Citation Nr: 1042991 Decision Date: 11/16/10 Archive Date: 11/24/10 DOCKET NO. 07-02 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether the Appellant's character of discharge from military service is a bar to VA disability compensation. 2. Entitlement to VA disability compensation, that is, service connection for hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Appellant had military service from August 1972 to October 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2005 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2010, the Appellant failed to appear for a hearing before the Board and his request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704. FINDINGS OF FACT 1. The Appellant had other than honorable service from August 31, 1972, to October 10, 1973, due to willful and persistent misconduct, and the Appellant was not insane at the time of his misconduct. 2. VA disability compensation for hepatitis C based on service from August 31, 1972, to October 10, 1973, is barred as a matter of law. CONCLUSIONS OF LAW 1. The Appellant's other than honorable service from August 31, 1972, to October 10, 1973, is a bar to VA disability compensation. 38 U.S.C.A. §§ 101 and 5303 (West 2002); 38 C.F.R. §§ 3.1 and 3.12 (2010). 2. VA disability compensation, that is, service connection for hepatitis C, based on service from August 31, 1972, to October 10, 1973, is denied as a matter of law. 38 U.S.C.A. §§ 101 and 5303 (West 2002); 38 C.F.R. §§ 3.1 and 3.12 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the question of the character of discharge, the RO provided pre-adjudication VCAA notice by letters, dated in May and in August 2005. The Appellant was notified of the evidence needed to demonstrate his status as a Veteran, that is, evidence of discharge from service under conditions other than dishonorable in order to establish entitlement to VA disability compensation, that is, service connection for a claimed disability. The Appellant was provided a copy of 38 C.F.R. § 3.12 (pertaining to character of discharge). The Appellant was asked to provide a statement of the circumstances, leading to his discharge from service and, if the circumstances involved frequent and prolong unauthorized absence, a statement explaining the reasons for the absences. As the facts about the character of the Appellant's discharge are not disputed, the law is dispositive, and the provisions of the VCAA, including the duty to assist, need not be further discussed. As the Appellant has not established his status as a Veteran, the Appellant is not legally entitled to VA disability compensation for hepatitis C and the duty to notify and to assist under the VCAA does not apply to underlying claim of service connection for hepatitis C. Dela Cruz v. Principi, 15 Vet. App. 143 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION Facts The service records show that the Appellant had active military service from August 31, 1972, to October 10, 1973. The Appellant was absent without leave from his unit from: November 14 to 16, 1972; November 20, 1972; December 15 to 16, 1972; March 5 to May 10, 1973; May 28 to September 9, 1979, and he was absent without leave at the time of his discharge on October 10, 1973. The Appellant received nonjudicial punishment for two periods of unauthorized absence (UA) in November and in December 1972. Following the prolonged periods of unauthorized absence, beginning in March 1973 and in May 1973, the Appellant was place in pre-trail confinement in September 1973. On return to military control in September 1973, the Appellant underwent a mental status examination for the pending discharge proceedings. The Appellant's behavior was described as normal. The Appellant was fully oriented, his mood was level, his thinking process was clear, his thought content was normal, and his memory was good. The physician's impression was no significant mental illness and that the Appellant was mentally responsible, able to distinguish right from wrong, able to adhere to right, and had the mental capacity to understand and participate in the proceedings of the discharge authority. The Appellant was advised by legal counsel of the contemplated separation action and its effect and of the rights available to him. Although given the opportunity to make a statement, the Appellant elected not to. Other personal data showed that the Appellant completed 10 years of education and on the Armed Forces Qualifying Test he was classified as a Category III and his aptitude scores indicated below average intelligence. He was married in December 1972 and he had one dependent. His commanding officer stated that the Appellant's first UA was to resolve problems with his future wife and his subsequent UAs were due to conflicts with NCOs in his chain of command. The UA, beginning in late May 1973, was to see his wife in the hospital. The Appellant was subsequently administratively separated from service and he was in unauthorized absence status on the date of his discharge, October 10, 1973. The Appellant's DD-214 shows that the Appellant had 185 days of lost time, not continuous, and the character of his service was under conditions other than honorable. After service, in January 1975, the Appellant applied for state unemployment benefits based on his military service. In an administrative decision in February 1975, VA determined that the Appellant's frequent periods of unauthorized absence in service, recounted above, constituted willful and persistent misconduct and concluded that the Appellant's discharge was under dishonorable conditions and benefits were not payable. VA then notified the state agency where the Appellant had applied of unemployment benefits. In January 2005, the Appellant applied for VA disability compensation by filing a claim of service connection for hepatitis C. In a determination in October 2006, the RO denied the claim of service connection because of the character of the Appellant's service, that is, under conditions other than honorable due to willful and persistent misconduct due to frequent periods of unauthorized absence, from August 31, 1972, to October 10, 1973, which constituted a bar to VA disability compensation. Legal Criteria Compensation is not payable unless the period of service on which the claim was based was terminated by a discharge under conditions other than dishonorable. 38 U.S.C.A. § 101(2). A discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). A discharge from service under 38 C.F.R. § 3.12 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). The definition of insanity for the purpose of VA benefits is a person 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 (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. In determining whether an appellant was insane at the time he committed an offense leading to discharge, the determination is based on all the evidence procurable relating to the period involved. 38 C.F.R. § 3.354. Analysis The threshold question in a claim for VA disability compensation is the claimant's status as a "veteran." A "veteran" means a person who served in the active military, service and who was discharged under conditions other than dishonorable. 38 C.F.R. § 3.1(d). A discharge because of willful and persistent misconduct is considered to have been issued under dishonorable conditions. 38 C.F.R. § 3.12(d)(4). The record shows that the Appellant had six periods of unauthorized absence over a period of 13 months, one period was for a single day and others periods lasted two months or more, totalling 185 days of time lost out of about 406 days of active duty. Unauthorized absence is the type of offense that interferes with the performance of military duties and is not a minor offense. Stringham v. Brown, 8 Vet. App. 445, 448 (1995). As unauthorized absence is not a minor offense and as the Appellant established a pattern of unauthorized absences, six times over a 13 month period, the Board finds that the Appellant's misconduct was willful, that is, he knew that his absence was prohibited as he had received nonjudicial punishment for his unauthorized absences in November and in December 1972, and persistent as he continued his periods of unauthorized absence three times after he had already received nonjudicial punishment. As for the affirmative defense of insanity, there was no record of mental illness during service as on mental status examination after return to military control in September 1973 the physician's impression was no significant mental illness, which is compelling evidence that the Appellant was not suffering for a mental disorder during service. And his periods of unauthorized absence were not a prolonged deviation from his normal behavior as his normal pattern of behavior was to avoid his military duties, which he did for almost half the time he was on active duty [185 days time lost out of 13 months of active duty]. As for the reason for the Appellant's willful and persistent misconduct, the Appellant did not offer any reason, when he was advised by counsel in service and he has not offered any reason now. And while his commanding officer stated that the Appellant's first UA was to resolve problems with his future wife and his subsequent UAs were due to conflicts with NCOs in his chain of command, and the UA, beginning in late May 1973, was to see his wife in the hospital, the Appellant has not argued or offered any evidence in mitigation of his misconduct. In sum, the Board finds that the character of the Appellant's discharge based upon willful and persistent misconduct must be considered as having been under dishonorable conditions and a bar to VA disability compensation. Service Connection for hepatitis C Compensation may be awarded to a Veteran for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. In this case, the Appellant's character of discharge under conditions other than honorable does not establish that the Appellant is legally entitled to status as a Veteran under 38 C.F.R. § 3.1(d) and 38 U.S.C.A. § 1101 and his claim of service connection for hepatitis C must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (Where the law and not evidence is dispositive, a claim should be denied or appeal terminated because of lack of legal merit or lack of entitlement under the law). ORDER The character of the Appellant's discharge from military service is a bar to VA disability compensation. Service connection for hepatitis C is denied ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs