Citation Nr: 1216643 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 09-16 703 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUE Whether the character of the appellant's discharge is a bar to the receipt of VA monetary benefits. ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The appellant served on active duty from November 1973 to November 1974. By way of an October 2008 administrative decision, the Regional Office (RO) concluded that the appellant engaged in willful and persistent misconduct during service and that he requested discharge in lieu of trial by court martial, therefore, his period of service was considered to be under dishonorable conditions. In essence, the RO determined that the character of the appellant's discharge was a bar to his receipt of VA monetary benefits, but also determined that he did not receive a bad conduct discharge and was not barred from health care under Chapter 17 of Title 38 U.S.C. He filed a timely appeal to the Board of Veterans' Appeals (Board). FINDINGS OF FACT 1. The appellant entered active duty in November 1973 and was discharged in November 1974 under conditions other than honorable. 2. The appellant had unauthorized absence on two occasions during his one year of service during which he lost 89 days. 3. The appellant accepted an undesirable discharge in lieu of facing court martial for his offenses. 4. There is no evidence suggesting that the appellant was insane at the time of the acts that resulted in his discharge. CONCLUSION OF LAW The appellant's discharge from service under other than honorable conditions was under dishonorable conditions for VA purposes, thus constituting a bar to the payment of VA monetary benefits. 38 U.S.C.A. §§ 101(2), 5107, 5303 (West 2002); 38 C.F.R. § 3.12 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Where the issue involves the character of a veteran's discharge, VCAA notice must inform the claimant of the evidence needed to establish veteran status. Dennis v. Nicholson, 21 Vet. App. 18 (2007). The RO provided this notice in a letter dated in July 2008. The letter informed him that VA compensation benefits would require resolution of the question of whether his service was honorable and the character of his discharge. The letter enclosed a copy of 38 C.F.R. § 3.12, the controlling regulation, and advised the Veteran to submit any evidence in support of his appeal. The Board finds that this letter was sufficient to notify the appellant of the criteria applicable to his claim. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service medical and personnel records, and post service medical records. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument with regard to his claim. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. Analysis The appellant is seeking to be declared eligible for VA benefits. He filed an original application for nonservice connected pension benefits in June 2008, but also completed the portions of the form pertaining to compensation claims. When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has 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 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). Acceptance of an undesirable discharge to escape trial by general court-martial is considered to have been issued under dishonorable conditions and is a bar to VA compensation benefits (but not to benefits under Chapter 17 of Title 38). 38 U.S.C.A. § 5303; 38 C.F.R. § 3.12. A discharge or release because of willful and persistent misconduct will also be considered to have been issued under dishonorable conditions. Willful and persistent misconduct 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. 38 C.F.R. § 3.12(d)(4). A discharge or release from service under one of the conditions specified in 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). According to 38 C.F.R. § 3.354(a), 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. 38 C.F.R. § 3.354(b) provides when a rating agency is concerned with determining whether an appellant was insane at the time he committed an offense leading to his court-martial, discharge or resignation (38 U.S.C. § 5303(b)), it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section. See also VAOPGCPREC 20-97 (holding that the term "constitutionally psychopathetic" was synonymous with psychopathetic personality (antisocial personality disorder). Consulting various well-accepted legal authority, General Counsel also noted that the term insanity was more or less synonymous with "psychosis." See Zang v. Brown, 8 Vet. App. 246, 254 (1995) (finding that insanity must be due to a "disease" or that that a claimant "did not know or understand the nature or consequences of his act or that what he was doing was wrong"). The record in this case discloses that the appellant, during his one year of service, did, without authority, absent himself from his unit on two occasions: June 3, 1974, to August 8, 1974; and August 26, 1974, to September 18, 1974. The total days lost, according to the appellant's DD Form 214, was 89. Shortly after this second period of unauthorized absence, in October 1974, the appellant submitted a statement requesting discharge from the Army because his mother and children needed his assistance, and because he was not adjusting well to the Army. His service personnel records include the October 1974 Recommendation for Discharge showing that he was recommended for discharge from service shortly thereafter with an Undesirable Discharge Certificate, in lieu of trial by court martial. The Board also reviewed the appellant's service treatment records in an effort to find evidence that he was insane at the time he committed the offenses leading to his undesirable discharge. At the time of his entry into service, the Veteran reported that he had experienced a nervous breakdown in March 1973. The entrance examiner found no mental disorder to be present at the time of entry into service. Throughout the period of service, there was no mention of any symptoms of mental disorder and no showing of characteristics that may deem the appellant to have been insane at the time of either of his periods of unauthorized absence. Thus, the record is devoid of any showing of insanity at any time during the appellant's one year of service. The appellant's abovementioned actions cannot reasonably be described as either isolated or infrequent. The appellant's unauthorized absence covered 89 days over two relatively close periods of time and were almost immediately followed by the appellant's own reasons why he should not remain in the Army. Thus, these actions were willful and persistent. As such, it is found that the appellant does not fall within the exception for a "discharge because of a minor offense" as provided by 38 C.F.R. § 3.12(d)(4). In regard to the minor-offense exception noted above, the Court in Stringham v. Brown, 8 Vet. App. 445, 448 (1995), determined that "offenses that would interfere with [the] appellant's military duties, indeed preclude their performance...could not constitute a minor offense." The Board finds in this case that the appellant's misconduct is the type of offense that was willful and persistent, and that would interfere with his military duties, and indeed preclude his performance. Therefore, his offenses cannot be considered to be minor offenses. Id.; see also Cropper v. Brown, 6 Vet. App. 450, 452-453 (1994). Because of the appellant's willful and persistent misconduct, which is not characterized as a minor offence, because he accepted undesirable discharge in lieu of court martial, and because there is no evidence to suggest that he was insane at the time, his discharge must be considered as having been under dishonorable conditions. For the reasons stated above, the Board finds that the character of the appellant's discharge is a bar to the payment of VA benefits. 38 C.F.R. § 3.12(d)(4). The Board acknowledges the Veteran's argument that he was not AWOL for 180 days and therefore should be entitled to receive benefits. However, the Veteran's claim was not denied under 38 C.F.R. § 3.12(c)(6). Rather, his claim is being denied under 38 C.F.R. § 3.12(d) for the reasons set forth above. The Board also notes the Veteran's contentions that his claim for service connection was not processed even though he may be eligible for healthcare for service connected conditions. However, before any adjudicative action determination is required, the Veteran would need to file a request for treatment with a VA medical facility and a request from the Veterans Hospital Administration to the RO for information and/or an eligibility determination would be initiated. The Veteran does not contend that he has filed a request for treatment at a VA facility, nor does the record indicate such. Indeed, the Veteran is presently incarcerated with a pending release date in 2024. Accordingly, his argument concerning treatment is not relevant to the determination that his character of discharge is a bar to VA compensation benefits. For the foregoing reasons, the preponderance of the evidence is against the appellant's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the appeal must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Since the character of the appellant's discharge constitutes a bar to the receipt of VA monetary benefits, the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs