Citation Nr: 1132452	
Decision Date: 09/02/11    Archive Date: 09/12/11

DOCKET NO.  10-38 254	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Whether the character of the appellant's service constitutes a bar to Department of Veterans Affairs benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel



INTRODUCTION

The appellant entered active duty in April 1982 and was discharged in May 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.


FINDINGS OF FACT

1.  The appellant was discharged from service under other than honorable conditions as a result of willful and persistent misconduct.  

2.  There is no evidence showing that the appellant was insane at the time of the offenses that resulted in his discharge under conditions other than honorable.


CONCLUSION OF LAW

The character of the appellant's military discharge is a bar to payment of VA compensation benefits.  38 U.S.C.A. §§ 101(2), 5103 (West 2002); 38 C.F.R. §§ 3.1(d), 3.12, 3.354 (2010).


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. 2010).  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 May 2008 that notified the appellant of information and evidence necessary to substantiate whether the character of his discharge rendered him ineligible for benefits.

The appellant was afforded a personal hearing before the undersigned Veterans Law Judge, and he has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices.  Service treatment records and service personnel records have been associated with the claims file.  Neither the appellant nor his representative has identified additional evidence pertinent to the claim that is not already of record.  VA has no obligation to provide any further notice or assistance to this claimant.

The appellant has neither alleged nor demonstrated any prejudice with regard to the issue of notice here.  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, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  He is not prejudiced by a decision at this time.

In March 2008, the appellant filed an informal claim for service connection for posttraumatic stress disorder (PTSD, depression and anxiety, and residuals of a right ankle injury with injury to the right Achilles tendon.  He contends that he is eligible for VA benefits.  

The law provides that service connection may be granted to a veteran for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).

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) (West 2002); 38 C.F.R. § 3.1(d) (2010).  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) (West 2002); 38 C.F.R. § 3.12(a) (2010).  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).

The provisions of 38 C.F.R. § 3.12 set out conditions under which discharge or release from service constitutes a bar to the payment of pension or compensation benefits.  This provision specifically states that a discharge due to willful and persistent misconduct (i.e., more than a minor offense) will be considered a discharge under dishonorable conditions.  See 38 C.F.R. § 3.12(d)(4).  In addition, 38 C.F.R. § 3.360(b) (2010) provides that health-care and related benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12 applies.

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) (West 2002).  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) (2010).  Consulting various well-accepted legal authority, VA General Counsel has noted that the term insanity was synonymous with 'psychosis.'  VAOPGCPREC 20-97.

On the appellant's DD-214 of record, it is indicated that his date of entry into active service was April 1982.  In March 1986, prior to his expiration of service, the appellant was tried before a special court martial for the following offenses; (1) unauthorized absence for almost one month from December 1985 to January 1986, and (2) unauthorized absence for one day in February 1986.  (The record further reflects that the appellant was counseled following the first offense and prior to the second offense concerning a "developing pattern of misconduct as evidenced by two non-judicial proceedings....  Failure to take corrective action will result in administrative separation [sic] of judicial proceedings.")  The appellant was found guilty of each of the offenses in April 1986.  He was sentenced to confinement for a period of four months and forfeiture of $200.00 pay per month for four months.  In May 1986, the appellant underwent an administrative separation with a discharge under other than honorable conditions.

The record indicates, moreover, a pattern of willful and persistent misconduct aside from the offenses for which he was convicted by special court martial in April 1986.  The appellant's service personnel records reflect unauthorized absences in June 1984, for two days in September 1985, and for 12 days in October 1985.  He was also found to have "wrongfully and knowingly used marijuana" in July 1984.  Two days following his return from the September 1985 unauthorized absence, the appellant was found "as a result of wrongful previous overindulgence of intoxicating liquor or drugs, incapacitated for proper performance of his duties."  

In March 2011, the appellant presented testimony at a hearing before the undersigned Veterans Law Judge.  He testified that he was an exemplary Marine until the Iranians bombed the Marine Corps barracks at BLT-18 on October 23, 1983.  The appellant testified that he was part of the main rescue and recovery and that his unauthorized absences and drug and alcohol problems began following this trauma.  The Board has considered the appellant's testimony, and has considered the fact that he was a young man who experienced traumatic events during service.  Nevertheless, no evidence of record indicates that the appellant was insane at the time of his service, or that he experienced psychosis at that time.  And the evidence establishes that the appellant's discharge from service was under dishonorable conditions.  He was ultimately convicted of multiple offenses, for which he spent considerable time in confinement.  His offenses amounted to willful and persistent misconduct.  See 38 C.F.R. § 3.12(d)(4).  Moreover, the determination rendered by the U.S. Marine Corps with respect to the character of the appellant's military service is binding on VA.

As such, the character of the appellant's service is a bar to VA benefits.

The Board has considered the applicability of the benefit of the doubt doctrine in this matter.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

The character of the appellant's discharge from active military service is a bar to the receipt of VA compensation benefits, and the appeal is denied.



____________________________________________
John E. Ormond, Jr. 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs