware of the evidence needed to substantiate his claim. There is no indication in the claims file that the appellant has been prejudiced by a failure, if any, by VA in informing him of what is required to obtain VA benefits. In addition, the Board finds that VA has adequately complied with any duty to assist the appellant in attempting to substantiate his claim. The claims file includes statements in support of the appellant's claim, his service treatment records (STRs), and his service personnel records, to include the 1988 Charge Sheet (DD Form 458), the lack of which was a basis for the prior Court remands. The Board finds, as is discussed in further detail below, that the service records reflect that the appellant was discharged to escape a general court-martial; thus, no further evidence is necessary prior to adjudicating the appellant's claim. Accordingly, the Board finds no prejudice toward the appellant in proceeding with the adjudication of his claim. Legal Criteria VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 5303; 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) (2014). A discharge or release because of an acceptance of an undesirable discharge to escape trial by general court-martial is considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d)(1). 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 2014); 38 C.F.R. § 3.12(b) (2014). 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 2014). 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) (2014). 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). Analysis The Board has reviewed all of the evidence in the appellant's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The appellant's discharge from his last period of service is characterized as under other than honorable conditions. The appellant contends that this character of discharge 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 court-martial proceedings were never instituted against him, and therefore, the character of his discharge should have been upgraded. 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 absent without leave (AWOL) from June 9, 1988, to July 20, 1988, a period of 42 days. Pursuant to the Uniform Code of Military Justice (UCMJ) Article 86, AWOL in excess of 30 days is not viewed as a minor offense, but rather as a severe offense which is punishable by confinement of up to one year and the issuance of either a bad conduct or dishonorable discharge. Summary and special courts martial are not empowered under UCMJ to impose 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's Charge Sheet (DD Form 458) reflects that charges for AWOL were preferred on July 26, 1988, and received by the summary court-martial convening authority on that same date. The appellant submitted his request for a discharge for the good of the service on that same date, July 26, 1988. Notably, the charges had not yet been referred. (Preferral occurs when the prosecutor drafts the charges, and the accused's commander signs and read the charges to him/her. Referral occurs when a commander with authority signs the documents directing a particular court-martial to hear the case.) In other words, the appellant's court-martial had not been limited to a summary court martial or a special court martial when he submitted his request for discharge. In July 1988, the appellant accepted a discharge under other than honorable conditions 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 the UCMJ authorizes the imposition of bad conduct or dishonorable discharge for the charge of AWOL. It further reflects that 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 that a discharge under other than honorable conditions would make him ineligible for many or all of VA benefits. The narrative reason for the separation listed on the appellant's DD 214 specifically states, "for the good of the service-in lieu of court-martial." At the time the appellant submitted his request for separation, the appellant was still facing the possibility of a general court-martial. The appellant acknowledged that a general court-martial was available when he signed the Request for Discharge for the Good of the Service in July 1988, which reflects that his punishment, if convicted, could result in a punitive discharge, to include a dishonorable discharge. (See paragraph "1.") As only a general court-martial may impose a dishonorable discharge, the appellant was submitting his request, and accepting a possible undesirable discharge, to escape trial by general court-martial. The appellant argues that he was not trying to "escape" a general court-martial in that an Article 32 hearing had not yet been held. Such a contention is without merit. An Article 32 hearing is an investigation of the matter prior to referral to a general court-martial. In essence, it is one step in a series of steps (i.e. preferral, Article 32 hearing, referral) prior to possible trial. A discharge under Chapter 10, AR 635-200 is beneficial to the command in that it obviates the need for a trial, and is beneficial to the defendant (in this case the appellant) in that he avoids the possibility of a punitive (i.e. bad conduct discharge or dishonorable) discharge. Thus, it is entirely reasonable for the appellant to submit a request for a discharge in lieu of a general court-martial, and for it to be acted upon, after preferral but prior to an Article 32 hearing and prior to referral. The Board also notes that in August 1988, after the appellant submitted his request for discharge, he was still facing the prospect of a general court-martial. The August 5, 1988 memorandum from the Commander, Special Processing Company, USA Personnel Control Facility notes that the appellant's conduct "has rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge." Again, as only a general court-martial may impose a dishonorable discharge, the appellant's request for discharge was an attempt to escape a general court-martial. In sum, when the appellant submitted a request to be discharged to avoid a court martial, the type of court-martial had not been limited to a special court-martial because the charge had not been referred to such. (See DD Form 458.) As it had not been limited and as the offense was punishable by a dishonorable discharge, the appellant was facing a general court-martial at the time he accepted his undesirable discharge. The appellant's 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. In addition, 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. The character of the appellant's discharge from his last period of service has not been upgraded. 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. In addition, the evidence does not support a finding the appellant was insane at the time he was AWOL. As noted above, 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. 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 STRs 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 probative 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. 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) (2014). 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) (2014). The appellant argues that 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 acknowledged that he was aware of the repercussions that discharge entailed. (See Request for Discharge for the Good of the Service memorandum dated July 26, 1988, paragraph "3".) Accordingly, the Board finds that the appellant's argument is inconsistent with the evidence of record and is, therefore, without merit. Finally, the appellant argues that the Board's reading of 38 C.F.R. § 3.12(d)(1) is overly broad. The Board disagrees with the appellant's assertion. 38 C.F.R. § 3.12(d)(1) would not encompass a situation in which a service member accepted an undesirable discharge even if the offense was punishable with a dishonorable discharge if the charge had been referred to a summary court martial or a special court martial. However, such is not the appellant's case. His offense had not been limited to a summary or special court martial when he accepted his undesirable discharge. In sum, the appellant's discharge under other than honorable conditions is 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). 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 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The character of the appellant's discharge from his March 1988 to October 1988 service constitutes a bar to Department of Veterans Affairs (VA ) benefits, exclusive of health care under 38 U.S.C. Chapter 17. HARVEY ROBERTS THOMAS H. O'SHAY Veterans Law Judge Acting Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs