Citation Nr: 1216751 Decision Date: 05/09/12 Archive Date: 05/16/12 DOCKET NO. 08-39 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the character of the appellant's discharge from service is a bar to entitlement to VA compensation benefits. REPRESENTATION Appellant represented by: Larry D. Schuh, Attorney at Law ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The appellant served on active duty from May 1974 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which determined that the character of the appellant's discharge from service was a bar to VA compensation benefits. In May 2010 and July 2011, the Board remanded the case for further evidentiary development. The case now returns for appellate review. Because the character of the appellant's discharge was the subject of previous and final adjudications of the RO dated in March 1979, January 1996, May 1999, August 1999, and March 2005, the Board had previously identified a threshold issue as to whether new and material evidence was required to reopen this claim. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001) (holding that the Board must determine independently whether new and material evidence has been presented to reopen the claim as a jurisdictional matter, irrespective of the decision of the RO). However, since its May 2010 remand, the appellant's service treatment records have been obtained and associated with the claims file. They had not previously been of record. Under 38 C.F.R. § 3.156(c) (2011), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. An award based all or in part on such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. Id. However, such records do not include records that VA could not have obtained when it previously decided the claim because the records did not exist at the time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the appropriate official source. Id. In this case, because insanity is an exception to the rule that a dishonorable discharge is a bar to VA benefits, as discussed below, and because the appellant's service treatment records reflect treatment for and complaints of mental health issues, the Board finds that the appellant's newly-associated service treatment records are relevant. There is no indication that these records could not have been obtained when this issue was previously adjudicated by the RO. As such, the issue of whether the character of the appellant's discharge is a bar to benefits will be reconsidered on the merits. See id. FINDINGS OF FACT 1. The appellant served on active duty from May 1974 to March 1978, but received an "other than honorable" discharge upon his separation "for the good of the service" in lieu of a court-martial. 2. The appellant's discharge was due to willful and persistent misconduct, including theft of another service member's property worth over $400, the concealment of the property of a Sergeant worth over $400 which the appellant knew to be stolen, several absences without leave one of which lasted over 100 days, and the harboring and aiding of a service member whom the appellant knew was absent without leave. 3. The competent evidence does not demonstrate that the appellant was insane at the time of the offenses giving rise to the "other than honorable" discharge. 4. The appellant's earlier discharge from service in November 1976 was a conditional discharge for the purpose of immediate reenlistment, and his active military service in its entirety from May 1974 to March 1978 is considered to be a single period of service from which he was discharged other dishonorable conditions. CONCLUSION OF LAW The character of the appellant's active service from May 1974 to March 1978 is a bar to VA benefits. 38 U.S.C.A. §§ 101, 5103, 5103A, 5107, 5303 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.12, 3.13, 3.102, 3.159, 3.354 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that notice under the VCAA is required when the issue involves the character of the appellant's discharge. See Dennis v. Nicholson, 21 Vet. App. 18, 20-21 (2007). In order to satisfy its duty to notify the claimant under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). The issue on appeal of whether the character of the appellant's service is a bar to VA benefits arose from the receipt of the appellant's July 2008 service-connection claims for tinnitus, posttraumatic stress disorder (PTSD), and bullous emphysema. Here, pursuant to the Board's May 2010 remand directive, a fully-compliant VCAA notice letter was sent to the appellant in June 2010. The letter provided the contents of the VA regulation applicable to determining character of discharge, as well as VA's and the appellant's respective responsibilities for obtaining evidence on his behalf. Although this letter was not sent prior to initial adjudication of this issue, the letter was followed by subsequent readjudication of the appellant's claim in a September 2011 supplemental statement of the case (SSOC). The appellant had ample time in the interim to submit additional information and evidence in support of his claim and did submit several statements in this regard. As such, the Board finds that the delay in timing was not prejudicial. See Mayfield, 499 F.3d at 1323; Prickett, 20 Vet. App. at 370. Accordingly, the Board finds that the duty to notify has been satisfied. See Quartuccio, 16 Vet. App. at 187. Because the Board finds that the character of the appellant's service is a bar to VA benefits, as will be explained below, no VCAA notice is required with respect to the appellant's service connection claims as they have been rendered moot. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes assisting him in obtaining service treatment records and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board concludes that the duty to assist has been satisfied. The appellant's service treatment records and service personnel records are in the file. Moreover, pursuant to the Board's July 2011 remand directive, a copy of the Department of the Navy, Board for Correction of Naval Record's January 2004 denial of the appellant's application for an upgrade of the character of his 1978 discharge has been obtained. The appellant has also submitted VA treatment records pertaining to his claimed disabilities. The appellant has not identified any outstanding records he wished VA to obtain. There is no indication that further evidence is necessary in order to make a decision on the present appeal. Accordingly, the Board concludes that the duty to assist has been satisfied with respect to obtaining relevant records on the appellant's behalf. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds that a VA examination or opinion is not required as the appellant's current medical state is not at issue. Moreover, for the reasons discussed below, the Board finds that there is no competent evidence indicating that the appellant met the stringent standard for insanity as defined by VA law at the time he committed the offenses which caused his dishonorable discharge. Accordingly, a VA examination is not required in order to decide this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). For the reasons discussed above, the Board finds that there has been substantial compliance with its May 2010 and July 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). II. Analysis The appellant contends that the character of his discharge should not be a bar to VA benefits. Specifically, he argues that he suffered from posttraumatic stress disorder (PTSD) and other mental health issues at the time he committed the offenses leading to his "other than honorable" discharge, and thus that the character of his discharge should not be a bar to VA benefits. He further argues that he had a discrete period of active service from May 1974 to November 1976 which was characterized as honorable. Unfortunately, for the reasons that follow, the Board finds that the appellant's entire period of active service from May 1974 to March 1978 must be characterized as dishonorable and thus constitutes a bar to VA benefits. In order to qualify for VA benefits, a claimant must first establish "veteran" status, as defined under VA law. See Frasure v. Principi, 18 Vet. App. 379, 385 (2004); see also Cropper v. Brown, 6 Vet. App. 450, 452 (1994); Aguilar v. Derwinski, 2 Vet. App. 21, 23 (1991). In this regard, a "veteran" is defined as a service member who was discharged or released from active military service under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1. Where VA determines that a person's discharge from service was under dishonorable conditions, the payment of pension, compensation or dependency and indemnity compensation, based on that period of service, is barred. See Cropper, 6 Vet. App. at 452-53; 38 C.F.R. § 3.12. The designation of the discharge as honorable by the service department is binding on VA as to character of discharge. 38 C.F.R. § 3.12(a). An "other than honorable" discharge is not necessarily tantamount to a "dishonorable" discharge and, thereby, a bar to VA benefits. However, a person receiving a discharge under other than honorable conditions may be considered to have been discharged under dishonorable conditions under certain circumstances. 38 U.S.C.A. § 5303 (West 2002); 38 C.F.R. § 3.12; Camarena v. Brown, 6 Vet. App. 565, 567-68 (1994) (finding that 38 C.F.R. § 3.12 does not limit "dishonorable conditions" to only those cases where dishonorable discharge was adjudged). Specifically, a discharge or release from service for one of the following reasons is considered to have been issued under dishonorable conditions: (1) acceptance of undesirable discharge in lieu of trial by general court-martial; (2) mutiny or spying; (3) offense involving moral turpitude, including conviction of a felony; (4) willful and persistent misconduct; and, (5) homosexual acts involving aggravating circumstances and other factors affecting the performance of duty. 38 C.F.R. § 3.12(d). Here, for the reasons that follow, the Board finds that the appellant was discharged due to willful and persistent misconduct. In this regard, willful misconduct, as contemplated by this section, is defined as an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n) (2011). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Id. Willful and persistent misconduct includes a discharge under other than honorable conditions determined to be issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d). However, willful and persistent misconduct excludes a discharge because of a minor offense if service was otherwise honest, faithful, and meritorious. Id. Turning to the evidence of record, the appellant's service personnel records reflect that he was charged with several violations of the Uniform Code of Military Justice (UCMJ) as well as offenses which were committed on a U.S. military installation. In this regard, the appellant was charged with stealing the property of another service member (a stereo) which was valued at $467.00. According to the January 2004 denial of the appellants' application for an upgrade in the character of his discharge by the Department of the Navy, Board for Correction of Naval Records (Navy Board), the appellant had been convicted by civil authorities of larceny for this theft and sentenced to imprisonment at forced labor for 10 months, which was suspended for three years. The appellant was further charged with unlawfully concealing $413.00 worth of property which belonged to a Sergeant of the Marine Corps and which he knew had been stolen. He was also charged for allowing another service member who he knew was absent without leave (AWOL) in violation of the UCMJ to reside in the appellant's off-base residence and obtained money on his behalf. Finally, he was charged with several AWOL's in May 1977 and September 1977, including one AWOL from September 27, 1977 to January 19, 1978, a period of well over 100 days. The appellant signed a written statement dated in February 1978 requesting that he be discharged for the good of the service based on his commission of the offenses discussed in the preceding paragraph and which rendered him triable by court-martial. The appellant acknowledged that he had a full understanding of his rights and that he had been afforded the opportunity to consult counsel and was satisfied with the counsel's advice. The appellant also acknowledged that he understood that his discharge resulting from his request would be under other than honorable conditions. In January 2004, the appellant applied to the Navy Board for an upgrade in the character of his discharge. This application was denied by a three-member panel of the Navy Board, which noted that the appellant was discharged under other than honorable conditions on March 14, 1978 pursuant to his request for discharge in lieu of trial by court-martial for multiple offenses. The Navy Board "rejected [the appellant's] unsubstantiated contentions" that he was suffering from PTSD at the time of his discharge and that the misconduct which resulted in his discharge under other than honorable conditions was related to the effects of an undiagnosed mental disorder. Accordingly, the Navy Board concluded that the appellant's service was properly characterized and that he submitted nothing that would warrant upgrading his discharge. Preliminarily, the Board finds that the evidence does not establish that the appellant accepted an undesirable discharge in lieu of trial by general court-martial. See 38 C.F.R. § 3.12(d). In this regard, the UCMJ provides for trial by summary court-martial, special court-martial, and general court-martial. See UCMJ, Subchapter IV, Court-Martial Jurisdiction, Articles 816-821. The appellant's service personnel records only reflect that his offenses were triable by court-martial and that the maximum permissible punishment for such offenses included a punitive discharge. They do not indicate whether the appellant would have been tried by general court-martial. While general courts-martial only have authority to make dishonorable discharge a punishment, a "punitive discharge" can include either a dishonorable discharge or a bad-conduct discharge. A special court-martial has jurisdiction to issue a bad conduct discharge as punishment. See UCMJ, Article 19. Thus, the fact that the maximum permissible punishment for the appellant's offenses included a punitive discharge does not necessarily indicate that his undesirable discharge was in order to escape trial by general court-martial. Thus, the Board does not find the appellant's service to be dishonorable under 38 C.F.R. § 3.12(d)(1). However, the Board finds that the appellant's theft of property worth over $400.00, his four AWOL violations, including one of over 100 days from September 1977 to late January 1978, his harboring of a service member whom he knew was AWOL in violation of the UCMJ, and his unlawful concealment of the property of a Sergeant worth over $400 which he knew to be stolen, constitutes willful and persistent misconduct. See 38 C.F.R. § 3.12(d)(4). In this regard, pursuant to the UCMJ, Article 86, the Department of Defense does not view AWOL in excess of 30 days as a minor offense, but rather as a severe offence punishable by confinement of up to one year and the issuance of either a bad conduct or dishonorable discharge. See also Struck v. Brown, 9 Vet. App. 145 (1996) (affirming the Board's finding that two and a half months of AWOL out of nine months of service was willful and persistent misconduct); Stringham v. Brown, 8 Vet. App. 445 (1995) (upholding the Board's finding that four AWOL violations and a failure to obey a lawful order was willful and persistent misconduct); Winter v. Principi, 4 Vet. App. 29 (1993) (affirming the Board's finding that 32 days of unauthorized absence out of 176 days of service was severe misconduct, and, by analogy, persistent misconduct). In this case, not only was the appellant AWOL on several occasions, including for a period of over 100 days, but his offenses also include the stealing of property from another service member worth over $400 at the time, for which he was convicted by civilian authorities and given a delayed sentence of ten months hard labor, the concealment of a Sergeant's property worth over $400 which he knew was stolen, and the harboring and aiding of another service member whom he knew was AWOL. Taken together, the Board finds that the appellant's repeated offenses, some of which were severe, constituted willful and persistent misconduct leading to his discharge under other than honorable conditions. Accordingly, the appellant's discharge must be considered to have been issued under dishonorable conditions. See 38 C.F.R. § 3.12(d). The Board acknowledges the appellant's argument that he suffered from PTSD and other mental health issues at the time he committed the offenses. The service treatment records do reflect that the appellant experienced symptoms of anxiety in June and July 1975, including lower abdominal cramps, profuse sweating, and hyperventilation. A June 1975 notation reflects that the appellant had "multiple personal problems." A July 1975 service treatment record reflects that the appellant had been "having trouble coping with everyday [sic] life" in the Marine Corps ever since he first received a letter from his wife asking for a divorce. On mental status examination, there was no evidence of psychosis, neurosis, or neurologic disease. His mood was normal and affect appropriate. His train of thought was likewise normal. The appellant was diagnosed with situational anxiety reaction. The appellant's March 1978 separation examination reflects that on clinical evaluation he was found to be psychiatrically normal. Unfortunately, the Board cannot find that the appellant's problems in his personal life or his psychiatric condition at the time he committed the offenses leading to his discharge alter the conclusion that the character of his service was dishonorable for VA benefits purposes. In this regard, when a claimant's discharge is found to be issued under dishonorable conditions under 38 C.F.R. § 3.12(d), such a characterization is a bar to the payment of VA benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release. 38 U.S.C.A. § 5303(b); 38 C.F.R. § 3.12(b); see also Zang v. Brown, 8 Vet. App. 24 (1995). Establishing a causal connection between the insanity and the act(s) is not required; however, the burden is on the appellant to submit sufficient evidence of his insanity. Struck, 9 Vet. App. at 145; Helige v. Principi, 4 Vet. App. 32 (1993); Stringham, 8 Vet. App. at 445; VAOPGCPREC 20-97 (May 22, 1997). Mental illness is not identical to insanity. Beck v. West, 13 Vet. App. 53, 539 (2000). Rather, insane behavior is defined for VA purposes as a persistent morbid condition of the mind characterized by a derangement of one or more of the mental faculties to the extent that the person is unable to understand the nature, full import, and consequences of his acts such that he is a danger to himself or others. VAOPGCPREC 20-97. In effect, he is rendered incapable of managing himself or his affairs, which is a concept akin to the level of incompetency generally supporting appointment of a guardian. Id. For the purposes of determining whether a service member was insane at the time he committed an offense leading to his court-martial, discharge or resignation, as set forth in 38 U.S.C.A. § 5303(b), an insane person is defined as 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 (2011). The determination of insanity must be based on all the evidence procurable relating to the period involved. Id. In this case, the Board finds that the appellant has not met his burden of showing that he was insane at the time he committed the offenses in question. In the first place, the service treatment records reflect that the appellant's mental health problems were treated in 1975, well before the offenses committed in 1977. Moreover, the appellant was found to be psychiatrically normal at separation in March 1978. There is no competent evidence suggesting that the appellant, due to disease, exhibited a prolonged deviation from his normal behavior, interfered with the peace of society, or so departed from accepted standards of his community as to lack the ability to adapt to such standards. Rather, in a July 2010 statement, the appellant asserted that he was experiencing "stress-related problems" and started using drugs and alcohol. He stated that he stole the stereo from another marine because he needed money. This statement further supports a finding that the appellant's offenses were not a result of insanity. Instead, at least with regard to the theft of the stereo, the offense was committed out of a calculated need for money. Thus, his offenses were the result of intentional wrongdoing for which he knew the consequences. See 38 C.F.R. § 3.1(n). The appellant has not claimed to be insane at the time he committed the offenses in question, although he maintains that he was of an "unsound mind." However, as discussed above, the fact that the appellant may have been suffering personal stress or psychiatric issues at the time is not enough to lead to a finding of insanity. See Beck, 13 Vet. App. at 539. Accordingly, in light of the foregoing, the Board concludes that the appellant has not met his burden of establishing insanity, and that the preponderance of the evidence weighs against such a finding. See id. Struck, 9 Vet. App. at 145; VAOPGCPREC 20-97. Apart from the grant of an upgrade in the character of a person's discharge by the relevant service department, insanity is the only exception to the rule that a discharge under dishonorable conditions due to willful and persistent misconduct is a bar to the payment of VA benefits. See 38 C.F.R. § 3.12. As neither of these exceptions apply, for the reasons discussed above, the Board finds that the appellant's discharge under dishonorable conditions is a bar to the payment of VA benefits. See 38 C.F.R. § 3.12. The Board notes that in the July 2010 statement, the appellant further argued that his enlistment was not "valid" because, at the advice of his recruiter (according to the appellant), he misrepresented his education level in order to qualify for enlistment, stating that he had completed high school when in fact he stopped attending school at the eleventh grade. The appellant contends that because he did not complete high school at the time, he should not be responsible for other than honorable behavior. With regard to the validity of the appellant's service, the Board finds that the determinative question here is not its validity but rather its character. Indeed, VA considers service to be valid unless the enlistment is voided by the service department. 38 C.F.R. § 3.14 (2011). Lack of validity of service would be a bar to VA benefits. See id. The appellant's service has not been so voided. More pertinently, lack of completion of high school is not an exception to the rule that a discharge under dishonorable conditions is a bar to VA benefits. Under 38 C.F.R. § 3.14(c), active service which was terminated because of concealment of minority or misrepresentation of age is honorable if the veteran was discharged from service under conditions other than dishonorable. The Board finds that if the service of a minor who misrepresents his or her age can be valid unless the discharge was under dishonorable conditions, then the service of a person whose schooling did not go past the eleventh grade must similarly be valid. In this regard, the Board notes that most minors have not completed high school. By the same token, just as a minor's service can be characterized as dishonorable, as shown by section 3.14(c), so can the service of a person who did not complete high school. Accordingly, the fact that the appellant had not completed high school when he enlisted has no bearing on whether the character of his discharge is a bar to VA benefits. The Board acknowledges the appellant's September 2011 statement asserting that his attorney had promised him that his discharge would automatically be upgraded to honorable after six months, and that he would not have accepted the undesirable discharge in lieu of court-martial had he known that it would not in fact be upgraded. However, the Board is bound by the evidence before it, which shows that the appellant signed a written statement in February 1978 acknowledging that the discharge resulting from his request would be under other than honorable conditions and that this would deprive him of "virtually all rights as a veteran under both Federal and State legislation." As discussed above, the appellant's January 2004 application for an upgrade in the character of his discharge was denied by the Navy Board. While the Board empathizes with the appellant's frustration, the Board's decision must be based on the law and the evidence of record. Finally, the Board has considered the appellant's contention that he served an initial, discrete period of active service from May 1974 to November 1976 which was characterized as honorable by the Department of Defense. The appellant's DD 214 for this period of service does reflect an honorable discharge. Unfortunately, the ultimate characterization of the appellant's service at separation in March 1978 as "under conditions other than honorable," and which is considered to be dishonorable under VA law for the reasons discussed above, applies to this period as well. In this regard, the National Personnel Records Center (NPRC) stated in an October 1978 VA Request for Information form (VA Form 07-3101) that the appellant had enlisted in the United States Marine Corps in May 1974 for a period of 4 years, which terminated on May 6, 1978. The NPRC further stated that the appellant's separation on November 15, 1976 was for the sole purpose of immediate reenlistment. Under 38 C.F.R. § 3.13(a), a discharge in order to reenlist during peacetime service is considered a conditional discharge if it was prior to the date the person was eligible for an unconditional discharge. In these circumstances, the entire period of service typically constitutes one period of service and entitlement will be determined by the character of the final termination of such period of service. 38 C.F.R. § 3.313(b). A service member may, however, be considered to have been unconditionally discharged or released from active military, naval, or air service if the following conditions are met: (1) the person served in the active military, naval, or air service for the period of time the person was obligated to serve at the time of entry into service, (2) the person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment, and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. 38 C.F.R. § 3.313(c). If all three requirements are met, the entire period of service does not constitute one period of service and, instead, the initial obligated period of service and the reenlistment period beyond the initial obligated period may be considered distinct periods of service when the last period of service is terminated under dishonorable conditions. 38 C.F.R. § 3.13(b); VAOGCPREC 8-2000 (July 25, 2000). In this case, as discussed above, the appellant's discharge in November 1976 was for the sole purpose of immediate reenlistment and occurred prior to the expiration of his four-year obligation of service, which was to end on May 6, 1978. As such, the honorable character assigned to this period of service was conditional. See 38 C.F.R. § 3.13(a). In this regard, the Board notes that the service personnel records reflect that the appellant's term of service beginning on November 16, 1976 was for four years, thus indicating that the purpose of the reenlistment was to extend the appellant's initial four-year service obligation by another two years for a total of six years. The Board concludes that two of the three elements that must be established in order to find the appellant's discharge in November 1976 to be unconditional, as set forth in section 3.13(c), have not been satisfied. Specifically, the appellant did not serve for the entire four-year period he was initially obligated to serve at the time of his entry in May 1974. Rather, his separation occurred in March 1978, and the initial period of service for which he was obligated was to end in May 1978, about two months later. Of course, by March 1978, the appellant's discharge was under dishonorable conditions. Thus, the first element is not met. See 38 C.F.R. § 3.13(c). Moreover, the November 1976 discharge, which occurred well before the appellant's obligated four-year period of service ended, was due to an intervening reenlistment for the purpose of extending his obligated period of service for another two years. Thus, the second element is not met. See id. Accordingly, the appellant's entire period of active duty service from May 1974 to March 1978 constitutes one period of service and the discharge under other than honorable conditions in March 1978 applies to his entire period of service. See 38 C.F.R. § 3.13(b). Because the Board finds that the appellant was discharged under dishonorable conditions, VA benefits are barred for his entire period of service. In sum, the appellant was discharged from active military service under other than honorable conditions by reason of willful and persistent misconduct he committed when he was sane. The character of his discharge therefore is considered dishonorable. It has not been upgraded and indeed a recent January 2004 application for an upgrade was denied by the Navy Board. Consequently, the appellant has no legal entitlement to VA benefits based on any disease or injury incurred during his service, and his claim must be denied. 38 C.F.R. § 3.12(d). In reaching the above conclusion, the benefit-of-the doubt doctrine was considered. However, as a preponderance of the evidence is against this claim, this doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The character of the appellant's discharge for the period of active service from May 1974 to March 1978 remains a bar to payment of VA benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs