Citation Nr: 1116396 Decision Date: 04/27/11 Archive Date: 05/05/11 DOCKET NO. 09-44 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether the character of the appellant's service constitutes a bar to Department of Veterans Affairs benefits. REPRESENTATION Appellant represented by: African American PTSD Association ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The appellant entered active duty in June 1982 and separated from active duty in March 1987. His time lost includes being in absent without leave (AWOL) status for a period of 18 days from June 1983 to June 1985 and for a period of 246 days from August 1985 to April 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The appellant began to serve a four year enlistment in June 1982; his expiration of term of service was June 1986. The appellant went AWOL for a period of 18 days from June 1983 to June 1985 and a period of 246 days from August 1985 to April 1986. 2. A special court-martial was convened in June 1986. The appellant was convicted for the 246 day period of unauthorized absence and the court sentenced the appellant to forfeiture of pay, confinement at hard labor for 90 days, and a bad conduct discharge. The appellant began appellate leave in June 1986 and remained in that status until the bad conduct discharge was issued in March 1987. 3. In December 2008, the Navy Board of Correction for Military Records denied the appellant's application to change the character of his discharge. CONCLUSION OF LAW The character of the appellant's service, from June 1982 to March 1987, precludes entitlement to VA benefits. 38 U.S.C.A. §§ 101, 5303 (West 2002); 38 C.F.R. §§ 3.12, 3.13, 3.354 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks service connection for several disabilities including limited use of the upper body/shoulder and an acquired psychiatric disorder. He contends that he is eligible for VA benefits. Legal Criteria 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). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). The provisions of 38 C.F.R. § 3.12(b) set out conditions under which discharge or release from service constitutes a bar to the payment of pension or compensation benefits. However, such benefits will not be barred if 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 in law and regulation. 38 U.S.C.A. § 5303(b). With the exception for insanity, benefits are not payable where the former service member was discharged or released by reason of the sentence of a general court-martial. 38 C.F.R. § 3.12(c)(2). Benefits are also not payable where the former service member was discharged under other than honorable conditions as a result of AWOL for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6). An insane person is one 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. See 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. Factual Background The appellant's DD-214 indicates that his date of entry into active service was June 1982, at the age of 19, and his expiration of term of service (ETS) was March 1987. During the period from June 1983 to June 1985 the appellant received nonjudicial punishment on four occasions. His offenses were an AWOL for a period of 18 days and use of marijuana on three occasions. In August 1985 the appellant began a period of AWOL which lasted until he was apprehended in April 1986, a period of about 246 days. The evidence of record does not indicate any evidence of insanity at the time of the Veteran's AWOL status. A special court-martial was convened and the appellant was charged with AWOL under Article 86 of the Uniform Code of Military Justice (UCMJ) in June 1986. The appellant was convicted for the 246 day period of unauthorized absence and the court sentenced the appellant to forfeiture of pay, confinement at hard labor for 90 days, and a bad conduct discharge. The appellant began appellate leave in June 1986 and remained in that status until the bad conduct discharge was issued in March 1987. Service personnel records are negative for indications of psychiatric disease of the appellant at any time during his military service. In August 2008 correspondence, the appellant wrote that he went AWOL because he was young and scared about being court martialed for an offense he did not commit, referring to arson charges stemming from burning down a superior officer's office. The appellant further wrote that he did not go AWOL for 246 days, rather he was only AWOL for two months when he returned to his unit and was thereafter imprisoned for a period of 71 days and subsequently found to be innocent. The appellant further contends that he was discharged earlier than his personnel records show out of malice and racism by his superior officers. The appellant requested to have his discharge reviewed by the Navy Board for Correction of Naval Records. Their December 2008 decision denied the appellant's request to have his records corrected to receive an upgrade to his discharge. This decision considered the appellant's claims that he went into AWOL status because of his youth and the contention that the appellant was actually discharged in 1985 and all entries in the appellant's records after that date were erroneous. The Navy Board for Correction of Naval Records found that these factors and contentions were not sufficient to warrant recharacterization of the appellant's discharge given his disciplinary record and especially his conviction by special court-martial of a lengthy period of unauthorized absence. Further, the Navy Board for Correction of Naval Records found that there were no apparent errors in the computation of the appellant's service since the time he was on unauthorized absence and the time he spent on appellate leave was considered to be lost time. The Navy Board for Correction of Naval Records found that the appellant's discharge was proper as issued and no change was warranted. Analysis 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 other than honorable conditions as a result of special court-martial in June 1986, and upheld that character of discharge by a decision rendered in December 2008. Accordingly, these determinations with respect to the character of the appellant's military service are 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. His 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. Notice and Assistance 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. 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 July 2008 that notified the appellant of information and evidence necessary to substantiate whether the character of his discharge rendered him ineligible for benefits. Service treatment records and service personnel records have been associated with the claims file. The appellant has not identified any additional evidence pertinent to his 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). He is not prejudiced by a decision at this time. 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. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs