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indicated he was unable to attend a personal hearing and his request for a Board hearing is considered as having been withdrawn. 38 C.F.R. § 20.704 (2007).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