Citation Nr: 0810970	
Decision Date: 04/03/08    Archive Date: 04/14/08

DOCKET NO.  06-11 704	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York



THE ISSUE

Whether entitlement to Department of Veterans' Affairs 
benefits is barred as a result of the character of discharge.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel




INTRODUCTION

The appellant had active service from May 16, 1991, to 
November 24, 1992.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a September 2004 administrative 
decision by the Buffalo, New York, Regional Office (RO) of 
the Department of Veterans Affairs (VA).  The veteran 
indicated he was unable to attend a personal hearing and his 
request for a Board hearing is considered as having been 
withdrawn.  38 C.F.R. § 20.704 (2007).


FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable 
disposition of the issue on appeal was obtained.

2.  The appellant's uncharacterized discharge from active 
service is not demonstrated to have been other than 
dishonorable.


CONCLUSION OF LAW

Entitlement to VA benefits is barred due to dishonorable 
discharge from service.  38 U.S.C.A. § 1110 (West 2002); 
38 C.F.R. § 3.12 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a), and as interpreted by the United States Court of 
Appeals for Veterans Claims (hereinafter "the Court") have 
been fulfilled by information provided to the appellant by 
correspondence dated in September 2003 and June 2004.  Those 
letters notified the appellant of VA's responsibilities in 
obtaining information to assist in completing his claim, 
identified his duties in obtaining information and evidence 
to substantiate his claim, and requested that he send in any 
evidence in his possession that would support his claim.  
(See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), 
Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  See also Mayfield v. 
Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other 
grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson 
(Mayfield II), 20 Vet. App. 537 (2006).

During the pendency of this appeal, the Court in 
Dingess/Hartman found that the VCAA notice requirements 
applied to all elements of a claim.  The notice requirements 
pertinent to the issue addressed in this decision have been 
met and all identified and authorized records relevant to the 
matter have been requested or obtained.  Because of the 
decisions in this case, any deficiency in the initial notice 
of the duty to notify and duty to assist in claims involving 
a disability rating and an effective date for the award of 
benefits is harmless error.  Further attempts to obtain 
additional evidence would be futile.  There has been 
substantial compliance with all pertinent VA law and 
regulations and to move forward with the claim would not 
cause any prejudice to the appellant.

VA law provides that for basic entitlement for disability 
resulting from personal injury suffered or disease contracted 
in line of duty, or for aggravation of a preexisting injury 
suffered or disease contracted in line of duty, in the active 
military, naval, or air service, during a period of war, the 
United States will pay to any veteran thus disabled and who 
was discharged or released under conditions other than 
dishonorable from the period of service in which said injury 
or disease was incurred, or preexisting injury or disease was 
aggravated, compensation as provided in this subchapter, but 
no compensation shall be paid if the disability is a result 
of the veteran's own willful misconduct or abuse of alcohol 
or drugs.  38 U.S.C.A. § 1110 (West 2002).  

A "veteran" is a person who served in the active military, 
naval, or air service and who was discharged or released 
under conditions other than dishonorable.  38 U.S.C.A. 
§ 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2007).  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).  The Court 
has held that VA has broad discretion to define the character 
of service when benefits may be denied.  Camarena v. Brown, 6 
Vet. App. 565 (1994).  

VA regulations provide that 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 is based was terminated by 
discharge or release under conditions other than 
dishonorable.  A discharge under honorable conditions is 
binding on VA as to character of discharge.  38 C.F.R. 
§ 3.12(a) (2007).  A discharge or release from service under 
one of the conditions specified in this section 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 or unless otherwise specifically 
provided.  38 C.F.R. § 3.12(b)  

Regulations provide that for uncharacterized separations 
where enlisted personnel are administratively separated from 
service on the basis of proceedings initiated on or after 
October 1, 1982, the separation may be classified as one of 
the three categories of administrative separation that do not 
require characterization of service by the military 
department concerned.  In such cases conditions of discharge 
will be determined by the VA as follows:  (1) Entry level 
separation. Uncharacterized administrative separations of 
this type shall be considered under conditions other than 
dishonorable.  (2) Void enlistment or induction. 
Uncharacterized administrative separations of this type shall 
be reviewed based on facts and circumstances surrounding 
separation to determine whether separation was under 
conditions other than dishonorable.  (3) Dropped from the 
rolls. Uncharacterized administrative separations of this 
type shall be reviewed based on facts and circumstances 
surrounding separation to determine whether separation was 
under conditions other than dishonorable.  38 C.F.R. 
§ 3.12(k).

The term time lost for a service member is defined as an 
enlisted member of an armed force who (1) deserts; (2) is 
absent from his organization, station, or duty for more than 
one day without proper authority, as determined by competent 
authority; (3) is confined by military or civilian 
authorities for more than one day in connection with a trial, 
whether before, during, or after the trial; or (4) is unable 
for more than one day, as determined by competent authority, 
to perform his duties because of intemperate use of drugs or 
alcoholic liquor, or because of disease or injury resulting 
from his misconduct.  See 10 U.S.C.A. § 972(a) (West 2002).

In this case, on his DD Form 214, Certificate of Release or 
Discharge from Active Duty, the appellant is credited with 
active service from May 16, 1991, to November 24, 1992.  His 
discharge was uncharacterized.  The report also indicates 
time lost under 10 U.S.C. § 972 from May 3, 1992, to June 7, 
1992, and excess leave (creditable for all purposes except 
pay and allowances) for the period from June 24, 1992, to 
November 24, 1992.  Service records show the appellant 
entered active duty on May 16, 1991, as a material control 
and accounting specialist trainee with Company A of the 
Shipping and Transportation Battalion, State of New York Army 
Reserve and National Guard.  Department of Defense 
correspondence dated in May 1991 shows he was ordered to 
report for initial active duty for training at Fort Leonard 
Wood, Missouri, on July 16, 1991, and for advanced individual 
training (AIT) at Fort Lee, Virginia, on September 20, 1991.  
Department of Defense correspondence dated in February 1992 
noted a change in orders with an AIT reporting date of 
April 24, 1992.  

Correspondence from the Department of the Army dated June 2, 
1992, noted the appellant was assigned to Company A, 244th 
Quartermaster Battalion, 23rd Quartermaster Brigade, at Fort 
Lee, Virginia, until he could be relieved from active duty by 
competent authority.  A corrected copy of correspondence from 
the Office of the Adjutant General, State of New York, dated 
June 10, 1992, noted the appellant was discharged from the 
Army National Guard.  A personnel reporting termination code 
of "DE/3" was provided.  VA reports show that the 
termination code DE indicates dropped from the rolls.

Service medical records are negative for complaint, 
treatment, or diagnosis of a psychiatric disorder.  In a 
report of medical history dated June 17, 1992, the appellant 
denied having experienced depression or excessive worry and 
nervous trouble of any sort.  An examination revealed a 
normal clinical psychiatric evaluation.  A mental status 
evaluation report associated with a request for discharge for 
the good of the service noted the appellant's behavior was 
normal and that he was fully alert and oriented.  His mood or 
affect were unremarkable, his thinking process was clear, his 
thought content was normal, and his memory was good.  It was 
the examiner's opinion that the appellant had the mental 
capacity to understand and participate in the proceedings.

In statements in support of his claim the appellant asserted, 
in essence, that he had developed hepatitis C and a 
psychiatric disorder as a result of service.  He reported 
that he had completed basic training and had started AIT 
before he was discharged from service.  He stated he began 
receiving psychiatric treatment after he was released from 
service in 1992, but that he was unable to recall more 
specific information as to his treatment due to problems he 
had experienced since service.  Private hospital records 
dated in September 1998 noted the appellant reported a 
history of approximately six or seven periods of inpatient 
treatment since age 19 after he attempted suicide.  The 
discharge diagnoses included schizo-affective disorder, 
depressed type, and cocaine abuse.  

Based upon the evidence of record, the Board finds the 
appellant's uncharacterized discharge from active service is 
not demonstrated to have been under conditions other than 
dishonorable.  Service medical records show he had the mental 
capacity to understand and participate in the discharge 
proceedings.  The evidence shows he was scheduled to report 
for AIT on April 24, 1992, but that he was charged with time 
lost from May 3, 1992, until June 7, 1992.  He was 
transferred to a temporary assignment on June 2, 1992, until 
he could be relieved from active duty and was apparently 
granted unpaid leave from June 24, 1992, until he was 
discharged.  The appellant has provided no information and 
there is no probative evidence indicating that his absence 
from training was not dishonorable.  Therefore, the Board 
finds entitlement to VA benefits is barred as a result of a 
dishonorable discharge.

When all the evidence is assembled VA is then responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the claimant prevailing in either 
event, or whether a preponderance of the evidence is against 
the claim in which case the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 
F. 3d 1361 (Fed. Cir. 2001).  The preponderance of the 
evidence is against the claim.


ORDER

Entitlement to VA benefits is barred as a result of a 
dishonorable discharge; the appeal is denied.



____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs