Citation Nr: 1011663 Decision Date: 03/29/10 Archive Date: 04/07/10 DOCKET NO. 05-19 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether the character of the appellant's service is a bar to VA benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Evan Deichert, Associate Counsel INTRODUCTION The appellant had active service from June 1966 to August 1970. The appellant was discharged from service under other than honorable conditions. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2003 administrative decision by the Department of Veterans Affairs (VA) Nashville, Tennessee Regional Office (RO). A brief review of the history of this claim is instructive. The appellant first filed a claim for service connection for a gunshot wound to his right arm in October 2001; two months later, he added the issue of service connection for post- traumatic stress disorder (PTSD). When, in the course of developing the appellant's claim, the RO learned that he was discharged "under conditions other than honorable," it informed him in a September 2002 of how this characterization could affect his claim. In an August 2003 administrative decision, the RO determined that the appellant's discharge under other than honorable conditions was a bar to his receiving benefits. The appellant filed a timely Notice of Disagreement, and a May 2005 Statement of the Case confirmed and continued the earlier ruling. Following the filing of a substantive appeal, the Board issued a January 2008 decision in which it concluded that the character of the appellant's discharged served as a bar to his receiving benefits. The appellant thereafter appealed to the Court of Appeals for Veterans Claims (Court). In an October 2009 decision, the Court set aside the Board's January 2008 decision and remanded the case for readjudication. In its remand, the Court specifically instructed the Board to provide an adequate statement of reasons and bases as to why the appellant's December 1969 convictions for second degree burglary constituted offenses of moral turpitude. FINDINGS OF FACT 1. The appellant was arrested on June 19, 1969, and charged with two counts of second degree burglary. He pleaded guilty to these charges, and on December 8, 1969, he was sentenced to three years in jail. 2. Second degree burglary - defined at the time as the breaking and entering into a dwelling with the intent to commit a felony - is a crime of moral turpitude. 3. The appellant's military service was dishonorable. CONCLUSION OF LAW The appellant's character of discharge is a bar to VA benefits, including health care and related benefits authorized under Chapter 17, Title 38, United States Code. 38 U.S.C.A. §§ 101, 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.354 (2009) REASONS AND BASES FOR FINDINGS AND CONCLUSION In order to qualify for VA benefits, an appellant must demonstrate that he had the status of a veteran. Struck v. Brown, 9 Vet. App. 145, 152 (1996). 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 person seeking to establish veteran status must do so by a preponderance of the evidence; the benefit-of-the doubt doctrine is not applicable to that determination status. Struck, 9 Vet. App. at 152; see also Laruan v. West, 11 Vet. App. 80 (1998) (overruled on other grounds by D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000)). 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). The statutory bars under 38 U.S.C.A. § 5303(a); 38 C.F.R. § 3.12(c) state that benefits are not payable where the former service member was discharged or released under one of the following conditions: (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; or (6) By reason of a discharge under other than honorable conditions issued as a result of being AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c). The final bar regarding AWOL status does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. In determining whether there are compelling circumstances to warrant the prolonged unauthorized absence, the length and character of service exclusive of the period of prolonged AWOL and the reasons for going AWOL should be considered. 38 C.F.R. § 3.12(c) The regulatory bars under 38 C.F.R. § 3.12(d) state that a discharge is considered to have been issued under dishonorable conditions for any of the following offenses: (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. (5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. A discharge or release from service under either the statutory or regulatory bars 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). As summarized in the previous Board decision, a review of the appellant's service records show that he enlisted in the United States Army on June 1, 1966 for a three-year period of obligated service with a prospective service discharge date of May 31, 1969. He was sent to Vietnam, where he was wounded in combat on May 19, 1968. Service medical records show that he was sent to the US Army Hospital in Camp Zama, Japan; he was subsequently returned to the United States in June 1968. During his recovery period at the US Army Hospital in Fort Jackson, South Carolina, the appellant went AWOL, from September 6 to September 20, 1968. He re-injured his wounded arm on September 17, 1968, and upon his return he remained in the hospital unit for two more months. On November 20, 1968, he was returned to duty, with temporary restrictions. Service personnel records show that the appellant went AWOL a second time from January 7 to 27, 1969. He went AWOL a third time from March 17, 1969 until he was arrested by civilian authorities on June 19, 1969. He remained in civil confinement while awaiting a determination by the court on the charges brought against him. The appellant was charged with two counts of second degree burglary - a felony offense - in his home state of Tennessee. He pleaded guilty to each count, was convicted on December 8, 1969: and was sentenced to 3 years incarceration. On June 19, 1970, the recommendation was made to separate the appellant from the military because of his convictions by a civil court under AR 635-206. He was formally discharged in August 1970, under "conditions other than honorable". Again, pursuant to VA regulation, a discharge is considered to have been issued under dishonorable conditions if a person is discharged for an offense involving moral turpitude, which generally includes felony offenses. 38 C.F.R. § 3.12(d)(3). In this case, the Court remanded the appellant's claim to allow the Board to provide greater detail on why the appellant's December 1969 convictions for second degree burglary constituted a crime of moral turpitude. Moral turpitude is not defined in 38 C.F.R. § 3.12(d), nor has it been defined in the common law applying and interpreting the regulation. Black's Law Dictionary offers two definitions for moral turpitude. The first defines the term as "conduct that is contrary to justice, honesty, or morality." Black's Law Dictionary (8th ed. 2004). The second, which Black's states is applicable to military law, simply defines moral turpitude as "any conduct for which the applicable punishment is a dishonorable discharge or confinement not less than one year." Black's Law Dictionary (8th ed. 2004). Further, the case of Hagarty v. United States, 449 F.2d 352 (Ct. Cl. 1971) citing to an earlier edition of the Army Manual for Courts Martial, noted that "offenses such as larceny, fraudulently making and uttering bad checks, and the like, involve moral turpitude and are not to be treated as minor." Id. at 357. The facts underlying the appellant's conviction are not known. Ultimately, however, the charge of second degree burglary and the appellant's conviction speak for themselves. The appellant was convicted of second degree burglary under Tenn. Code Ann. § 39-3-401 (repealed 1989) which defined burglary as the breaking and entering into a dwelling house or other occupied dwelling place during the day with the intent to commit a felony. It appears from the records surrounding the convictions that the appellant pleaded guilty and was sentenced to three years in prison. Even without knowing the surrounding circumstances, the Board is comfortable labeling any second degree burglary conviction as a crime of moral turpitude. Breaking into a home with the intent to commit a felony therein certainly meets the first Black's definition of conduct that is contrary to justice, honesty, or morality. And, as shown in the Hagarty case, if the military considered larceny and uttering bad checks to be crimes of moral turpitude, than the much more malicious crime of second degree burglary certainly qualifies under these guidelines. Significantly, the Court has consistently stated that it is the appellant's burden of proof to show, by a preponderance of the evidence, that he or she is entitled to Veteran status. Struck, 9 Vet. App. at 152; see also Laruan, 11 Vet. App. 80 (1998), and Aguilar v. Derwinski, 2 Vet. App. 21 (1991). The appellant has not met this burden. The appellant has offered two statements regarding his discharge, and these statements have been associated with his claims folder. While these statements offer a wealth of information regarding the periods of AWOL status that have been noted in this case, he speaks very little of his burglary convictions, his ultimate reason for discharge. The appellant did state that he felt that the Army did not provide enough of a defense for him, and that he thought his status as a Vietnam veteran was used against him. The Board notes, however, that the appellant has twice appealed to the Army's Board for Correction of Military Records in an effort to have his discharge recharacterized. A June 2004 letter shows that the appellant's effort was first denied in the mid-1980s, and was again denied in June 2004. Thus, the basis for the appellant's discharge has not changed since it occurred in 1970. The appellant also reiterated his belief that his being wounded in service while in the Republic of Vietnam should have been considered both in his civil court case and in the claim before the Board now. The two events, however, are separate and distinct. Just as the appellant's later conviction does not void his being awarded the Purple Heart, his status as a wounded soldier does not ameliorate his later criminal actions. While the appellant's statements help explain the circumstances surrounding his discharge, they do not persuade the Board that he is entitled to status as a veteran. If the appellant can show, however, by a preponderance of the evidence, that he was insane at the time, his discharge could be recharacterized. As the Court has stated, an insane person is one who, due to a disease (1) "exhibits ... a more or less prolonged deviation from his normal method of behavior"; (2) "interferes with the peace of society"; or (3) "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. Struck, 9 Vet. App. at 152 (quoting Zang v. Brown, 8 Vet. App. 246, 253 (1995)). Here, the appellant has introduced no evidence beyond his own statements to show that he was insane. Moreover, his statements do not show insanity. In his October 2002 statement, the appellant stated that he was under a lot of stress after being wounded. A lot of stress does not translate into any of the three criteria listed above. In his June 2005 letter, the appellant stated that he was a "sick man," but it appears that he was using this to describe his residual gunshot wound and not his mental state. Again, it is the appellant's burden to establish veteran status by a preponderance of the evidence. Struck, 9 Vet. App. at 152. Under that standard, the appellant has not shown that he was insane, and the Board will not make such a finding. In conclusion, the Board finds that because the appellant's burglary convictions are crimes of moral turpitude, the appellant's discharge is considered dishonorable, and this character of discharge is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5303; 38 C.F.R. §§ 3.12, 3.354. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). An extended discussion of the VCAA is unnecessary. Because this case involves the legal question regarding whether the appellant has legal standing to apply for VA benefits, the VCAA is inapplicable to this appeal. See Wensch v. Principi, 15 Vet. App. 362 (2001); Smith v. Gober, 14 Vet. App. 227, 231-232 (2000) (holding that the VCAA was inapplicable to a matter of pure statutory interpretation). Further, the appellant was informed in a September 2002 of the fact that his character of discharge could serve as a bar to his receiving VA benefits. The appellant has responded to this letter, and has had a full and fair opportunity to present arguments in support of his claim. (CONTINUED ON NEXT PAGE) ORDER The character of the appellant's service is a bar to VA benefits, and the appeal is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs