Citation Nr: 1007236 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-38 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether the character of the appellant's service constitutes a bar to Department of Veterans Affairs benefits. ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The appellant entered active duty in April 1985 and separated from active duty in July 1990. Her time lost includes being in absent without leave (AWOL) status from November to December 1986 and in deserter status from November 1988 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. FINDINGS OF FACT 1. The appellant began to serve a four-year enlistment in April 1986. 2. In November 1986, the appellant went AWOL and did not return to military control until December 1986. She was found guilty of AWOL by Commanding Officer's non-judicial punishment (NJP) in December 1986. 3. The Appellant was found guilty of two counts of use of cocaine at NJP in September 1988. 4. In November 1988, the appellant went into deserter status and did not return to military control until September 1989; she was in confinement until November 1989. 5. The appellant was given a special court-martial (SCM) in November 1989. She was found guilty and sentenced to a bad conduct discharge. 6. The bad conduct discharge was executed in July 1990. CONCLUSION OF LAW The character of the appellant's service, from April 1985 to July 1990, precludes entitlement to VA benefits. 38 U.S.C.A. §§ 101, 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered whether the notice and development provisions of VA law are applicable to this claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009). Because this case involves the legal question regarding whether the appellant has adequate standing to apply for VA benefits, the notice and duty to assist provisions do not apply. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 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. Notwithstanding the inapplicability of the notice and duty to assist provisions in this case, the RO provided notice to the appellant in correspondence in April 2007 that notified her of information and evidence necessary to substantiate whether the character of her discharge rendered her ineligible for benefits. The appellant has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. Service treatment records and service personnel records have been associated with the claims file. The appellant submitted a private medical record dated July 2008. The appellant has not identified any additional evidence pertinent to her claim, which is not already of record. VA has no obligation to provide any further notice or assistance to this appellant. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). She is not prejudiced by a decision at this time. The appellant seeks service connection for several medical disabilities including the residuals of a low back injury, human immunodeficiency virus (HIV), and posttraumatic stress disorder (PTSD) based upon an alleged personal assault. She contends that she is eligible for VA benefits. A person seeking VA benefits must first establish that they have attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). The term "veteran" means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). 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) (2008). A discharge issued under honorable conditions is binding on VA. 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). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an officer for the good of the service; (4) As a deserter; (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days (the regulation provides certain exceptions to this condition). A person discharged under conditions other than honorable on the basis of an AWOL 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); 38 C.F.R. § 3.12(c)(6). Under 38 C.F.R. § 3.12(c)(6)(i-iii), the following factors will be considered in determining whether there are "compelling circumstances" to warrant the prolonged unauthorized absence: (i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation. (ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. (iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph, the defense must go directly to the substantive issue of absence rather than to procedures, technicalities, or formalities. The Board is not required to simply accept the appellant's statements that she had compelling circumstances for a prolonged period of AWOL. See Lane v. Principi, 339 F.3d 1331, 1340 (Fed. Cir. 2003) (adjudicator permitted to look at totality of evidence rather than merely accepting whatever rationale a claimant might offer for periods of AWOL). As to the regulatory bars, a discharge or release because of one of the offenses specified under 38 C.F.R. § 3.12(d) is considered to have been issued under dishonorable conditions: (1) Acceptance of an undesirable discharge to escape trial by general court-martial; (2) Mutiny or spying; (3) An offense involving moral turpitude (This includes, generally, conviction of a felony); (4) Willful and persistent misconduct (This 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); (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty (examples of homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status.). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). An absence without leave, precluding the performance of military duties, cannot constitute a minor offense for purposes of willful and persistent misconduct. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). A discharge or release from service under one of the above conditions specified in 38 C.F.R. § 3.12(c) and (d) is a statutory or regulatory 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 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b). Insanity is a defense to all statutory and regulatory bars, while compelling circumstances is only a defense to the statutory bar involving an AWOL period of at least 180 days. VA regulations provide that an insane person is one (1) 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 (2) who interferes with the peace of society; or (3) who 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). Consulting various well- accepted legal authority, VA General Counsel has noted that the term insanity was synonymous with psychosis. VAOPGCPREC 20-97. The burden is on the appellant to submit competent medical evidence that she was insane at the time of her offenses. Stringham v. Brown, 8 Vet. App. 445, 449 (1995). The appellant's service personnel records reveal that her date of entry into active service was April 1985 for a period of four years. Her separation papers, DD 214, confirm her entry into active service in April 1985. Service personnel records reveal that in November 1986 the appellant went AWOL and did not return to military control until December 1986. She was found guilty of AWOL by Commanding Officer's NJP in December 1986. She was also was found guilty of two counts of use of cocaine at NJP in September 1988. In November 1988, the appellant went into deserter status and did not return to military control until September 1989; she was in confinement until November 1989. The appellant was given a Special Court Martial in November 1989. She and was found guilty and sentenced to a bad conduct discharge which was executed in July 1990. In a May 2007 statement, the appellant offered an explanation for her offenses and convictions during service. She alleges that she was sexually assaulted during service and infected with the HIV virus. She specifically indicated that the alleged assault took place in September 1989 when she was confined in the Brig upon return from her status as a deserter. The appellant submitted a private psychological assessment dated July 2008. In this report, she reported being diagnosed as HIV positive approximately six months after entry into active service. She reported that her medical confidentiality was violated and that she was "treated like a leper" by the personnel in her unit. She reported feeling humiliated and despondent and that she then went AWOL. She also reported that, when incarcerated after her apprehension from AWOL status, an officer grabbed her, pushed his body up against her, and badgered her. The psychologist's impression was that the appellant had major depression because of her HIV diagnosis. In her December 2008 substantive appeal, VA Form 9, the appellant asserted that she used drugs and went AWOL from "the lack of response and cover up of rape and molestation." A May 1989 entry in the appellant's service personnel records reveals that the appellant had her service treatment records in her possession at the time that she deserted in November 1988. Accordingly, the only service treatment records that are available are those generated later in her service. A September 1988 emergency room treatment record indicates that the appellant was HIV positive since May 1986. In a September 1989 report of medical history she indicated having depression or excessive worry, but this was upon her return to military control upon being apprehended from deserter status. A November 1989 medical examination report indicates a normal psychiatric clinical evaluation. The appellant received a bad conduct discharge as a result of a Special Court Martial for her period of desertion from November 1988 to September 1989, a period of approximately 10 months. This is clearly a discharge under other than honorable conditions issued as a result of AWOL for a continuous period of at least 180 days pursuant to 38 C.F.R. § 3.12(c) (4). Thus, the insanity and compelling circumstances defenses apply to this characterization of the bad conduct discharge Besides the Special Court Martial for desertion, the appellant also had a prior NJP for AWOL and another NJP for drug use which shows a pattern of willful and persistent misconduct pursuant to 38 C.F.R. § 3.12(d)(4). Only the insanity defense is potentially applicable in this circumstance. With respect to insanity, the July 2008 psychologist report indicates that the appellant has depression and indicates that this disorder contributed to her going AWOL that ultimately resulted in a bad conduct discharge. However, the contemporaneous evidence from service shows that, despite the appellant reporting symptoms of depression after being apprehended from desertion, she had normal psychiatric clinical evaluations at the time. The evidence shows that the appellant indicated intent to go AWOL at times and had the foresight to take her service treatment records with her upon desertion. During service there is no evidence of psychosis or insanity within the meaning of 38 C.F.R. § 3.354(a). The appellant has asserted compelling circumstances as a defense for being AWOL. She asserts harassment due to her HIV status and that she alleged that she fled because of being raped during service. However, the Board finds the appellant's assertions of compelling circumstances lack credibility. She has reported conflicting stories with respect to her infection with HIV and her alleged sexual assault. In the May 2007 statement, she claimed she was raped during confinement in September 1989 and that caused her HIV infection. However, the available service treatment records indicate she was diagnosed as HIV positive in 1986, three years prior to the alleged assault in 1989. Moreover, her allegations of sexual assault reported to the private psychologist do not indicate a rape capable of HIV infection, but rather groping and harassment. Her credibility is also harmed by the absence of any service treatment records from early in her period of service as a result of her own doing by taking them with her when she deserted. In determining whether evidence submitted by a veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (2000). In cases for VA benefits where the requisite veteran status is at issue, the relevant question is whether qualifying service is shown under Title 38 of the United States Code and the regulations promulgated pursuant thereto. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Where service department certification is required, the service department's decision on such matters is conclusive and binding on the VA. 38 C.F.R. § 3.203(c); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). In short, the Navy has determined that the appellant's service was under bad conduct conditions as a result of Special Court Martial in 1989. No change in the character of discharge has been made by the service department. Accordingly, this determination with respect to the character of the appellant's military service is binding on VA. The evidence establishes that the appellant received a bad conduct discharge as the result of a sentence from a Special Court Martial and for being in AWOL status. Her character of service is a bar to VA benefits. The preponderance of the evidence is against the claim; there is no doubt to be resolved. The character of the appellant's service is a bar to benefits and the award of benefits is not warranted. ORDER The character of the appellant's discharge from active military service is a bar to the receipt of VA benefits and the appeal is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs